STATE OF KERALA Vs. MAHESH

JUDGEMENT

(1.) This Writ Appeal is filed by the State challenging the judgment of the learned Single Judge declaring respondent's eligibility for leave for higher studies under R. 91A of Part I of Kerala Service Rules (K.S.R.) and granting consequential service benefits to him. We have heard Government Pleader appearing for the appellants and counsel appearing for the respondent. The respondent with B.Sc. degree in Physics and B.Ed. was appointed as Upper Primary School Assistant on 3.8.1999 based on his selection by the P.S.C. After serving five years as a UPSA, the respondent applied for leave under R. 91 A for Post-graduate studies i.e. M.Sc. Physics. Though the leave was applied for under R. 91 A, it was granted after the respondent joined M.Sc. course vide Ext. P4 dated 16.7.2005 wherein it is seen that leave applied for under R. 91A was granted under Rules 82 and 88 of Part I, K.S.R. While leave granted under Rules 82 and 88 do not entail any service benefits to the respondent, he would have got all benefits if the leave was granted under R. 91A in terms of his application. In fact, another teacher in the High School section of the same school applied for leave under R. 91A and the same was allowed by the Government in terms of the request vide Ext. P3. The respondent successfully completed his M.Sc. course, returned and joined as UPSA and thereafter based on the higher educational qualification and the State Eligibility Test passed by him after M.Sc., he was promoted by transfer as Higher Secondary School Teacher on 23.7.2011. In between he filed W.P.(C) challenging Ext. P4 and for direction to respondents to grant leave in terms of his request under R. 91A and to allow all service benefits. The learned Single Judge allowed the Writ Petition against which this appeal is filed.

(2.) There is no dispute with regard to respondent's entitlement for leave and the same was in fact granted for the purpose for which he applied for and the respondent has accomplished his mission by completing the course study in M.Sc. and he has successfully passed out in the Post-graduate examination and later passed the SET examination entitling him for promotion by transfer to the post of Higher Secondary School Teacher which in fact he got later. However, question to be considered is whether respondent was in fact eligible for leave under R. 91A or whether his eligibility is rightly decided vide Ext. P4 granting leave under Rules 82 and 88 of K.S.R.

(3.) After hearing both sides, what we notice is that R. 91A is a provision for granting leave for higher studies to those with minimum service of 5 years but on condition that higher studies including Post-graduate studies is in the interest of public service. On the other hand persons without the required period of service and whose claims do not satisfy the requirements of R. 91A are entitled to leave under Rules 82 and 88. Since all service benefits are available during the leave granted under R. 91A, certainly leave has to be granted for higher studies under R. 91A itself. So much so, the question to be considered is the correctness of Ext. P4 whereunder leave applied for by the respondent under R. 91A was converted into an application for leave in terms of Rules 82 and 88 and in granting the same. Since the controversy is only on eligibility for leave under R. 91A, we have to necessarily examine the scope of the said Rule and it's application to the respondent Rule 91A is extracted hereunder: