Kerala High Court

Bindu V vs State Of Kerala on 5 February, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942

                      WP(C).No.27472 OF 2012(H)


PETITIONER:

               BINDU V
               AGED 44 YEARS
               HIGHER SECONDARY SCHOOL TEACHER
               (SOCIOLOGY),D.B.H.S.S., KAVUMBHAGAM, THIRUVALLA.

               BY ADVS.
               SHRI.M.V.S.NAMPOOTHIRY
               SRI.POOVAMULLE PARAMBIL ABDULKAREEM

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY THE SECRETARY TO GOVERNMENT,
               GENERAL EDUCATION DEPARTMENT,
               SECRETARIAT,THIRUVANANTHAPURAM - 695 001.

      2        THE DIRECTOR OF HIGHER SECONDARY EDUCATION,
               OFFICE OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION,
               HOUSING BOARD BUILDINGS, THIRUVANANTHAPURAM 695 001.

      3        THE REGIONAL DEPUTY DIRECTOR OF EDUCATION
               OFFICE OF THE REGIONAL DEPUTY DIRECTOR, CORPORATION
               BUILDING (4TH FLOOR), PALAYAM,
               THIRUVANANTHAPURAM 695 003.

      4        THE MANAGER, D.B.H.S.S., DEVASWOM BOARD OFFICE
               NANDANCODE, THIRUVANANTHAPURAM - 695 005

      5        THE PRINCIPAL, D.B.H.S.S.,
               KAVUMBHAGAM, THIRUVALLA 689 102.


               R1 BY GOVERNMENT PLEADER



               SRI P M MANOJ SR GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD            ON
05.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.27472 OF 2012                2

                               JUDGMENT

The petitioner, who is stated to have

been working as a Higher Secondary School

Teacher in Sociology in 'D.B. Higher

Secondary School', Thiruvalla, impugns

Ext.P5, as per which, she was granted

Leave Without Allowances for pursuing

education, leading to the Degree of B.Ed.,

under Rule 91 Part I of the Kerala Service

Rules (KSR for short), but clarifying that

this period will not be counted for any

service benefits, including pension.

2. The petitioner says that the

condition imposed in Ext.P5, that the

period of her leave will not be counted

for any service benefit is egregiously

improper, since, going by Rule 91 Part I

of the KSR, read with the third proviso to

Rule 33(b)(ii) Part I thereof, Leave

Without Allowances taken by teachers for

completion of training process shall count

for increment and other benefit.

3. The petitioner alleges that in

spite of the afore statutory provisions,

Ext.P5 denies her service benefits during

the period of leave; and she, therefore,

prays that the respondents be directed to

pay her the increments that fell due on

01/07/2002 and 01/07/2003 and to reckon

the period of Leave Without Allowances for

further service benefits.

              4.     In       response             to      the         afore

       submissions            made            on   behalf         of     the

       petitioner            by           her      learned         counsel

Shri.M.V.S.Nampoothiry, the learned Senior

Government Pleader, Shri.P.M.Manoj,

submitted that a counter affidavit has

been filed on record, wherein the

following have been stated:

"4.The petitioner availed leave without allowance for study purpose under Rule 91 Part I KSR vide Exhibit P5. Exhibit P5 order specifically mentions that the leave without allowance period will not be counted for any service benefits including pension. Thus it can be seen that the grant of leave without allowance is subject to the specific condition that the petitioner will not be

granted any service benefits including pension during the period she avails leave without allowance. Vide Exhibit P5 order, the petitioner was granted leave without allowance for the period from 01.04.2004 to 31.03.2005. As order sanctioning leave without allowance specifically bars the petitioner from getting any service benefits including pension during such period, the petitioner ought not have filed the above writ petition or getting increment and time bound higher grade reckoning the leave without allowance period.

5. It is submitted that acquiring B.Ed is an essential basic qualification for getting appointment as HSST. Appointment of the petitioner as HSST without acquisition of B.Ed qualification is itself a relaxation. In the above circumstances, there is no ground fr the petitioner to seek increments and other service benefits by treating leave without allowance period availed for acquiring basic qualification of B.Ed. for appointment as HSST."

             5.     When       I     go      through        the       afore

        extracted         averments            in        the        counter

affidavit, it is indubitable that what the

respondents mean is that the petitioner

was appointed as a Higher Secondary School

Teacher without acquisition of B.Ed.

qualification and that, therefore, she

cannot be granted service benefits for the

period when she took leave to obtain the

said qualification.

6. I am afraid that I cannot find

favour with this because, Ext.P5 shows

that the petitioner had been granted Leave

Without Allowances under the mandate of

Rule 91 Part I KSR, but it does not, in

any manner, say that the petitioner ought

not to have been appointed as a Higher

Secondary School Teacher, without having

acquired the qualification of B.Ed.

7. Therefore, when the petitioner

sought permission to acquire B.Ed. at a

time when she was already working as a

Higher Secondary School Teacher, I fail to

understand how the respondents can now

maintain that since she was working

without the said qualification, she was

not entitled to have the period of leave -

granted to her under Rule 91 Part I KSR -

reckoned for the purpose of service

benefits.

8. This stand taken by the official

respondents is clearly contradictory to

each other and cannot, therefore, appeal

to me in law.

In the afore circumstances, I order

this writ petition and direct the

respondents to issue appropriate

proceedings granting all benefits to the

petitioner, including increments,

reckoning the period spent by her on Leave

Without Allowances, as approved through

Ext.P5.

The afore exercise shall be completed

by the respondents as expeditiously as is

possible, but not later than three months

from the date of receipt of a copy of the

judgment; and it is made clear that the

resultant benefits shall also be disbursed

to her within this time.

Sd/-

DEVAN RAMACHANDRAN JUDGE MC/9.1.2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE BSC,DEGREE CERTIFICATE OF THE PETITIONER.

EXHIBIT P2 TRUE COPY OF THE MA,DEGREE CERTIFICATE OF THE PETITIONER.

EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 20.11.2005.

EXHIBIT P4 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 20.10.2000.

EXHIBIT P5 TRUE COPY OF GO(RT) NO. 3826/2005/GEN.EDN DATED 1/8/20O5.

EXHIBIT P6 TRUE COPY OF THE B.ED, DEGREE CERTIFICATE OF THE PETITIONER.

EXHIBIT P7 TRUE COPY OF THE STATE ELIGIBILITY CERTIFICATE OF THE PETITIONER.

EXHIBIT P8 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 22.11.2005.

EXHIBIT P9 TRUE COPY OF THE OPTION SUBMITTED BY THE PETITIONER ALONG WITH STATEMENT OF FIXATION.

EXHIBIT P10 TRUE COPY OF THE OPTION AND STATEMENT OF FIXATION OF PAY SUBMITTED BY THE PETITIONER WHICH WAS RETURNED TO THE PETITIONER WITH ENDORSEMENT.

EXHIBIT P11 TRUE COPY OF THE JUDGMENT IN WA NO.

1935/2008 OF THIS HON'BLE COURT.

EXHIBIT P12 TRUE COPY OF THE ORDER DATED 20.07.2006 ISSUED BY THE GOVERNMENT.

EXHIBIT P13 TRUE COPY OF THE JUDGMENT IN WPC NO.

4086/2010 OF THIS HON'BLE COURT.

EXHIBIT P14 TRUE COPY OF THE STATEMENT OF FIXATION DATED 19/09/06 SUBMITTED BY THE PETITIONER.

EXHIBIT P15 TRUE COPY OF THE STATEMENT FIXATION DATED 29/9/2011 SUBMITTED BY THE PETITIONER.