Geetha K.K vs State Of Kerala
2021 Latest Caselaw 2738 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                 THE HONOURABLE MR. JUSTICE AMIT RAWAL

      MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942

                        WP(C).No.2408 OF 2011(A)


PETITIONER/S:

                GEETHA K.K.
                49 YEARS, W/O SREENIVASAN
                R/AT NOTTIYIL, KILUR VILLAGE, KILUR POST, MELADI,
                KOZHIKKODE DISTRICT, (ASSISTANT PROFESSOR, NEHRU ARTS
                & SCIENCE COLLEGE, KANHANGAD, PADANNAKKAD
                POST,KASARAGOD DIST.)

                BY ADV. SRI.KODOTH SREEDHARAN

RESPONDENT/S:

      1         STATE OF KERALA
                SECRETARY TO GOVERNMENT, GENERAL EDUCATION
                DEPARTMENT, GOVT SECRETARIAT, THIRUVANANTHAPURAM 695
                001

      2         THE DIRECTOR OF COLLEGIATE EDUCATION
                VIKAS BHAVAN, THIRUVANANTHAPURAM 695 001

      3         THE MANAGER
                NEHRU ARTS & SCIENCE COLLEGE, KANHANGAD,, PADANNAKKAD
                POST, KASARAGOD DIST 671 328.

                R1-2 BY GOVERNMENT PLEADER SRI. HAREESH KUMAR

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD          ON
25.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.2408 OF 2011(A)

                                            2




                                   JUDGMENT

Dated this the 25th day of January 2021

Petitioner in the present writ petition has approached

this Court by laying challenge to the order Ext.P8 dated

17.5.2010 whereby the benefit of counting leave without

allowance for the educational purposes has been rejected.

2. Petitioner, with effect from 24.10.1985,

commenced service as Junior Lecturer under the

respondents. She was sanctioned leave without allowance

from 12.12.1995 to 11.12.1998 for study purpose under

Rule 88 Part I of Kerala Service Rules, Ext.P1.

Government circulated Circular No.72/2005/Fin. dated

30.12.2005 that leave without allowance for study purpose

availed under Rule 88 of Part I KSR will not be counted for

the purpose of increment, higher grade, pension or

accumulation of earned leave. In fact, that circular would

have a prospective effect and not retrospective. The

aforementioned circular has been considered by this Court

in the judgments Exts.P3 and P4 as well as the judgment of WP(C).No.2408 OF 2011(A)

this Court in 2012 (3) KLT 675 titled as Krishnan K.K

v. State of Kerala and others and urged this Court for

allowing the writ petition.

3. The contention of the 2nd respondent in the

affidavit is that the petitioner would not be entitled to any

benefit as per circular dated 30.12.2005.

4. I have heard the learned counsel for the parties

and appraised the paper book. In order to understand the

controversy, it would be expedient to extract Rule 88 Part I

of Kerala Service Rules.

"88. Leave without allowances.- (i) Leave without allowances may be granted to any officer in regular employment in special circumstances-

[a] when no other leave is by rule admissible, or [b] when other leave is admissible, but the officer concerned

applies in writing for the grant of leave without allowances.

Provided that the leave of person appointed under rule 9(a)(i) of the Kerala State and Subordinate Services Rules, 1958 shall be regulated by rules under Appendix VII of these rules, unless he is already an officer on regular employment.

[ii] Except in the case of an officer in permanent employ, the duration of leave without allowances shall not exceed 3 months on any one occasion.

[iii] When the period of absence of any officer is without proper application for leave, Government may retrospectively convert the period of absence into leave without allowance even when any other kind of leave was admissible at the time of absence.

WP(C).No.2408 OF 2011(A)

Exception 1.- When a period of suspension is retrospectively treated as leave without allowances by the revising or appellate authority the limitation of admissible leave without allowances to three months to officers not in permanent employ will not apply.

Exception 2.- The limitation in sub-rule (ii) shall not apply to the grant of leave without allowances regulated by the rules in Appendices XIIA, XIIB and XIIC."

On plain and simple language of the aforementioned

Rule, it is deciphered that the Government employee can

be granted leave without allowance and that would not

entail into any benefits and the aforementioned Rules have

to be read, in conjunction with clause 17 of Appendix vi of

the K.S.R which reads as follows:

"During study leave, a Government servant shall draw leave salary equal of the amount admissible during half pay leave under Rule 93 Part I. K.S.R"

5. The aforementioned clause leaves no manner of

doubt that during study leave, a Government servant will

draw leave salary equal to the amount admissible during

half-pay leave under Rule 93 Part I of K.S.R. Similar

questions came to be pondered by this Court in the

judgments Exts.P3 and P4 and by noticing the provisions,

the relief as sought for by the petitioners therein have

been allowed.

6. The stand of the 2nd respondent as per the WP(C).No.2408 OF 2011(A)

paragraph 4 is as follows:

"This respondent submit that as per circular No.72/2005/Fin. Dated 30.12.2005 Government have issued an annexure which gives a clear idea of the service benefits for which the period of leave without allowances does not count. The contention of the petitioner is that the circular has only prospective effect, is baseless, since the above circular which clarifies Rule 88, 91 and 91A of Part I. K.S.R. In the above letter for more clarification Government have instructed that while sanctioning leave under Rule 88 and 91 the leave sanctioning authority shall clearly mention in the order of sanctioning leave without allowances, that the period will not count for purposes of pension. This is necessary to prevent any claim under Rule 26 of Part II Kerala Service Rules at a later stage.

7. The aforementioned circular was also discussed

in the judgment referred to above and has been held to

have a prospective effect. For the sake of brevity, the

operative part of the judgments, is extracted herein below:

Ext.P3:

Evidently, audit objection, Ext.P3, shows that it has been issued as per the circular dated 30.12.2005 referred to above. The circular cannot have any retrospective effect and the parties are governed by the conditions imposed in Ext.P1.

In the absence of the conditions in the circular having retrospective effect and it being only prospective, the audit objection raised in Ext.P3 is unsustainable. Therefore Exts.P2 and P3 in so far as the petitioners concerned deserve to be quashed and I do so. It is directed that the period covered by Ext.P1 will be counted for service benefits.

Ext.P4:

I do not think that I can agree with the contentions raised by the Government. Once the Government has decided to grant study leave then it is subject to all WP(C).No.2408 OF 2011(A)

the conditions in Appendix VI. Clause 17 of * Appendix VI of the K.S.R. reads as follows

"During study leave, a Government servant shall draw leave salary equal to the amount admissible during half-pay leave under Rule 93 Part I, K.S.R."

In the above view of the matter the Government cannot deny salary to the petitioner. Bxt.P4 order shows that the petitioner is entitled to study leave under Rule 99 Part I of K.S.R. Hence I quash the condition in Bxt.P4 that no salary will be paid to the petitioner during the one year period from 3.3.1992 to 2.3.1993 when he was granted leave under tale 99 of the K.S.R. It is further declared that the petitioner is entitled to salary during the above period as per clause 17 of the Appendix VI of the K.S.R. The Original Petition is allowed.

For the reason aforementioned, impugned order

Ext.P8 is not sustainable and the same is accordingly set

aside. Writ petition is allowed. Respondents are directed

to consider the case of the petitioner for grant of

permissible service benefits, as expeditiously as possible

preferably within one month from the receipt of certified

copy of the order.

Sd/-

   sab                                       AMIT RAWAL

                                                 JUDGE
 WP(C).No.2408 OF 2011(A)




                           APPENDIX
   PETITIONER'S/S EXHIBITS:

   EXHIBIT P1          TRUE COPY OF THE LETTER NO. D2-

18900/96/COLL. EDN. DATED 23/04/1996 TO THE PETITIONER.

EXHIBIT P2 TRUE COPY OF THE CIRCULAR NO.72/2005/FIN. DATED 30/12/05 ISSUED BY THE GOVERNMENT.

EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN WPC NO.34070/08 AND WPC NO.34083/08 DATED 19/11/2008.

EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN OP 5146/93 DATED 18/12/1997.

EXHIBIT P5 TRUE COPY OF THE REPRESENTATION OF THE PETITIONER DATED 19/02/2008 BEFORE THE RESPONDENTS.

EXHIBIT P5(A) TRUE COPY OF THE REPRESENTATION OF THE PETITIONER DATED 26/06/2009 BEFORE THE RESPONDENTS.

EXHIBIT P5(B) TRUE COPY OF THE REPRESENTATION OF THE PETITIONER DATED 07/07/2010 BEFORE THE RESPONDENTS.

EXHIBIT P6 TRUE COPY OF THE REPRESENTATION OF THE PETITIONER DATED 09/08/2005 BEFORE THE RESPONDENTS.

EXHIBIT P7 TRUE COPY OF THE LETTER DATED 16/10/1990 BY THE GOVERNMENT.

EXHIBIT P7(A) TRUE COPY OF THE LETTER DATED 13/08/1990 BY THE 3RD RESPONDENT.

EXHIBIT P7(B) TRUE COPY OF THE LETTER DATED 18/03/1994 BY THE GOVERNMENT.

EXHIBIT P8 TRUE COPY OF THE REJECTION ISSUED BY THE HIGHER EDUCATIONAL DEPARTMENT THEREAFTER ON 17/05/2010.