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2011 DIGILAW 360 (KER)

Mahesh v. State of Kerala

2011-03-29

S.SIRI JAGAN

body2011
JUDGMENT 1. The petitioner is an Upper Primary School Assistant. He was appointed as such on the basis of the petitioner’s qualification as a Physics Graduate with B.Ed. The petitioner is working in Government Schools. By Ext.P1 application, the petitioner applied for leave for study purposes, under R.91A of Part I of Kerala Service Rules, for undergoing M.Sc. Degree course in Physics. The petitioner was granted leave by Ext.P4 order but, only under Rules 82 and 88 of Part I of Kerala Service Rules. The petitioner has undergone that course and rejoined duty. The petitioner filed a petition Ext.P5 before the Government requesting to convert his leave as one under R.91A of Part I of K.S.R. That was rejected by Ext.P6 order by the Government on the ground that acquisition of postgraduate degree will only benefit the incumbent and will not in any way be primarily beneficial to the State and therefore R.91A is not attracted to the leave applied for by the petitioner. The petitioner challenges Exts.P4 and P6. According to the petitioner, for a teacher teaching Science particularly Physical Science, M.Sc. degree in Physics would certainly enable him to teach the students better and in that way, the acquisition of postgraduate degree by the petitioner would primarily be of benefit to the State. Therefore, the conditions in R.91A of Part I of K.S.R. is sufficiently satisfied is his contention. He further submits that in R.91A itself, it is specifically stated that leave for postgraduate course for teachers would come within the purview of R.91A. He further points out that a High School Teacher in Physical Science in the very same school was granted leave under R.91A of Part I of K.S.R. for the purpose of obtaining postgraduate degree. Therefore, according to the petitioner, the denial of that benefit to the petitioner is discriminatory as well. The petitioner, therefore, seeks the following reliefs: “ i) To issue a Writ of Certiorari or any other appropriate writ, order or direction to quash Exts.P4 and P6; ii) To declare that the petitioner is entitled to be granted leave under R.91A, Part-I K.S.R. for the period from 4.8.2004 to 31.3.2006; iii) To issue a Writ of Mandamus or any other appropriate writ, order or direction directing the respondents to grant leave as per Ext.P1 application submitted by the petitioner.” 2. A counter-affidavit has been filed on behalf of the first respondent. A counter-affidavit has been filed on behalf of the first respondent. The only averment in the counter-affidavit is that for the leave applied for by the petitioner, the provisions of R.91A is not attracted insofar as the acquisition of postgraduate degree by the petitioner is not primarily of benefit to the State. But, in arguments the learned Government Pleader would raise two other contentions as well. First is that subsequent to Ext.P1 application, the petitioner had filed another application seeking leave under R.88, which only has been granted by Ext.P4 order. Therefore, according to the learned Government Pleader, the petitioner is estopped from now contending that the petitioner should be given leave under R.91A. Another contention is also raised of delay and laches. According to the learned Government Pleader, Ext.P4 order was passed as early as on 16.7.2005 against which the petitioner filed Ext.P5 only on 19.9.2006 and therefore, the petitioner is guilty of delay and laches in the matter. 3. I have considered the rival contentions in detail. R. 91A of Part I of K.S.R. reads thus: “91A. Officers with a continuous officiating or temporary service of 5 years or more may be granted in addition to any leave to which they are eligible for, leave for undergoing Post-Graduate Courses in the sphere of their duties which are primarily of benefit to the State, such as Post-Graduate Courses for Teachers, Engineers and Doctors. The leave shall be granted only with due regard to the usefulness of the higher studies to the public service.” What I have to consider is whether the petitioner’s application would fall within the purview of that Rule. For coming within the purview of that Rule, the post-graduate course for undergoing which the applicant seeks leave, the leave should be in the sphere of their duties, which are primarily of benefit to the State such as postgraduate courses for teachers etc. The petitioner is an Upper Primary School Teacher. His qualification is graduation in Physical Science and B.Ed. in Physical Science. He is teaching Science subjects. Therefore, M.Sc. in Physical Science is certainly within the sphere of his duties by the expression ‘Primarily of benefit to the State’. It is not as if the State expects that the applicant for leave should, by acquiring that degree, give direct benefit to the State as such. in Physical Science. He is teaching Science subjects. Therefore, M.Sc. in Physical Science is certainly within the sphere of his duties by the expression ‘Primarily of benefit to the State’. It is not as if the State expects that the applicant for leave should, by acquiring that degree, give direct benefit to the State as such. What can be in contemplation by the Rule is that by acquisition of that qualification, the Government servant would be in a position to discharge their duties better to serve the State better. Here, the petitioner’s duty is to teach students. Therefore, the benefit to the State contemplated by the Rule is that the teacher would be able to teach the students better will the postgraduate qualification acquired by obtaining the leave under that Rule. To my mind, there cannot be any doubt that an Upper Primary School Teacher obtaining M.Sc. degree in Physics would be in a better position to teach Physics to students than those teachers who do not possess the M.Sc. degree. Therefore, the acquisition of postgraduate degree in Physics would, not only be of benefit to the petitioner but also would certainly be primarily of benefit to the State as well, in the sense that by teaching students better the State would, be benefited because it is the responsibility of the State to see that the students are impacted education in a better way. In fact, that is what the Right to Education Act contemplates. Therefore, I am not satisfied that the reasons mentioned in Ext.P6 is sufficient to deny the petitioner the benefit of leave under R.91A. This is all the more so since the words “primarily of benefit to the State’ occurring in R.91A is qualified further by the words’ such as postgraduate courses for teachers’, I am of opinion that what was in contemplation of the Rule maker by R.91A is exactly the situation obtaining in this Writ Petition. As such, denial of leave to the petitioner under R.91A is directly contrary to the Rule itself. 4. The other two contentions raised by the learned Government Pleader have not been pleaded in the counter-affidavit. Therefore I am not liable to consider the same at all because the arguments are not supported by pleadings. As such, denial of leave to the petitioner under R.91A is directly contrary to the Rule itself. 4. The other two contentions raised by the learned Government Pleader have not been pleaded in the counter-affidavit. Therefore I am not liable to consider the same at all because the arguments are not supported by pleadings. Even apart from the same, the petitioner has specifically contended in the Writ Petition that the petitioner applied for leave under R.91A of Part I of K.S.R. by Ext.P1 application for leave. But, she was told that, the leave cannot be granted unless she changes the application for one under R.88. Naturally, any teacher, who wants to join M.Sc. course, would avail of the leave first before embarking on a litigation. Otherwise, next year, the teacher may not get admission for M.Sc. at all. So, having obtained admission, he would naturally abide by any condition which the Government stipulates for getting that leave. But, it is unbecoming for a State to compel teachers to do so knowing well that the petitioner is entitled to leave under R.91A. In fact, the Government themselves granted leave under R.91A itself by Ext.P3 order to another teacher of the very same school for undergoing postgraduate course. Therefore, I am of opinion that it does not look good on the Government to take such a contention at all, after having forced the petitioner to alter his application to one under R.88. 5. Regarding the contention regarding delay and laches I am of opinion that after having considered Ext.P5 application of the petitioner on merits and passing Ext.P6 order on merits, without stating anything about the delay or laches, the Government cannot now fall back on such technical contentions to the petitioner who desires leave under R.91A. The petitioner has filed this Writ Petition within a reasonable time after Ext.P6. 6. In the above circumstances, I am satisfied that Exts. P4 and P6 are unsustainable. Accordingly, they are quashed. The 1st respondent is directed to convert the leave sanctioned to the petitioner, by Ext.P4, as one under R.91A of Part I of K.S.R. as applied for by Ext.P1. Orders in this regard shall be passed and benefits due to the petitioner arising therefrom shall be disbursed to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. Orders in this regard shall be passed and benefits due to the petitioner arising therefrom shall be disbursed to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The Writ Petition is allowed as above.