1. Sri.Vasanthan, the Headmaster of Pantheerankavu Higher Secondary School, was to attain superannuation on 31.5.2021. He availed Leave Preparatory to Retirement (“LPR” for the sake of brevity) on 22.02.2021. The question for resolution is when would the occurrence of vacancy of Headmaster in the school arise? Whether it would be the date on which Sri. Vasanthan proceeded on LPR preparatory to retirement or whether it would be from the date of actual retirement of the incumbent. The answer to the said question would determine the teacher entitled to occupy the post of Headmaster as and when the vacancy occurred.
2. The facts necessary for deciding the issue are as under.
The petitioner states that he commenced his service as High School Teacher (Maths) on 19.06.1989 in the Pantheerankavu HSS managed by the 5th respondent. According to him, he is the seniormost teacher and is junior only to Sri.Vasanthan, who was functioning as Headmaster of the school. The 6th respondent herein, the rival claimant, is junior to the petitioner. He relies on Ext.P1 and P2 certificates and contends that he had acquired all the obligatory qualifications to lay claim to the post of Headmaster on 17.3.2021. Sri.Vasanthan, who was to retire from service on 31.5.2021 on attaining superannuation, availed LPR from 22.2.2021. According to the petitioner, as per the provisions of the Kerala Education Act and the Rules framed thereunder, the post of Headmaster is to be manned by the seniormost teacher as Teacher-in-charge till the post became available substantially on his retirement on 31.5.2021. The manager of the school, however, ignoring the preferential claim of the petitioner as the seniormost teacher, appointed the 6th respondent, who is junior to the petitioner. This was done by the manager on the premise that, as on the date on which the Headmaster availed LPR, the petitioner herein was not qualified, whereas the 6th respondent had the requisite qualifications. It is contended that the need for filling up the post of Headmaster on regular basis would arise only on 31.5.2021 on which date the Headmaster retired from service and till such time, the seniormost teacher was required to officiate in the post. Being aggrieved by the action on the part of the Manager, the petitioner approached the 4th respondent and raised his grievances. However, his claim was rejected by Ext.P6 order. It is in the afore circumstances that the petitioner is before this Court seeking the following reliefs:
i) call for the records leading to Exhibit P6 and quash the same by issuing writ in the nature of certiorari.
ii) issue writ in the nature of mandamus commanding the 4th respondent to obtain proposal from the 5th respondent Manager for appointment of the petitioner as HM in 5th respondent school from 01.06.2021 and approve the appointment of the petitioner as HM from 1.6.2021 with all consequential benefits including pay and allowances.
iii) Declare that petitioner is entitled to be promoted/appointed as Headmaster in 5th respondent School with effect from 1.6.2021 with all consequential benefits.
3. In the counter affidavit filed by the 4th respondent, it is stated that the vacancy for the post of Headmaster arose when Sri. Vasanthan took LPR on 22.2.2021. The said teacher did not rejoin duty after availing LPR and therefore, the vacancy to the post of Headmaster was continuous from the said date. The date on which the Headmaster entered into LPR has to be considered to be the date on which the vacancy had arisen. The petitioner, not being qualified on the said date, he could not have aspired for appointment to the post of Headmaster.
4. The 6th respondent has filed a counter affidavit. It is stated that more than 3 months LPR was availed by Sri. Vasanthan. Referring to Ext.R6(a) promotion order, it is contended that before promoting the 6th respondent, the Manager had sought the response of the petitioner, and it is thereafter that the appointment order was issued. The petitioner is therefore estopped from asserting any claim to the post. Sri. Vasanthan, after availing LPR, did not seek cancellation of the same and it was in the said circumstances that the 6th respondent, who was duly qualified, was promoted to the post of Headmaster and has been working as such since 22.2.2021. As LPR is a Special Leave granted to an employee, the employee is not entitled to unilaterally cancel the leave and rejoin duty as per Rule 72 of Part-I of the KSR.
5. I have heard Sri. U. Balagangadharan, the learned counsel appearing for the petitioner, Sri. Elvin Peter, the learned counsel appearing for the 6th respondent and the learned Government Pleader in extenso. I have also gone through the relevant statutory provisions and the law laid down by this Court in Ponnamma v. State of Kerala[1991 (2) KLT 344], cited by Sri.Elvin Peter and Viswanathan v. DPI[1993(2) KLT 381]and Bhaskaran v. Viswanathan[2000(2) KLT 64]cited by Sri. Balagangadharan.
6. Admittedly, the petitioner was junior only to Sri. Vasanthan, who was functioning as Headmaster of the school. Sri. Vasanthan took LPR on 22.02.2021 and the date of his superannuation was 31.5.2021. Exts.P1 and P2 certificates produced by the petitioner reveal that it was only on 17.3.2021 that the petitioner had acquired all the requisite qualifications to aspire for the post of Headmaster of the school.
7. Chapter IX of Part -I of the KSR deals with leave. Rule 72 reads as follows:
72. 1. An Officer on leave may not return to duty before the expiry of the period of leave granted to him, unless he is permitted to do so by the authority which granted him leave.
2. Notwithstanding anything contained in sub-rule 1 an officer on leave preparatory to retirement shall be precluded from withdrawing his request for permission to retire and from returning to duty, save with the consent of the authority empowered to appoint him.
8. As is discernible from Rule 72, an officer who is on LPR, though is precluded from withdrawing his request for permission to retire, may do so with the consent of the authority empowered to appoint him.
9. Rule 7A of Chapter XIVA as it stands now reads as follows:
“(2) Posts that may fall vacant on the closing date shall not be filled up till the reopening date except in the case of posts of non-vacation staff.
(3) Vacancies, the duration of which is less than one academic year, shall not be filled up.
10. In Ponnamma (supra), a learned Single Judge of this Court had held that a remote possibility of an incumbent withdrawing the request for Leave Preparatory to Retirement and rejoining duty with consent of the authority competent to appoint cannot be considered as a circumstance to hold that Rule 7A(3) of Chapter XIVA is attracted in such cases. Holding so, the learned Single Judge ordered that it was open to the authorities to treat the vacancy as commencing from the date on which the former Headmaster availed LPR and later attained superannuation. Rule 7 has since then been amended, and now, as it stands, says that the vacancies, the duration of which is less than one year, shall not be filled up. However, in Viswanathan (supra), another learned single Judge held that Ponnamma (supra) is not an authority to the proposition that a regular vacancy would arise on the date on which the teacher proceeds on leave prior to his retirement. It was held as follows in paragraph 8 of the judgment.
8. I do not understand the above judgment as an authority to find that a regular vacancy would arise on the date on which the teacher proceeds on leave prior to his retirement. In any view of the matter the issue raised in the present case has to be adjudicated in the light of the provisions contained under R.63. For the reasons mentioned earlier, I find that the permanent vacancy of a Headmaster arose in the school of the 1st petitioner only on 1-7-92 and not on 1-6-92. The 2nd petitioner admitted senior to the 4th respondent, was at that time available for promotion on obtaining exemption from test qualification. Therefore the 2nd petitioner should have been preferred for appointment to the post of Headmaster instead of the 4th respondent
11. Later, in Bhaskaran (supra), a Division Bench of this Court had occasion to consider the law laid down in both the decisions and had held that Ponnamma (supra) cannot be treated as an authority to support the stand that a regular vacancy arises on the date on which the person proceeds on leave particularly when there is no legal bar on his rejoining duty with the consent of the concerned authority. It was observed as follows in paragraph No. 6 of the judgment:
6. It is to be noted that the institution in question is an aided institution. R.56 of Chap.14A of the KER provides 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. R.72(2) Part I K.S.R. inter alia provides that notwithstanding anything contained in sub-r.(1) an officer on leave preparatory to retirement shall be precluded from withdrawing his request for permission to retire and from returning to duty, save with the consent of the authority empowered to appoint him. The provision which is of considerable importance reads as follows:
"72(2). Notwithstanding anything contained in sub-r.(1) an officer on leave preparatory to retirement shall be precluded from withdrawing his request for permission to retire and from returning to duty, save with the consent of the authority empowered to appoint him.
Note 1: No formal cancellation of the unexpired portion of leave is necessary when an officer returns to duty before the expiry of his leave. The cancellation will be effected by the Audit Officer in the case of Gazetted Officers and by the Head of Office in the case of non gazetted officers."
Learned Single Judge in Ponnamma's case observed that there is remote possibility of a person withdrawing the request for leave preparatory to retirement and rejoining duty with consent of authority competent to appoint, and same cannot be considered as a circumstance to hold that R.7A(3) of Chap.14A is attracted in such cases. We are unable to subscribe to the view. There is no legal bar for such a request being made and when the provision provides that same can be done with the consent of the authority empowered to appoint the person, merely because there is possibility of such a person not seeking withdrawal, that cannot be take away the effect of the provision enabling the withdrawal. In the circumstance, therefore, R.7A(3) of Chap.14A which reads as follows clearly applies.
"7A(3) Vacancies, the duration of which is two months or less shall not be filled up by any appointment."
It stipulates that vacancies, the duration of which is two months or less, shall not be filled up by any appointment. In the case at hand the duration is certainly less than two months in view of the provisions contained in R.63. Apart from that, the decision in question related to a case under R.62 of Chap.14A of K.E.R. The decision in that background cannot be treated as an authority to support the stand that a regular vacancy arises on the date on which the person proceeds on leave prior to his retirement, particularly when there is no legal bar on his rejoining duty with consent of concerned authority. …………………
12. In a recent judgment dated 10.1.2022 in W.A.No. 438 of 2021 rendered by a Division Bench of this Court, it was held that the nature of vacancy which arises when a person proceeds on Leave Preparatory to Retirement would be materially different from the substantive vacancy that would arise consequent to
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the retirement of the earlier incumbent. 13. For the purpose of seniority, it is the substantive vacancy to which a person is appointed that has to be reckoned. The substantive vacancy would arise only on the retirement of the former Headmaster on 31.5.2021 and not on 22.2.2021, on which date the former Headmaster availed LPR. As on 1.6.2021, the petitioner herein was the seniormost and he was eminently qualified to the post. In that view of the matter, the appointment of the 6th respondent as Headmaster overlooking the petitioner cannot be sustained under law. In view of the discussion above, the petitioner is entitled to succeed. Ext.P6 will stand quashed. It is declared that the petitioner is entitled to be promoted and appointed as Headmaster of the Pantheerankavu Higher Secondary School with effect from 1.6.2021. Consequently, there will be a direction to the 5th respondent to forward the proposal for appointment of the petitioner as Headmaster of the School managed by him with effect from 1.6.2021 to the 4th respondent within a period of two weeks from the date of receipt of a copy of this judgment. On receipt of the proposal, the 4th respondent shall pass appropriate orders within a further period of four weeks. Needless to say, the petitioner shall be entitled to all consequential benefits.