Kerala High Court
Mini Varghese vs State Of Kerala on 23 December, 1996
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 29TH DAY OF AUGUST 2017/7TH BHADRA, 1939
WP(C).No. 22478 of 2017 (H)
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PETITIONER(S) :
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MINI VARGHESE,
AGED 44 YEARS, W/O. AJI MATHEW,
VOCATIONAL INSTRUCTOR IN DOMESTIC NURSING,
ST. GEORGE'S VOCATIONAL HIGHER SECONDARY SCHOOL,
CHOWALLOOR, EDAKKIDOM P.O., KOLLAM - 691 505.
RESIDING AT MUKULAVILA VEEDU, KIZHAKETHERUVU P.O.,
KOTTARAKKARA - 691 542.
BY ADVS. SRI.ELVIN PETER P.J.
SRI.T.G.SUNIL (PRANAVAM)
SRI.K.R.GANESH
SRI.ALEXANDER GEORGE
RESPONDENT(S) :
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1. STATE OF KERALA,
REPRESENTED BY THE SECRETARYTO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2. THE DIRECTOR OF VOCATIONAL HIGHER SECONDARY
EDUCATION, THIRUVANANTHAPURAM - 695 001.
3. THE ASSISTANT DIRECTOR OF VOCATIONAL HIGHER
SECONDARY EDUCATION, VOCATIONAL HIGHER SECONDARY
EDUCATION REGIONAL OFFICE, KOLLAM - 691 001.
4. THE MANAGER
ST. GEORGE'S VOCATIONAL HIGHER SECONDARY SCHOOL,
CHOWALLOOR, EDAKKIDOM P.O., KOLLAM - 691 505.
..2/-
..2..
WP(C).No. 22478 of 2017 (H)
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5. SMT. MINI GEORGE,
VALIYAVILA PUTHENVEEDU,
UMMANNOOR P.O., KOTTARAKARA, KOLLAM - 691 547.
R1 TO R3 BY SR. GOVT. PLEADER SRI. B.UNNIKRISHNA KAIMAL
R4 BY ADVS. SMT.M.ISHA
SRI.AMAL KASHA
R5 BY SRI.P.RAVINDRAN (SENIOR ADVOCATE)
ADVS. SRI.S.SANAL KUMAR
SMT.BHAVANA VELAYUDHAN
SMT.T.J.SEEMA
SRI.T.B.HOOD
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 29-08-2017, ALONG WITH W.P(C).NO. 25327 OF 2017, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
Msd.
WP(C).No. 22478 of 2017 (H)
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APPENDIX
PETITIONER(S)' EXHIBITS :
EXHIBIT P1 TRUE COPY OF ORDER DATED 23.12.1996 ISSUED BY
THE 3RD RESPONDENT.
EXHIBIT P2 TRUE COPY OF ORDER DATED 27.02.1997 ISSUED BY
THE 3RD RESPONDENT.
EXHIBIT P3 TRUE COPY OF APPENDIX XIIA OF PART I KERALA SERVICE
RULES.
EXHIBIT P4 TRUE COPY OF G.O.(RT)NO. 2856/98/G.EDN DATED 21.07.1998
ISSUED BY THE GOVERNMENT.
EXHIBIT P4(A) TRUE COPY OF THE ENTRIES MADE BY THE SERVICE BOOK OF
THE 5TH RESPONDENT.
EXHIBIT P5 TRUE COPY OF G.O. (RT)NO. 1236/03/GI.EDN. DATED 31.03.2003
ISSUED BY THE GOVERNMENT.
EXHIBIT P6 TRUE COPY OF G.O. (RT)NO. 3707/07/GI.EDN. DATED 09.08.2007
ISSUED BY THE GOVERNMENT.
EXHIBIT P7 TRUE COPY OF APPENDIX XIIC OF PART I KSR.
EXHIBIT P8 TRUE COPY OF G.O. (RT)NO. 3662/2012/GI.EDN. DATED 01.08.2012
ISSUED BY THE GOVERNMENT.
EXHIBIT P9 TRUE COPY OF ORDER DATED 16.10.2002 ISSUED BY
THE 4TH RESPONDENT.
EXHIBIT P10 TRUE COPY OF ORDER DATED 21.07.2012 ISSUED BY
THE 4TH RESPONDENT.
EXHIBIT P11 TRUE COPY OF APPENDIX XIIC INCORPORATING
THE AMENDED RULE 6.
EXHIBIT P12 TRUE COPY OF G.O.(MS)NO. 124/07/G.EDN. DATED 23.06.2007
ISSUED BY THE GOVERNMENT.
RESPONDENT(S)' EXHIBITS :
NIL
//TRUE COPY//
P.S.TOJUDGE.
Msd.
P.V.ASHA, J.
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W.P(C) No.22478 of 2017 & 25327 of 2017
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Dated this the 29th day of August, 2017
JUDGMENT
W.P(C) No.22478 of 2017
The petitioner was appointed as Vocational Instructor in Domestic Nursing in the 4th respondent school as per Ext.P9 order dt.16.10.2002 in a vacancy which arose on grant of leave without allowance to the 5th respondent. She was again appointed in the same post as per Ext P10 order dated 21.07.2012 in the vacancy which arose on sanctioning Leave Without Allowance (LWA) to the 5th respondent for 5 years from 21.07.2012. The writ petition is filed seeking the following reliefs:
"(i) to issue a writ of mandamus or any other appropriate writ, order or injunction directing the 1st respondent to hear the petitioner before proceeding under Note 1 of Rule 72 of Part I KSR while issuing orders considering the request of the 5th respondent to rejoin duty after the expiry of the Leave Without Allowance granted to her;
(ii) to issue a writ of mandamus or any other appropriate writ, order or injunction restraining the 4th respondent from allowing the 5th respondent to rejoin duty by terminating the service of the petitioner;
(iii) to issue a writ of mandamus directing the 4th respondent to appoint the petitioner as Vocational Instructor in Domestic Nursing with effect from 20.07.2017 in the regular vacancy and to allow the petitioner to continue in service as Vocational Instructor in Domestic Nursing;
(iv) to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents 1 to 3 to issue appropriate direction to the 4th respondent to initiate action against the 5th respondent for unauthorised absence from 1.8.2012 and to issue further orders restraining the 4th respondent from terminating the services of the WP(C) Nos.22478 & 25327 of 2017 2 petitioner;
(v) to declare that the 5th respondent has to be
treated as unauthorised absence w.e.f 1.8.2012 and
appropriate action should be taken as provided under Rule 6 of Appendix XIIC of Part I KSR against the 5th respondent and her service is ought to be terminated;
(vi) to declare that the petitioner is entitled to get appointment as Vocational Instructor in Domestic Nursing in the 4th respondent school in the light of decision of this Hon'ble Court reported in 2009 (2) KLT 352;
(vii) to grant such other and further reliefs as are just, proper and necessary in the facts and circumstances of the case."
2. The 5th respondent was appointed as a Vocational Instructor in Domestic Nursing in the 4th respondent school with effect from 13.01.1997 and her appointment was approved as per Ext.P2 order on 27.2.1997. Petitioner submits that the 4th respondent joined only on 17.02.1997. She availed Leave Without Allowance (LWA) for employment abroad and left the School on 20.07.1997, immediately on completion of 5 months of service. As per Ext.P4 order dt.21.7.1998, the Government granted her LWA for the period from 21.7.1997 to 20.07.2002 for taking up employment abroad, subject to the conditions in appendix XII A of Part I KSR. Ext.P4 order was followed by Ext.P5 order issued on 31.3.2003 and Ext.P6 order dated 09.08.2007 granting her extension of leave for a further periods of 5 years each from 21.7.2002 to 20.07.2007 and from 21.07.2007 to 20.07.2012, under the very same conditions under Appendix XIIA. Thereafter, she was granted LWA for a further period of 5 years from WP(C) Nos.22478 & 25327 of 2017 3 21.07.2012 to 20.07.2017 for joining spouse abroad under Appendix XIIC of Part I KSR. In all these orders granting extension to the 5th respondent it was stated that the leave period would not count for any service benefits including pension. Petitioner was appointed as Vocational Instructor as per Ext.P9 order dated 16.10.2002 against the LWA vacancy of the 5th respondent for the period from 16.10.2002 till she returned after LWA for 5 years. Thereafter, the petitioner was again appointed as per Ext.P10 order dated 21.07.2012 to 20.07.2017 against the vacancy of the 5th respondent who had extended leave from 21.07.2012 for 5 years.
3. The contention of the petitioner when this writ petition was filed was that the maximum period of LWA which can be granted either under appendix XIIA or XIIC was 15 years and therefore the last spell of leave granted to the 5th respondent in excess of 15 years under Appendix XIIC was illegal and it should be treated that she is on unauthorised absence for the period from 20.07.2012. However, the learned Counsel for the petitioner pointed out the amendment carried out, providing for a maximum of 20 years of LWA. Writ Petition was thereafter amended with the contention that the 5th respondent who has crossed the upper age limit for appointment as Vocational Instructor is not entitled to re- appointment.
WP(C) Nos.22478 & 25327 of 2017 4
4. The contention of the petitioner is that the 5th respondent availed leave in the year 1997, at a time when she had completed only less than 5 months of service. Subsequent to that special rules for Kerala Vocational Higher Secondary Education Subordinate Service, 2004, were made applicable to aided Schools, which prescribes upper age limit of 35 years for new recruits. The 5th respondent who left the School before completing probation was liable to be treated as a new entrant and she was not liable to be re-appointed as she had crossed the upper age limit. It is also the contention that the 5th respondent who left teaching job in the year 1997, if allowed to rejoin duty after a period of 20 years, it will cause serious prejudice to the students. The 5th respondent was on employment abroad for 15 years and thereafter she continued abroad for another 5 years with her spouse without employment. Hence she lost her acquaintance with teaching, which requires up- to-date knowledge along with teaching skills.
5. It is also argued that at the relevant time when the last spell of leave was sanctioned to the 5th respondent under Appendix XII C, there was no provision providing for sanctioning of leave to those who were on probation. Pointing out the deletion of Rule 5 under Appendix XIIC which was the only provision which provided for granting of leave to those who were on probation, the learned WP(C) Nos.22478 & 25327 of 2017 5 Counsel for the petitioner argued that the very order granting her leave under Appendix XIIC was illegal. Moreover after availing LWA, the 5th respondent who was a probationer does not have a right to rejoin duty, except when Government passes an order under Rule 72 of Part I KSR and the 4th respondent cannot allow her to re-join duty. It is also contended that her right is confined only for a re-entry as and when a vacancy arises. When a vacancy arises in the 4th respondent's school, that vacancy will have to be filled up after considering the claims of all the statutory claimants, as held by the Division Bench of this Court in Jayasree V Director of Higher Secondary Education : 2009 (2) KLT 352 and therefore her turn will arise only after considering the claim of the petitioner who has become a 51A claimant, by virtue of her approved service.
6. On the other hand, the contention on behalf of the 5th respondent advanced by the learned Senior Counsel Sri. P.Ravindran is that the 5th respondent was granted leave by the Government on the basis of her application right from 1997 for different spells with a duration of 5 years each and the last spell was under Appendix 12 C and it was to expire on 20.7.2017. The orders by which LWA is granted to her confer on her the right to rejoin duty in the 4th respondent's school on or before the expiry of WP(C) Nos.22478 & 25327 of 2017 6 the period of leave. It is also her contention that the petitioner does not have any right to continue in the school beyond 20.7.2017 because the order appointing her itself provided for termination also of that appointment on completion of 5 years on 20.7.2017 or even before that if the 5th respondent joined duty before that period. Her appointment is as a leave substitute. Therefore, her rights are confined to the terms and conditions provided in the order of her appointment. It is also pointed out that the petitioner is not challenging either the order sanctioning leave to the 5th respondent or the rules under Appendix XIIA or XIIC. Therefore, she cannot have any right either to seek any injunction against the 5th respondent or to insist her retention in the School.
7. When the writ petition came up for consideration on 19.7.2017, the Government was directed to file a counter affidavit as to why the 5th respondent was granted leave when rule 5 of Appendix XII C was not in existence at the relevant time. A senior Superintendent in the office of the Director of Vocational Higher Secondary Education has filed a counter affidavit stating that the 5th respondent was granted leave for the period from 21.7.2012 to 20.7.2017 in continuation of the leave already granted to her in terms of Appendix XII C of part I KSR. It was stated that the maximum period of leave that can be sanctioned to an officer during WP(C) Nos.22478 & 25327 of 2017 7 the entire service is limited to 20 years. Under rule 3 of Appendix XII C of Part I KSR, leave can be granted to join spouse in continuation of leave under Appendix XII A and therefore the last spell of leave granted to the 5th respondent was proper, going by Rule 3. It is further stated that under Note 3 to Rule 4 of Appendix XII C, an officer who has entered on leave without allowance prior to 9.4.2008 could be granted further extension of leave without allowance without declaration of probation in the entry cadre subject to the same conditions. Hence the 5th respondent had every right to rejoin duty on expiry of the leave already sanctioned to her. According to them, the petitioner does not have any right to continue in service after 20.7.2017. It is also their case that the petitioner cannot have any claim under Rule 51A as long as the post held by her did not cease to exist.
8. I heard the learned counsel appearing for all the parties and considered the contentions.
9. The argument of the learned Counsel for the petitioner is that that Rule 5 was not in existence in Appendix XII C at the time when the 5th respondent was granted leave without allowance for the period from 21.07.2012, as per order dated 1.8.2012. The non-permanent officers in the regular service who have not completed probation in the entry cadre could be granted LWA under WP(C) Nos.22478 & 25327 of 2017 8 Rule 5 of Appendix XII C subject to the condition that they have to start probation afresh on rejoining duty and that service benefits accrued to them upto that date shall be forfeited and they would be deemed as new entrants in the Government service, on rejoining duty.
10. For determining the issue involved in this case it is necessary to examine the provisions contained in Appendix XIIA and C which provided for LWA for employment abroad and for joining spouse abroad. Rule 5 of Appendix XIIC which was deleted at the relevant time read as follows:
5. In the case of non-permanent officers in regular service who have not completed probation in the entry grade, leave without allowances may be granted subject to the condition that they will have to start afresh and complete their probation on return from the leave without allowances. In other words, the officers will forfeit the service benefits that had accrued to them prior to their proceeding on leave and they will be deemed as new entrants to Government service on return from leave. What is protected is only their right to rejoin Government service in the same entry grade as if they were new entrants.
Simultaneously Note to Rule 4 was inserted which read as follows:
The Officers who have entered on leave without allowances prior to 9th day of April, 2008 will be granted further extension of leave without allowance without the declaration of probation in the entry cadre subject to the condition that such officers will forfeit the service benefits that had accrued to them prior to their proceeding on leave and they will be deemed as new entrants to Government satisfactorily on return from leave without allowance. Only their right to rejoin Government service in the same entry cadre is protected, as if, they were new entrants in service.
Rule 3 of Appendix XII C read as follows:
3. No other kind of leave except leave under Appendix XIIA WP(C) Nos.22478 & 25327 of 2017 9 shall be granted in combination with or in continuation of the leave under these rules.
11. It is seen that Rule 5 was deleted as per G. O. (P) No. 636/2010/Fin. dated 25.11.2010 published on 1.12.2010 and the deletion came into force from 9.4.2008. At the same time a note was inserted to rule 4 in Appendix XII A and in Appendix XIIC, which provided that officers who entered on leave without allowance before 9.4.2008 would be granted further extension of LWA without declaration of probation in the entry cadre subject to the condition that they have to forfeit the service benefits approved to them prior to their proceeding on leave and they would be deemed as new entrants to Government service and they have to start probation afresh on their return from LWA. It was provided that their right to rejoin Government service is protected as if they were new entrants in service. The date on which the amendment was carried out, deleting Rule 5 and inserting the note to rule 4 is the same. Note added to rule 4 is in appendix XII A and Appendix XII C are worded identically. Moreover Rule 3 of Appendix XII C provides that no other kind of leave except leave under Appendix XIIA shall be granted in combination with or in continuation of the leave under these rules. Therefore leave under Appendix XII A can either be before or after the leave under Appendix XII C.
12. The fact remains that the 5th respondent was granted WP(C) Nos.22478 & 25327 of 2017 10 leave in accordance with the rules which existed at the relevant time. In the light of rule 3 leave granted under Appendix XIIA could be extended to the probationers under Appendix XIIC, in the light of the Note to Rule 4 which was in force at the relevant time when 5th respondent was granted leave. Therefore the 5th respondent has every right to rejoin duty in the post from which she availed leave. Similarly the petitioner whose appointment is limited upto the date upto which LWA was granted to 5th respondent, cannot have any valid claim to continue in that post, beyond the period stipulated in the order of her appointment, or for continuance in the same post or against granting of leave to the 5th respondent, as per the rules presently in existence and at the time when leave was granted.
13. Though serious arguments were advanced on the question whether an interim order which was passed after hearing all the parties can be sought to be vacated, as to whether a counter affidavit can be filed by the Senior Superintendent of the office of the Director of Vocational Higher Secondary Education can swear an affidavit on behalf of Government, when this court directed the Government to file counter affidavit, etc., I do not think it necessary to go into those issues, as I disposing the Writ Petition itself. Moreover the normal period for filing a counter affidavit available to Government is not yet over.
WP(C) Nos.22478 & 25327 of 2017 11
14. The contention raised by the learned counsel for the petitioner that note to rule 4 of Appendix XII C could not have been invoked for extension of leave, as long as she was not granted any leave under under Appendix XIIC prior to 21.07.2012, cannot also be accepted because Rule 3 specifically provides that leave under Appendix XIIC can be granted in continuation of leave under appendix XII A. Petitioner is not challenging the rules providing for extension of leave to the 5th respondent, even now. Going by note to Rule 4 it cannot be said that the extension of leave granted to the 5th respondent was not in accordance with law.
15. In the above circumstances, 5th respondent has to be allowed to rejoin duty in terms of the order by which she was granted leave and the petitioner who was appointed, whose tenure of appointment expired on 20.7.2017, cannot have any right to continue in service or to claim that she cannot be permitted to join duty.
16. The contention raised by the learned counsel for the petitioner Sri.Elvin Peter that the right to rejoin duty is only as a new entrant will mean that petitioner has to wait for a fresh vacancy to arise cannot also be accepted in the light of the orders issued to her sanctioning the leave. The vacancy which arose on account of availing LWA to 5th respondent is filled up for the fixed WP(C) Nos.22478 & 25327 of 2017 12 tenure ending on the date of expiry of her leave period. The question of reappointment does not arise as long as she is not discharged from service. In case her reappointment was necessary the petitioner being a 51 A claimant would have been able to get appointment in the fresh vacancy and the right of re-entry of the 5th respondent would have been subject to 51A claim of the petitioner, as argued by the learned Counsel, relying on the judgment in G. Jayalal V Union of India & others: (2013) 7 SCC 150. But in this case, no re-appointment is necessary. There is no vacancy after 20.7.2017 when the 5th respondent is entitled to rejoin duty, based on the orders granting her leave. The contention that there should be a re-appointment and in that process petitioner would have to be appointed considering her right under 51A claim, cannot also be accepted. The judgment in Jayasree's case does not apply in a case as long as a re-appointment is not envisaged either in the rules under which LWA was granted to 5th respondent or as per the order by which she was granted LWA. No substantive appointment is made in her vacancy, unlike in government service where Rule 5 provides for filling up even the leave vacancies by direct recruitment,.
17. Sri.Elwin Peter, vehemently argued that the order granting of leave to the 5th respondent itself was illegal and even WP(C) Nos.22478 & 25327 of 2017 13 otherwise she does not have any right to rejoin, relying on various judgments in support of his contention, that note does not have any independent existence in the absence of substantive rule or enabling provision. Rule 4 read as follows:
Permanent Officers and non-permanent Officers in the regular service of Government who have completed probation in the grade in which they are working, including entry grade, may be granted leave without allowances under these rules. In such cases, for, and during the currency of, the period of leave, the officers shall lose all service benefits such as the earning of leave including half pay leave, pension, gratuity, increment etc., and also promotion chances as may arise with reference to their seniority in the posts from which they proceeded on leave. They shall also lose seniority in the higher grade/grades with reference to their junior who might get promoted to such grade/grades before they rejoin duty.
Note only provides for extension of LSA. Therefore, I find that the scheme of the rules governing granting of leave without allowance as well as the orders sanctioning leave to 5th respondent, provides her a right to rejoin duty and those orders or the provision in Appendix XIIC or XIIA are not under challenge. Therefore, I do not venture upon discussion of those judgments, as I find that none of those judgments applies to the facts and circumstances of this case.
Moreover the rules or the orders granting her leave are not challenged by anybody.
18. However I am of the considered view that the rules providing for grant of leave without allowance to teaching staff for 15 to 20 years, whether it be under appendix XIIA or under XIIC i.e to work abroad or to join spouse abroad are made in total disregard WP(C) Nos.22478 & 25327 of 2017 14 of the interest of the students or even the very system of education. It would appear that the rule making authority has not found any difference in the nature of duties of the teachers from that of other government employees in the matter of granting leave, while imposing the very same conditions, with the right to rejoin duty after the leave period, straight away. It is high time that Government should stop or modify such practices by appropriate modification in the rules, in the larger interest of the student community in the state and to protect their fundamental right to education guaranteed under Article 21 A of the Constitution in the correct perspective. The liability to undergo probation again or the loss of service benefits to the teacher who availed leave, will not be of any help to the students, when they are allowed to be taught by those teachers who might have lost touch with teaching profession itself and who would not be acquainted with the current topics or teaching method or pattern and those who were sitting idle abroad for 15-20 years. It is pertinent to note that a teacher who is availing leave without allowance from Government school does not get a direct reentry in the post from which she availed leave, as that would depend upon availability of vacancy in any of the government Schools. However there also she is straight away entering service. The problems in aided Schools would be the worst as the teacher WP(C) Nos.22478 & 25327 of 2017 15 availing leave gets the right to rejoin duty in the same school, replacing the experienced leave substitutes with 15 to 20 years by denying regular appointment in long LWA vacancies. The new teacher who went abroad would not have any acquaintance with the teaching pattern, syllabus etc. which undergoes periodical changes. Even without subjecting them even to any refresher training they are allowed to join the Schools. I can only hope that government will look into these issues emergently and take appropriate action.
19. The circumstances of the case, do not justify grant of any of the reliefs prayed for in the writ petition. Writ Petition is accordingly dismissed.
W.P(C) No. 25327 of 2017
20. Petitioner in this case is the 5th respondent in W.P.(C) 22478 of 2017. The 5th respondent herein is the petitioner in that case. In view of the interim order passed in that case, directing that the petitioner herein shall not be permitted to join duty, the Manager issued Ext.P12 order on 20.7.2017 allowing the 5th respondent herein to continue from 21.7.2017 against the post of Vocational Instructor in which the petitioner had lien, subject to the revision on the basis of the judgment in W.P.(C) 22478/2017. Writ Petition is filed challenging Ext.P12 order and praying for a direction to the Manager to permit her to rejoin duty with effect from WP(C) Nos.22478 & 25327 of 2017 16 20.7.2017.
21. The contention of the Manager is that the School is in need of a teacher and he had to make necessary arrangement to safeguard the interest of the students in the Vocational Higher Secondary Classes.
As the order impugned in the writ petition was issued subject to the judgment in W.P(C) No.22478 of 2017 no orders are necessary in this case, as that writ petition is dismissed.
Sd/-
P.V.ASHA JUDGE rtr/rkc