Jacob Kunjukunju (Jacob Arackal) vs State Of Kerala
2021 Latest Caselaw 3615 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

             THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

                                   &

              THE HONOURABLE MR. JUSTICE GOPINATH P.

     MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942

                           WA.No.1336 OF 2020

 AGAINST THE JUDGMENT DATED 21.06.2018 IN WP(C) 11755/2011(T) OF
                      HIGH COURT OF KERALA


APPELLANTS/PETITIONERS:

      1      JACOB KUNJUKUNJU (JACOB ARACKAL)
             AGED 50 YEARS
             S/O. LATE KUNJU KUNJU, H S A MALAYALAM, AMMHS,
             KARAVALOOR, PUNALOOR (WHEN WRIT PETITION FILED) NOW
             WORKING AT AMMHS , OTHARA WEST, THIRUVALLA,
             PATHANAMTHITTA DISTRICT, (RESIDING AT ELLUVILAYIL,
             ARACKAL , EDAYAM P.O, VALAKAM, KOLLAM DISTRICT)

      2      T. SAJEEV,
             AGED 51 YEARS
             S/O. THOMSON, WORKING AS P.D TEACHER, GOVERNMENT
             L.P.G SCHOOL, VALIYATHURA, THIRUVANANTHAPURAM (WNEN
             WRIT PETITION FILED)
             NOW WORKING AT HSST (JUNIOR) RUSSIAN, GOVERNMENT
             VHSS, VELLANAD, THIRUVANANTHAPURAM ( (RESIDING AT
             SAJINI, LOURDEPURAM, KANJIRAMKULAM P.O,
             THIRUVANANTHAPURAM

             BY ADV. SRI.V.PHILIP MATHEW

RESPONDENTS/RESPONDENTS:

      1      STATE OF KERALA
             REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION
             DEPARTMENT, KERALA GOVERNMENT SECRETARIAT,
             THIRUVANANTHPURAM 695 001

      2      THE DEPUTY DIRECTOR OF EDUCATION,
             THIRUVANANTHAPURAM 695 001

      3      THE DISTRICT EDUCATIONAL OFFICER,
             KOTTARAKKARA, KOLLAM DISTRICT 691 506
 W.A.No.1336/2020                 2

       4       THE ASSISTANT EDUCATIONAL OFFICER,
               THIRUVANANTHAPURAM (SOUTH) 695 001

       5       THE HEADMASTEER,
               MAR THOMAS HIGH SCHOOL, VALAKOM, KOLLAM DISTRICT
               691 532

       6       THE HEADMASTER,
               GOVERNMENT L.P.G SCHOOL, VALIYATHURA,
               THIRUVANANTHAPURAM 695 001

       7       THE DIRECTOR OF PUBLIC INSTRUCTIONS,
               JAGATHY, THIRUVANANTHAPURAM 695 001

               R5 BY ADV. SRI.V.A.MUHAMMED
               R5 BY ADV. SRI.V.RAJASEKHARAN NAIR

OTHER PRESENT:

               SRI. A.J. VARGHESE-SR. G.P.

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.02.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.1336/2020                       3




                                JUDGMENT

Dated this the 1st day of February 2021

This appeal has been filed challenging judgment dated

21.6.2018 in W.P.(C)No.11755/2011. The appellants/petitioners

were granted Leave Without Allowance under Rule 88 of Part I

KSR for undertaking M.Ed course. However, after completion

of the course, they submitted applications for leave either under

Rule 91 or 91A of Part I KSR. The learned single Judge

dismissed the writ petition stating that since the petitioners

specifically applied for leave under Rule 88, and Rule 88(i)(b)

clearly indicates that an officer who is entitled for other leave

can apply in writing for grant of Leave Without Allowance and

since the petitioners had already availed of the said provision,

the petitioner cannot seek for leave under Rule 91 or 91A Part I

KSR. The learned single Judge had also taken note of the fact

that the petitioners did not disclose before Court that they had

filed an application under Rule 88.

2. The learned counsel for the appellants would

submit that even though they had applied for leave under Rule

88, when there is a statutory provision which enables them to

seek leave for study purposes as provided under Rule 91 and

91A of Part I KSR, there is nothing wrong in the appellants

seeking the said leave. The learned counsel submits that the

appellants may be granted permission to approach the

Government with proper representation.

3. We heard the learned Government Pleader as well

as the learned counsel appearing for the 5th respondent.

4. Rule 88(i) (b) reads as under:-

"88. Leave without allowances.- (i) Leave without allowances may be granted to any officer in regular employment in special circumstances- Provided that the leave of person appointed under rule 9(a)(i) of the Kerala State and Subordinate Service Rules, 1958 shall be regulated by rules under Appendix VII of these rules, unless he is already an officer on regular employment.

                           (a)    xx     xx     xx
                           (b)    When other leave is admissible, but the

officer concerned applies in writing for the grant of leave without allowances."

5. The only question is whether after having availed

leave under Rule 88 of Part I KSR, is it possible for the

appellants to seek for regularisation of leave under Rule 91 or

91A. Rules 91 and 91A are available for teachers who had either

completed two years' service or five years service for enhancing

their academic record either for benefit of the Government or

for the institution. Of course, the teachers who had completed

five years' service are granted leave under Rule 91A for

enhancing their qualification which will be useful to the public

service. But in this case, when leave was sought for under Rule

88 and Rule 88(i)(b) clearly indicates that the leave without

allowance can be granted based on the claim, the learned single

Judge was justified in rejecting the plea sought for by the

petitioners. That apart, we find that there is concealment of

material particulars in this case. The appellants did not inform

this Court that they had applied for leave under Rule 88. This

fact came to be noticed only when the learned Government

Pleader placed on record their applications under Rule 88.

When there is concealment of material particulars, there is no

reason for this Court to exercise jurisdiction under Article 226

of the Constitution of India in favour of the petitioners. For

that reason also, the writ petition is dismissed. However, we do

not find any ground to interfere with the judgment of the

learned single Judge.

The writ appeal is dismissed.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

GOPINATH P.

JUDGE

acd