Jai M Thomas v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **MONDAY, THE 31[ST] DAY OF JANUARY 2022 / 11TH MAGHA, 1943** ## **WP(C) NO. 1123 OF 2022** ## **PETITIONER/S:** JAI M THOMAS, AGED 44 YEARS S/O. P.T., HIGH SCHOOL TEACHER (MALAYALAM), MES HIGHER SECONDARY SCHOOL, VANDANMEDU, IDUKKI DISTRICT-685551, THROUGH HIS POWER OF ATTORNEY HOLDER, DAISY GEORGE, W/O. A.V. GEORGE, AGED 61 YEARS, RESIDING AT AMBALATHINGAL, THACHAMPARA, PALAKKAD, KERALA-678593. BY ADVS. REKHA VASUDEVAN B.AKSHITHA ELIZABETH V.JOSEPH ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GENERAL ADMINISTRATIVE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE ADDITIONAL CHIEF SECRETARY, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM695001. 3 THE PRINCIPAL SECRETARY, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695001. 4 THE DIRECTOR OF GENERAL EDUCATION, DEPARTMENT OF GENERAL EDUCATION, JAGATHI, THIRUVANANTHAPURAM-695014. 5 THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DEO, MAIN ROAD, ITI JUNCTION, MINI CIVIL STATION, KATTAPPANA, IDUKKI-685508. **WP(C) NO. 1123 OF 2022** **2** 6 THE CORPORATE MANAGER, MES SCHOOLS, MES OFFICE, BANK ROAD, KOZHIKODE-673001. 7 THEHEADMISTRESS, MES HIGHER SECONDARY SCHOOL, HIGH SCHOOL DIVISION, VANDANAMEDU, IDUKKI-685551. ## **OTHER PRESENT:** SRI BABU KARUKAPADATH , GP SRI JIMMY GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.01.2022, THE COURT ON 31.1.2022 DELIVERED THE FOLLOWING: **WP(C) NO. 1123 OF 2022** **3** ## **JUDGMENT** Order dated 14.12.2021, Ext.P24 of the Principal Secretary and its communication, vide letter dated 18.12.2021, to the petitioner by the employer rejecting the application for extension of leave without allowance for another 5 years from 21.7.2020 to 20.7.2025 have been challenged in the present writ petition. 2. On 4.9.2001, petitioner was appointed as High School Assistant (HSA-Malayalam) with Corporate Management at M.E.S High School, Mannarkkad, Palakkad which was duly approved with effect from 4.9.2001 and completed probation on 7.11.2002. Wife of the petitioner has been employed as Staff Nurse at Tawam Hospital, Abu Dhabi, United Arab Emirates, a Government Institution and was also entitled to Family Visa. Two children out of the wedlock were also living with the petitioner and accordingly the petitioner submitted an application for leave without allowance on 20.4.2015 for five years with effect from 21.7.2015 onwards. The said application was allowed vide order dated 20.7.2015, Ext.P10. Petitioner along with his two children, thereafter, had gone to Abu Dhabi where children were admitted to the school. While so, their elder son was **WP(C) NO. 1123 OF 2022** **4** diagnosed with a tiny cyst in the brain and has been undergoing the treatment. In the said circumstances, the petitioner submitted application for extension of leave without allowance to the 7[th] respondent which has been rejected vide impugned communication on the basis of the Government order dated 30.12.2020, Ext.P20 whereby the Government employees who could avail leave upto 20 years, as per Part I KSR, Appendix XIIA was truncated to five years (5) effective from 5.11.2020. 3. Learned counsel for the petitioner submitted that the impugned order Ext.P24 issued by the 3[rd] respondent/Principal Secretary, Department of General Education in a mechanical manner and without any valid application of mind. The authority has rejected the leave solely on the ground that the 6[th] respondent ie., Corporate Manager had not recommended for extension of the leave. The ultimate authority to sanction the leave is vested with the 3[rd] respondent and therefore there was no occasion of any recommendation by the 6[th] respondent. Order Ext.P20 dated 30.12.2020 would also stand in the way for consideration. Rule 56 of Chapter XIV A of the Kerala Education Rules provides that in the matter of leave, the teachers of aided schools shall be governed by the Rules for teachers of Government schools in the Service **WP(C) NO. 1123 OF 2022** **5** Regulations. As per the provision, the leave rules as in Kerlala Service Rules Part I which governs the leaves of the teachers in Government schools would be applicable to the Teachers in Aided Schools also. By virtue of Rule 56(1) of Chapter XIVA KER pertaining to leave in part I of Kerala Service Rules have to be adopted as part of special rules so that the period of leave without allowance can be extended beyond 5 years. 3[rd] respondent has issued orders in an identical and similar case wherein a teacher has been granted LWA under Appendix XIIC Part I KSR as per Ext.P22. Rule 56 of KER is not in parity with the provisions of the Appendix XII C and Appendix XII A of Part I of KSR. In the judgment of the Division Bench, Ext.P2 the vires of Rule 56 of Chapter XIV A was not in question, therefore, has sought the indulgence of this Court by not only challenging the orders but also vires of the rules with the following prayers. _i. Quash Exhibit P24 order issued by the 3rd respondent, Exhibits P25 letter issued by the 6th respondent by the issuance of the writ of certiorari, or other appropriate writ, order or direction._ _ii. Declare the provisions in Rule 56(4) of Chapter XIVA Kerala Education Rules to be repugnant, ultra vires and obsolete._ _iii. Quash Exhibits P19 Government Order and P20 Circular issued by the 2nd respondent restricting the tenure of Leave Without Allowance to five years by the issuance of writ of certiorari, or other appropriate writ, order or direction._ **WP(C) NO. 1123 OF 2022** **6** _iv. Declare that the petitioner is fully entitled to be granted extension of Leave Without Allowance under Appendix XIIC of the Part I Kerala Service Rules._ _v. Direct the 3[rd] respondent to reconsider his Exhibit P14 application for extension of Leave Without Allowance under Appendix XIIC of the Part I Kerala Service Rules and to sanction his the Leave Without Allowance under Appendix XIIC for the period five years from 21.07.2020 to 20.07.2025, by the issuance of the writ of mandamus, or other appropriate writ, order or direction._ vi. _Declare that the petitioner is not liable to proceeded with for his inability to rejoin duty on expiry of his sanctioned LWA and to direct the 6th respondent not to initiate any coercive/disciplinary proceedings against the petitioner by the issuance of the writ of mandamus, or direction._ 4. I have heard the learned counsel for the parties and appraised the paper book. Joining of the petitioner as HSA and availment of the leave for a period of 5 years upto 2020 is not in dispute. Rule 56(1) and 56(4) of the Kerala Education Rules, 1959 provides as under: _“56. Leave Rules: (1) In the matter of casual leave and all other kinds of leave, the teachers in aided schools shall be governed by the Rules for teachers of government schools in the Service Regulations for the time being in force._ (1.4) _A teacher shall cease to be in service after a continuous absence of 5 years whether with or without leave.”_ 5. Appendix XII A and Appendix XII C of the Kerala Service Rules, extracted herein below, provides that the leave can be availed for a period of 20 years. Thus submission of the petitioner that a **WP(C) NO. 1123 OF 2022** **7** teacher in aided school can be granted LWA either for employment or for joining with spouse for 20 years as the provisions of the KSR is also applicable to Government employees as there should not be any anomaly and rather a parity, is not acceptable owing to the order Ext.P20 dated 30.12.2020. The relevant portion of which reads as under: _As per the Appendix XII A of Part I KSR, the government employees can avail leave to take up other employment abroad or within the Country and as per the Appendix XII C of Part I KSR, government employees can avail leave to join their spouse abroad or within the Country a maximum period of 20 years taken in different stages of maximum of 5 years in one stage. The following guidelines are issued for sanctioning the leave without allowance under Appendix XIIA/ XII C of Part I KSR:_ _1.The maximum leave that could be availed under Part I KSR Appendix XIIA or XIIC or both, stands reduced to five years with effect from 05.11.2020. If the incumbent does not report back to duty after expiry of the leave or 5 years, disciplinary proceedings can be initiated against him as per Rule 9 of Appendix XIIA or Rule 10 of Appendix XIIC of Part I KSR._ _2.It is hereby clarified that no application received after 05.11.2020 for extension of leave beyond 5 years will be allowed beyond total period of 5 years and also disciplinary proceedings shall be taken against the employee for removal from service if he fails to rejoin service after 5 years._ _3. Applications submitted after 05.11.2020 for extension of leave for a period of more than five years shall be rejected and the applicant shall be informed that he shall rejoin the service at the end of the leave period already granted. In accordance with Rule 9 of Appendix XIIA /Rule 10 of Appendix XIIC of Part 1 KSR, immediate steps shall be taken for disciplinary action and removal from service against those who remain on leave illegally without rejoining the service._ **WP(C) NO. 1123 OF 2022** **8** _4.Applications for extension of leave received prior to 05.11.2020 as per the Appendix XII-A Part I KSR shall be appended with the Copy of the Contract if any entered into with the employer and shall be submitted for consideration through proper channel. The application shall be forwarded to the Government with clear recommendation from the Head of the Department. The said applications shall be considered as per eligibility and the concerned Departments have to seek prior sanction from the Finance Department before sanctioning the leave application._ 6. From the perusal of the above, Appendix XII A and Appendix XII C Part I of KSR have been amended and period of 20 years has been reduced to 5 years. The period has to be reckoned from 5.11.2020. The period of the petitioner expired before 5.11.2020. The aforementioned order and judgment given by another co-ordinate bench relying upon the KSR for granting leave without allowance for 20 years and a different view adopted by other coordinate bench lead to reference of the dispute to Division Bench of this Court. Division Bench of this Court vide judgment dated 8.12.2021, W.P.(C) No.30452 of 2015 whereby case of the similarly situated lower primary school Assistant for extension of leave without allowance for joining the spouse was rejected, answered the question raised therein in favour of the State. The operative part of the judgment of the reads as under: 4. _We have heard Sri.Dinesh P.T. the learned counsel for the_ **WP(C) NO. 1123 OF 2022** **9** _petitioner, Senior Government Pleader Sri.PremChand R.Nair for the respondents of the State and Smt.Jenzia, the learned counsel for the Manager and Headmaster of the A.M.L.P. School, Chengottur._ _5. On a consideration of the rival submissions, we are of the view that on the facts in the instant case, the provisions of Rule 56 of Chapter XIVA KER have to be seen as carving out an exception in the matter of sanctioning of casual leave and all other kinds of leave to teachers of aided schools. While Rule 56 (1) suggests that in the matter of casual leave and all other kinds of leave,the teachers of aided schools shall be governed by the same Rules as those applicable for teachers of Government schools, Sub Rule 4 of Rule 56 clearly carves out an exception for teachers in aided schools by making it clear that the said teachers would cease to be in service after a continuous absence of 5 years whether with or without leave. In our view, the effect of Sub Rule 4 of Rule 56 would be that, on the expiry of the continuous period of 5 years, there would be no requirement of referring to the KSR for determining the leave entitlement of the teacher in an aided school whether it be casual leave or any other kinds of leave. This would be because the reference to the KSR envisaged under Rule 56 (1) would be required only for the time limited permitted by the provisions of Rule 56 (4), and on expiry of the period of 5 years mentioned in Rule 56 (4), the teacher of a private aided school cannot look to the KSR for determining her leave entitlement. We, therefore, disapprove of the view taken by the learned Single Judge in_ _**Deepa S v. State of Kerala and Others [2010 (4) KHC 820]** to the extent it holds otherwise. We also find that, at any rate, there was no consideration of the interplay between the two sets of Rules in the said judgment, as the learned Judge despite noticing a conflict between the rules, felt it was not necessary for the purpose of disposal of the Writ Petition to resolve that controversy._ I am of the view that the petitioner cannot be permitted to challenge the order dated 30.12.2020 and the vires of the Rule suitable to his own convenience. Even otherwise period of LWA for **WP(C) NO. 1123 OF 2022** **10** 20 years is too long for an employee to retain the lien and deprive other eligible and willing candidates. Writ petition sans merit and is accordingly dismissed. ## **Sd/-** ## **sab** **AMIT RAWAL** **JUDGE** **WP(C) NO. 1123 OF 2022** **11** ## **APPENDIX OF WP(C) 1123/2022** ||**APPENDIX OF WP(C) 1123/2022**| |---|---| |PETITIONER EXHIBITS|| |Exhibit P1|TRUE COPY OF THE JUDGMENT DATED 09/07/2014 IN WPC| ||NO.17009/2014 OF THIS HONOURABLE COURT.| |Exhibit P2|TRUE COPY OF THE JUDGMENT DATED 08/10/2014 OF THIS| ||HONOURABLE COURT IN WA NO.1375/2014.| |Exhibit P3|TRUE COPY OF THE JUDGMENT DATED 17/10/2014 IN WPC| ||NO. 29350/2014 OF THIS HONOURABLE COURT.| |Exhibit P4|TRUE COPY OF THE ORDER NO. ACD A2/33783/14/HSE DATED| ||21/10/2014 ISSUED BY THE 4TH RESPONDENT.| |Exhibit P5|TRUE COPY OF THE ORDER DATED 07/01/2015 IN RP| ||NO.1034/2014 IN WPC NO 29350/2014 OF THIS HONOURABLE| ||COURT.| |Exhibit P6|TRUE COPY OF THE GO(RT) NO. 2160/2015/G.EDN. DATED| ||03/06/2015 ISSUED BY THE 3RD RESPONDENT.| |Exhibit P7|TRUE COPY OF THE LETTER NO. HSS/805/2015 DATED| ||17/06/2015 ADDRESSED BY THE 6TH RESPONDENT TO THE| ||4TH RESPONDENT ALONG WITH THE LEAVE APPLICATION| ||SUBMITTED BY THE PETITIONER.| |Exhibit P8|TRUE COPY OF THE JUDGMENT DATED 26/06/2015 IN WPC| ||NO. 17951/2014 OF THIS HONOURABLE COURT.| |Exhibit P9|TRUE COPY OF THE LETTER NO. B4/2457/15 DATED| ||06/07/2015 ADDRESSED BY THE DISTRICT EDUCATIONAL| ||OFFICER, MANNARKAD TO THE 4TH RESPONDENT ALONG WITH| ||THE ENGLISH TRANSLATION.| |Exhibit P10|TRUE COPY OF THE GO(RT) NO. 2928/2015/G.EDN. DATED| ||20/07/2015 ISSUED BY THE 3RD RESPONDENT.| |Exhibit P11|TRUE COPY OF THE ORDER NO. HS/2010/2019 DATED| ||06/12/2019 ISSUED BY THE 6TH RESPONDENT ALONG WITH| ||ITS ENGLISH TRANSLATION.| |Exhibit P12|TRUE COPY OF THE LETTER NO. A2/09/2021 DATED| ||16/01/2021 ISSUED BY THE HEADMISTRESS MES HIGH| ||SCHOOL, MANNARKKAD TO SR, JAYAPRAKASHAN ALONG WITH| ||ITS ENGLISH TRANSLATION.| **WP(C) NO. 1123 OF 2022** **12** |Exhibit P13|TRUE COPY OF THE RELEVANT PAGES OF THE MEDICAL| |---|---| ||REPORT OF MASTER THOMAS ANOUSH SON OF THE| ||PETITIONER.| |Exhibit P14|TRUE COPY OF THE APPLICATION DATED 21/03/2020| ||SUBMITTED BY THE PETITIONER TO THE 7TH RESPONDENT.| |Exhibit P15|TRUE COPY OF THE RECEIPT DATED 20/04/2020 ISSUED BY| ||THE 7TH RESPONDENT.| |Exhibit P16|TRUE COPY OF THE REPRESENTATION DATED NIL SUBMITTED| ||BY THE PETITIONER TO THE 5TH RESPONDENT ALONG WITH| ||ITS ENGLISH TRANSLATION.| |Exhibit P17|TRUE COPY OF THE LETTER NO. B5/1733/2020 DATED| ||18/06/2020 ISSUED BY THE 5TH RESPONDENT ALONG WITH| ||THE ENGLISH TRANSLATION.| |Exhibit P18|TRUE COPY OF THE REPLY DATED 22/09/2020 SUBMITTED BY| ||THE PETITIONER TO THE 5TH RESPONDENT ALONG WITH ITS| ||ENGLISH TRANSLATION.| |Exhibit P19|TRUE COPY OF THE GO(P) NO. 152/2020/FIN DATED| ||05/11/2020 ISSUED BY THE 2ND RESPONDENT ALONG WITH| ||ITS ENGLISH TRANSLATION.| |Exhibit P20|TRUE COPY OF THE CIRCULAR NO. 83/2020/FIN DATED| ||30/12/2020 ISSUED BY THE 2D RESPONDENT ALONG WITH| ||ITS ENGLISH TRANSLATION.| |Exhibit P21|TRUE COPY OF THE REPRESENTATION DATED 10/02/2021| ||SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT| ||ALONG WITH ITS ENGLISH TRANSLATION AND THE| ||FORWARDING EMAIL.| |Exhibit P22|TRUE COPY OF THE GO(RT) NO. 3514/2021/G.EDN. DATED| ||01/08/2021ISSUED BY THE 3RD RESPONDENT ALONG WITH| ||ITS ENGLISH TRANSLATION.| |Exhibit P23|TRUE COY OF THE REPRESENTATION DATED 23/11/2021| ||SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT| ||ALONG WITH ITS ENGLISH TRANSLATION.| |Exhibit P24|TRUE COPY OF THE LETTER NO. L-2/191/2020/G.EDN.| ||DATED 14/12/2021 ISSUED BY THE 3RD RESPONDENT ALONG| ||WITH ITS ENGLISH TRANSLATION.| **13** ## **WP(C) NO. 1123 OF 2022** Exhibit P25 TRUE COPY OF THE LETTER O. HS/445/2020 DATED 18/12/2021 ISSUED BY THE 6TH RESPONDENT. Exhibit P26 TRUE COPY OF THE REPRESENTATION DATED 27/12/2021 SUBMITTED BY THE PETITIONER TO THE HONOURABLE MINISTER FOR EDUCATION ALONG WITH ITS ENGLISH TRANSLATION. Exhibit P27 TRUE COPY OF THE REPRESENTATION DATED 27/12/2021 SUBMITTED BY THE PETITIONER TO THE 6TH RESPONDENT ALONG WITH ITS ENGLISH TRANSLATION. Exhibit P28 TRUE COPY OF THE JUDGMENT DATED 08/12/2021 IN WPC NO.30452/2015 OF THIS HONOURABLE COURT.