SHAJI P. JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) This Writ Petition is before us pursuant to the Reference Order dtd. 10/2/2016 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. dtd. 5/11/2020), 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.

(2.) The brief facts in the present Writ petition may now be noticed:

(3.) Before us, it is the submission of Sri.Dinesh, the learned counsel for the petitioner that the provisions of Rule 56(1) of Chapter XIVA KER clearly state that, in the matter of casual leave and all other kinds of leave, the teachers of aided schools shall be governed by the Rules for teachers of Government schools in the Service Regulations for the time being in force. It is contended, therefore, that inasmuch as the teachers of Government schools are governed by the corresponding leave provisions under the KSR, there ought not to be a differential treatment meted out to teachers in aided private schools in the matter of sanction of leave. Referring to the specific provisions of Rules 56 (4) of Chapter XIVA KER, which mandates that a teacher shall cease to be in service after a continuous absence of 5 years, whether with or 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 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.