MAHESH M D Vs. STATE OF KERALA

JUDGEMENT

(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 R.82 and R.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 KSR. 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 KSR 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 KSR 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:

(2.) 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 16/07/2005 against which the petitioner filed Ext. P5 only on 19/09/2006 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 KSR reads thus: