IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930 WA.No. 1302 of 2005 ---------------------------------- AGAINST THE JUDGEMENT IN WPC.2948/2004 Dated 31/01/2005 .................... APPELLANT/PETITIONER: C.S. SREEDEVI AMMA, HIGH SCHOOL ASSISTANT, KOTTAPPURAM HIGH SCHOOL, PARAVUR, KOLLAM. BY ADV. SRI.GOPAKUMAR R.THALIYAL RESPONDENTS/RESPONDENTS: 1. C.G. RADHA DEVI, W/O. P.RAMACHANDRAN NAIR, HEADMISTRESS,KOTTAPPURAM HIGH SCHOOL, PARAVUR, KOLLAM. 2. ADVOCATE SANJEEV SOMARAJ, OFFICIAL RECEIVER OF KOTTAPPURAM HIGH SCHOOL, CIVIL STATION, KOLLAM. 3. THE DISTRICT EDUCATIONAL OFFICER, KOLLAM. 4. THE DEPUTY DIRECTOR OF EDUCATION,KOLLAM. 5. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 6. STATE OF KERALA REP. BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT,THIRUVANANTHAPURAM. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA GOVERNMENT PLEADER SRI.K.SANDESH RAJA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- W.A.No.1302 of 2005 --------------------------------- JUDGMENT Koshy, J. The first respondent, admittedly a senior to the appellant/petitioner, was promoted as Headmistress. The contention of the appellant is that the first respondent has taken leave for five years for job abroad. Thereafter, she took leave for another three years with permission from the Government. If those periods are deducted from the service of the first respondent, the appellant will become senior and she ought to have been appointed as Headmistress to the vacancy which arose on 31.3.1999. The learned single Judge took the view that when leave is granted, there is no cessation of service and seniority will not be lost. But, in view of the specific conditions, she will not get pensionary or other service benefits during the period. Same provisions under Rule 56 of Chapter XIVA KER are mentioned in paragraphs 4 and 5 of Appendix XII-A of KSR also. The Supreme Court has considered the matter in Mohammed Abdulla v. State of WA 1302/05 2 Kerala (2008 (1) KLT 712 (SC)) and held that an employee who availed leave without allowance is entitled to restoration of seniority over his juniors on rejoining duty, provided, his junior has not been promoted to higher grade before he rejoins duty. It is entirely a different case where, the employee availed leave before completing probation. Before availing the leave, he had to actually work and satisfactorily complete the probationary service. In view of the decision in Mohammed Abdulla's case (cited supra), we see no ground to interfere with the decision of the learned single Judge. We also note that after the retirement of the first respondent, the appellant was promoted as Headmistress. In the circumstances, we see no ground to interfere with the impugned judgment. The appeal is, therefore, dismissed. (J.B.Koshy, Judge) 12th August, 2008 (K.P.Balachandran, Judge) tkv