IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 W.A.No. 2303 of 2008 ----------------------------------------- AGAINST THE JUDGEMENT IN WPC.5963/2008 Dated 26/11/2008 .................... APPELLANT(S)/PETITIONER: --------------------- V.NIRMALADEVI, HEADMISTRESS PROMOTEE AND WORKING AS TEACHER-IN-CHARGE, RAMAKRISHNA AUP SCHOOL, THATHRAMKAVILKUNNU, KONIKKAZHI PO., PALAKKAD. BY ADVS. SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI, & SRI.BRIJESH MOHAN. RESPONDENT(S)/RESPONDENTS: ------------------------ 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTINS, TRIVANDRUM. 3. DISTRICT EDUCATINAL OFFICER, OTTAPPALAM, PALAKKAD. 4. ASSISTANT EDUCATINAL OFFICER, CHERPLACHERY, PALAKKAD. 5. MANAGER, RAMAKRISHNA AUP SCHOOL, THATHRAMKAVILKUNNU, KONIKKAZHI PO., PALAKKAD. 6. P.SREEKUMARI, UPSA, RAMAKRISHNA AUP SCHOOL, THATHRAMKAGVILKUNNU, KONIKKAZHI PO., PALAKKAD. R1 TO 4 BY GOVERNMENT PLEADER SMT.R. BINDU R5 BY ADV. SMT.C.S.SHEEJA R6 BY ADVS. SRI.K.MOHANAKANNAN & SMT.A.R.PRAVITHA. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: “C.R.” K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. ------------------------------ W.A. No.2303 of 2008 ------------------------------ Dated this, the 30th day of November, 2009 JUDGMENT Balakrishnan Nair, J. The Writ Petitioner is the appellant. The short question that arises for consideration in this appeal is, whether an aided school teacher will lose seniority, if he avails leave without allowance under Rule 56 of Chapter XIV-A of the Kerala Education Rules read with Appendix XII-C of the Kerala Service Rules. 2. The brief facts, necessary for the disposal of the case, are the following:- The appellant and the sixth respondent were Upper Primary School Assistants (for short, 'U.P.S.A.') working in the fifth respondent's school. They have continuous qualifying service in the post of U.P.S.A. from 20.8.1990 and 1.6.1988 respectively. The sixth respondent availed leave without allowance to join her spouse, as per Ext.P1 Government Order dated 10.6.1993, which is an order granting leave under Appendix XII-C of the Kerala Service Rules (for short, “K.S.R”). W.A.No.2303 of 2008 - 2 - The leave was granted as per Ext.P1, subject to the condition that “the leave period will not count for any service benefits including pension and the fact will be so recorded in the service Book of the incumbent.” 3. On 1.4.2005, a vacancy arose in the post of Headmaster. The Manager appointed the appellant as Headmistress. The sixth respondent, being senior to the appellant, moved the Assistant Educational Officer against the approval of the appointment of the appellant and also claiming appointment to the said post. Accepting her contention, the Assistant Educational Officer (for short, “A.E.O”) declined to approve the appointment of the appellant. But, on appeal, the District Educational Officer (for short, “D.E.O”) directed the A.E.O., as per Ext.P4 proceedings dated 31.5.2007, to approve the appointment of the appellant. The sixth respondent challenged that order before the Director of Public Instruction (for short, “D.P.I”). The D.P.I. reversed Ext.P4, by Ext.P6 order dated 6.9.2007. Aggrieved by the said order of the D.P.I., the appellant moved the Government, in revision under Rule 92 of W.A.No.2303 of 2008 - 3 - Chapter XIVA of the Kerala Education Rules (K.E.R). The said revision was dismissed by the Government, by Ext.P8 order dated 29.1.2008. Challenging Exts.P6 and P8 orders, the Writ Petition was filed. The learned Single Judge dismissed the Writ Petition, holding that the point raised by the appellant is covered against her by several decisions of this Court and the Apex Court. Feeling aggrieved by the said judgment, this appeal is preferred by the writ petitioner. 4. We heard the learned counsel on both sides. Rule 37 of Chapter XIVA of the K.E.R. deals with seniority of teachers. The said rule reads as follows: “37. (1) Seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit provided he is duly qualified for the post. (2) In the case of teachers in the same grade in the same unit whose date of commencement of continuous service is the same, seniority shall be decided with reference to the date of first appointment. If the date of first appointment is also the same, seniority shall be decided with reference to age, the older being the senior.” W.A.No.2303 of 2008 - 4 - According to the learned counsel for the appellant, the sixth respondent does not have longer continuous service in the grade of U.P.S.A. than the appellant and therefore, she cannot be treated as senior to the appellant. The condition imposed in Ext.P1, which is already quoted above, would result in ignoring the service period of the sixth respondent covered by Ext.P1. So, her total period of service has to be reduced by five years, it is submitted. 5. The rule governing leave of aided school teachers is Rule 56 of Chapter XIVA of the K.E.R. Sub-rule(1) of the said rule, which is relevant in this case, reads as follows: “56. Leave Rules.- (1) In the matter of casual leave and all other kinds of leave, the teachers of aided schools shall be governed by the rules for teachers of government schools in the Service Regulations for the time being in force. Provided that in the matter of leave, the teachers appointed for limited periods, ie. those appointed in short vacancies and those appointed in regular vacancies but not eligible for vacation salary under rule 49, shall be governed by the leave rules in Appendix VIII of the Kerala Service W.A.No.2303 of 2008 - 5 - Rules.”. In view of the said provision, the sixth respondent was granted leave as per Ext.P1, subject to the condition contained in Appendix XII-C in the Kerala Service Rules. Rule 4 of Appendix XII-C reads as follows: “Rule 4.- Permanent officers and non permanent officers who have completed probation in their entry cadre in the regular service of the 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 including earning of leave, increments, gratuity, pension etc., and also promotion chances as may arise with reference to their seniority in the post from which they proceed on leave. They shall also lose seniority in the higher grade(s) with reference to their juniors who might get promoted to such grade(s) before they rejoin duty.”. 6. A reading of the above rule would show that if the vacancy in the post of Headmaster arose during the sixth respondent's leave period, the appellant could have been promoted and on her return, the sixth respondent should W.A.No.2303 of 2008 - 6 - continue as a U.P.S.A. The sixth respondent, in that event, will not have any claim for promotion as Headmaster, reverting the appellant. But, in this case, no vacancy arose during the sixth respondent's leave period. Therefore, in the lower cadre of U.P.S.A., the sixth respondent will not lose seniority and, in preference to the appellant, she is entitled for promotion to the vacancy which arose after her leave period. In view of the above position, we find that the Director of Public Instruction and the Government, as per Exts.P6 and P8 orders, decided in favour of the sixth respondent rightly. So, the learned Single Judge has correctly dismissed the Writ Petition. In the result, the Writ Appeal fails and it is accordingly dismissed. Sd/- K. Balakrishnan Nair, Judge. Sd/- P. Bhavadasan, Judge. DK. (True copy)