JINILKUMAR v. DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM; PATHANAMTHITTA DISTRICT EDUCATIONAL OFFICER, PATHANAMTHITTA; ASSISTANT EDUCATIONAL OFFICER, PATHANAMTHITTA; HEADMISTRESS, D.P.M.U.P. SCHOOL, PEZHUMPRA; MANAGER, D.P.M. U.P. SCHOOL, PEZHUMPRA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 06TH DAY OF NOVEMBER 2019 / 15TH KARTHIKA, 1941** ## **WP(C).No.29329 OF 2014(M)** ## **PETITIONER/S:** **JINILKUMAR AGED 43 YEARS S/O.V.R.BHASKARAN, 'VARIKKOLIL KIZHAKKETHIL HOUSE', VADASSERIKKARA P.O., PATHANAMTHITTA DISTRICT -689662 LOWER PRIMARY SCHOOL ASSISTANT D.P.M.U.P SCHOOL, PEZHUMPRA, PATHANAMTHITTA - 693672** **BY ADVS. SRI.S.MUHAMMED HANEEFF SRI.M.H.ASIF ALI SRI. A.KRISHNAN** ## **RESPONDENT/S:** **1 DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM - 695 014.** - **2 DISTRICT EDUCATIONAL OFFICER PATHANAMTHITTA - 689101.** - **3 THE ASSISTANT EDUCATIONAL OFFICER PATHANAMTHITTA - 689 645.** - **4 THE HEADMISTRESS D.P.M.U.P SCHOOL, PEZHUMPRA, PATHANAMTHITTA -693 672.** **5 ADDL.R5. THE MANAGER D.P.M. U.P.SCHOOL, HAVING OFFICE AT D.P.M.U.P.SCHOOL, PEZHUMPRA, PATHANAMTHITTA-693672. ADDL.R5. IMPLEADED AS PER ORDER DATED 6.11.2015 IN IA.16143/2015** **R4 BY ADV. SRI.V.A.MUHAMMED ADDL R5 BY ADV. SMT.M.K.MEHRUNISHA BASIMA R1 TO 3 - SMT.MARY BEENA JOSEPH,SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-112019, THE COURT ON 06-11-2019 DELIVERED THE FOLLOWING:** WP(C).No.29329 OF 2014(M) 2 ## **JUDGMENT** This writ petition is filed by the petitioner seeking the following relief:- “ _a) through issuing a writ of mandamus or any other appropriate writ, order or direction command the 4[th] respondent to take immediate actions in Ext.P4 and for compliance of the directions contained in Ext.P4.”_ 2. Basic material facts for the disposal of the writ petition are as follows:- Petitioner sought for five years leave without allowance and as per Ext.P1 order it was sanctioned. However, petitioner returned on 21.08.2014 and submitted application before the 5[th] respondent manager for cancellation of leave and seeking permission for rejoining duty. Manager did not act upon the same, consequent to which petitioner has approached the educational authority as per Ext.P3 and thereupon the Assistant Educational Officer as per Ext.P4 order dated WP(C).No.29329 OF 2014(M) 3 19.09.2014 directed the Headmistress of the school to submit a report immediately. It was also directed thereunder that after the petitioner joining duty, the manager shall move necessary application for cancellation of the remaining portion of the leave granted as per Ext.P1. However, thereafter no action was initiated, thereupon petitioner has approached this Court by filing this writ petition. 3. An interim order was passed by this Court on 25.02.2016 directing the manager to resubmit the application through headmistress of the school before the Assistant Educational Officer and the A.E.O. was directed to forward it to the D.P.I with notice to the petitioner. The D.P.I. Was further directed to considered it within a period of two weeks from the date of receipt of the application. Petitioner was also directed to resubmit the application immediately so as to enable the manager and headmistress to follow the above procedure. It is also pointed out thereunder that the question of WP(C).No.29329 OF 2014(M) 4 who would be responsible for the pay declined to the petitioner will be left open. Pursuant to the order, petitioner rejoined duty on 09.05.2016. So the sole question remaining for consideration is whether the petitioner is entitled to be compensated for the period petitioner was kept out of service and if so who is responsible for compensating the petitioner. 4. The 2[nd] respondent has filed a counter affidavit refuting the allegations made by the petitioner against the Government and the educational authorities. It is also submitted that the application for cancellation of unavailed portion of leave should be recommended and forwarded by the manager through headmistress. The manager is the appointing authority of an aided school and the headmistress has no role in granting permission to an aided school teacher for rejoining service. The sum and substance of the contention put forth by the 2[nd] respondent is that, 2[nd] respondent is in no manner responsible for ## WP(C).No.29329 OF 2014(M) 5 keeping the petitioner out of service and the sole responsibility is that of the manager. 5. The 4[th] respondent has filed a detailed counter affidavit disputing the claims raised by the petitioner. Among other contentions it is stated that, consequent to the leave availed by the petitioner a substitute namely Smt.Preethu.J was appointed against the vacancy of the petitioner. The appointment of the said person covers the period from 23.09.2013 to 31.03.2015 and she has been continuing in the school as LPSA. It is also pointed out that, the leave of the petitioner expires only on 31.07.2018. However it is submitted that surprisingly without any prior notice to the manager petitioner has chosen to come to the school on 21.08.2014 with a request to allow him to rejoin duty cancelling the unavailed portion of leave. Other contentions are also raised, however, since the petitioner has rejoined duty as is specified above, I am not traversing through the same. 6. I have heard learned counsel for the WP(C).No.29329 OF 2014(M) 6 petitioner, learned Government Pleader and the learned counsel appearing for the manger of the school. 7. Learned counsel for the petitioner has advanced arguments relying upon the judgments of this Court in _**Sreeja v. Assistant Educational Officer & Ors. [2000(1) K.L.J 970]**_ and _**Ahammedkutty**_ _**v. State of Kerala [2013 (1) KLT 158].**_ Paragraph 3 of Sreeja(supra) is relevant to the context which read thus:- _“3. The further question which has to be considered is as to whether the third respondent could have cancelled the unexpired portion of the leave. The learned Government Pleader invited my attention to Note. 1 to Rule 72 of Part I KSR. The Note states that no formal cancellation of the unexpired portion of leave is necessary when an officer returns to duty before the expiry of his leave. Therefore in this case when the third respondent allowed the 4[th] respondent to rejoin duty, there is a cancellation of the unexpired portion of the leave.”_ So also paragraph 8 of Ahammedkutty (supra) is relevant, which read thus:- _8.But coming to the power, competence, jurisdiction and authority of the Manager to permit a person to rejoin duty, after cancelling the unavailed portion of the leave, reference has to be made to 'R.72'_ WP(C).No.29329 OF 2014(M) 7 _Part I K.S.R.; which is relevant provision granting Leave Without Allowance. The said provision rads as follows:_ ## _**Rule 72**_ _“(1) An officer on leave may not return to duty before the expiry of the period of leave granted to him, unless he is permitted to do so by the authority which granted him leave._ _(2) Notwithstanding anything contained in sub-rule(1) an officer on leave preparatory to retirement shall be precluded from withdrawing his request for permission to retire and from returning to duty, save with the consent of the authority empowered to appoint him._ ## _**Note 1**_ _“No formal cancellation of the unexpired portion of leave is necessary when an officer returns to duty before the expiry of his leave. The cancellation will be effected by the Audit Officer in the case of Gazetted Officers and by the Head of Office in the case of Non-Gazetted Officers”._ _During the course of hearing, it is brought to the notice of this Court that the issue, whether any formal order cancelling the unexpired portion of leave is necessary or not before permitting a person to rejoin duty, had come up for consideration before this Court in Sreeja v. A.E.O. (2000 (2) KLT SN 80 (C.No.86). After considering the facts and circumstances therein, and also with reference to 'Note I', this Court observed that, by virtue of the 'Note' there was nothing wrong on the part of the 3[rd] respondent to have permitted the fourth respondent therein to rejoin duty, though there was no formal order of cancellation. The scope of the rule has been sought to be explained vide the subsequent Circular bearing No.13/2003/Fin. dated in 17.1.2003 a copy of which has been produced as_ WP(C).No.29329 OF 2014(M) 8 _Ext.R3(a) in W.P.(C).No.27463/2012. For better appreciation and understanding, the contents of Ext.R3(a) are extracted below:_ _“It was clarified in the Circular second cited that employees on leave without allowances for taking up employment abroad/join spouse under Appendix XIIA or XIIC and who wish to rejoin duty after cancelling the unavailed portion of leaves should apply in writing 3 months in advance and they shall be permitted to rejoin duty only after obtaining Government sanction, the leave sanctioning authority in such cases being the Government._ _It has come to the notice of Government that the condition of obtaining Government sanction for permission to rejoin duty causes undue delay by protracted correspondence at various levels from the Head of Officer to Government. In most cases the Authority Competent to issue posting orders is unable to give posting through there are open vacancies to accommodate such employees and where there is no administrative inconvenience involved._ _In the above circumstances, Government clarify that the Authority Competent to issue posting orders may entertain the requests for cancellation of unavailed portion of leave and may issue necessary posting orders in anticipation of Government sanction in cases where no administrative inconvenience is involved. But formal Government sanction shall invariably be obtained thereafter for cancelling the unavailed portion of leave”._ ## 8. Going by the counter affidavit filed by the 4[th] respondent, at least from 31.03.2015 the manager was liable to appoint the petitioner, since WP(C).No.29329 OF 2014(M) 9 the substitute namely Smt. Preethu.J left the service. It is also pointed out that, going by the provisions of Rule 72 of Kerala Service Rules Part I, it is clear that, no formal cancellation of the leave is required and the manager is at liberty to seek for cancellation of the leave after permitting the petitioner to join the duty. 9. As I have pointed out earlier the 2[nd] respondent has filed a detailed counter affidavit stating that, the 2[nd] respondent or any other educational authority is responsible for keeping the petitioner out of service. Going by the counter affidavit filed by the 4[th] respondent and the documents produced it is clear that, petitioner has approached the manager of the school on 21.08.2014 for rejoining duty after cancellation of leave. Therefore it was for the manager to take appropriate action to permit the petitioner to rejoin duty atleast from 01.04.2015, on which date the substitute has left the service. **==> picture [398 x 12] intentionally omitted <==** WP(C).No.29329 OF 2014(M) 10 situations, I am of the considered opinion that, there was clear negligence on the part of the manager of the school in permitting the petitioner to join duty atleast from 01.04.2015. I also bear in mind that on 25.02.2016 this Court has passed an interim order directing the manager as well as the educational authorities to take appropriate action in respect of the permission sought for by the petitioner for joining the school. Therefore, the liability of the manager in my considered opinion ends with the interim order passed by this Court on 25.02.2016, however the responsibility and liability of the manager on and with effect from 01.04.2015 till the date of the interim order cannot be overlooked. 11. Eventhough, I am of the opinion that the manager ought to have cancelled the appointment given to the substitute and permitted the petitioner to join duty on and with effect from the date of reporting by the petitioner, an incumbent continued in the post till 31.03.2015, atleast from WP(C).No.29329 OF 2014(M) 11 01.04.2015 petitioner is entitled to get salary. In that view of the matter, I am of the considered opinion that petitioner is entitled to get the salary on and with effect from 01.04.2015 to 31.01.2016. The Government shall pay the salary to the petitioner for the above specified period within two months from the date of receipt of a copy of this judgment, and will be at liberty to recover the same from the manager of the school. The writ petition is allowed to the above extent. ## **SD/-** ## **SHAJI P.CHALY** **JUDGE** ## **hmh** WP(C).No.29329 OF 2014(M) 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 EXT.P-1: TRUE COPY OF ORDER DATED 18.2.2013, ISSUED BY THE SENIOR ADMINISTRATIVE OFFICER UNDER THE IST RESPONDENT** - **EXHIBIT P2 EXT.P-2: TRUE COPY OF THE LIEN RETENTION CERTIFICATE PURSUANT TO ANNEXURE A1 ISSUED BY 4TH RESPONDENT** - **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION, DATED 27.08.2014, FILED BEFORE THE 3RD RESPONDENT, THROUGH PROPER CHANNEL** - **EXHIBIT P3(A) EXT.P-3(A): TRUE ENGLISH TRANSLATION OF ANN.A3.** - **EXHIBIT P4 EXT.P-4: TRUE EXTRACT OF THE DIRECTIONS DATED 19.9.2014, TO THE 4TH RESPONDENT** - **EXHIBIT P4(A) EXT.P-3(A): TRUE ENGLISH TRANSLATION OF ANN.A4.** - **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION FILED BEFORE THE GOVERNMENT, DATED 17.10.2015** - **EXHIBIT P5 (A) TRUE COPY OF POSTAL ACKNOWLEDGEMENT CARD EVIDENCING RECEIPT OF EXT.P5** - **EXHIBIT P6 TRUE COPY OF THE REPLY OF THE 4TH RESPONDENT DATED 09.12.2015 ALONG WITH THE REPLY OF 3RD RESPONDENT AND THE COPY OF EXT.P5.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R-4(A) TRUE COPY OF THE LETTER OF THE HEADMISTRESS DATED 03.11.2014.** **EXHIBIT R-4(B) TRUE COPY OF THE LETTER OF THE HEADMISTRESS DATED 5.11.2014.** **EXHIBIT R-4(C) TRUE COPY OF THE LETTER ADDRESSED TO THE MANAGER OF THE SCHOOL DATED 03.11.2014.** WP(C).No.29329 OF 2014(M) 13 **EXHIBIT R-4(D) TRUE COPY OF THE CIRCULAR NO.15/90/FIN. DATED 20.03.1990 OF THE GOVERNMENT. EXHIBIT R-4(E) TRUE COPY OF THE CIRCULAR NO.15/02/FIN DATED 13.3.2002 OF THE GOVERNMENT. EXHIBIT R-4(F) TRUE COPY OF THE SUBMISSION OF THE PETITIONER DATED 21.08.2014. EXHIBIT R-4(F)(I) TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT R-4 (F). EXHIBIT R-4(G) TRUE COPY OF THE LETTER OF THE HEADMISTRESS DATED 10.11.2014. EXHIBIT R-4(G)(I) TRUE COPIES OF THE ENGLISH TRANSLATION OF EXHIBIT R-4(G).**