Kerala High Court
Anithakumari S vs State Of Kerala on 5 November, 1998
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
TUESDAY, THE 6TH DAY OF SEPTEMBER 2016/15TH BHADRA, 1938
WP(C).No. 4418 of 2014 (B)
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PETITIONER(S)/PETITIONER:
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ANITHAKUMARI S, AGED 47 YEARS
W/O.V.SWARAJ,H.S.A.(SOCIAL STUDIES(ON LEAVE),
VIM HIGHER SECONDARY SCHOOL,PALLASSANA,PALAKKAD,
PRESENT LEAVE ADDRESS:22/10-26 JOHN JENNINGS DRIVE,
ALBANY,NORTH SHORE,AUCKLAND,NEW ZEALAND 0632,
NOW HAVING COME TO INDIA RESIDING AT
"SWARANJINI",VADAKKEMURI,VATTEKKAD,KOLLENGODE.
BY ADV. SRI.U.BALAGANGADHARAN
RESPONDENT(S)/RESPONDENTS:
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1. STATE OF KERALA,
REPRESENTED BY SECRETARY,
GENERAL EDUCATION DEPARTMENT,THIRUVANANTHAPURAM-695001.
2. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
THIRUVANANTHAPURAM-695001.
3. THE DEPUTY DIRECTOR OF EDUCATION,
PALAKKAD-678001.
4. THE DISTRICT EDUCATIONAL OFFICER,
PALAKKAD-678001.
5. THE MANAGER,
V.I.M.H.S,PALLASSANA,PALAKKAD-678505.
R1-R4 BY ADV.GOVERNMENT PLEADER, SRI. UNNIKRISHNAKAIMAL
R5 BY ADV. SRI.MATHEW KURIAKOSE
R6 BY ADV. SRI.PAULSON THOMAS
R5 BY ADV. SRI.P.R.VENKETESH
R5 BY ADV. SRI.G.KEERTHIVAS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 06-09-2016, ALONG WITH WP(C) 5360/2014 THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 4418 of 2014 (B)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P1 COPY OF THE LEAVE SANCTIONED ORDER NO.G.O.RT.NO.4317/98/GE.
DATED 5.11.1998 ISSUED BY IST RESPONDENT
EXT.P2 COPY OF THE SANCTIONED ORDER G.O.(RT)NO.2903/02/G1.EDN.DATED
2.9.2002 ISSUED BY GENERAL EDUCATION (A)DEPARTMENT TO THE PETITIONER.
EXT.P3 COPY OF THE LEAVE SANCTION ORDER NO.GO(RT)111/08/G.EDN DATED
54.1.2008 ISSUED BY GENERAL EDUCATION (M)DEPARTMENT TO THE PETITIONER
EXT.P4 COPY OF THE APPLICATION FORM UNDER FORM NO.13 NIL DATED
SUBMITTED BY THE PETITIONER
EXT.P5 COPY OF THE COVERING LETTER NO.B2/6767/12 DATED 12.10.2012
OF 4TH RESPONDENT TO IST RESPONDENT
EXT.P6 COPY OF THE LETTER OF THE IST RESPONDENT
NO.6113/M2/2013/G.EDN.DATED 26.4.2013 WITH ITS LEGIBLE TYPED COPY.
EXT.P7 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED
6.6.2013 TO IST RESPONDENT.
EXT.P8 COPY OF THE LEAVE APPLICATION FORWARDED TO 4TH RESPONDENT
DEO ON 31/7/2013
EXT.P9 COPY OF THE LETTER OF THE IST RESPONDENT
NO.6113/M2/2013/G.EDN.DATED 10.09.2013 TO 4TH RESPONDENT DEO.
EXT.P10 COPY OF THE LETTER OF GOVERNMENT
N0.6113/M2/2013/G.EDN.DATED 25.11.2013 TO 4TH RESPONDENT DEO WITH ITS
LEGIBLE TYPED COPY
EXT.P11 COPY OF THE GOVERNMENT CIRCULAR NO.G.O.(P)6/89/P&ARD DATED
30.3.1989 ISSUED BY IST RESPONDENT.
EXT.P12 COPY OF THE PROCEEDINGS No.A1/2014 OF THE 5TH RESPONDENT
MANAGER DATED 03.03.2014
EXT.P13 COPY OF THE REPRESENTATION OF THE PETITIONER DATED
05.03.2014 TO THE 1ST RESPONDENT.
RESPONDENT(S)' EXHIBITS
----------------------- NIL
// True copy //
PA to Judge
das
A.K.JAYASANKARAN NAMBIAR, J.
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W.P.(C). Nos. 4418 & 5360 of 2014
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Dated this the 6th day of September, 2016
JUDGMENT
As both these writ petitions involve a common issue, they are taken up for consideration together and disposed by this common judgment. For the sake of convenience, the reference to facts and exhibits is from W.P.(C) No.4418 of 2014.
2. The petitioner in WP(C) No.4418 of 2014 was appointed as an H.S.A (Social Studies), in the school under the management of the 5th respondent, with effect from 07.06.1993. She applied for leave without allowance for the purposes of taking up employment abroad for a period of five years from 12.01.1998 to 11.01.2003. The application for leave without allowance was sanctioned by Ext.P1 order. Before the expiry of first term of five years, the petitioner applied for, and obtained, an extension of leave for a further period of five years from 12.01.2003 to 11.01.2008 by Ext.P2 order. Thereafter, the petitioner obtained a third extension, from 21.01.2008 to 11.01.2013, by Ext.P3 order. Prior to the expiry of the third extended period, on 23.07.2012, by Exts.P4 and P4(a) applications, the petitioner applied for yet another extended term of leave from 12.01.2013 to 11.01.2018. The application -2- W.P.(C). Nos. 4418 & 5360 of 2014 preferred by the petitioner appears to have been forwarded to the Government as early as on 12.10.2012. For reasons best known to the respondents, the applications were not processed for almost three months. Thereafter, by Ext.P6 communication dated 26.04.2013, the Government requested the District Educational Officer to forward a revised leave application, with date and signature of the applicant as well as the controlling officer for the purposes of processing the same. The tenor of the said letter indicates that the earlier application submitted by the petitioner was an undated one. Presumably acting on the basis of a request from the District Educational Officer, the petitioner submitted a fresh application dated 06.06.2013 (Ext.P7), seeking an extension of leave without allowance for the period from 12.01.2013 to 11.01.2018. The said leave application was forwarded by the Headmistress-in-charge to the District Educational Officer by Ext.P8 covering letter and thereafter, was forwarded to the Government for processing. The Government by Ext.P9 communication dated 10.09.2013 sought for certain details with regard to the leave already availed by the petitioner in the past, and after considering the same, by Ext.P10 order dated 25.11.2013 found that the extension of leave without allowance -3- W.P.(C). Nos. 4418 & 5360 of 2014 from 12.01.2013, sought for by the petitioner through her leave application dated 06.06.2013, could not be granted in terms of Appendix XII A of the KSR. The service book of the petitioner was therefore, returned to the District Educational Officer with a direction to him to initiate disciplinary action against the petitioner for termination of her services. In the writ petition, Ext.P10 order of the Government is impugned, inter alia, on the ground that the leave application seeking leave without allowance for the period aforementioned, from 12.01.2013 to 11.01.2018, was submitted by the petitioner well within time, and well prior to the expiry of the earlier leave period, and it was only on account of the inaction on the part of the respondents in processing the same that the said leave application could not be considered. It is pointed out that, by Ext.P7, a fresh application was submitted curing the defects pointed out in the earlier application and hence the said application was in continuation of the earlier application that was filed within time. The direction in Ext.P10 order to initiate disciplinary action against the petitioner is also impugned, on the ground that, if the period of absence of the petitioner is regularized by accepting her leave application, then there would be no occasion for initiating any disciplinary action against the -4- W.P.(C). Nos. 4418 & 5360 of 2014 petitioner.
3. During the pendency of the writ petition, the petitioner also produced as Ext.P12, a copy of the order passed by the manager of the school, in disciplinary proceedings that were initiated against the petitioner pursuant to the directions in Ext.P10 order. By Ext.P12 order, the petitioner was imposed with a punishment of "Censure" as per Rule 65(1) of Chapter XIV A KER by taking a lenient view. The said order, however, finds that the unauthorised absence of the petitioner from 12.01.2013 to 16.02.2014 may be regularized as an eligible leave as per the rules.
4. I have heard Sri. U. Balagangadharan, the learned counsel appearing for the petitioner, Sri. P.R.Venkitesh, the learned counsel appearing for the 5th respondent, as also the learned Government Pleader appearing for the respondents.
5. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that, while it may be a fact that the petitioner preferred an application -5- W.P.(C). Nos. 4418 & 5360 of 2014 for leave without allowance for the period from 12.01.2013 to 11.01.2018, the said application was treated as defective since the application did not bear a date thereon. The Government therefore, found that the undated application preferred by the petitioner could not be acted upon, and it was under those circumstances that the petitioner was directed to file a fresh application. It is not in dispute that the fresh application, which was valid in all respects was submitted only on 06.06.2013, which was after the commencement of the leave period that was applied for in the said application. The provisions of KSR and in particular, Appendix XII A of Part I KSR, clearly mandate that employees cannot proceed on leave without the leave having been sanctioned. It is therefore, that the procedure contemplated under the Rules mandates that an application for leave should be submitted sufficiently in advance, so that the sanction can be received, by the employee seeking to proceed on leave, well before the date on which he intends to proceed on leave. In the case of the petitioner, it is apparent that there was no valid application, containing a date thereon, which could be considered by the Government before 12.01.2013, which was the date on which the petitioner had to proceed on leave for the 4th extended term. -6- W.P.(C). Nos. 4418 & 5360 of 2014 Ext.P7 application submitted by the petitioner is dated 06.06.2013 and hence, the Government, which was called upon to process the said application, found by Ext.P10 order that the leave requested in Ext.P7 application could not be considered for sanction. It is under those circumstances, that Ext.P10 order was passed denying the leave and directing the District Educational Officer to initiate disciplinary action against the petitioner for termination from services on the ground of unauthorised absence. Going by the reasons stated in Ext.P10, I do not find the same to be vitiated by any legal infirmity since, it is not in dispute that the petitioner submitted a fresh application dated 06.06.2013 and the said application was the first one which complied with all the formalities that were necessary to render it a valid application for leave. Resultantly, the challenge in the writ petition against Ext.P10 order of the Government cannot be sustained and hence, the writ petition in its challenge against Ext.P10 order of the Government fails and is accordingly dismissed.
6. In view of the dismissal of the challenge against Ext.P10 order, it will now be incumbent upon the Government to examine the legality of Ext.P12 order, which is stated to have been -7- W.P.(C). Nos. 4418 & 5360 of 2014 passed by the manager in the disciplinary proceedings that were initiated against the petitioner consequent to the directions in Ext.P10 order. I therefore, direct the 1st respondent to consider and pass orders relating to the action to be initiated against the petitioner, pursuant to the upholding of Ext.P10 order, within a period of two months from the date of receipt of a copy of this judgment, after hearing the petitioner and the manager of the school.
7. As regards WP(C) No.5360 of 2013, the petitioner therein was appointed as UPSA in the school for the period from 01.06.1999 to 1.07.2003. Thereafter, she was appointed for the period from 01.07.2003 onwards as H.S.A in the school in the leave without allowance vacancy that arose in the post of H.S.A consequent to the petitioner in WP(C) No.4418 of 2014 proceeding on leave. The petitioner's turn as H.S.A in the said vacancy was thereafter extended from time to time, based on the extension of leave granted to the petitioner in WP(C) No.4418 of 2014, till 11.01.2013. Thereafter, from 12.01.2013, on finding that the petitioner in WP(C) No.4418 of 2014 had not rejoined the school after the expiry of the last leave period, the petitioner in WP(C) -8- W.P.(C). Nos. 4418 & 5360 of 2014 No.5260 of 2014 was continued as H.S.A in the school in the same leave vacancy by Ext.P8 appointment order. She continued in the said post from 12.01.2013 to 16.02.2014. Thereafter, by Ext.P7 order dated 17.02.2014, she was reverted to the post of UPSA taking note of the rejoining of the petitioner in WP(C) No.4418 of 2014 in the school. In WP(C) No.5360 of 2014, the petitioner impugns Ext.P7 order, inter alia, on the ground that the petitioner could not have been reverted as UPSA since the petitioner in WP (C) No.4418 of 2014 had no right to be appointed as H.S.A in the school with effect from 17.02.2014 on account of her long and unauthorised absence in the school for the period from 12.01.2013 to 16.02.2014.
8. I have heard the leaned counsel appearing for the petitioner, the learned Government Pleader appearing for the official respondents as also the learned counsel appearing for the 5th respondent.
9. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that in the light of the directions given in respect of WP(C) No.4418 of -9- W.P.(C). Nos. 4418 & 5360 of 2014 2014, the legality of Ext.P7 order passed by the manager would have to be examined afresh by the 5th respondent manager consequent to the orders to be passed by the 1st respondent as directed in the case of the petitioner in WP(C) No.4418 of 2014. Accordingly, this writ petition is disposed by directing the 5th respondent manager to pass fresh orders in the matter of reversion of the petitioner to the post of UPSA, if need be by reviewing Ext.P7 order, after perusing the order to be passed by the 1st respondent in the case of the petitioner in WP(C) No.4418 of 2014. The 5th respondent shall pass revised orders as directed above, after hearing the petitioner also.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE das/ 06.09.2016