IMPORTANT POINT
Leave Without Allowance does not count towards service period for promotions; teachers over 50 years are exempt from test qualifications if the vacancy arises after reaching that age.

JUDGMENT :

P. KRISHNA KUMAR, J.

1. Two key legal issues arise for consideration in this writ appeal. Firstly, when calculating the service period of a school teacher for appointment as Headmaster, can the period spent on Leave Without Allowance (LWA) for employment abroad be excluded, in view of Rule 4 of Appendix XII-A of the Kerala Service Rules (KSR)? Secondly, given that the proviso to Rule 18 of the Right of Children to Free and Compulsory Education Rules, 2011 which exempts candidates for the Headmaster post from acquiring test qualifications upon reaching 50 years - was introduced only on January 5, 2021, can a teacher claim exemption from test qualifications for a Headmaster vacancy that arose on June 1, 2020?

2. The appellant is the sixth respondent in the writ petition, and the first respondent herein is the writ petitioner. The first respondent was appointed as a teacher at the school on July 16, 1990, while the appellant joined on June 7, 1993. The first respondent took Leave Without Allowance (LWA) for foreign employment for approximately eight years, split into two spells between January 1, 1997, and November 1, 2005. She turned 50 on May 2, 2016. The first respondent filed the writ petition, claiming that she was the seniormost teacher in the aided school and, under Rule 45B(4) of Chapter XIV-A of the Kerala Education Rules (KER), was exempted from taking statutory tests. She alleged that the denial of her promotion to Head Teacher and the promotion of her junior, the present appellant, was unjust. The first respondent further claimed that she had passed all departmental tests except one paper in the Accounts Test, which was postponed due to the COVID-19 pandemic. Though she made a representation raising her claim to the Headmistress post, it was rejected by the Manager, holding that she should pass the required tests even if she had crossed the age of 50 years.

3. The first respondent challenged the decision of the Manager on account of the statutory test exemption under Rule 45B(4) of Chapter XIVA of the KER and the decision of a Division Bench of this Court in Nirmaladevi v. State of Kerala and Others, 2009 KHC 1340, wherein it was held that Rule 4(2) Appendix XII-C of the KSR has application only if a vacancy arises during the leave period.

4. The appellant resisted the petition by contending that an unqualified hand could not be preferred against a qualified candidate awaiting promotion, and the only option for the unqualified hand is to pass the test within three years and to get the head teacher post by reverting the junior qualified hand. It was also contended that since the first respondent availed Leave Without Allowance for working abroad, she does not possess continuous service, unlike the appellant.

4.1 Referring to the Circular No. 72/2005/Fin. dated 30/05/2005 issued by the Government of Kerala, the Single Bench found that the period of Leave Without Allowance taken after the declaration of probation will not affect the seniority/promotion of the teacher concerned. The Court allowed the writ petition by declaring that the first respondent, being the seniormost teacher with the test exemption under Rule 45 B(4) of the KER, was entitled to be promoted as headmistress. However, the approval of the promotion given to the appellant was not interfered with since he has already crossed the age of superannuation.

5. Heard the learned counsel appearing on both sides.

6. The learned counsel appearing for the appellant placed heavy reliance on the decisions in V.B. Prasad v. Manager, P.M.D.U.P. School and Others, AIR 2007 SC 2053 to contend that the period during which the first respondent availed Leave Without Allowance for employment abroad has to be excluded while computing the teaching experience as envisaged under Rule 45 of the KER. The decision in Shaji Sanjayi Nottithodi v. Managing Director, KSRTC, 2017 (3) KHC 631 is also relied on to urge that employees rejoining duty after availing Leave Without Allowanc