[Kerala Service Rules] Leave Vacancy Without Allowance Granted To Regular Incumbent Not Appointment Against 'Substantive Vacancy': High Court

The Kerala High Court on Wednesday held the appointment of a teacher against the vacancy that arose by reason of the leave without allowance granted to a regular incumbent, cannot be regarded as an appointment made against a substantive vacancy. 

The Division Bench comprising Justice P.B. Sureshkumar and Justice C.S. Sudha further held that the service rendered by such person in the leave vacancy preceding their absorption without break in the regular establishment would also not qualify for pensionary benefits.

"...in the absence of an order by the Government suspending the lien of the teacher in whose leave vacancy the petitioner was initially appointed, the said teacher was retaining a lien on that post. If that be so, the initial appointment of the petitioner cannot be said to be an appointment made against a substantive vacancy", it was observed. 

The Court therefore went on to discern that where the service has been so rendered by a person for a limited period only, no claim for pension would be admissible. 

"...insofar as the right to pensionary benefits of a teacher in a private college is governed by the provisions contained in Part III KSR (Kerala Service Rules), in the matter of adjudicating the claim of a teacher for pension, the service has to be understood as the regular service pursuant to an appointment made against a substantive vacancy", it reasoned. 

Brief Facts

The petitioner/appellant herein had been appointed as the Lecturer in a private college affiliated to the University of Calicut on February 2nd, 1994. It is noted that the appointment of the petitioner was against a vacancy that arose by reason of the grant of leave without allowance to a regular teacher in the college. The petitioner's appointment was approved by the University and the Directorate of Collegiate Education with effect from 04.02.1994 (the date on which the petitioner joined duty). While so, it is seen that a regular vacancy arose in the college on 01.04.1997 and the appointment of the petitioner was consequently shifted by the management to that vacancy.

The petitioner was thereafter placed as Senior Scale Lecturer and as selection grade lecturer in 1999 and 2004 respectively, which appointments were also approved by the University and the Directorate of Collegiate Education. The petitioner then retired from service in March 2019. 

It is the case of the petitioner that in the verification report issued by the office of the Accountant General (A&E) in connection with the sanctioning of pensionary benefits to the petitioner, the qualifying service of the petitioner was shown only as 22 years excluding the period between 04.02.1994 and 31.03.1997 during which the petitioner had worked in the leave vacancy. The petitioner contended that the said period also ought to be taken into account as qualifying service for grant of pensionary benefits to her. When a representation in this regard was filed before the Director of Collegiate Education, the same was rejected.

In this context, when the writ petition was filed by the petitioner, the Single Judge took the view that the nature of vacancy in which the petitioner was initially appointed would be of no consequence in the matter of fixing her qualifying service for pension inasmuch as the placements of the petitioner in the senior scale as well as in the selection grade, reckoning the period during which she had worked in the leave vacancy, were approved by the Director of Collegiate Education.

It is on being aggrieved by the same that the instant writ appeal has been filed. 

Arguments Advanced

It was contended by the State authorities (appellant herein/respondent in the writ petition), that pension for teachers of private colleges is regulated by the Rules contained in Part III of the Kerala Service Rules (KSR), and that there was no provision in the said Rules enabling the petitioner to reckon the service rendered by her in the leave vacancy as qualifying service for pension. On the other hand, it was Rule 14E(b)(i) of Part III KSR that regulated the same and stipulated the actual period of regular full-time service in aided private colleges alone shall qualify for pensionary benefits, thus fortifying the position that prior service in leave vacancies in private colleges, shall not be reckoned for grant of pensionary benefits.

On the other hand, the counsel for the petitioner/respondent placed reliance on the definition of “service” as contained in Statute 2(h) of the Calicut University (Conditions of Service of the Teachers and Members of Non Teaching Staff) First Statutes, 1979, and argued that as per the said provision, 'service' is defined as continuous service rendered in a college without reference to the nature of the vacancy in which the appointment is made. It was also argued in the alternative that, "inasmuch as the incumbent in whose leave vacancy the petitioner was appointed initially is not entitled to any benefits whatsoever including pension in respect of the leave period, the lien of that teacher to that post shall be deemed to have been suspended during the said period". It was thus argued that the appointment of the petitioner against such a vacancy could only be treated as that of appointment against a substantive vacancy. If so, then the service rendered by the petitioner pursuant to the said appointment is liable to be treated as regular full-time service as provided for in Rule 14E(b)(i) of Part III KSR and it cannot be said that the said service is not liable to be reckoned for granting pensionary benefits, it was added. 

Division Bench Ruling

The Division Bench discerned that there were two questions for consideration in this case: firstly, whether the appointment of the petitioner against the vacancy that arose by reason of the grant of leave without allowance to a regular incumbent, can be regarded as an appointment made against a substantive vacancy, and secondly, whether service rendered by the petitioner in the leave vacancy preceding her absorption without break in the regular establishment, shall qualify for pensionary benefits.

The Court here perused Rules 17 and 18 of the Part I KSR dealing with 'suspension of lien' to ascertain that the instant case is one in which the petitioner had been appointed against the vacancy that arose by reason of the leave without allowance granted to a regular incumbent, and the same could thus not be regarded as appointment made against a substantive vacancy.

As regards the second question, the Court noted that as per Statute 5 of the 1976 Statutes, the teachers of private colleges are entitled to the same pensionary benefits as that of similar categories of teachers in Government Colleges and all the conditions for the grant of the same as applicable to Government Servants. Rule 14E(b)(i) also stipulates that the actual period of regular full time service rendered shall be counted for pensionary benefits.

However, the Court noted that Rule 4 also makes it clear that no claim to pension is admitted when an employee is appointed for a limited time only.

In this context, the Court observed:

"...the petitioner cannot dispute the fact that she was liable to be discharged when the teacher in whose vacancy she was appointed, re-joins duty. Of course, while the petitioner was working in the said leave vacancy, her appointment was adjusted against a substantive vacancy with effect from 01.04.1997. In other words, going by the provisions contained in Rule 4, the service rendered by the petitioner from 04.02.1994 to 01.04.1997 can be regarded only as an appointment for a limited time. In light of the provisions contained in Rule 4, no claim to pension is admissible for the service rendered by the petitioner for the said period. It is all the more so since the said period cannot be regarded as a regular full time service in terms of Rule 14E(b)". 

The Court also took note of the decisions of the High Court to decisively hold that the service rendered by the petitioner in the leave vacancy preceding her absorption without break in the regular establishment, shall not qualify for pensionary benefits.

The writ appeal was thus, allowed. 

Senior Government Pleader B. Vinitha appeared on behalf of the appellants in this writ appeal. Advocates Santhosh Mathew and P. Gopal appeared on behalf of the respondents in the writ appeal. 

Case Title: State of Kerala rep. by Secretary to the Government & Ors. v. Dr. Sushama S. & Anr. 

Citation: 2023 LiveLaw (Ker) 12

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