Officers On Leave Without Allowance Can Lose Chance Of Promotion Only During The Period Of Leave, Not Thereafter: Kerala High Court
Kerala High Court has said that as per Rule 4 of Appendix XII A of Kerala Service Rules (KSR), officers who opt for Leave Without Allowance, can lose chances of promotion which may arise, only during the period of leave and not thereafter.
The Rule states that Permanent officers and nonpermanent officers who have completed probation in their entry cadre in the regular service of Government may be granted leave without allowances under KSR. The rule explicitly says that "during the currency of period of leave", the officers shall lose service benefits such as promotion chances as may arise with reference to their seniority in the posts from which they proceeded on leave.
The Division Bench comprising of Justice A. Muhamed Mustaque and Justice P. Krishna Kumar in its order said, "Rule 4 itself explicitly limits the consequences provided therein as to the chances of promotion only 'during the currency of the period of leave'. In other words, the said rule states only that the officers shall lose the promotion chances as may arise with reference to their seniority in the post from which they proceeded on leave, during the currency of the period of leave, and not thereafter".
The Court held that it cannot extend the rule to other situations.
The appellant was challenging a decision of single judge whereby the first respondent was appointed as the Headmaster of the school. The appellant was appointed as the Headmaster by the Manager though she was junior to the 1st respondent. When she raised the matter before the Manager, the Manager said that she should pass the required tests. However, she claimed exception by virtue of proviso of Rule 18 of the Right of Children to Free and Compulsory Education Rules, 2011. The rule exempts candidates for Headmaster post from acquiring test qualification upon reaching 50 years. The appellant however argued that the respondent does not have continuous service as she took LWA for 8 years for foreign employment. The Single Bench held that period of LWA taken after probation will not affect the seniority/ probation of the teacher concerned. The Single Bench held that the first respondent being the senior most teacher with the benefit of the test exemption is entitled to be promoted as headmistress.
The Single Judge had relied on Nirmaladevi v State of Kerala and Others (2009) where it was held that the application of Rule 4 of Appendix 12C of Part I, KSR will come into play only if the vacancy of Headmaster arose during the period of leave. The Court observed that Rule 4 of Appendix XII A, which is applicable in the present case, is a similar provision. However, the appellant contended that Rule 4 of Appendix XII A explicitly states that the officers shall lose all promotion chances that may arise with reference to their seniority in the posts from which they proceeded on leave. However, the Division Bench held that as per the rule, they lose the promotion chances only during the time they were on leave and not thereafter. It said:
“When the statutory rule provides the consequences in a particular circumstance alone, extending it to any other situation is impermissible.”
The appellant had relied on V. B. Prasad v Manager, P.M.D.U.P School and Others (2007), Shaji Sanjayi Nottiyhodi v Managing Director, KSRTC (2017) and State of Kerala and Others v M. M. Thomas and Others (2015) to challenge the appointment of 1st respondent.
The Court held that in V. B. Prasad case, the candidate did not have the mandatory five years' experience in teaching. The Court had held that the teaching experience should be 'real teaching experience' and not 'deemed teaching experience'. The Court held that the period of leave cannot be counted for calculating the 'real teaching experience'. The Court held that decision would not be applicable here as the 1st respondent had more than 5 years of teaching experience as mandated by Rule 45 of KER.
The Court observed that the Shaji Sanjayi case was based on different premises as the challenge was with respect to an employee who has not acquired qualification for promotion in KSRTC. The Court further observed that in M M. Thomas was also not applicable in this case, as it dealt with the grant of benefit of placement under UGC Scheme. The Court said that the scheme had no bearing on school teacher who were governed by Kerala Service Rules.
The Court held that there was no reason to interfere with the decision of the Single Judge. The appeal was therefore dismissed.
Case Title: John Varghese v Laila Beegam A. R. and Others
Citation: 2025 LiveLaw (Ker) 6