The main legal point established in the judgment is that Rule 56 of Chapter XIVA KER carves out an exception for teachers in aided schools, making it clear that they would cease to be in service after a continuous absence of 5 years whether with or without leave.

JUDGMENT :

A.K. Jayasankaran Nambiar, J.

This Writ Petition is before us pursuant to the Reference Order dated 10.02.2016 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. dated 05.11.2020), 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:

The petitioner who was an L.P.S.A in the A.M.L.P. School, Chengottur, Malappuram District availed leave without allowance for a period of 5 years to join his spouse abroad. The leave was sanctioned by Ext.P1 order dated 05.09.2005 for a period of 5 years subject to the specific condition that the leave period will not be counted for service benefits including pension. It would appear that, thereafter, on expiry of the initial 5 year period, the petitioner obtained sanction for extension of leave for a further period of 5 years from 15.11.2010 to 14.11.2015. Still thereafter, and immediately prior to the earlier leave period expiring, the petitioner by Ext.P3 communication dated 12.08.2015 sought for a further extension of 5 years to cover the period from 15.11.2015 to 14.11.2020. On this occasion, however, the Manager of the school refused to sanction leave by his proceedings (Ext.P7 dated 11.08.2015). The said decision of the Manager was communicated to the petitioner by Ext.P8 letter dated 22.08.2015 of the Headmaster of the school. The petitioner therefore impugned Exts.P7 and P8 communications in this Writ Petition, wherein reliance is placed on the provisions of the Kerala Education Act and Rules, and in particular, Rule 58 of Chapter XIVA KER to contend that it was not open to the Manager of the school to refuse sanction of a leave claimed by a teacher, and that the statutory procedure envisages a mere forwarding of the request of the teacher to the Government after noting of objections, if any, by the Manager. Inasmuch as the said procedure was not followed by the Manager, the petitioner challenges the order passed by the Manager as illegal for non-compliance with the statutory procedure, read with the relevant circulars issued by the Government from time to time.

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 t