The main legal point established in the judgment is that the leave granted as per Ext.P10 Government Order did not affect the seniority of the first respondent, and seniority is not considered a service benefit.

Headnote:
Seniority - Appointment Dispute - Kerala Education Act - Chapter XIV(A) - R.56(4) - R.27(c) of Part II of K.S. & S.S.R. - Ext.P10 Government Order - Seniority accrual and continuity
Fact of the Case:

The case involved a dispute over the appointment of a Head Master in a school due to a change in management. The petitioner and the first respondent both had the qualifications for the position and had over 12 years of continuous service. The issue was to determine the seniority between the two candidates.
Finding of the Court:

The court found that the first respondent's seniority over the petitioner was not lost due to a leave granted as per Ext.P10 Government Order. The court upheld the decision of the statutory authorities in favor of the first respondent and dismissed the Writ Petition.
Issues: The main issue was whether the first respondent's seniority was affected by the leave granted as per Ext.P10 Government Order, and whether the seniority list showing the first respondent as senior to the petitioner was legal and correct.
Ratio Decidendi: The court held that the leave granted as per Ext.P10 Government Order did not result in the cessation of the first respondent from being in service, and therefore, the period covered by the order should be reckoned for the purpose of seniority. The court also emphasized that seniority is not a service benefit and that the seniority accrued and continued with the first respondent.
Final Decision: The Writ Petition was dismissed, and there was no order as to costs.

Judgment :-

Thottathil B. Radhakrishnan, J.

The first respondent was appointed as an High School Assistant (H.S.A.) on 15.7.1974 in an aided school. The petitioner was appointed as an H.S.A. in that school on 15.7.1976. Both of them had continuous service of more than 12 years immediately preceding 31.3.1999, on which date the post of the Head Master of the School fell vacant on superannuation of the then incumbent. Both of them possessed the requisite qualification for being promoted to the post of the Head Master.

2. The unfortunate fate of the School in question is that, in view of the disputes between the participants in the educational agency, at that time there appears to have been an arrangement whereby there would be a change of management between rival groups during every financial year (academic year).

3. By Ex.P1 dated 31.03.1999, the then Manager of the School appointed the petitioner as the Headmistress.

4. By virtue of the aforesaid arrangement as regards management, a new Manager came in on 1.4.1999, i.e., the day immediately succeeding the issuance of Ext.P1 order. He issued Ex.P2 on 1.4.1999, appointing the first respondent as the Headmistress.

5. It is stated at the bar that as of now the second respondent is the Receiver as regards the School.

6. Be that as it may, the short question arising for decision is as to who among the petitioner and the first respondent is to be preferred.

7. The statutory authorities under the Kerala Education Act and Rules have held in favour of the first respondent. Those decisions are under challenge in this Writ Petition.

8. Though, among the two, the first respondent was appointed as H.S.A. earlier to her, the writ petitioner’s case is built on a plea that there is break in the service of the first respondent and accordingly the first respondent has ceased to be senior to the petitioner. Though the first respondent had joined service on 15.7.1974, i.e., two years before the petitioner entered service, the first respondent had applied for and obtained leave for a spell of five years from 1.2.1978 to 31.1.1983 for serving abroad, which leave was granted as leave without allowances. This was followed by yet another spell of leave granted as per Ex.P10 Government Order on 10.6.1983 with effect from 1.2.1983 to 31.1.1986. Ex.P10 is an order granting leave without allowances to the first respondent in relaxation of Rs.56(4) of Chapter XIV (A) of Kerala Education Rules with permission to take up appointment abroad subject to the condition that “the period of leave without allowances will not be reckoned for any service benefits including pension and the fact recorded as such in the service book….” (emphasis supplied).

9. Relying on the aforesaid condition imposed as per Ext.P10 it is argued by the learned counsel for the petitioner that the said condition should be treated as one depriving the first respondent of her entitlement to count the period during which she was on leave in terms of Ext.P10 order, for counting her continuous service to reckon seniority.

10. In so far as leave is concerned, Kerala State and Subordinate Service Rules apply to those governed by Kerala Education Rules. As per R.27(c) of Part II of K.S. & S.S.R., seniority of an officer in a grade will be determined by the date of first advice unless reduced to a lower rank as an act of punishment. To put Appendix XIIA of Kerala Service Rules in conformity with R.27 of Part II of K.S. & S.S.R., the Government issued Ext.R1(c) order dated 19.11.2003. However, even that Government Order need not be referred to for the purpose of construing the effect of the condition imposed in Ext.P10.

11. The question is not as to whether the first respondent had 12 years’ continuous service to her credit as on the date of the occurrence of the vacancy against which she has been appointed. If that were the question, the obvious answer is in the affirmative since, even if the period of service is reckoned from 1.2.1986, the date immediately su

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