T.Manjula vs State Of Kerala
2023 Latest Caselaw 2424 Ker

WP(C) NO. 17415 OF 2021             1



                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
             THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
   FRIDAY, THE 24TH DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944
                          WP(C) NO. 17415 OF 2021
PETITIONER/S:

               T.MANJULA,
               AGED 53 YEARS
               W/O. BHARATHAN P., UPPER PRIMARY SCHOOL ASSISTANT
               (U.P.S.A.), S.N.U.P. SCHOOL, NALLAMADANCHALLA,
               VILAYODI P.O. , CHITTUR 678 103, RESIDING AT 10/21,
               THUSHARAM NEAR DURGE TEMPLE, CHITTUR PALAKKAD 678
               101.

               BY ADV MATHEW KURIAKOSE



RESPONDENT/S:

      1       STATE OF KERALA,
              REPRESENTED BY THE SECRETARY, GENERAL EDUCATION
              DEPARTMENT, GOVERNMENT SECRETARIAT, (ANNEX),
              THIRUVANANTHAPURAM 695 001.

      2       THE DIRECTOR OF GENERAL EDUCATION,
              JAGATHY, THIRUVANANTHAPURAM 695 001.

      3       THE DEPUTY DIRECTOR OF EDUCATION,
              (D.D.E), CIVIL STATION, PALAKKAD 678 001.

      4       THE ASSISTANT EDUCATIONAL OFFICER,
              (A.E.O.), CHITTUR, PALAKKAD 6781O1.

      5       THE MANAGER,
              SNUP SCHOOL, NALLAMADANCHALLA, VILAYODI P.O.
              CHITTUR 678 103.

      6       THE HEADMISTRESS,
 WP(C) NO. 17415 OF 2021                 2


              SNUP SCHOOL, NALLAMADANCHALLA, VILAYODI P.O.
              CHITTUR 678 103.

      7       SHRI. P.C. RAMAKRISHNAN,
              FORMER (RETD), HEADMASTER, SNUP SCHOOL,
              NALLAMADANCHALLA, RESIDING AT KALATHIL PURA,
              NALLAMADANCHALLA, VILAYODI P.O. PALAKKAD 678 101.

               BY ADV GOVERNMENT PLEADER



OTHER PRESENT:

              SRI.K.M.FAISAL, GP




       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   24.02.2023,          THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 17415 OF 2021                      3




                      P.V.KUNHIKRISHNAN, J
                  ---------------------------------------
                    W.P.(C) No. 17415 of 2021
                   --------------------------------------
            Dated this the 24th day of February, 2023


                                     JUDGMENT

The above writ petition is filed with following prayers :

"1. Call for the records leading to Ext P17 and set aside the same as legally and factually unsustainable by issuing writ in the nature of certiorari;

2. Writ in the nature of mandamus commanding the 1 st respondent to grant Leave Without Allowances on medical grounds to the petitioner from 1.6.2018 to 5.6.2019, accepting Ext P1(a), Ext P6 to Ext P9 Medical Certificate.

3. Writ in the nature of mandamus commanding the 1 st respondent to permit the petitioner to draw increment, time bound higher grade etc. reckoning the period of leave from 1.6.2018 to 5.6.2019 as leave on medical grounds and treat the said period of service for all service benefits treating the same as qualifying service for pension;

4. Writ in the nature of mandamus commanding the 1 st respondent to initiate appropriate proceedings under KSR Part III against 7th respondent then HM Shri P.C.Ramakrishnan for having illegally detained leave applications of the petitioner

leading to the dispute.

5. Declare that the period of leave from 1.6.2018 to 5.6.2019 is liable to be sanctioned as leave without allowances on medical grounds reckoning the same for all service benefits viz. increment, time bound higher grade, qualifying service for pension etc.

6. Such other reliefs that the Hon'ble Court deem fit and proper in the facts and circumstances of the case".[SIC]

2. The petitioner is an Upper Primary School Assistant

(UPSA) is suffering from Fibromyalgia with Dysclipidemia,

Hypothyroidism, Neuropathy, Spasticity, Multiple tender

points etc. She is aggrieved for not granting medical leave

due to the culpable lapse on the part of the 7 th respondent in

not forwarding the application from time to time. It is the case

of the petitioner that by virtue of denial of medical leave, the

entire period of leave (12 months) is not reckoned for annual

increments, higher grade, qualifying service for pension etc.

resulting in serious recurring loss during the service and

thereafter. The petitioner is going to retire on 31.05.2023.

The petitioner commenced her service on 01.07.1991 as UPSA

in the 5th respondent-school.

3. The petitioner actually proceeded on leave without

allowance from 01.06.2018 to 28.06.2018 on the advice of her

Doctor. The petitioner submitted application for leave for the

period from 01.06.2018 to 28.06.2018 (28 days) in the

prescribed form enclosing therewith a Medical Certificate as

evident by Exts.P1 and P1(a). This was submitted to the 7 th

respondent, who was the then Headmaster of the school. It

appears from the endorsement itself that the Headmaster

received and sanctioned the leave on 30.06.2018. The

treatment continued thereafter as the condition of the

petitioner was getting bad to worse day by day. Therefore, the

petitioner requested for extension of leave by submitting

application with duly authenticated Medical Certificate from

the consulting Doctor is the submission. The period of leave,

date of application and date of Medical Certificate are given

in the following table for connivance.

S.No. Period of leave No.of Date of application days & MC

1 01.06.2018 to 28.06.2018 28 01.06.18

2 29.06.2018 to 17.08.2018 50 29.06.18

3 18.08.2018 to 28.09.2018 42 18.08.18

4 29.09.2018 to 31.12.2018 94 29.09.18

5 01.01.2019 to 29.03.2019 88 01.01.19

4. Exts.P2, P3, P4 and P5 are the leave applications,

Exts.P6, P7, P8 and P9 are the Medical Certificates. It is the

case of the petitioner that she was on a bonafide belief that

the application for leave with Medical Certificate were being

forwarded by the then Headmaster, the 7th respondent in time

without any delay and she was under the impression that the

same was being sanctioned by the authorities. The petitioner

rejoined duty on 06.06.2019 after the period of annual

vacation.

5. It is the case of the petitioner that she was under

the bonafide belief that the leave applications were being

forwarded by the then Headmaster from time to time to the

Assistant Education Officer because the Headmaster has no

authority to sanction leave beyond 120 days. But, the same

was not forwarded by the Headmaster in time. Ultimately, the

Headmaster forwarded the leave application only in March,

2019 as evident by Ext.P12. The seal of the Assistant

Education Officer in Ext.P12 will show that it was received by

the Assistant Education Officer only on 30.03.2019, even

though the letter is dated 29.09.2018. Thereafter, the

Assistant Education Officer after getting certain clarifications,

forwarded the leave application of the petitioner forwarded by

the 7th respondent to the Government for further action as

evident by Ext.P13. Thereafter, the Government considered

the matter and rejected the leave application as per Ext.P17.

The main reason for rejecting the leave application is that the

application is not forwarded in time. The Government also

observed that if it was forwarded in time, the authorities will

be able to get a second opinion as per Rule 118 of Part I KSR.

Aggrieved by the same, this writ petition is filed.

6. Heard the learned counsel for the petitioner and the

learned Government Pleader.

7. The reason for rejecting the leave application is

narrated in Ext.P17. It will be better to extract the relevant

portion of Ext.P17.

"സര ര ഈ വഷയ വശദമ യ പര ശശ ധച. രണ വവദ പര ശശ ധനയള അവസര നഷപ ടന സ ഹചര തല പമഡ ല സര% ഫ റ പ( ആനകല അനവദകവ ന ക ല എന1 14/06/1994-പല 36/34/ധന നമര സരകലറ ല നഷ1കരഷ ച ടളത ന ല പ ല ട1, നലമ ടന ചള എസ1 എന യ പ സ1കളപല അ ര വ;മറ സ1കള ട=ചറ യ ശ=മത . മഞള ട 1 മദ ശവനലവധ ല മന ശചരത1 01.06.2018 മതല 05.06.2019 വപര ട ക ലയളവ1, ഇനC പമ(1, ഹയരശDഡ1 പപനഷന തടങ യ ശസവന നകല ങള 1 പര ഗണകകയല പയന വ വസയല പക.എസ1.ആര. ഭ ഗ 1 ച% 88 ;ക ര പമഡ ല സര% ഫ റ ശKലല പത ശന ശവതന വധ അനവദച1 ഉതരവ1 പറപ ടവകന . ട വവര ട യ ളപട ശസവന പസകതല ശരഖപ ടശതണത ണ1 ."

8. A perusal of the documents in this case will show

that the petitioner submitted the leave application in time. It

is also clear from Ext.P12 that even though the Headmaster

forwarded the letter bearing date 29.09.2018, actually it was

received by the Assistant Education Officer only on

30.03.2019. The 4th respondent filed a counter affidavit. It will

better to extract para Nos. 2 to 4 of the above counter

affidavit.

"2. The petitioner in the above writ petition was a UPST, in SNUPS Nallamadanchalla and a patient of Chronic Fibromyalgia the 7 respondent forwarded LWA application of the petitioner to this office on 01.04.2019, The petitioner commenced her service on 1/7/1991 as UPSA in the aforesaid school and her appointment was approved on 01.06.2008 the petitioner submitted LWA application for leave from 01.06.2018 to 28.06.2018 that is 28 days in prescribed form to the 7" respondent. The 7th respondent received the application and sanctioned it on 30.06.2018. The petitioner was extended her leave for the periods as shown in the 5 para of the writ petition. The leave applications marked as Exhibit P2 to Exhibit P9 were submitted by the 7" respondent HM to this office on 01.04.2019. The petitioner rejoined duty on 06.06.2019 after summer vacation.

3. The petitioner forwarded leave applications to the 7th respondent in different spells. The 7th respondent sanctioned 3 spells leave in respect of Exhibit P1. Exhibit P2, and Exhibit P3. The HM has no authority to sanction leave beyond 120 days. Hence he forwarded all leave applications to the Government for necessary action. All leave applications with medical certificate were submitted to the Government through this office as per the letter dated 29.09.2018 on 01.04.2019.This office had forwarded leave application with relevant certificate on 24.03.2019 to the 1st respondent.

4. On 22.07.2019 the petitioner had submitted the revised

leave application for leave from 01.06.2018 to 29.03.2019 in single leave form. This respondent has forwarded the revised leave application to the Government on 24.07.2019."

9. From these facts, it is clear that there is no latches

on the part of the petitioner in submitting the leave

application in time. It is also clear from the above averments

that the 7th respondent was responsible for the delay in

submitting the leave application in time. If that is the case,

the petitioner need not suffer. The petitioner is going to retire

on 31.05.2023. It is an admitted fact that the petitioner was

suffering from a serious ailment. In such circumstances,

without going behind technicalities, the Government should

allow the leave application. I am of the considered opinion

that the Government should pass appropriate consequential

orders dehors the reasons mentioned in Ext.P17.

Therefore, this writ petition is allowed in the following

manner :

1) Ext.P17 is set aside.

2) The 1st respondent is directed to pass consequential

orders in the light of the observation in the judgment in

the leave application submitted by the petitioner as

expeditiously as possible, at any rate, within one month

from the date of receipt of a copy of this judgment.

3) The petitioner will produce a certified copy of this

judgment before the 1st respondent for complying the

directions in the judgment.

sd/-

P.V.KUNHIKRISHNAN JUDGE SKS

APPENDIX OF WP(C) 17415/2021

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF APPLICATION FOR LEAVE DATED 1.6.2018 SUBMITTED BY THE PETITIONER.

Exhibit P1(A) A TRUE COPY OF MEDICAL CERTIFICATE DATED 1.6.2018 ISSUED BY DR. FIJU CHACKO, JUBILEE MEDICAL MISSION MEDICAL COLLEGE, TRICHUR.

Exhibit P2 A TRUE COPY OF APPLICATION FOR LEAVE DATED 29.6.2018 SUBMITTED BY THE PETITIONER.

Exhibit P3 A TRUE COPY OF APPLICATION FOR LEAVE DATED 18.8.2018 SUBMITTED BY THE PETITIONER.

Exhibit P4 A TRUE COPY OF APPLICATION FOR LEAVE DATED 29.9.2018 SUBMITTED BY THE PETITIONER.

Exhibit P5 A TRUE COPY OF APPLICATION FOR LEAVE DATED 1.1..2019 SUBMITTED BY THE PETITIONER.

Exhibit P6 A TRUE COPY OF MEDICAL CERTIFICATE DATED 29.6.2018 ISSUED BY DR. FIJU CHACKO, JUBILEE MEDICAL MISSION MEDICAL COLLEGE TRICHUR.

Exhibit P7 A TRUE COPY OF MEDICAL CERTIFICATE DATED 18.8.2018 ISSUED BY DR. FIJU CHACKO, JUBILEE MEDICAL MISSION MEDICAL COLLEGE TRICHUR.

Exhibit P8 A TRUE COPY OF MEDICAL CERTIFICATE DATED 29.9.2018 ISSUED BY DR. FIJU CHACKO, JUBILEE MEDICAL MISSION MEDICAL COLLEGE TRICHUR.

Exhibit P9 A TRUE COPY OF MEDICAL CERTIFICATE DATED 1.1.2019 ISSUED BY DR. FIJU CHACKO, JUBILEE MEDICAL MISSION MEDICAL COLLEGE

TRICHUR.

Exhibit P10 A TRUE COPY OF LETTER OF HM IN CHARGE OF 5TH RESPONDENT SCHOOL DATED 6.1.2020 ADDRESSED TO FIRST RESPONDENT.

Exhibit P11 A TRUE COPY OF FITNESS CERTIFICATE DATED 6.6.2019 ISSUED BY DR. FIJU CHACKO, JUBILEE MEDICAL MISSION MEDICAL COLLEGE, TRICHUR.

Exhibit P12 A TRUE COPY OF LETTER OF 7TH RESPONDENT DATED 29.9.2018 SUBMITTED TO THE FIRST RESPONDENT.

Exhibit P13 A TRUE COPY OF LETTER OF 4TH RESPONDENT DATED 24.7.2019 ADDRESSED TO FIRST RESPONDENT.

Exhibit P13(A) A TRUE COPY OF CERTIFICATE OF ADMISSIBILITY OF LEAVE ISSUED BY THE 4TH RESPONDENT DATED NIL.

Exhibit P14 A TRUE COPY OF LETTER OF IST RESPONDENT DATED 29.11.2019 TO 4TH RESPONDENT.

Exhibit P15 A TRUE COPY OF LETTER OF IST RESPONDENT DATED 12.3.2020 ISSUED TO 4TH RESPONDENT.

Exhibit P16 A TRUE COPY OF LETTER OF 6TH RESPONDENT TO 4TH RESPONDENT DATED 29.6.2020.

Exhibit P17 A TRUE COPY OF GOVT. ORDER DATED 24.2.2021 OF THE FIRST RESPONDENT.

Exhibit P18 A TRUE COPY OF CERTIFICATE OF DR. FIJU CHACKO, JUBLIEE MEDICAL MISSION MEDICAL COLLEGE, TRICHUR DATED 12.3.2021.