P C Asokan vs State Of Kerala And Ors

The petitioner says that he joined as a High School Assistant in Malayalam (HSA) in the Perambra Higher Secondary School, Kozhikode, with effect from 10/10/1995 and that he applied for Half Pay Leave (HPL) of 298 days from 10/01/2015 to 25/10/2015, along with Leave Without Allowance (LWA) for 66 days from 26/10/2015 to 31/12/2015, to pursue a regular Post Graduate Course leading to the degree of M.Ed.

The petitioner says that his application for leave was sanctioned by the 3rd respondent - Headmaster under Rule 91 of the Kerala Service Rules (KSR for short), as is evident from Ext.P4 Service Book, but that when the proposal for approval of the leave substitute teacher came up before the 2nd respondent - District Educational Officer, his application for leave was rejected through Ext.P3, holding that such leave for study purposes cannot be allowed by the Headmaster, but only by the Government.

The petitioner says that he, therefore, submitted a fresh application for leave, namely Ext.P6, before the Government, along with Ext.P5 Proforma, because its duration was required only for 54 days from 26/10/2015 to 18/12/2015 and since, in the meanwhile, the endorsements in his Service Book with respect to the earlier approval for leave had been ordered to be cancelled.

The petitioner says that, however, the Government has now issued Ext.P9 holding that the 3rd respondent - Headmaster had no competence to sanction leave under Rule 91A of Part I of KSR, but that he could have sanctioned it only under Rule 88 Part I of KSR, which would not count for any service benefits. He says that, he is, therefore, constrained to impugn Ext.P9, since it is illegal and contrary to the provisions of the applicable law.

Shri.R.K.Muralidharan, learned counsel for the petitioner, added to the afore submissions by saying that the leave availed by his client was originally sanctioned with all benefits, as is manifest from Ext.P4, but that this was subsequently directed to be cancelled by the 2nd respondent saying that the Headmaster had no power to sanction such leave; which consequently, led to the endorsement in his service book, namely Ext.P4(a), to be cancelled. He contends that this was done without even hearing his client and that, therefore, the entire action is vitiated in law.

Shri.R.K.Muralidharan concluded his legal submissions by saying that the direction of the 1st respondent State of Kerala in Ext.P9, to treat the period of LWA from 26/10/2015 to 18/12/2015 to be under Rule 88 Part I of the KSR is illegal, since the petitioner is statutorily entitled for such leave under Rule 91A of Part I of KSR. He then explained that on account of the controversy in question, his client has not been sanctioned his eligible increments from 2015 and that his Selection Grade, which was due to him in 2018, has also been denied to him, though he has been promoted as an HSST (Junior) in the year 2018. He, therefore, prayed that Ext.P9 be set aside and his client be given all the benefits based on his application for leave, under Rule 91A of Part I of KSR.

In response, the learned Government Pleader, Shri.P.M.Manoj, submitted that, as is luculent from Ext.P9, the Government has found that the 3rd respondent could have sanctioned leave to the petitioner only under Rule 88 of Part I of the KSR and therefore, that the endorsements in Ext.P4(a) service was irregular, thus being liable to be reversed. He submitted that this is exactly what has been done through Ext.P9 and prayed that this writ petition be dismissed.

I have considered the afore submissions and have also examined the materials available on record.

As is rightly stated by the petitioner, his application for LWA had been sanctioned by the 3rd respondent, as is limpid from the endorsements in Ext.P4 Service Book, under Rule 91 of Part I of the KSR from 26/10/2015 to 31/12/2015. Subsequently, the period was limited to 18/12/2015, since the petitioner rejoined duty in the afternoon of that day. This is also recorded in Ext.P4 Service Book of the petitioner.

However, the grant of leave by the 3rd respondent was objected to by the 2nd respondent saying that such a decision could have been taken only by the Government. The petitioner, thereupon made his application before the Government which, however, led to Ext.P9, wherein, it has been recorded that the Headmaster could have granted leave to the petitioner only under Rule 88 Part I of the KSR and therefore, that the said period of leave would not count for any service benefits.

I am afraid that I cannot find favour with Ext.P9 because it is indubitable that the petitioner has applied for LWA for 66 days from 26/10/2015 to 31/12/2015 for attending a regular Post Graduate Course leading to the degree of M.Ed. Even if the Headmaster had no competence to grant the leave under Rule 91A Part I of the KSR, the Government certainly could have considered the same under the said provisions; but instead of doing so, it has now issued Ext.P9 order merely saying that because the Headmaster could have granted the leave only under Rule 88 Part I of the KSR, the petitioner is only entitled the same.

This stand of the Government certainly cannot find support in law, particularly when there is no dispute as to the fact that the petitioner had undergone a regular course of study leading to M.Ed., during the period when he had been applied for leave.

In the afore circumstances, I allow this writ petition and quash Ext.P9; consequently, directing the competent Authority to issue appropriate fresh orders on the application of the petitioner for leave under Rule 91A of Part I of the KSR, within a period of three months from the date of receipt of a copy of this judgment; resultant to which, if he is so found eligible, all benefits to him - including his increments and such other - shall be disbursed without any further delay thereafter.

This writ petition is thus ordered.