IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 20TH OCTOBER 2010 / 28TH ASWINA 1932 WP(C).No. 945 of 2009(K) ------------------------ PETITIONER(S): --------------- P.K.KUNHAMMU, ARABIC TEACHER AIDED SENIOR BASIC SCHOOL, MANNALUR, PALAKKAD DISTRICT. BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S): --------------- 1. THE HEADMISTRESS AIDED SENIOR BASIC SCHOOL, MANNALUR, PALAKKAD DISTRICT. 2. THE ASSISTANT EDUCATIONAL OFFICER KUZHALMANNAM, PALAKKAD DISTRICT. 3. THE MANAGER AIDED SENIOR BASIC SCHOOL, MANNALUR, PALAKKAD DISTRICT. 4. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM. ADV. SRI.N.RAGHURAJ FOR R1 SMT.K.AMMINIKUTTY FOR R1 SRI.A.V.RAVI FOR R1 BY GOVERNMENT PLEADER SMT.M.R.SREELATHA FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 945 of 2009(K) PETITIONER'S EXTS: EXT.P1:- COPY OF APPLICATION DTD.11.8.06 EXT.P2:- COPY OF AMENDMENT TO RULE 60(C) OF PART I KSR DTD.10.8.06 EXT.P3:- COPY OF LETTER DTD.16.10.06 ISSUED BY R1. EXT.P4:- COPY OF GOVERNMENT CIRCULAR DTD.9.11.06 EXT.P5:- COPY OF PROCEEDINGS DTD.10.1.07 EXT.P6:- COPY OF AMENDEMENT TO RULE 62 OF CHAPTER XIVA KER DTD.5.1.07 EXT.P7:- COPY OF JUDGMENT IN WP(C) NO.5218/07 EXT.P8:- COPY OF ORDER PASSED BY A.E.O, KUZHALMANNAM DTD.27.3.07 EXT.P9:- COPY OF JUDGMENT IN WP(C) NO.11743/07 EXT.P10:- COPY OF GOVERNMENT ORDER DTD.16.6.08 EXT.P11:- COPY OF UNDERTAKING DTD.29.7.08 EXT.P12:- COPY OF JUDGMENT IN WP(c) NO.23895/08 EXT.P13:- COPY OF ORDER DTD.27.11.08 EXT.P14:- COPY OF DUTY CERTIFICATE ISSUED BY AEO EXT.P15:-COPY OF CERTIFICATE ISSUED BY DY.DIRECTOR OF EDUCATION EXT.P16:- COPY OF REVISION UNDER RULE 92 KER. RESPONDENTS EXTS: NIL /TRUE COPY/ P.A.TO JUDGE K.T.SANKARAN, J. ------------------------------ W.P.(C).No.945 OF 2009 ------------------------------ Dated this the 20th day of October, 2010 JUDGMENT The petitioner while working as Arabic teacher in Aided Senior Basic School, Mannalur, Palakkad District, availed leave without allowance. Rule 60 (c) of Part I KSR was amended by which it was provided that if the date of superannuation happens to be during the leave period, the teacher is not entitled to continue beyond the date of superannuation unless he joins duty on the succeeding date of the date of superannuation. As a teacher, the petitioner could otherwise continue to work up to 31.3.2007. 2. The petitioner availed commuted leave with effect from 14.8.2006 to 17.11.2006. Going by his date of birth, the date of superannuation was 14.8.2006. The petitioner contended that the amendment of Rule 60(c) of Part I KSR could not W.P.(C).No.945 OF 2009 2 operate retrospectively taking away the vested right of the teachers. The petitioner filed WP(C) No.5218 of 2007 in which as per the interim order, the petitioner was permitted to continue to work. WP(C)No.5218 of 2007 was disposed of as per Ext.P7 judgment dated 19.2.2007 directing the Assistant Educational Officer to take an appropriate decision. The petitioner was also permitted to attend duty as a teacher in the school. The Assistant Educational Officer passed Ext.P8 order dated 27.3.2007 holding that the petitioner should be treated as retired with effect from the date of superannuation. The matter was taken up before the Government. The Government passed Ext.P10 order dated 16.6.2008. The operative portion of Ext.P10 reads as follows: “The case has been examined in detail with reference to the report of the Assistant Educational Officer, Kuzhalmannam and the relevant orders in force. Rule 60(c) Part I KSRs deals with Compulsory Retirement of teaching staff of all educational institutions. By virtue of Rule 4 to Chapter XXVII B KER, the above Rule in KSR is made applicable to teachers of aided schools also. Rule 60(c) Part I KSR has been amended by G.O(P) No.331/2006/Fin. dated 10.8.06 to the effect that if the teaching staff who are on leave on the day they attain W.P.(C).No.945 OF 2009 3 the age of 55 years fail to join duty on the first working day immediately after the date of superannuation, they shall be retired with effect from the date of superannuation itself. Subsequently the Government clarified that as the amendment takes effect only from 10.8.06 and those who were sanctioned or availed of leave prior to 1.8.06 will be permitted to rejoin duty on expiry of the leave even if the leave extends beyond their date of superannuation. Later the above position was further clarified vide Circular No.30/2007 Fin dated 17.4.07 to the effect that the restriction that leave cannot be sanctioned for the extended period of service will take effect only from 1.4.07 ie, after 1.4.07 such leave will not be sanctioned and that leave already sanctioned prior to 31.3.2007 need not be cancelled. In view of the above, the petitioner is entitled to continue in service till 31.3.07 by virtue of the clarification issued by the Government in circular No.30/2007/Fin. dated 17.4.07. Government are therefore pleased to allow the Ext.P9 revision petition and order accordingly. The Assistant Educational Officer, Kuzhalmannam will take urgent further steps in the matter.” 3. Thereafter, the Assistant Educational Officer passed Ext.P13 order dated 27th November, 2008. In Ext.P13, the contention put forward by the petitioner was not accepted. The petitioner filed Ext.P16 revision before the Government. It is stated that Ext.P16 revision is pending disposal. Though the main relief prayed for in the Writ Petition is to issue a Writ of Certiorari to quash W.P.(C).No.945 OF 2009 4 Ext.P13 order, since the petitioner has thereafter filed Ext.P16 revision before the Government, the learned counsel for the petitioner submitted that it would be sufficient, if a direction is issued to the Government to dispose of Ext.P16 revision expeditiously. In the facts and circumstances of the case, the Writ Petition is disposed of directing the Government (4th respondent) to consider and dispose of Ext.P16 revision filed by the petitioner as expeditiously as possible, and at any rate within a period of three months from the date of receipt of a copy of the judgment, after affording an opportunity of being heard to the petitioner and the Manager. The petitioner shall produce a copy of the Writ Petition, a copy of I.A.No.14201 of 2010 and certified copy of the judgment before the 4th respondent. K.T.SANKARAN, JUDGE. cms