Saji K.G v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942** ## **WP(C).No.15235 OF 2020(D)** ## **PETITIONER :-** **SAJI.K.G, AGED 43 YEARS S/O. GREGORY, NOW WORKING AS HSST ZOOLOGY, LEO XIII HASS, ALLEPPEY, PIN - 688 001, RESIDING AT KADAPPURATHUVEETIL, THYCKAL P.O., CHERTHALA** **BY ADVS. SRI.BENOY THOMAS SRI.PAULSON THOMAS** ## **RESPONDENTS :-** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL**| ||**EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM, PIN - 695 001**| |**2**|**THE DIRECTOR OF GENERAL EDUCATION,**| ||**GENERAL EDUCATION DEPARTMENT,**| ||**GOVERNMENT OF KERALA, JAGATHY,**| ||**THIRUVANANTHAPURAM, PIN - 695 005**| |**3**|**REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY**| ||**EDUCATION, CHENGANNUR, PIN - 689 121**| |**4**|**CORPORATE MANAGER**| ||**THE CORPORATE MANAGEMENT OF SCHOOLS,**| ||**DIOCESE OF ALLEPPEY, LEO XIII CAMPUS, P.B.NO.404,**| ||**ALLEPPEY, PIN - 688 001**| |**5**|**ANITHA C.V.,**| ||**W/O.JACOB CHOCKANTHARA,**| ||**PERMANENTLY RESIDING AT CHARANGHATT HOUSE,**| ||**ARTHUNKAL P.O., CHERTHALA, ALAPPUZHA, PIN - 688 530**| |**6**|**NIXON.K.J.,**| ||**NOW WORKING AS PRINCIPAL,**| ||**ST FRANCIS ASSISI HIGHER SECONDARY SCHOOL,**| ||**ARTHUNKAL, PIN - 688 530**| ||**R1-R3 BY SRI.NISHA BOSE, SR.GOVERNMENT PLEADER**| ||**R5 BY ADV. SRI.V.A.MUHAMMED**| ||**R5 BY ADV. SRI.M.SAJJAD**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-01-2021, THE COURT ON 12-01-2021 DELIVERED THE FOLLOWING:** WP(C).No.15235 OF 2020(D) -: 2 :- ## **JUDGMENT** ## **Dated this the 12th day of January 2021** Heard the learned counsel for the petitioner, the learned Government Pleader and the learned counsel appearing for the 5[th] respondent. 2. The petitioner was appointed as a Higher Secondary School Teacher in Zoology in the Leo XIII Aided Higher Secondary School, Alleppey under the 4[th] respondent Corporate Manager. The petitioner's appointment was against the leave vacancy of the 5[th] respondent, who had availed leave to join her spouse abroad. The petitioner had been continuing for 13 years without break. It is contended that the 5[th] respondent had availed leave without allowance as evidenced by Exts.P1 to P4 before completing two years of service after the initial appointment. It is contended by the learned counsel for the petitioner, relying on Rule 56(4) of Chapter XIV A KER, that the 5[th] respondent ceased to be in service after continuous absence of five years with or without leave. It is contended that since the 5[th] respondent did not rejoin duty after availing leave for five years, the operation of Rule 56(4) would come into effect and the 5[th] respondent has no further claim for rejoining duty in the post held by the petitioner for the past more than 13 years. It is further submitted that the 6[th] respondent, who is an HSST (Zoology) had been promoted WP(C).No.15235 OF 2020(D) -: 3 :- as Principal of the St.Francis Assissi HSS, Arthunkal and therefore, the petitioner is liable to be permitted to continue in the resultant vacancy of the 6[th] respondent. It is further submitted that Ext.P24 Government Order dated 6.1.2006 to the extent it prescribes that the Principal should do teaching work is ultra vires Rules 3 and 4 of Chapter XXXII KER and the petitioner's claim for the vacant post of HSST (Zoology) is liable to be considered. It is further contended that the petitioner is liable to be accommodated in a supernumerary post until a substantive vacancy arises in one of the schools of the 4[th] respondent and is entitled to be accommodated against the next arising vacancy. The learned counsel for the petitioner also refers to Section 12(2) of the Kerala Education Act and Rule 56(1) of Chapter XIV A of the KER. It is submitted that the rejoining of the 5[th] respondent in the school will result in the petitioner being sent out of service without any proceedings being taken against him. 3. The 5[th] respondent has placed a counter affidavit on record. It is submitted that the 5[th] respondent was appointed as HSST (Zoology) on 15.9.1998. She had availed leave without allowance which was extended under due approval. It is stated that by order dated 23.7.2020, which is produced as Ext.R5(c), the Manager permitted the 5[th] respondent to rejoin duty. It is submitted that the issue with regard to the applicability of Rule 56(4) of Chapter XIV A KER has WP(C).No.15235 OF 2020(D) -: 4 :- been considered by this Court in the decisions in **Devaky** v. **State of Kerala** [1999 (2) KLT SN 12], **Elsy P. Oomman** v. **State of Kerala** [2011 (1) KLT 491] and **Sreedevi Amma** v. **Radha Devi** [2005 KHC 710]. 4. The learned counsel appearing for the 5[th] respondent has also placed reliance on the decisions of the Hon'ble Supreme Court in **Ajay Kumar Banerjee and Others** v. **Union of India and Others** [1984 KHC 676] and **Maya Mathew** v. **State of Kerala and Others** [2010 KHC 6101]. 5. A reply affidavit has been placed on record by the learned counsel for the petitioner to the counter affidavit filed by the 5[th] respondent. The petitioner places reliance on a reference order dated 10.2.2016 in W.P.(C) No.30452/2015. 6. A counter affidavit has been filed by the 3[rd] respondent. It is stated in paragraphs 4 and 5 of the counter affidavit as follows :- “4. The appointment of the petitioner against leave vacancy was approved as per Exhibit P5 by the 3[rd] respondent for a period from 24.7.2007 to 31.3.2010 or till the date in which 5[th] respondent joined duty or whichever is earlier. By Exhibit P6, further period of extension in which the petitioner was deployed was also approved on the same condition. Similarly, the second extension for the period with effect from 1.8.2015 to 31.7.2020 as also approved with a condition that till the date in which Smt.Anitha C.V. Joins duty or whichever is earlier. As per Exhibit P19, 3[rd] respondent approved the appointment of the 6[th] WP(C).No.15235 OF 2020(D) -: 5 :- respondent as Principal of St.Fransis HSS, Arthunkal, Alappuzha w.e.f. 01.06.2018. 5. Since petitioner was working against the leave vacancy of Smt.Anitha C.V., he cannot have a better claim than 5[th] respondent. The petitioner occupied the post only against the Leave Without Allowance availed by the 5[th] respondent and as per Government Letter No.32285/T2/11/G.Edn. dated 02.03.2013. Government have clarified that KER Chapter XIV A KER Rule 51 A claimant is not applicable in the case of Higher Secondary Education Department.” 7. I have considered the contentions advanced. Rule 56(1) of Chapter XIV A KER specifies 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. Sub-rule (4) of Rule 56 however states that a teacher shall cease to be in service after a continuous absence of five years whether with or without leave. 8. A Division Bench of this Court in **Deepa S.** v. **State of Kerala** [2010 (4) KHC 820] held that the Manager or HM of an aided school does not have authority to reject an application for extension of leave without allowance and the application is to be considered by the Government. It was held that an aided school teacher would also be entitled to leave beyond five years as provided in the Kerala Service Rules. In Ext.P35 reference order, the learned Single Judge had considered the decision of this Court in **Deepa S.'s case** supra and WP(C).No.15235 OF 2020(D) -: 6 :- the provisions of Rule 56(4) of Chapter XIV A KER and had referred the matter for consideration by a Division Bench. While so, Ext.R5(g) decision had been rendered by a Division Bench of this Court in **Mini Varghese** v. **State of Kerala and others** [W.A. No.1839/2017]. It was found that in the absence of any challenge to the appointment order which was in a leave vacancy, the leave substitute cannot be heard to contend that the leave without allowance granted to the regularly appointed teacher was without authority. It was held that the appellant who was a leave substitute would have to succeed or fail on the merits of her case. Since the appointment was specifically in a leave vacancy and since the period of appointment had expired, the contention that the teacher who availed the leave was not entitled for the same and that she cannot be permitted to rejoin duty is completely unsustainable. 9. In the instant case also it is not disputed before me that the petitioner had been appointed in the leave vacancy of the 5[th] respondent and for a specified period. In the above view of the matter, the petitioner, who has never challenged the appointment and who has reaped the benefits of the same knowing that it is a time bound appointment, liable to be terminated when the teacher who availed leave rejoins duty, cannot now turn around and say that the grant of the leave to the 5[th] respondent beyond five years was WP(C).No.15235 OF 2020(D) -: 7 :- incompetent and that the 5[th] respondent had automatically ceased to be in duty on the expiry of the initial five years of leave. 10. The learned counsel for the petitioner would then contend that the provisions of Rule 56(4) have not been considered by the Division Bench in Ext.R5(g) judgment. Be that as it may, the specific finding in Ext.R5(g) that the leave substitute, who did not challenge the limited period appointment, could not later say that the regular hand was not liable to return and join service is binding on this Court. As things stand now, I am bound by the judgment of the Division Bench in Ext.R5(g). The petitioner, who did not challenge his initial appointment in a leave vacancy cannot now be heard to contend that the 5[th] respondent had ceased to be in service several years ago. In the above view of the matter, I am of the opinion that the prayers sought for in the writ petition cannot be granted. The writ petition fails and the same is, accordingly, dismissed. **Sd/ANU SIVARAMAN JUDGE** Jvt/27.11.2020 WP(C).No.15235 OF 2020(D) ## -: 8 :- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF G.O(RT ) NO.3626/200/G.EDN DATED 28.08.2000 EXHIBIT P2 TRUE COPY OF G.O(RT ) NO. 4874/2005/G.EDN DATED 17.10.2005 EXHIBIT P3 TRUE COPY OF G.O(RT) NO. 1868/2005/G.EDN DATED 03.05.2010 EXHIBIT P4 TRUE COPY OF PROCEEDINGS OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION NO.ACD.A3/25917/2015/HSE DATED 02.07.2015 EXHIBIT P5 TRUE COPY OF THE APPROVAL ORDER OF THE PETITIONER AS HSST ZOOLOGY W.E.F.24.07.2007 TO 31.03.2010 EXHIBIT P6 TRUE COPY OF THE APPROVAL ORDER OF THE PETITIONER AS HSST ZOOLOGY FROM 01.04.2010 TO 31.07.2015 EXHIBIT P7 TRUE COPY OF THE APPROVAL ORDER OF THE PETITIONER AS HSST ZOOLOGY FROM 01.08.2015 TO 31.07.2020 EXHIBIT P8 TRUE COPY OF THE CERTIFICATE DATED 02.09.2013 ISSUED BY THE DEPUTY DIRECTOR ACADEMIC IN CHARGE AND PROGRAMME CO-ORDINATOR NSS CELL, DIRECTORATE OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM EXHIBIT P9 TRUE COPY OF THE CERTIFICATE OF MERIT AWARDED BY DIRECTOR OF HIGHER SECONDARY EDUCATION TO THE PETITIONER WHO HAS BEEN SELECTED FOR THE REGIONAL LEVEL BEST PROGRAMMED OFFICER AWARD OF NATIONAL SERVICE SCHEME FOR THE YEAR 2013-2014 EXHIBIT P10 TRUE COPY OF THE CERTIFICATE ISSUED BY THE CORPORATE MANAGER TO THE PETITIONER FOR MERITORIOUS SERVICE AS THE BEAST HIGHER SECONDARY SCHOOL TEACHER FOR 2012-2013 EXHIBIT P11 TRUE COPY OF THE ADVICE MEMO ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, ALAPPUZHA DATED 19.09.2009 TO THE PETITIONER AS UPSA EXHIBIT P12 TRUE COPY OF THE POSTING/APPOINTMENT ORDER NO.A5/7589/09 DATED 06.10.2009 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA TO THE PETITIONER AS UPSA** WP(C).No.15235 OF 2020(D) -: 9 :- **EXHIBIT P13 TRUE COPY OF THE COMMUNICATION FROM THE OFFICE OF THE DISTRICT OFFICER KERALA PUBLIC SERVICE COMMISSION, ALAPPUZHA DATED 17.11.2009 TO THE PETITIONER CANCELLING THE ADVICE FOR APPOINTMENT AS UPSA** - **EXHIBIT P14 TRUE COPY OF THE RELEVANT PORTION OF PSC RANKED LIST OF HSST (JR) ZOOLOGY BROUGHT INTO FORCE W.E.F. 23.01.2008** - **EXHIBIT P15 TRUE COPY OF THE RELEVANT PORTION OF PSC RANKED LIST OF HSST (JR) ZOOLOGY BROUGHT INTO FORCE W.E.F. 13.03.2014** - **EXHIBIT P16 TRUE COPY OF THE RELEVANT PORTION OF PSC RANKED LIST OF HSST (JR) ZOOLOGY BROUGHT INTO FORCE W.E.F. 31.07.2008** - **EXHIBIT P17 TRUE COPY OF THE RELEVANT PORTION OF PSC RANKED LIST OF HSST (JR) ZOOLOGY BROUGHT INTO FORCE W.E.F. 17.02.2014** - **EXHIBIT P18 TRUE COPY OF THE APPOINTMENT ORDER OF THE 6TH RESPONDENT DATED 24.05.2018** - **EXHIBIT P19 TRUE COPY OF THE APPROVAL ORDER OF THE 6TH RESPONDENT DATED 09.07.2018** - **EXHIBIT P20 TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT MANAGER DATED 25.05.2018** - **EXHIBIT P21 TRUE COPY OF SRO NO.752/2016 DATED 03.12.2016 PUBLISHED AS G.O(P) NO.199/2016/G.EDN DATED 03.12.2016** - **EXHIBIT P22 TRUE COPY OF THE SRO NO.166/2019 DATED 28.02.2019 PUBLISHED AS G.O(P) NO.3/2019/G.EDN DATED 28.02.2019** - **EXHIBIT P23 TRUE COPY OF G.O(RT) NO.1469/2004/H.ED DATED 01.11.2004** - **EXHIBIT P23(a) TRUE COPY OF THE JUDGMENT IN W.P(C) NO.40752/2003 DATED 19.11.2011** - **EXHIBIT P24 TRUE COPY OF G.O(MS) NO.11/2006/G.EDN DATED 06.01.2006** - **EXHIBIT P25 TRUE COPY OF G.O(MS) NO. 19/2010/G.EDN DATED 28.02.2019** WP(C).No.15235 OF 2020(D) -: 10 :- **EXHIBIT P26 TRUE COPY OF G.O(MS) NO. 53/2019/G.EDN DATED 31.05.2019** - **EXHIBIT P27 TRUE COPY OF SRO NO.433/2019 PUBLISHED AS G.O(P) NO.6/2019/G.EDN DATED 30.06.2019** - **EXHIBIT P28 TRUE COPY OF THE SRO NO.626/20198 PUBLISHED AS G.O(P) NO.11/2019/G.EDN DATED 04.09.2019** - **EXHIBIT P29 TRUE COPY OF ORDINANCE NO.18625/LEG .D2/2019/LAW DATED 16.09.2019** - **EXHIBIT P30 TRUE COPY OF REPRESENTATION GIVEN BY THE PETITIONER TO THE MANAGER TO THE 4TH RESPONDENT DATED 12.05.2020** - **EXHIBIT P31 TRUE COPY OF REPRESENTATION GIVEN BY THE PETITIONER TO THE 1ST RESPONDENT SECRETARY GENERAL EDUCATION, GOVERNMENT OF KERALA, DATED 20.07.2020** - **EXHIBIT P32 TRUE COPY OF THE PROCEEDINGS OF THE MANAGER NO.HSS 29/2020 DATED 23/7/2020** - **EXHIBIT P33 TRUE COPY OF THE COMMUNICATION OF THE MANAGER NO.HSS/30/2020 DATED 31/7/2020 TO THE PRINCIPAL OF LEO XIII HSS, ALLEPPEY** - **EXHIBIT P34 TRUE COPY OF THE PROCEEDINGS NO.HSS/18.7 DATED 29/6/2007 I.E. THE MEMO FOR INTERVIEW SENT BY THE MANAGER TO THE PETITIONER** - **EXHIBIT P35 TRUE COPY OF THE RELEVANT PORTION OF THE REFERENCE ORDER IN WPC NO.30452/2015 DATED 10/2/2016** - **EXHIBIT P36 TRUE COPY OF THE G.O.(P) NO.656/2012/FIN. DATED 1/12/2012** - **EXHIBIT P37 TRUE COPY OF THE JUDGMENT IN W.P.(C)No.22478/2017 DATED 29-08-2017.** ## **RESPONDENT'S EXHIBITS:** - **EXHIBIT R5(a) THE TRUE COPY OF THE PROCEEDINGS NO-H2/15/98 DATED 11.9.1998 ISSUED BY THE 4TH RESPONDENT IN WPC** **EXHIBIT R5(b) THE TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK OF THE 5TH RESPONDENT** WP(C).No.15235 OF 2020(D) -: 11 :- **EXHIBIT R5(c) THE TRUE COPY OF THE ORDER NO HSS 29/2020/ DATED 23.7.2020 ISSUED BY THE 4TH RESPONDENT IN WPC** **EXHIBIT R5(d) THE TRUE COPY OF THE DECISION REPORTED IN 192 (2) KLT SN 12 (OP.NO 110/91 DEVAKY V.STATE OF KERALA)** **EXHIBIT R5(e) THE TRUE COPY OF THE DECISION REPORT IN 2011 (1) KLT 491** **EXHIBIT R5(f) THE TRUE COPY OF THE DECISION REPORTED IN 2005 KHC 710** **EXHIBIT R5(g) TRUE COPY OF THE JUDGMENT IN WA NO 1839/2017 DATED 4.10.2017** //TRUE COPY// P.A. TO JUDGE