IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930 WA.No. 382 of 2007(D) ------------------------------- AGAINST THE JUDGEMENT IN W.P.(C).NO.2050/2006 DATED 22/01/2007 .................... APPELLANT/ PETITIONER: -------------------------------------- V.PUSHPAN, H.S.A.(MATHS), GOVT. HIGH SCHOOL, TUVVUR, MALAPPURAM DISTRICT. BY ADV. DR.K.P.SATHEESAN, SRI.K.K.GOPINATHAN NAIR, SRI.M.R.JAYAPRASAD, SRI.K.K.RAJEEV. RESPONDENTS/ RESPONDENTS: ------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (R) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM. 3. THE ADMINISTRATIVE OFFICER, HIGHER SECONDARY EDUCATION DEPARTMENT, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. K. SANDESH RAJA. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. ------------------------------- W.A.NO.382 OF 2007 (D) ----------------------------------- Dated this the 26th day of May, 2008 J U D G M E N T KOSHY,J. Petitioner is working as High School Assistant (Maths) in a Government High School. He took leave for five years from 23.7.2002 for going abroad. Meanwhile, qualified departmental teachers were considered for appointment by transfer as H.S.S.T (Higher Secondary School Teacher) against vacancies earmarked for them. Alongwith other teachers, petitioner was also offered appointment as H.S.S.T with effect from 28.6.2003. But petitioner did not join duty and since he was on leave, he was not given that promotion. Appendix - XIIA referred to in Exception 2 to Rule 88 and Rule 110 – B of Part I reads as follows: The following rules shall regulate the grant of leave without allowances to officers for taking up employment abroad within India. These rules shall not apply in cases of employment in the service of any Public Sector Undertaking, Aided W.A.382/07 2 Schools and Private Colleges or anybody incorporated or not, which is wholly or substantially owned, controlled or aided by any State Government or the Government of India. 1. Government will be very selective in granting leave without allowances to employees belonging to professional categories, like highly qualified Doctors, Engineers, Scientists, etc., for taking up employment abroad or within India. In scarce categories like Veterinary Surgeons, Livestock Assistants and any other category where there is shortage of Personnel, Officers will not be allowed to take up such employment unless they resign their jobs under Government before hand. 2. No officer going for employment under these rules will be treated as on deputation. An Officer taking up employment abroad or within India on his own accord will have to go on leave without allowances to avail himself of the facility. 3. No other kind of leave will be sanctioned in combination with or in continuation of, the leave under these rules [except leave under Appendix XIIC.] 4. Permanent Officers and non-permanent Officers who have completed probation in their entry cadre in the regular service of Government may be granted leave without allowances under these rules. In such cases, for, and during the currency of, the period of leave, the officers shall lose all service benefits such as the earning of leave including half pay leave, pension, gratuity, increment, etc., and also promotion chances as may arise with reference to their seniority in the posts from which they proceeded on leave. They shall also lose seniority in the higher grade/grades with reference to their juniors who might get promoted to such W.A.382/07 3 grade/grades before they rejoin duty. Petitioner was not appointed in the vacancy that occurred during his leave period. He came back and joined duty on 24.6.2004. He wants a declaration that he is entitled to be posted as Higher Secondary School Teacher (Maths) in the first arising vacancy after 30.6.2004. The learned Single Judge after perusing the seniority list, relevant rules etc. found that petitioner was not denied due promotion and none of his juniors were given promotion overlooking his seniority after he rejoined duty. In Ext.P6 order it is also made clear that seniority list as existing as in 2004, the date when he reported duty will be considered for filling up the vacancies (25% earmarked for qualified departmental teachers) from 30.6.2004 onwards. We see no ground to interfere in the impugned judgment. We agree with the views of the learned Single Judge. Hence, appeal is dismissed. J.B.KOSHY, JUDGE P.N.RAVINDRAN, JUDGE prp W.A.382/07 4 J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 26th May, 2008