BHASKARAN Vs. VISWANATHAN

JUDGEMENT

(1.) The short but interesting question which arises in this Writ Appeal is whether on the Headmaster of an institution being granted special leave in terms of R.63 of Chap.14A of Kerala Education Rules, 1959 (in short 'the K.E.R.) a vacancy arises.

(2.) Factual position briefly stated is as follows: One Sri. Narayanan Nair, Headmaster of the institution in question retired from service on 1.7.1992 on superannuation. He was granted special leave on full pay from 1.6.1992 in terms of the provisions contained in R.63 of Chap.14A of the Rules. Both C. K. Raghavan Nair, the second respondent and K. Bhaskaran, the present appellant staked claim to be appointed. Bhaskaran acquired the eligibility for exemption on 14.4.1990 on completion of 50 years of age were as Raghavan got the exemption only on 1.7.1992. If the vacancy in the post of Headmaster is taken to have occurred on 1.6.1992, Raghavan cannot be entitled to claim the same as he was not qualified with the help of an exemption on that day eventhough he is senior to Bhaskaran. In that event only Bhaskaran could claim promotion as he had already acquired exemption from test qualification by 1.6.1992. C.P. Viswanathan, respondent No. 1, the Manager took the view that vacancy had arisen only on 1.7.1992 and on that basis Raghavan was promoted. The said view was not accepted by the authorities and the appointment of Raghavan was not approved. The orders passed by the District Educational Officer, in short the D.E.O. the Dy. Director of Education (in short Dy. D.E.) and the Director of Public Instruction (in short D.P.I.) were challenged in the Original Petition. It is to be noted that the D.E.O. based his conclusion on a circular dated 1.7.1979 issued by the Director of Public Instruction. He took the view that since the Headmaster ceased to be on active duty with effect from 1.6.1992 as per the provisions of R.63 of Chap.14A of K.E.R, it is to be taken that the vacancy had arisen on 1.6.1992. Same reason was followed by the Dy. D.E. and the D.P.I. Before the learned Single Judge the Circular was pressed into service by the present appellant and the State. Reliance was also placed on a decision of this Court in Ponnamma v. Government of Kerala ( 1991 (2) KLT 344 ) in support of the stand that the vacancy had arisen on 1.6.1992.

(3.) Learned Single Judge observed that the Circular had no application to the facts of the case. It was also observed that the doubt which was answered in the Circular related to question whether the additional leave vacancy under R.60(c) Part I, of Kerala Service Rules, 1959 (in short K.S.R.) from 1st June to 30th June followed by a regular vacancy due to the retirement from 1st July can be taken as leave vacancy. It was observed by learned Single Judge that it did not deal with the question whether a regular vacancy would arise on 1st of June. The decision in Ponnamma's case also was distinguished on the ground that the same had no applicability to a case where the question was whether regular vacancy would arise on the date on which the teacher proceeds on leave prior to his retirement. Ultimately it was concluded that in the light of R.63 the vacancy can be said to have arisen only on 1.7.1992 and not on 1.6.1992.