Point of Law: As per Rule 56(4) of Chapter XIV(A) of Kerala Education Rules, 1959, a teacher shall cease to be in service after a continuous absence of 5 years whether with or without leave.

JUDGMENT :

P.V. KUNHIKRISHNAN, J.

1. The petitioner, Mr. Ramesh M.E. entered service in an aided school named the Velom Higher Secondary School, Cherapuram as High School Teacher (Physical Science) on 18.07.1994. It is the case of the petitioner that, he has got continuous service from 05.06.1995 onwards. He has cleared Account Test (Lower). Going by Rules, for getting promoted to the post of Headmaster of an aided High School, 12 years graduate service is required, besides test qualifications. According to the petitioner, he is fully qualified for the promotion and appointment to the post of Headmaster. Ext .P1 is the seniority list as on 01.01.2019. In Ext.P1, the petitioner was Serial No. 12. Serial No. 2 in Ext.P1 was holding the post of Headmaster. He retired on 31.05.2022. Serial No. 3 has already retired from the service. Serial No. 4 was Smt. V.R. Ajithakumari who is the 7th respondent in this writ petition.

2. It is submitted that the 7th respondent was on Leave Without Allowance (LWA) from 02.07.1997 to 01.07.2007 to take up employment abroad. It is the case of the petitioner that for more than 10 years, the 7th respondent was on leave. It is the specific case of the petitioner that, as per Rule 56(4) of Chapter XIV(A) of the Kerala Education Rules, 1959 (hereinafter referred to as, “KER”) a teacher shall cease to be in service after a continuous absence of 5 years whether with or without leave. It is submitted that, by operation of the said Rule, the 7th respondent is ceased to be a teacher. The petitioner relied on Ext.P2 to P5 judgments to support his contentions. The petitioner also relied on Ext.P7 Government Order which was passed consequent to the directions issued by this Court. According to the petitioner, the seniority list requires revision. Therefore, the petitioner submitted Ext.P6 to the District Educational Officer, Vadakara, who is the 4th respondent in this writ petition. The 4th respondent did not reply to Ext. P6, is the grievance of the petitioner. Thereafter, the petitioner approached the 1st respondent, The State of Kerala represented by its Secretary to the Government, General Education Department, with Ext.P8 revision. Based on the directions of this Court in Ext.P9 judgment, the Government considered the matter and as per Ext.P10 rejected the claim of the petitioner. Aggrieved by the same, this writ petition is filed.

3. Heard Adv. M. Sajjad, the counsel appearing for the petitioner, Smt. Surya Binoy, the learned Senior Government Pleader appearing for the official respondents and Adv. R.K. Muraleedharan, the counsel appearing for the 7th respondent.

4. Counsel for the petitioner reiterated the contentions raised in this writ petition. The counsel submitted that the 7th respondent was on leave for more than 10 years and as per Rule 56(4) of Chapter XIV(A) of KER, she ceases to be in service after a continuous absence of five years, whether with or without leave. The petitioner relied on Exts.P2 to P5 judgments. It is also the case of the petitioner that the seniority list requires revision. The counsel submitted that the findings in Ext.P10 Government Order would not stand in the light of Exts.P2 to P5 judgments of this Court.

5. The learned Government Pleader, on the other hand, supported Ext.P10 order. The Government Pleader also relied on the judgment of this Court in Sreedevi Amma vs. Radha Devi, 2005 (2) KLT 796 and submitted that leave without allowance for a continuous period of five years will not result in automatic cessation from service and it can be reckoned for the purpose of seniority. The counsel appearing for the 7th respondent also supported Ext.P10 order. The counsel submitted that the petitioner was junior to her even according to Ext.R7(b) seniority list which was published on 01.01.2011. The petitioner challenged the seniority list only in the year 2021. Therefore, the counsel submitted that the petitioner's claim is barred by the ‘Sit back theory’ as explained by the Full Benc