V.R. Gopinathan Nair v. The Secretary to Government General Education (T) Department, Secretariat, Thiruvananthapuram; Director of Higher Secondary Education Housing Board Building, Thiruvananthapuram; Regional Deputy Director Higher Secondary Education, Ernakulam; The Manager SMV Higher Secondary School, Poonjar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 25TH DAY OF SEPTEMBER 2020 / 3RD ASWINA, 1942** ## **WP(C).No.5619 OF 2014(B)** ## **PETITIONER:** ## **V.R.GOPINATHAN NAIR** **H.S.S.TEACHER, S.M.V.HIGHER SECONDARY SCHOOL, POONJAR.** **BY ADVS. SRI.SHAJI THOMAS SRI.BINU PAUL SRI.T.V.VINU** ## **RESPONDENTS:** **1 THE SECRETARY TO GOVERNMENT GENERAL EDUCATION (T) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 DIRECTOR OF HIGHER SECONDARY EDUCATION HOUSING BOARD BUILDING, THIRUVANANTHAPURAM-695001. 3 REGIONAL DEPUTY DIRECTOR HIGHER SECONDARY EDUCATION, ERNAKULAM-682030. 4 THE MANAGER SMV HIGHER SECONDARY SCHOOL, POONJAR-686581. R1 BY GOVERNMENT PLEADER** ## **SR GP P.M. MANOJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.5619 OF 2014(B)** **2** ## **JUDGMENT** **Dated this the 25th day of September 2020** ## This writ petition is filed seeking the following prayers: _“i) a writ of certiorari or any other writ, order or direction quashing Ext.P9 decisions as the same is illegal._ _ii) a writ of mandamus or any other writ, order or direction commanding the 1[st] respondent to reckon the leave without allowance period from 10.12.2003 to 30.10.2004 availed by the petitioner for undergoing B.Ed. Degree course for all service benefits, by giving the benefit of 3[rd] proviso to Rule 33 (b)(2) of Part I, KSR as was done in the case of teachers covered by Ext.P4 order and Ext.P5 judgment and connected cases._ _iii) a declaration to the effect that the petitioner is legally entitled to get the leave without allowance for study purpose (for undergoing B.Ed degree course) under Rule 91 of Part I, KSR._ _iv) a writ of mandamus or any other writ, order or direction commanding the 1[st] respondent to treat the leave without allowance period (10.12.2003 to 30.10.2004) availed by the petitioner for undergoing B.Ed degree course as the leave sanctioned under Rule 91 Part I, KSR.”_ ## 2. Heard the learned counsel for the petitioner and the learned Government Pleader. **WP(C).No.5619 OF 2014(B)** **3** 3. The petitioner was appointed as Higher Secondary School Teacher in Commerce in the 4[th] respondent-School on 16.07.2001. His appointment was initially approved with effect from 15.07.2002. Since the petitioner did not have B.Ed degree at the time of his appointment, he availed of leave without allowance from 10.12.2003 to 30.10.2004 for undergoing B.Ed course. The leave was duly sanctioned. Thereafter by order dated 17.11.2007, the petitioner's appointment was approved with effect from 16.07.2001. The learned counsel for the petitioner submits that the petitioner is entitled to count the period from 10.12.2003 to 30.10.2004 as duty for all purposes including increment and pension. However, this benefit was not granted to the petitioner. 4. The learned counsel for the petitioner relies on Ext.P2 Government Order, Ext.P3 Circular as well as Exts.P5 judgment, Ext.P6 order and Ext.P7 Government Order to contend that the entire periods spend by him on leave without allowance for acquiring his B.Ed degree was liable to be counted as service for all benefits on the basis of the proviso to Rule 33 (b) (2) of Part I KSR. It is submitted by the learned counsel for the petitioner that **WP(C).No.5619 OF 2014(B)** **4** judgments of this Court including Ext.P5 had specifically pointed out that the 2[nd] proviso to Rule 33 (b) (2) of Part I KSR was deleted only prospectively by notification dated 24.05.2005 and that leave availed before the said date was liable to be counted for all benefits. It is submitted by the learned counsel for the petitioner that the petitioner's appointment having been approved retrospectively from 16.07.2001, the petitioner was eligible for leave in terms of Rule 91 of Part I KSR and that the petitioner's request for conversion of the leave to leave under Rule 91 had been rejected by Ext.P9 proceedings of the Director of Higher Secondary Education. It is submitted by the learned counsel for the petitioner that whatever be the nomenclature of the leave granted to the petitioner, since it is not in dispute that the petitioner had availed the leave for completing the B.Ed course and since the leave was availed before 24.05.2005, when the 2[nd] proviso to Rule 33 (b) (2) of Part I KSR stood deleted, the petitioner would be entitled to count the period for service benefits. 5. A counter affidavit has been placed on record by the 2[nd] respondent. It is contended that the judgments as well as the **WP(C).No.5619 OF 2014(B)** consequent Government Orders had referred to leave granted for undergoing B.Ed course under Rule 88 and Rule 91 and that since the petitioner had availed leave under Appendix XII B, the judgment and the Government Orders are not applicable to the petitioner. It is further stated that the petitioner had availed the leave before 24.05.2005 and the period of the course was also before that date, it is stated that if the period of leave availed is before 24.05.2005 but extended beyond 24.05.2005 alone, the benefit would be available to the petitioner as provided in the Government Order as well. Ext.R2(a) Government Order dated 08.01.2014 is also relied on to contend that if the Rule is availed under Appendix XII B, the benefit would not be available. 6. I have considered the contentions advanced. The 2[nd] proviso to Rule 33 (b) (2) of Part I KSR read as follows: “Provided also that leave without allowances taken by teachers for completion of training courses such as B.Ed., Hindi Teachers' Training, Language Teachers' Training and Teachers' Training Certificate Course shall count for increment.” This is the provision which stood deleted by SRO 526 of 2005 dated 11.05.2005 which was notified on 24.05.2005. This Court, in a judgment reported in _**Deepika v. State of Kerala 2007(1) KLT 71,**_ **WP(C).No.5619 OF 2014(B)** **6** held that when the 2[nd] proviso to Rule 33 (b) (2) of Part I KSR specifically refers to B.Ed course and the leave availed for completing the said course. It was held that the said provision has been understood as an independent provision and will entitle the person to claim the benefit of the said proviso provided the leave is sanctioned for completing the B.Ed course. It was held that the Government cannot take away the benefit by virtue of any circular or executive order. The Division Bench of this Court in WA No.1935 of 2008 also considered the contention that the deletion of the proviso would have retrospective effect as well. It was held by the Division Bench as follows: “ _Thus it is unambiguously clear that in terms of the proviso the teachers who avail leave for acquisition of the qualifications referred to above were entitled to count the period for increment and necessarily for pension in view of Rule 26 Part III KSR. The 3[rd] proviso was deleted as per the amendment introduced as per SRO No.526 of 2005 dated 11.05.2005 published in the Kerala Gazette dated 24.05.2005. It is stated in the SRO that the amendment would come into force at once. The amendment is to the effect that the 3[rd] proviso referred to above shall be omitted. It was further stated that the amendment would only be prospective in effect and that the persons who availed the leave before the deletion of the 2[nd] proviso would be entitled to all benefits which were available under the said proviso.”_ **WP(C).No.5619 OF 2014(B)** **7** 7. The Division Bench also referred to the contention raised by the Government Pleader that the orders granting leave were subject to the specific condition that the leave would not count for any benefits. This contention was negated and it was held that even if the leave was granted with such condition, since it was an admitted fact that leave was availed for undergoing the B.Ed course before the deletion of the proviso, the benefits would be available to the petitioners in spite of the conditional grant of leave. Ext.P5 judgment relied on by the petitioner would also show that it was a case where leave was granted under Rule 91, Part I KSR but with specific condition that it would not count for any service benefits. However, this Court held that the said condition in the order granting leave could not be relied upon to deny the benefits to the eligible persons in view of the 2[nd] proviso to Rule 33 (b) (2) which was available in the Rule book at the relevant time. 8. The further contention urged by the learned Government Pleader is that the benefit would be available only if the period of leave availed is before 24.05.2005 but extended beyond 24.05.2005. Ext.R2(a) Government Order is relied on in support of this **WP(C).No.5619 OF 2014(B)** **8** contention. 9. In view of the unambiguous findings of this Court in the judgments referred to above, I am of the opinion that the said contention could be accepted since the 2[nd] proviso to Rule 33 (b) (2) Part I KSR was available in the Rule book as on the date when the petitioner availed of the leave and since the said proviso specifically referred to leave availed for acquiring the qualification of B.Ed, I am of the opinion that the leave had to extend beyond 24.05.2005 is completely unsustainable. Since the leave was availed by the petitioner at the time when the proviso was available, the petitioner would be entitled to the benefit of the proviso. Further contention that Ext.R2(a) order specifies that the Rule is not applicable in the case of leave without allowance sanctioned under Appendix XII B, Part I, KSR is also not sustainable. In the above view of the matter, I am of the opinion that the prayers sought for are liable to be granted. The writ petition is allowed. There will be a direction to the respondents to treat the period of leave availed by the petitioner for acquiring B.Ed qualification as service for all purposes including grant of **WP(C).No.5619 OF 2014(B)** **9** increments. Consequential benefits shall be calculated and disbursed to the petitioner, within a period of three months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. **Sd/-** **ANU SIVARAMAN** **JUDGE** **SVP** **WP(C).No.5619 OF 2014(B)** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 EXHIBIT-P1: TRUE PHOTOCOPY OF THE ORDER DATED 17.11.2007 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P2 EXHIBIT-P2: TRUE PHOTOCOPY OF THE GOVT. ORDER NO.885/2004/G.EDN DATED 28.02.2004.** - **EXHIBIT P3 EXHIBIT-P3: TRUE PHOTOCOPY OF THE CIRCULAR NO.38/2002/FIN DATED 08.06.2002** - **EXHIBIT P4 EXHIBIT-P4: TRUE PHOTOCOPY OF THE GOVT.ORDER GO (RT).NO.3729/07/G.EDN DATED 10.08.2007.** - **EXHIBIT P5 EXHIBIT-P5: TRUE PHOTOCOPY OF THE JUDGMENT DATED 25.06.2008 IN W.P.(C) NO.21992/2006.** - **EXHIBIT P6 EXHIBIT-P6: TRUE PHOTOCOPY OF THE ORDER DATED 08.07.2013 IN SLP (C) NO.31012/2009 AND CONNECTED CASES.** - **EXHIBIT P7 EXHIBIT-P7: TRUE PHOTOCOPY OF THE ORDER G.O.[MS] NO.69/10 PED DATED 28.04.2010.** - **EXHIBIT P8 EXHIBIT-P8: TRUE PHOTOCOPY OF THE REPRESENTATION DATED 20.10.2011 SUBMITTED TO THE 1ST RESPONDENT.** - **EXHIBIT P9 EXHIBIT-P9: TRUE PHOTOCOPY OF THE ORDER DATED 06.09.2013 ISSUED BY THE 2ND RESPONDENT.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R2(A) TRUE COPY OF G.O(MS) NO.9/2014/G.EDN DATED 08.01.2014**