The Division Bench held that Rule 56(4) of the Kerala Education Rules is an exception limiting leave absence without allowance to 5 years for aided school teachers, overriding the general Kerala Service Rules. Consequently, the Manager was not obliged to follow the Rule 58 procedure for leave extensions beyond this five-year limit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 8TH DAY OF DECEMBER 2021 / 17TH AGRAHAYANA, 1943 WP(C) NO. 30452 OF 2015
PETITIONER:
SHAJI P. JOSEPH, S/O.P.E.OUSEPH, AGED 50 YEARS,L.P.S.A., A.M.L.S. CHENGOTTUR, P.O.CHENGOTTUR, MALAPPURAM DISTRICT, PIN: 676 503, PERMANENTLY RESIDING AT PULLAKKATTU HOUSE, P.O.RAMAMANGALAM, ERNAKULAM DISTRICT, PIN: 686 663, NOW RESIDING AT 164, LOWNDES LANE, STOCKPORT, CHESHIRE, SK2 6DB, UNITED KINGDOM, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER GEORGE VARGHESE, S/O.M.V.VARGHESE, PERMANENTLY RESIDING AT CHELATTU HOUSE, GARDEN VILLAS, MOUNT CARMEL CONVENT ROAD, THAIKKATTUKARA P.O., ALUVA - 683 106.
BY ADVS. SRI.P.T.DINESH SRI.R.SUDHIR SHENOI
RESPONDENTS:
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PIN: 676 503.
5 THE HEADMASTER A.M.L.P.S CHENGOTTUR, P.O.CHENGOTTUR, MALAPPURAM DISTRICT, PIN: 676 503.
BY ADVS. SENIOR GOVERNMENT PLEADER SRI.PREMCHAND R NAIR SRI.M.SAJJAD SRI.V.A MUHAMMED, SMT.K.A.JENZIA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
A.K.Jayasankaran Nambiar, J.
This Writ Petition is before us pursuant to the Reference Order dated 10.02.2016 of the learned Single Judge. The issue referred to us concerns the interpretation to be placed on Rule 56 (4) of Chapter XIVA of the Kerala Education Rules (hereinafter referred to as the 'KER') in the light of the provisions of the Kerala Service Rules (hereinafter referred to as the 'KSR') that are made applicable to teachers of aided schools through Rule 56 (1) of Chapter XIVA KER. The essential question is whether, notwithstanding the provisions of the KSR, which enable a teacher in a Government school to avail leave without allowance for a continuous period up to 20 years (subsequently amended to make it 5 years vide G.O.(P).No.152/2020/Fin. dated 05.11.2020), the teachers in private aided schools could be prevented from availing leave for more than 5 years without affecting their continuance in service. A learned single Judge differed with the view taken by another learned Single Judge in the decision reported in Deepa S v. State of Kerala and Others [2010 (4) KHC 820] and referred the matter for consideration by a Division Bench.
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The petitioner who was an L.P.S.A in the A.M.L.P. School, Chengottur, Malappuram District availed leave without allowance for a period of 5 years to join his spouse abroad. The leave was sanctioned by Ext.P1 order dated 05.09.2005 for a period of 5 years subject to the specific condition that the leave period will not be counted for service benefits including pension. It would appear that, thereafter, on expiry of the initial 5 year period, the petitioner obtained sanction for extension of leave for a further period of 5 years from 15.11.2010 to 14.11.2015. Still thereafter, and immediately prior to the earlier leave period expiring, the petitioner by Ext.P3 communication dated 12.08.2015 sought for a further extension of 5 years to cover the period from 15.11.2015 to 14.11.2020. On this occasion, however, the Manager of the school refused to sanction leave by his proceedings (Ext.P7 dated 11.08.2015). The said decision of the Manager was communicated to the petitioner by Ext.P8 letter dated 22.08.2015 of the Headmaster of the school. The petitioner therefore impugned Exts.P7 and P8 communications in this Writ Petition, wherein reliance is placed on the provisions of the Kerala Education Act and Rules, and in
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particular, Rule 58 of Chapter XIVA KER to contend that it was not open to the Manager of the school to refuse sanction of a leave claimed by a teacher, and that the statutory procedure envisages a mere forwarding of the request of the teacher to the Government after noting of objections, if any, by the Manager. Inasmuch as the said procedure was not followed by the Manager, the petitioner challenges the order passed by the Manager as illegal for non-compliance with the statutory procedure, read with the relevant circulars issued by the Government from time to time.
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without leave, it is the submission of Sri.Dinesh, that the said provision ignores the amendments that were effected to the KSR subsequent to the introduction of Sub Rule 4 in Rule 56 of Chapter XIVA KER. It is in particular, pointed out that, at the time of insertion of Sub Rule 4 to Rule 56, the corresponding provisions in the KSR, governing the sanctioning of leave to teachers of Government Schools, also required that the teacher would cease to be in service after a continuous absence of 5 years whether with or without leave. The subsequent amendments to the KSR, that extended the period of permissible leave without forgoing the lien to the post did not entail consequential amendments to Rule 56(4) of Chapter XIVA KER, and it is stated to be on account of this anomaly that the present predicament of the petitioner arises. He would also refer to the decision of a learned Single Judge in Deepa S v. State of Kerala and Others [2010 (4) KHC 820] , and in particular, the findings in paragraph 14 thereof, wherein, while acknowledging that there was a conflict between certain Rules in Chapter XIVA KER and the Rules in Chapter 9 of Part 1 KSR, the learned Judge opined that the Rule 56(4) of Chapter XIVA KER should be harmoniously construed and read along with the Rules in Appendix XIIC of the KSR so as to enable even the teachers of aided schools to seek the sanction of the Government for extension of their leave for up to 20 years. As already noted, the reference before us is based on a different view having been
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taken by another learned Single Judge, who opined that Rule 56(4) of Chapter XIVA KER was a special provision that prevailed over the general provisions on the principle of Generalia specialibus non derogant .
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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.
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obliged to follow the procedure under Rule 58 in respect of a leave that was not contemplated in terms of Rule 56 (4) of the KER.
Since no other issue arises for consideration in the Writ petition, rather than answering the reference and remitting the matter back to the learned Single Judge, we deem it appropriate to dismiss the Writ Petition by answering the question referred as above.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE
Sd/-
MOHAMMED NIAS C.P. JUDGE
mns
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APPENDIX OF WP(C) 30452/2015
PETITIONER EXHIBITS
EXT.P1: TRUE COPY OF THE G.O.(RT) NO.4384/05/G.EDN. DATED 5/9/2005 BY THE DEPUTY SECRETARY, GENERAL EDUCATION (B) DEPARTMENT, GOVT. OF KERALA.
EXT.P2:TRUE COPY OF THE G.O.(RT) NO.3506/2010/G.E DATED 4/8/2010 BY THE DEPUTY SECRETARY, GENERAL EDUCATION (B) DEPARTMENT, GOVT. OF KERALA.
EXT.P3: TRUE COPY OF THE RELEVANT PART OF THE LEAVE WITHOUT ALLOWANCE APPLICATION DATED 12/8/2015 SUBMITTED BY THE PETITIONER THROUGH PROPER CHANNEL
EXT.P4: TRUE COPY OF THE CIRCULAR NO.33803/S2/97/G.EDN. DATED 11/11/1997 BY THE GENERAL EDUCATION (S) DEPARTMENT
EXT.P5:TRUE COPY OF THE CIRCULAR NO.63720/J2/99/G.EDN. DATED 29/12/1997 BY THE GENERAL EDUCATION (S) DEPARTMENT
EXT.P6:TRUE COPY OF THE CIRCULAR NO.25218/J2/99/G.EDN. DATED 21/5/1999 BY THE GENERAL EDUCATION (S) DEPARTMENT
EXT.P7: TRUE COPY OF HTE LETTER DATED 17/8/2015 BY THE 4TH RESPONDENT, THE MANAGER.
EXT.P8: TRUE COPY OF THE LETTER DATED 22/8/2015 BY THE 5TH RESPONDENT, THE HEADMASTER
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EXT.P9: TRUE COPY OF THE JUDGMENT DATED 21/2/2012 IN WPC NO.3354/2012
EXT.P10: TRUE COPY OF THE JUDGMENT DATED 11/6/2015 IN WPC NO.15981/2015
EXT.P11: TRUE COPY OF THE APPLICATION DATED 11.09.2015 SUBMITTED TO THE STATE PUBLIC INFORMATION OFFICER, DIRECTORATE OF PUBLIC INSTRUCTIONS.
EXT.P12: TRUE COPY OF THE LETTER NO.C/3122/2015 DATED 25.10.2015 BY THE PUBLIC INFORMATION OFFICER AT ASSISTAT EDUCATIONAL OFFICER MALAPPURAM.
EXT.P13:TRUE COPY OF GO(P)NO.656/2012/FIN DATED 01.12.2012
EXT.P14: TRUE COPY OF THE LETTER NO.S.C(2)/68171/2015/DPI DATED 28.09.2015 BY THE OFFICE OF THE 2ND RESPONDENT
EXT.P15:TRUE COPY OF THE APPEAL DATED 31.10.2015 FILED UNDER RIGHT TO INFORMATION ACT
EXT.P16:TRUE COPY OF THE LETTER NO.C/3623/2015/LDIS.DATED 18.11.2015 BY THE APPELLATE AUTHORITY
RESPONDENTS EXHBITS:
EXHIBIT R4(A): TRUE COPY OF THE MEMO OF CHARGES ISSUED BY THE MANAGER DATED 18.11.2015
EXHIBIT R4(B): TRUE COPY OF THE STATEMENT OF ALLEGATION ISSUED BY THE MANAGER DATED 18.11.2015
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EXHIBIT R4(C): TRUE COPY OF THE DECISION REPORTED IN 2020 ICO 1682 DECIDED ON 13.11.2020
//TRUE COPY//
P.A TO JUDGE
3 issues framed by the court
Whether teachers in private aided schools can be prevented from availing leave for more than 5 years without affecting their continuance in service.
The controlling effect of Rule 56(4) of the Kerala Education Rules limiting leave absence to 5 years versus leave provisions under the Kerala Service Rules.
The legality of a Manager's refusal to sanction an extension of leave beyond 5 years for a teacher in an aided school.
Colour shows how this judgement treated each authority
Deepa S v. State of Kerala and OthersDistinguished¶36
[2010 (4) KHC 820]
4 provisions across 2 enactments
Shaji P. Joseph
State of Kerala
Director of Public Instructions Trivandrum
Assistant Educational Officer Malappuram
Manager A.M.L.P.S Chengottur
Headmaster A.M.L.P.S Chengottur
A.K.Jayasankaran Nambiar
Mohammed Nias C.P.
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
