IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 3RD JANUARY 2011 / 13TH POUSHA 1932 WA.No. 1185 of 2010() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.5895/2009 Dated 23/10/2009 .................... APPELLANT(S): (RESPONDENTS 1 TO 3 IN THE W.P.(C) --------------------------------------------------- 1. STATE OF KERALA,REPRESENTED BY THE SECRETARY TO GOVERNMENT,GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR. 3. THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD. BY MS.T.B.REMANI, GOVERNMENT PLEADER RESPONDENT(S): PETITIONER AND RESPONDENT 4 IN THE W.P.(C) --------------------------------------------------------- 1. LALI.M.S,U.P.S.A,SREE KRISHNA HIGHER SECONDARY SCHOOL,GURUVAYOOR. 2. THE HEADMISTRESS,SREE KRISHNA HIGHER SECONDARY SCHOOL,GURUVAYOOR. ADV. SRI.M.A.THOMAS KUTTY FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. C.N.RAMACHANDRAN NAIR & M.L.JOSEPH FRANCIS, JJ. ---------------------------------- W.A.No.1185 of 2010 --------------------------------- Dated, this the 3rd day of January, 2011 J U D G M E N T Ramachandran Nair, J. This Writ Appeal is filed by the State challenging judgment of the learned Single Judge declaring eligibility of 1st respondent for counting her leave period during service as a substitute teacher in a leave vacancy for the purpose of higher grade, under Government Orders. 2. We have heard learned Government Pleader appearing for the appellants and learned counsel appearing for the respondents. 3. A regular teacher in the 2nd respondent School took leave for five years giving rise to a leave vacancy. The 1st respondent, who was in an advanced stage of pregnancy, was appointed by the Manager in the leave vacancy on 15/07/1999 for a period up to 21/06/2003. However on the very next day, W.A.No.1185/2010 -2- the 1st respondent applied for and obtained two months' medical leave. Even though she reported for duty after availing two months' medical leave, within two weeks thereafter she was granted maternity leave for four months, which was also availed of by the 1st respondent. It is stated that on 12/02/2000, the 1st respondent rejoined the school in the leave vacancy. In other words, in the course of the first six months' service in the leave vacancy the 1st respondent had served only less than 15 days in the School. A regular vacancy arose on 04/09/2002 and by virtue of the priority claim under Rule 51A, the 1st respondent was appointed to that post. There is no dispute that the 1st respondent is entitled to reckon the period of her service in the leave vacancy for the purpose of probation and even for getting higher grade. However, the question is whether the period during which she was on medical leave and on maternity leave also should be counted for granting higher grade and increments, in terms of Rule 61(5) of Chapter XIV A of Kerala Education Rules. Rule 61 W.A.No.1185/2010 -3- (5) of Chapter XIV A of KER reads as follows:- “All leave except leave without allowances taken otherwise than on medical certificate count for increments in the time scale applicable to a post in which a teacher was officiating at the time he proceed on leave and would have continued to officiate but for his proceeding on leave.” 4. Government Pleader's contention is that the above Rule applies to regular employees and not to provisional employees appointed in leave vacancies. Learned counsel for the respondents, on the other hand, submitted that the 1st respondent was not a provisional employee nor a contract employee, and therefore is entitled to reckon the service rendered by her in the leave vacancy prior to her appointment as a regular teacher on 04/09/2002. Learned counsel for the respondents also has relied on Note 4 to Rule 100 of the Kerala Service Rules, which reads as follows: “Maternity leave under this rule and Rule 101 shall be admissible to provisional female recruits continuing in service beyond one year provided they would continue in service but for proceeding on such leave.” W.A.No.1185/2010 -4- 5. After hearing both sides, we are of the view that neither Rule 61(5) of the KER nor Note 4 to Rule 100 of KSR, referred to above, applies to respondents' case because the 1st respondent was only a provisional employee appointed in a leave vacancy and her continuance in service in the status as a teacher in the leave vacancy would depend on what happens to the leave availed of by the regular teacher. If the teacher who went on leave cancels leave and returns, necessarily, the 1st respondent would have to be relieved, and the period for which she was appointed by the Manager itself will have to be reduced. In other words, the 1st respondent's appointment, until the regular vacancy arose to which she was appointed on 04/09/2002, was only a provisional appointment in the leave vacancy whatever be the other benefits she is entitled under the KER. Even though after appointment on regular basis, she may be entitled to reckon the service rendered by her in the leave vacancy also for the purpose of claiming higher grade, and for the purpose of declaring probation, we do not think W.A.No.1185/2010 -5- Rule 61(5) or note 4 to Rule 100 above referred authorise reckoning of leave period availed by her before completion of one year service in the leave vacancy for any purpose. Rule 61 (5), in our view, applies only to regular employees and it does not apply to provisional employees engaged in leave vacancies. This is clear from the wordings of sub Rule (5) itself, which says that even Leave Without Allowances taken by employees based on medical certificate can be counted for the purpose of increments, which obviously does not apply to provisional employees appointed in leave vacancies. So far as Note 4 to Rule 100 of KSR relied on by the learned counsel for the respondents is concerned, the same applies only to provisional female recruits continuing in service beyond one year. In other words, this Rule applies only if maternity leave is availed by a provisional female recruite after completion of one year service as a temporary employee. Admittedly, in this case, on the next day of joining service as a provisional hand in the leave vacancy, the 1st respondent availed medical leave W.A.No.1185/2010 -6- for two months' and with a break of two weeks, she took maternity leave thereafter. So much so, the 1st respondent cannot claim entitlement to reckon period of medical and maternity leave availed before completion of one year service for the purpose of increment or grade benefits. We, therefore hold that the learned Single Judge was not justified in holding that the medical leave and the maternity leave availed by the 1st respondent should be reckoned for the purpose of granting higher grade to her under Rule 61(5) of the KER. However, whatever benefits she is entitled under the Rules for the service rendered after she rejoined after availing the maternity leave on 12/02/2000 should be counted. 6. Even though learned Government Pleader submitted that the period of service rendered by the 1st respondent prior to regular appointment will not be reckoned for any purpose, we do not want to deal with that issue because the same does not arise in the judgment of the learned Single Judge. All what we are required to consider is the entitlement of the 1st W.A.No.1185/2010 -7- respondent to count the period of medical leave and maternity leave availed by her during the beginning of her service in the leave vacancy, for the purpose of grant of higher grade and increment, which we have already held that she is not entitled under the Rules. Therefore, this Writ Appeal is allowed by vacating the judgment of the learned Single Judge and by declaring the above position leaving open the 1st respondent to claim whatever is the other benefits eligible to her. However, we make it clear that no interest should be recovered if any excess salary drawn by the 1st respondent is to be recovered. Before parting with the matter, we feel, the Education Department should instruct the Managements not to appoint ladies in advanced stage of pregnancy or other disabled or sick persons in leave vacancies of teachers in schools because the very purpose of appointment of substitute teachers in leave vacancies, which is to make available the service of substitute teachers to the students, will be defeated if W.A.No.1185/2010 -8- substitutes are granted long leave after appointment. Therefore, there will be a direction to the Government to instruct statutory Authorities to approve appointment of teachers in leave vacancies only if they are certified medically fit for service for a reasonable period. Sd/- (C.N.RAMACHANDRAN NAIR, JUDGE) Sd/- (M.L.JOSEPH FRANCIS, JUDGE) jg