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1997 DIGILAW 135 (KER)

Kunhikrishnan Nair v. Accountant General

1997-03-20

B.N.PATNAIK, K.G.BALAKRISHNAN

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Judgment :- Balakrishnan, J. This is an appeal against the judgment in O.P. 4279 of 1997 H. The appellant was ahigh School Assistant and he attained the age of 55 years on 6.9.96 and he was to retire from service on 30.9.96. The appellant contended that as per R.60(c) of Part I K.S.R. he is entitled to continue in service till the last day of the month in which the academic years ends. The appellant submitted application for commuted leave for 28 days from 3.9.96 to 30.9.96 and the leave was further extended from 1.10.96 to 30.3.97. After the expiry of the leave the appellant wanted to rejoin duty on 31.3.97. As per Ext. P2 letter, the first respondent held that the appellant was not entitled to rejoin duty and the appellant was informed that he would be treated as having retired from service from the date of the application for leave. Appellant challenged Ext. P2 order before the learned single judge and the O.P. was dismissed and hence, this appeal. 2. We heard appellant's counsel. The claim of the appellant is that he should have been permitted to rejoin duty on 31.3.97 and should be treated to have continued in service till the last day of the month in which the academic year ends and this claim is based on R.60(c) of Part I K.S.R. The relevant portion of R.60(c) of Part I reads as follows: "The teaching staff of all educational institutions (including Principals of Colleges.) who complete the age of 55 years during the course of an academic year shall continue in service till the last day of the month in which the academic year ends. They shall be entitled to the benefits of increments and promotion which fall due, before the last day of the month in which they attain the age of 55 years. But they shall not be eligible for increment or promotion during the period of their service beyond such date. If they are on leave on the day they attain the age of 55 years and if there is no prospect of their returning to duty before the closing day of the academic year for vacation they shall be retired with effect from the last day of the month in which they attain the age of 55 years. If they are on leave on the day they attain the age of 55 years and if there is no prospect of their returning to duty before the closing day of the academic year for vacation they shall be retired with effect from the last day of the month in which they attain the age of 55 years. But in cases where officers coming under this rule are under suspension on the date of superannuation or thereafter but before the closing day of the academic year, they shall be retired from service on the date of superannuation or on a date of suspension whichever is later". ruling No. 2 under R.60(c) is also relevant which reads: "The teaching staff of educational institutions who are allowed to continue in service beyond the date of superannuation till the end of the academic year will not be eligible for any leave other than causal leave during the period they shall be retired from service from the date of such application for leave". 3. R.60(c) of Part IKSR read along with ruling No. 2 make it clear that the teaching staff who have been given the privilege of continuance in service till the end of the academic year are not eligible for any leave other than casual leave during the period of their service beyond the date of superannuation. If any member of the teaching staff avails leave during this period he will be deemed to have retired from service on the last day of the month in which he attains the age of 55. The teachers are given this privilege to see that the education in the school is not disrupted due to retirement of teaching staff during the middle of the academic year. The Rule specifically says that the teachers are not entitled to any increment or promotion which becomes due to them after the last day of the month in which they attain the age of 55. If the teachers who are getting the extended period of service are allowed to avail leave for long period that may not be in the best interest of the education. If the teachers who are getting the extended period of service are allowed to avail leave for long period that may not be in the best interest of the education. In the rule itself itis specifically stated that the teachers who are working during the extended period shall not be entitled to avail any leave and if they avail leave it will have adverse consequence that they will be deemed to have retired with effect from the last date of the month in which they attain the age of 55 years. ruling No. 2 specifically mentions that during this period they are entitled to avail only causal leave and not any other type of leave. 4. Counsel for the appellant contended that the appellant herein submitted application for leave on 3.9.96 ie. prior to the last day of month in which he attains the age of 55 and the leave was availed prior to the extended period of service and, therefore, the appellant is to be treated as on service till the last day of the month in which the academic year ends. The appellant also relied on a decision reported in Asst. Educational Officer v. Velayudhan Kurup (1980 KLT 790). The above decision has no application as the facts were entirely different. In the present case, the appellant submitted application for leave on 3.9.96 and that leave period expired on 30.9.96. Thereafter, he submitted another leave application seeking extension of leave period upto 30.3.97. Moreover, the rule specifically says that the teachers who are continuing in the extended period of service shall not take any leave other than casual leave during the said periods. The learned single judge was perfectly justified in holding that the appellant was not entitled to challenge Ext. P2. We confirm the judgement of the learned single judge and dismiss the Writ Appeal.