P. C. Ahamedkutty and Bashira M. v. State of Kerala, represented by Secretary to Government General Education Department; The Assistant Educational Officer, Vengara; P. Abdun Naszar

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** # **WEDNESDAY, THE 5TH DAY OF DECEMBER 2012/14TH AGRAHAYANA 1934** ## **WP(C).No. 27463 of 2012 (G) ---------------------------** ## **PETITIONER(S):** **-------------** **1. P.C.AHAMMEDKUTTY, MANAGER, NEEROLPALAM A.M.L.P.SCHOOL, P.O.TENHIPALAM MALAPPURAM-673636.** ## **2. BASHIRA M.** **JUNIOR ARABIC TEACHER, NEEROLPALAM A.M.L.P.SCHOOL P.O.TEHNIPALAM, MALAPPURAM-673636.** **BY ADV. SRI.T.M.ABDUL LATHEEF** ## **RESPONDENT(S):** ## **--------------** **1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT THIRUVANANTHAPURAM-695001.** ## **2. THE ASSISTANT EDUCATIONAL OFFICER** **VENGARA-673634.** **3. P.C.ABDUNNASZAR, ARABIC TEACHER ON LEAVE WITHOUT ALLOWANCE) MIFANA MANZIL, TENHIPALAM PUTHOOR PALLICKAL-673636.** **R3 BY ADV. SRI.K.JAJU BABU R3 BY ADV. SMT.M.U.VIJAYALAKSHMI BY GOVERNMENT PLEADER SRI.M.S. FAYAZ** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-12-2012, ALONG WITH WPC NO. 27762/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 27463 of 2012 (G)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** - **EXT.P1 TRUE COPY OF THE ORDER G.O.(RT)NO.5739/2010/G.EDN. DATED 23/12/2010.** - **EXT.P2 TRUE COPY OF THE APPOINTMENT ORDER DATED 1/6/2011.** - **EXT.P3 TRUE COPY OF THE REQUEST DATED 20/9/2012 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE FIRST PETITIONER.** - **EXT.P4 TRUE COPY OF THE ORDER CIRCULAR NO.64371/J1/82/G.EDN. DATED 26/4/1988.** - **EXT.P5 TRUE COPY OF THE G.O.(P)NO.471/2012/FIN. DATED 23/8/2012.** - **EXT.P6 TRUE COPY OF ORDER NO.D/6285/12 DATED 29/10/2012 ISSUED BY THE 2ND RESPONDENT TO THE FIRST PETITIONER.** - **EXT.P7 TRUE COPY OF THE PAY BILL SUBMITTED BEFORE 2ND RESPONDENT FOR THE MONTH OF OCTOBER 2012.** ## **RESPONDENTS' EXHIBITS :** **EXT.R3(a): TRUE COPY OF THE CIRCULAR NO.13/2003/FIN DATED 17.1.2003 ISSUED BY THE GOVERNMENT.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **dlk** **[CR]** ## **P.R.RAMACHANDRA MENON, J ------------------------------------------W.P. (C) Nos. 27463 & 27762 of 2012 ----------------------------------------------** Dated this the 5[th] day of December, 2012 ## **JUDGMENT** The issues involved in both these writ petitions are closely interlinked with one another. Pleadings and proceedings are being referred to as given in WP(C).No.27463/2012, which has been filed by the manager of the Neerolpalam A.M.L.P.School and the leave substitute appointed by him in the vacancy resulted when the 3[rd] respondent was permitted to go on leave without allowance, as sanctioned by the Government, for a period of 5 years. WP(C).No.27762/2012 has been filed by the 3[rd] respondent in the other case. 2. The sequence of events as narrated by the writ petition shows that the 3[rd] respondent, who was working as an Arabic teacher decided to go aboard and accordingly he submitted an application for leave without allowance. This was considered by the Government/the leave sanctioning authority under Rule 72 of Part-I KSR and the same was sanctioned as per **W.P. (C) Nos. 27463 & 27762 of 2012** 2 Ext.P1 order dated 23/12/2010 granting LWA for a period of 5 years from 5/1/2011 to 4/1/2016, enabling the 3[rd] respondent to take up the employment aboard; subject to the conditions stipulated therein. On granting the leave the 3[rd] respondent demitted the Office and went aboard. Considering the immediate requirement to place a substitute; lest it should adversely affect the career of the students at large, the first petitioner appointed the second petitioner in the said vacancy and she is continuing there. While so, due to some or other reason, the 3[rd] respondent chose to return and he made Ext.P3 request before the Manager of the School to permit him to rejoin duty, after cancellation the unavailed portion of the leave. The Manager expressed his helplessness in view of the turn of events; particularly having filled up the vacancy by appointing a substitute who is the second petitioner and whose appointment was approved for a period of 5 years by the Departmental Authorities. This made the 3[rd] respondent to approach the second respondent/AEO by filing a complaint; pursuant to which Ext.P6 order was issued by the AEO on 29/10/2012, alerting the Manager that there was absolutely **W.P. (C) Nos. 27463 & 27762 of 2012** 3 no the rhyme or reason for declining the permission leave sought for by the 3[rd] respondent to rejoin duty; was having more than 10 years of the service and that he should be permitted to rejoin duty after causing the unavailed portion of leave cancelled. The said respondent also made an endorsement, as borne by Ext.P7, whereby the salary payable to the second petitioner (the concerned leave substitute) came to be rejected. The Manager and the substitute are thus before this Court by filing WP(C).No. 27463/2012, seeking to set aside Exts.P6 and P7 and for such other reliefs. 3. The acts and deeds on the part of the Manager paying only scant regards to the orders passed by the Departmental Authorities (produced as Ext.P7 in WP(C).No. 27762/2012, which is the same as the Ext.P6 in the other case) are under challenge in WP(C).No. 27762/2012 and the petitioner seeks to have Ext.P7 implemented, enabling him to rejoin duty and to have the salary disbursed. 4. The learned counsel for the petitioners in WP(C). No.27463/2012 seeks to place reliance on Ext.P4 Circular dated **W.P. (C) Nos. 27463 & 27762 of 2012** 4 26/4/1988 and Ext.P5 G.O. Dated 23/8/2012, contending that the 3[rd] respondent is not at all entitled to rejoin duty before expiry of the LWA sanctioned for a period of 5 years. This is sought to be controverted from the part of the 3[rd] respondent (who has filed the other writ petition) pointing out that Ext.P4 Circular is not applicable to the case in hand and further that, it is always open for the 3[rd] respondent to have the unavailed portion of the leave cancelled and rejoin duty at any time. It is also contended that Ext.P5 Government Order sought to be relied on by the Manager is in respect of the persons who proceed on LWA before completion of probation, which is not applicable here, as the 3[rd] respondent has already an approved service of more than 10 years. 5. Heard the learned Government Pleader as well. 6. With regard to the scope and applicability of Ext.P4 Circular, the circumstance under which the said Circular came to be issued is discernible from the 'opening paragraph' itself, which is extracted below: _“It has been brought to the notice of Government_ **W.P. (C) Nos. 27463 & 27762 of 2012** 5 _that some of the teachers taken Leave Without Allowances for almost an academic year, or major portion of it, and they return to duty immediately before the commencement of mid-summer vacation with an intent to receive vacation salary. Such instances are prevalent in certain Aided Schools, where such leave arrangements are deliberately made with a view to make another appointment.”_ The relevant clause which is more pressed into service by the petitioners is Clause (vii) which reads as follows: _“The headmasters should refuse to recommend further spells of leave applied for after vacation in the case of teachers in the habit of rejoining before vacation. The Head Masters shall desist from relieving teachers on Leave Without Allowance or long leave without getting substitutes, when once leave is sanctioned, not to readmit teachers cancelling unavailed portion of leave vide 71 ibid.”_ The said Circular came to be issued, deprecating the practice which was being followed by many teachers to have the benefit of vacation salary, by choosing to rejoin duty after cancelling the leave just before the vacation and thereafter proceeding on leave **W.P. (C) Nos. 27463 & 27762 of 2012** 6 again after commencement of the new academic year. Rule 71 referred to in Clause(vii) of Ext.P5 Government Order is extracted below: _“No officer who has been granted leave on Medical Certificate may return to duty without first producing a medical certificate of fitness in the following form from a Medical Officer not below the rank of an Assistant Surgeon or the Director of Indigenous Medicines.”_ The stipulation under Clause(vii) not to readmit the teachers cancelling the unavailed portion of leave vide Rule 71 Part I KSR is obviously in respect of the 'Medical Leave'. 7. Coming to Ext.P5 Government Order, dated 23/8/212, it is in respect of sanctioning of Leave Without Allowance under Appendix XIIA and XIIC before completion of probation. The norms prescribed by the Government clearly prohibit the concerned staff from rejoining duty before expiry of the sanctioned LWA which does not come to the rescue of the petitioners in WP(C).No.27463/2012, as the 3[rd] respondent is not a probationer. **W.P. (C) Nos. 27463 & 27762 of 2012** 7 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 'Rule-72' Part I KSR; which is relevant provision granting Leave Without Allowance. The said provision reads 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_ **W.P. (C) Nos. 27463 & 27762 of 2012** 8 _by the Head of Office in the case of NonGazetted 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) K.L.T. Short Note 80]_ _**.**_ After considering the facts and circumstances therein, and also with reference to 'Note 1', 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 4[th] 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 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_ **W.P. (C) Nos. 27463 & 27762 of 2012** 9 _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 Office 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 fro 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_ **W.P. (C) Nos. 27463 & 27762 of 2012** 10 _obtained thereafter for cancelling the unavailed portion of leave.”_ Even a plain reading of the said Circular gives a clear idea that the concerned authority who can cancel the unavailed portion of the leave is none other than the sanctioning authority ie, the Government. The adverse circumstances being resulted in view of the delay in getting Government sanction before permitting the teacher concerned to rejoin duty after cancelling the unavailed portion of the leave, was also considered by the Government. It was in the said circumstances, that the Government made the position clear, that, if there was any vacancy and there was no inconvenience in permitting the concerned employee to rejoin duty after cancellation of the unavailed portion of leave, it was open for the concerned educational authority to permit join; subject to obtaining permission from the Government in the due course. This is only an enabling provision, whereby the Manager can permit the concerned teacher to rejoin duty, if there is no inconvenience. In other words, it does not say that the Manager shall permit the concerned employee to rejoin duty, virtually **W.P. (C) Nos. 27463 & 27762 of 2012** 11 nullifying the scope of Rule 72, so as to make it appear that no sanction of the Government is necessary. The only question is whether there is any 'inconvenience' as referred to in Ext.R3 (a), in the present case. 9. The specific case of petitioners in W.P.(C).No. 27463/2012 is that, by virtue of the LWA granted to the 3[rd] respondent for a period of 5 years, the first petitioner (Manager) had given appointment to the second petitioner in the said vacancy and her appointment stands approved for a period of 5 years by the Departmental Authorities. This being the position, in view of the clear mandate under the Rule, it is not for the Manager to cancel the unavailed LWA and to permit the 3[rd] respondent to rejoin duty. The Rule also envisages an application to be made by the concerned person with three months' notice, so as to enable the Government to act upon the same and to pass appropriate orders. Ext.R3(a) Circular dated 17/1/2003 also gives a clear idea as to the necessity to pass appropriate orders by the Government; which is held as mandatory, though it could be obtained later, in cases where there is no inconvenience, 12 ## **W.P. (C) Nos. 27463 & 27762 of 2012** virtually suggesting the existence of vacancy at the hands of the Manager. 10. After hearing both the sides, this Courts finds that no vacancy is available to accommodate the 3[rd] respondent at present, in view of the appointment of a substitute, whose appointment stands approved by the Department Authorities. If the 3[rd] respondent desires to rejoin duty, it is always open for him to approach the Government by filing necessary application though proper channel, to have the unavailed portion of leave cancelled and for enabling her to rejoin duty; on which event, it will be for the first petitioner/Manager to give effect to the Order, permitting the 3[rd] respondent to rejoin duty after displacing the second petitioner, who is the leave substitute. In the above circumstance, this Court finds that Ext.P6 order passed by the second respondent in WP(C).No.27463/2012 is not correct or sustainable and the same is set aside. The second respondent is directed to sanction the salary payable to the second petitioner therein for the period she is made to work and the same shall be caused to be disbursed to her forthwith. This however shall be 13 ## **W.P. (C) Nos. 27463 & 27762 of 2012** without prejudice to the rights and interest of the 3[rd] respondent (who is the petitioner in the other case) to have his grievance redressed as mentioned above by approaching the first respondent, for causing the unavailed leave cancelled. Since it is stated that the 3[rd] respondent (petitioner in WP(C).No.27762/12) has already filed an application in this regard and the same is now pending before the A.E.O, the second respondent is directed to forward the said application to the first respondent forthwith, at any rate, with one week from the date of receipt of the copy of the judgment. On receipt of the relevant proceedings, it shall be considered and appropriate orders shall be passed by the first respondent thereon, within a further period of one month thereafter. Both the writ petitions are disposed of. ## **P.R.RAMACHANDRA MENON, JUDGE** AS