Point of Law: Rule 56(4) specifically mandates that a teacher shall cease to be in service after a continuous absence of 5 years, whether with or without leave.

JUDGMENT :

The above writ petition is filed seeking a direction to the 6th and the 7th respondents to admit the petitioner to duty at once. The petitioner has also sought other consequential reliefs.

The brief facts necessary for the disposal of the writ petition are as follows:

2. The petitioner is employed as Lower Primary School Teacher in Saraswathi Vilasam Upper Primary School, Muthathy, an aided school under the management of the 7th respondent. The petitioner was granted Leave Without Allowances (LWA) for the period from 10.06.2014 to 09.06.2018 to join the spouse within India, as per Ext.P1 Government Order. The petitioner relying on relevant rules in Appendix XII C Part I KSR, sought for extension of LWA for a further period of 5 years from 10.06.2018 to 09.06.2023. There was no response on the part of the 7th respondent. As there was no approved Manager or approved Headmaster at that point in time, she submitted an application for extension of leave before the 5th respondent. The 5th respondent returned the petitioner’s application for extension of leave, noting certain defects. Thereupon, the petitioner submitted Ext.P2 letter before the 2nd respondent seeking extension of LWA. The 2nd respondent as per Ext.P3 sought a detailed report from the 5th respondent regarding the leave application submitted by the petitioner. The petitioner being aggrieved by the non-sanction of the leave applied for, approached the 1strespondent by submitting a letter dated 18.07.2019 and the 2nd respondent by Ext.P4 letter, submitted a detailed report to the 1st respondent on her application for extension of leave. Thereupon, the 1st respondent issued Ext.P5 communication to the 2nd respondent directing to produce documents with the recommendation of the controlling officer for proceeding further with the leave application. Thereafter, no information was received by the petitioner and the petitioner submits that her application for extension of leave is pending with the Government. As per Ext.P6, the 7th respondent issued Memo of Charges and Statement of Allegation to the petitioner alleging unauthorized absence from duty. The petitioner submitted Ext.P7 defence statement to the said Memo of Charges and Statement of Allegation. Thereafter, Ext.P8 letter was issued by the 7th respondent to the petitioner intimating that disciplinary proceedings are initiated against her, to which she submitted Ext.P9 reply. In Ext. P9 letter, the petitioner informed the 7th respondent of her willingness to rejoin duty, but the 6th respondent declined permission to the petitioner to rejoin duty. The petitioner vide Exts. P10 and P12, again approached the 6th and 5th respondent respectively, seeking permission to rejoin duty. Thereupon by Ext.P14 reply, the 7th respondent intimated the petitioner that her request to permit her to rejoin duty has been rejected as disciplinary proceedings have already been initiated. The petitioner submits that the action of the 6th and 7th respondents in not admitting the petitioner to duty on 09.06.2023 is illegal and arbitrary. Pendency of disciplinary proceedings if any is not a sufficient ground for not admitting her to duty on expiry of the leave applied for. The petitioner relies on paragraph 53 of the Manual for Disciplinary Proceedings to contend for the position that the absentee who returns to duty could not be denied readmission to duty, until the absentee has been placed under suspension pending disciplinary proceedings or final orders have been passed dismissing or removing him from service. Petitioner also relies on the judgment of this Court in Elsy P. Oomman v. State of Kerala [2011 (1) KLT 491] to contend that in spite of the provisions contained in Rule 56(4) of Chapter XIV A KER, a teacher can be terminated from service only following the provisions as prescribed by Rule 75 of Chapter XIV A KER. Petitioner also relies on Rule 56(1) of Chapter XIV A KER to contend that in the matter of casual leave and other ki