IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 3RD JUNE 2010 / 13TH JYAISTHA 1932 WP(C).No. 19162 of 2008(F) PETITIONER: --------------- S.DEEPA,AGED 39, W/O.MADANAKUMAR, HIGH SCHOOL ASSISTANT (PHYSICAL SCIENCE), R.V.UNION HIGH SCHOOL,CHERAI, ERNAKULAM DIST. R/A.DHANUSH VIHAR, CHERAI KARA, ERNAKULAM DIST, NOW AT C/O.MADANAKUMAR K.M., P.B.NO.293, POLLY BIT INDUSTRIES LTD, UMM-AL-QWAIN,UAE, REP.BY HER POWER OF ATTORNEY HOLDER SIMI DANUSH, AGED 33 YEARS, W/O. DHANUSH.S., RESIDING AT DHANUSH VIHAR, CHERAI KARA, ERNAKULAM DISTRICT. BY ADV. SRI.P.T.DINESH SRI.M.H.HANIS RESPONDENTS: --------------- 1. STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETRIAT, THIRUVANANTPURAM. 2. DISTRICT EDUCATIONAL OFFICER, ERNAKULAM. 3. THE HEADMASTER CUM-MANAGER, R.V.UNION HIGH SCHOOL, CHERAI, ERNAKULAM DISTRICT. R1 AND R2 BY GOVERNMENT PLEADER SMT.NISHA BOSE R3 BY SENIOR ADVOCATE SRI.GOVIND K.BHARATHAN SRI.C.P.KUNJHIKANNAN SRI.S.K.MADHU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING ON 3/6/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 19162 OF 2008 F ------------------------------------------------------ Dated this the 3rd day of June, 2010 JUDGMENT The question involved in this Writ Petition is whether the Headmaster or the Manager of an aided school can make a remark, in exercise of their jurisdiction to make remarks under Sub Rule (2) of Rule 58 of Chapter XIV A of the Kerala Education Rules, that leave without allowances for a period of 5 years sought for by a teacher should not be granted. 2. The petitioner was working as High School Assistant at R.V. Union High School, Cherai, Ernakulam District. The school is a staff management school. The petitioner applied for leave without allowances to join her husband, who was working abroad, for a period of five years commencing from 11/6/1998 to 10/6/2003. The leave was granted for that period as per Exhibit P1 order passed by the Government. She again applied for extension of the leave for a further period of five years from 11/6/2003 to 10/6/2008, which was granted as per Exhibit P2 dated 2/7/2003. Before the expiry of the leave granted as per Exhibit P2, the petitioner submitted Exhibit P3 W.P.(C) NO.19162 OF 2008 :: 2 :: application dated 8/2/2008 for leave without allowance for five years from 11/6/2008 to 10/6/2013. The Manager issued Exhibit P7 dated 7/3/2008, which reads as follows: “With reference to your application for extension of leave, I may inform you that the management is not willing to consider your application for extension of leave from 11.6.2008, as it will adversely affect the smooth running of the school, it is also seen that you did not accept the registered letter 3rd cited by which you were given direction to rejoin duty which was returned unserved with endt. Unknown. So you are directed to report for duty on expiry of the leave already granted, failing which suitable disciplinary action will be taken against you for unauthorised absence and break of declaration furnished by you.” 3. The petitioner filed Exhibit P8 representation dated 18/3/2008 before the District Educational Officer, Ernakulam requesting to process the leave application and forward the same to the Government within the time limit specified in the Circulars issued by the Government. The Government had issued Circulars dated W.P.(C) NO.19162 OF 2008 :: 3 :: 11/11/1997, 29/12/1997 and 21/05/1999 (Exhibits P4 to P6) providing guidelines for speedy processing and forwarding of the applications to the Government. Time limits were also fixed within which the Manager, Headmaster and the Controlling Officer had to act. Since the leave application was not forwarded to the Government, the petitioner filed W.P(C) No. 14392 of 2008, in which, an interim order was passed directing the District Educational Officer to forward Exhibit P3 application for leave submitted by the petitioner to the Government within a period of three days. The interim order was complied with. W.P(C) No. 14392 of 2008 was disposed of as per Exhibit P10 judgment dated 28/5/2008 directing the Government to dispose of the leave application on or before 10/6/2008. 4. The Government considered the leave application and rejected the same as per Exhibit P12 order dated 9/6/2008. The reason for rejection of the leave application was that the Controlling Officer and the Appointing Authority had not recommended and the Educational Authorities had not countersigned the leave application. It was also pointed out that No-objection Certificate, Lien Certificate, declarations etc were not authenticated by the Manager. Exhibit P12 is under challenge in this Writ Petition. Various other reliefs which W.P.(C) NO.19162 OF 2008 :: 4 :: are ancillary to the main relief are also prayed for. There is also a prayer to issue a writ of mandamus commanding the respondents to sanction leave without allowances to the petitioner for the aforesaid period and also for a writ of mandamus commanding the first respondent to take appropriate action against respondent Nos. 2 and 3 (The District Educational Officer and the Headmaster-cum- Manager) for the inordinate delay on their part in processing and forwarding the leave application. 5. In the Writ Petition, the petitioner stated that her husband, who is working abroad, requires constant attention by her as he is a cardiac patient and since he had met with an accident. Some medical records relating to the period 2005-2006 are produced in support of the contention. 6. In the counter affidavit filed by the District Educational Officer, it is stated that in compliance with the directions in the interim order in WP(C) No.14932 of 2008, the application for leave without allowances with all connected records were obtained from the Headmaster of the school and they were forwarded to the Government on 23/5/2008. It is pointed out in the counter affidavit W.P.(C) NO.19162 OF 2008 :: 5 :: that the District Educational Officer did not countersign the leave application as it was not recommended by the 3rd respondent, the Headmaster cum-Manager. The District Educational Officer contended that it is his bounden duty to protect the interests of the school. 7. In the counter affidavit filed by respondent No.3, the following contentions are raised: Leave for the period from 11/6/2003 to 10/6/2008 was recommended on a mutual agreement between the 3rd respondent and the petitioner that no further extension would be granted as it would adversely affect the functioning of the school and the students. The management of the school had informed the petitioner before the expiry of the leave that no further extension would be granted. The petitioner did not come back to India in spite of the reluctance of the Headmaster-cum-Manager to recommend for extension of leave and in spite of the rejection of the leave application. The period of leave had expired on 10/6/2008. The absence of the petitioner amounts to unauthorised absence. It is pointed out that the petitioner is supposed to take classes for the 10th standard students. She should have undertaken the responsibility of teaching the pupils since the absence of the petitioner continuously W.P.(C) NO.19162 OF 2008 :: 6 :: would affect the reputation of the school as well as the future of the students. 8.Two reply affidavits were filed by the petitioner in reply to the counter affidavits. The various allegations levelled against her were denied. 9. The learned counsel appearing for the petitioner submitted that the authority to grant leave is the Government. The Government has to exercise the power as provided in the rules in Appendix XIIC to the Kerala Service Rules (hereinafter referred to as KSR). When the conditions are satisfied, the Government have no discretion to refuse leave. Going by the rules in Appendix XIIC, the maximum period up to which leave can be granted is 20 years. The counsel also contended that the Managerial and Controlling Officers are expected to submit their remarks and the remarks are intended only for the purpose of enabling the Manager to make substitute arrangement. In other words, the contention of the learned counsel appearing for the petitioner is that the Manager has no jurisdiction to say that leave should not be granted or that the circumstances are not in favour of granting leave. With reference to the columns in the application for leave, the counsel submitted that W.P.(C) NO.19162 OF 2008 :: 7 :: the Manager is not expected to have his own views in the matter and what he is expected to do is to see that the conditions mentioned in the application are complied with. 10. The learned counsel appearing for the 3rd respondent submitted that discretion is vested in the Manager and the Controlling Officer to make recommendations and remarks and their jurisdiction to do so is traceable to Rule 58(2) of Chapter XIV A of the Kerala Education Rules. 11. Rule 56 of Chapter XIV A of the Kerala Education Rules provides that 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. Rule 57 and Sub Rules (1) and (2) of Rule 58 of the Kerala Education Rules are extracted below: “57. The Headmaster shall be the competent authority to grant casual leave to teachers and non- teaching staff. The Educational Officer shall be the competent authority to grant casual leave to Heads of Schools. A copy of the application for casual leave for W.P.(C) NO.19162 OF 2008 :: 8 :: the Headmaster shall be submitted to the Manager also for information.” “58. (1) Subject to rule 57 and sub-rule (3) of this rule Educational Officer shall be the competent authority to grant all kinds of leave other than study leave and special disability leave to teachers and non-teaching staff. The grant of study leave and special disability leave requires the sanction of the Government. (2) On the receipt of an application for leave under sub-rule (1) the Headmaster shall forward same to the Educational Officer with his remarks through the Manager so as to enable him to make substitute arrangements. The manager shall forward the application for leave along with his remarks to the Educational Officer within three days from the date of receipt of the communication from the Headmaster. Copies of orders sanctioning leave shall be furnished to the Manager also in addition to the Headmaster. [Note:- In case the Headmaster does not forward the application for leave or the Manager does not forward the same to the Educational Officer within three days from the date of receipt of the application for leave, the Educational Officer may sanction the leave applied for.]” W.P.(C) NO.19162 OF 2008 :: 9 :: 12. Rules 64, 65 and 110 D of Part I K.S.R read as follows: “SECTION II - GENERAL CONDITIONS 64. The Government may issue orders specifying the authority by whom leave, other than study leave and leave without allowances exceeding a period of four months at a time, may be granted. The power to sanction leave without allowances exceeding a period of four months at a time will rest with Government. 65. Leave cannot be claimed as a matter of right. When the exigencies of the public service so require, discretion to refuse or revoke leave of any description is reserved to the authority empowered to grant it. Note:-The nature of the leave due and applied for by an officer cannot be altered at the option of the Sanctioning Authority and while it is open to the Sanctioning Authority to refuse or revoke the leave due and applied for, it is not open to him to alter nature of such leave. SECTION-XID LEAVE FOR JOINING SPOUSE 110D.Rules for the grant of leave without allowances for the purpose of joining spouse are given in Appendix- XIIC.” 13. Appendix XIIC of K.S.R. contains the rules regarding the leave without allowances for joining spouse. Rules therein provide that the maximum period of leave that may be sanctioned to officers shall be limited to 20 years during their entire W.P.(C) NO.19162 OF 2008 :: 10 :: service. It also provides that if the officers who have availed of the leave without allowances for a total period of 20 years, whether continuously or in broken periods, do not return to duty immediately on the expiry of the leave, their service shall be terminated after following the procedure laid down in Kerala Civil Services (Classification, Control and Appeals) Rules, 1960. Several other conditions are also provided for the grant of leave. 14. Going by Rule 58(1) of Chapter XIV A of Kerala Education Rules, grant of study leave and special disability leave requires the sanction of the Government. The special disability leave and study leave are specifically dealt with in Rule 97 and Rule 99 respectively of Chapter IX of Part I K.S.R. Rule 88 of Chapter IX of Part I K.S.R provides for leave without allowances. Going by the rules in Chapter IX of Part I K.S.R., it is clear that leave for a period of five years is also leave without allowances. The various kinds of leave without allowances are dealt with under Rules 110B, 110C and 110D, namely, for taking up employment abroad or within India, leave for the study purposes and leave for the purpose of joining spouse. Rule 56(4) of Chapter XIV A of the Kerala Education Rules provides that a teacher shall cease to be in service after a W.P.(C) NO.19162 OF 2008 :: 11 :: continuous absence of five years whether with or without leave. On a reading of the various rules mentioned above, it would appear that there is conflict between certain rules in Chapter XIV A of the Kerala Education Rules and the rules in Chapter IX of Part I K.S.R. It is not necessary for the purpose of disposal of this Writ Petition to resolve that controversy. However, to my mind, Rule 56(4) of Chapter XIV A of the Kerala Education Rules should be harmoniously construed and read along with the rules in Appendix XIIC of K.S.R. 15. The crucial question to be considered is whether the Manager or the Headmaster of the school can make a remark against granting leave for a teacher to join spouse abroad. Sub rule (2) of Rule 58 of Chapter XIV A of the Kerala Education Rules provides for the following things; On receipt of an application for leave, the Headmaster shall forward the application for leave to the Educational Officer with his remarks through the Manager. The Manager shall forward the application with his remarks to the Educational Officer within three days from the date of receipt of communication from the Headmaster. While considering the scope and ambit of “remarks” under Sub Rule (2) of Rule 58 of Chapter XIV A of the Kerala Educational Rules, one cannot forget the mandate of W.P.(C) NO.19162 OF 2008 :: 12 :: Rule 65 of Chapter IX of Part 1 K.S.R., which clearly provides that leave cannot be claimed as a matter of right. Rule 65 also makes exigencies of public service relevant. The discretion of the authority to grant leave is also reserved under Rule 65. Therefore, when the matter comes before the Government, to consider the question whether the leave should be granted to a teacher for five years or consecutively for several spells of five years, the exigencies of service and all other relevant factors in order to enable the authority to consider the leave application and to exercise his discretion properly and effectively, also become important and relevant. The Headmaster or the Manager or both are entitled to put their views while forwarding the leave application to the Government. The Headmaster or the Manger is not the authority to sanction the leave. The Controlling Officer, namely, the Educational Officer is also not competent to grant leave without allowances for five years. However, the application for leave has to be routed through these authorities. Rule 58(2) provides for the remarks of the Manager as well as the Headmaster. The provision for making remarks is not an empty formality. It is intended to assist the authority to consider the leave application and to exercise the discretion to grant or refuse the leave. All the necessary inputs could be supplied to the Government by the W.P.(C) NO.19162 OF 2008 :: 13 :: Headmaster, the Manager and the Controlling Officer. After considering all these remarks and recommendations, the Government could arrive at a conclusion whether the leave should be granted or not. In that process, the remarks made by the aforesaid authorities are of great importance. Even after the Headmaster or the Manager makes their remarks against granting leave, nothing prevents the Government from exercising the discretion as provided in rule 65 of Chapter IX of Part 1 K.S.R. and grant the leave application. 16. The paramount consideration in granting leave is not only the convenience of the teacher, but the exigencies of services and the welfare of the students. A teacher cannot as of right claim leave for five years or for periods of five years continuously or intermittently. The authority who is to sanction leave can take into account all the relevant facts and either grant or refuse leave. Even if the Headmaster and the Manager make recommendation for granting leave, nothing prevents the Government from refusing leave. Likewise, even if the Manager and the Headmaster recommend not to grant leave, that would not be a bar for the Government to grant leave. I am not inclined to accept the contention W.P.(C) NO.19162 OF 2008 :: 14 :: of the petitioner that the Manager and the Headmaster can only receive the application and forward it with the remarks in respect of only the matters mentioned in the application. All these are matters to be complied with by the Manager. His duty does not end there; nor does it prevent the Manger or the Headmaster from expressing his views against the grant of leave to the teacher. They are entitled to put forward the relevant facts in respect of the functioning of the school, the number of teachers working in the school, the total strength of students, whether sufficient teaching staff is available, whether the students would be put to inconvenience and difficulties if leave is granted to the teacher etc. In other words, the Manger and the Headmaster are not to act as “Post Offices”, just to forward the applications to the Government. The paramount consideration in that process would be the welfare of the students and the smooth running of the school concerned and not the convenience or right of the teacher or the convenience of the Manager or the Headmaster. It is not the likes or dislikes of the persons concerned, but the welfare of the students and the smooth running of the school that are relevant in the matter. I am not inclined to accept the contention raised by the learned counsel for the petitioner that the remarks to be made by the Headmaster are intended only to enable the Manager to make W.P.(C) NO.19162 OF 2008 :: 15 :: substitute arrangements, as provided in sub-rule (2) of Rule 58 of Chapter XIV-A of the Kerala Education Rules. What sub-rule (2) of Rule 58 provides is that the application shall be sent by the Headmaster to the Educational Officer, routed through the Manager. It is for the purpose of enabling the Manager to make substitute arrangements. But the remarks to be made by the Headmaster are not for enabling the Manager to make substitute arrangements. The remarks of the Headmaster are intended to help the sanctioning authority to exercise his discretion. The remarks of the Headmaster would also help the Manager to make his own remarks, as provided in Rule 58(2), Chapter XIV-A of the Kerala Education Rules. 17. The learned Government pleader pointed out that the Government issued Circular No.5/J3/2005 G. Edn. dated 4/4/2005, which is relevant on the question under consideration. The Circular reads as follows: “GENERAL EDUCATION(J) DEPARTMENT CIRCULAR No.5/J3/2005/G.Edn. Dated, Thiruvananthapuram, 4th April, 2005 Sub:- General Education- Government/Aided School employees- Application for Leave Without Allowances- Processing of- Instruction -Regarding. W.P.(C) NO.19162 OF 2008 :: 16 :: Government have noticed inordinate delay on the part of Teachers, Managers, Educational Officers in forwarding the applications for Leave Without Allowance/extension of Leave without allowance of Government, Aided School Teachers, Ministerial Staff causing much inconvenience to Government in sanctioning the same at the appropriate time, thereby putting hardship to the incumbents. In the above circumstances the following instructions are issued for the speedy and timely processing of application for leave without allowance under provisions of Kerala Service Rules. 1. The employees should submit the leave application at least three months in advance so as to enable Government to process the application and take a decision before the commencement of leave applied for. The application should invariably contain the dated signature of the applicant. 2. The reason for the leave applied for should be specified. Leave will not be granted on vague grounds. 3. In the case of Aided Schools, the Manager of the School should forward the application to the Educational Officers concerned within one week with his specific remarks/recommendation after affixing the dated signature. 4. The Educational Officers should process and forward the same with his specific recommendation/remarks bearing his dated signature to Government within a week from the date of receipt of the leave application. 5. Immediately after getting the application, the Administrative Department should process the application and take decision in consultation with Finance Department, wherever necessary within one month from the date of receipt. 6. The incumbent shall not enter into Leave Without Allowances without getting it sanctioned. Entering into Leave Without Allowance without proper sanction will be viewed W.P.(C) NO.19162 OF 2008 :: 17 :: seriously and stringent action will be taken against such incumbent, as per the general instructions issued in the matter by the Finance Department from time to time. SAJAN PETER, Secretary to Government” 18. In the present case, the Manger, as per Exhibit P7, informed the petitioner that the management is not willing to consider the applications submitted by the petitioner. After sending Exhibit P7 communication, the Manager did not forward the application to the Controlling Officer. Only after the interim order was passed in Writ Petition, the Manger forwarded the application to the Controlling Officer. However, he did not make any specific remark while forwarding the same. Therefore, the Controlling Officer did not countersign the application and in the necessary documents. The Government considered the incomplete leave application and as per Exhibit P12 order rejected the application. The Government did not get an opportunity to consider the application on the merits and to exercise the discretion either in favour of or against the granting of leave application, as the necessary remarks of the Manger and the Headmaster and the counter-signature of the Controlling Officer were not available. In short, it was an incomplete disposal of the leave application. It is true that the Manger expressed his views in W.P.(C) NO.19162 OF 2008 :: 18 :: the matter in Exhibit P7 communication. That is not a substitute for making the remarks as provided under Rule 58(2) of Chapter XIV A of the Kerala Education Rules. The Headmaster-cum-Manager was bound to comply with Rule 58. But he did not do so. Therefore, the whole process was defective and the proper procedure was not followed. In these circumstances, I am of the view that Exhibit P12 order dated 9/6/2008 passed by the Government is liable to be quashed. Accordingly, I quash Exhibit P12 and direct the Government to dispose of the application afresh. The Headmaster- cum-Manager shall make his remarks and forward the same to the District Educational Officer. The Government will transmit the application for leave to the Headmaster of the school, if not already forwarded either to the Headmaster or to the Educational Officer. The Headmaster-cum-Manager shall comply with Sub rule (2) of Rule 58 of Chapter XIV A of Kerala Education Rules and forward the application along with the remarks and other documents to the Educational Officer.