SAJI.K.G Vs. STATE OF KERALA

JUDGEMENT

(1.) 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 4th 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 5th 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 5th respondent ceased to be in service after continuous absence of five years with or without leave. It is contended that since the 5th 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 6th respondent, who is an HSST (Zoology) had been promoted WP(C).No.15235 OF 2020(D) 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 6th 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 5th respondent has placed a counter affidavit on record. It is submitted that the 5th 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 5th 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) 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].