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. 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 Bench of this Court in Sajeeve N.J. vs. Union of India and Others, 2009 (4) KHC 627 . Adv. R.K. Muraleedharan also relied on the judgment of this Court in Elsy P. Oomman vs. State of Kerala and Others, 2011 (1) KHC 284 and submitted that there is no automatic cessation of service as per Rule 56(4) of Chapter XIV(A) of KER without initiating disciplinary proceedings under Rule 75 of Chapter XIV(A) of KER. The counsel, also relied on the judgment of this Court in Devaky vs. State of Kerala, 1999 (2) KLT SN 12 (C. No. 11) to substantiate his case. The counsel, also relied on the judgment of this Court in Devaky vs. State of Kerala, 1999 (2) KLT SN 12 (C. No. 11) to substantiate his case. The counsel further relied on the judgment of this Court in Ibrahimkutty K. vs. Chairman and Managing Director, KSRTC, Tvm, 2015 (1) KHC 474 . 6. This Court considered the contentions of the petitioner and the Government Pleader. The main point to be decided is, who is qualified to be promoted as the Headmaster, the petitioner or the 7th respondent. As per Ext.P1, the petitioner is admittedly junior to the 7th respondent. Ext.P1 is the seniority list as on 01.01.2019. Ext.R7(b) is the seniority list as on 01.01.2011. Admittedly, in Ext.R7(b) also, the petitioner is junior to the 7th respondent. The petitioner challenged the seniority list for the first time by submitting Ext.P6 on 02.08.2021. It is an admitted fact that, in the seniority list, which was in force from 2011 onwards, the petitioner was junior to the 7th respondent. Whether the petitioner can challenge the settled seniority list after about a decade from the date on which it came into existence is the first question to be decided in this case. It is a settled position that a belated challenge to seniority is barred by limitation, though there is no statutory period of limitation to challenge a seniority list. It is also a generally accepted position that if there is no infringement of third-party rights, the delay in challenging the seniority list is not vital in cases where there are patent errors in the seniority list. But in a belated challenge to the seniority list, whether this Court should interfere, by invoking the powers under Article 226 of the Constitution of India is the question to be decided. That point was answered by a Full Bench of this Court in Sajeeve N.J. case (supra). It will be better to extract the relevant portions of the above judgment hereunder: “31. That point was answered by a Full Bench of this Court in Sajeeve N.J. case (supra). It will be better to extract the relevant portions of the above judgment hereunder: “31. We are of the view that, just as in a case where a belated challenge to a settled position of seniority or consequential orders of promotion will not be entertained by a Writ Court under Art.226 of the Constitution, on the principles laid down in Rabindra Nath vs. Union of India, 1970 KHC 379 : AIR 1970 SC 470 : 1970 (1) SCC 84 : 1970 (2) SCR 697 and Mudgal, AIR 1986 SC 2086 , the Court should also be wary in countenancing a contention which, if accepted, would result in overturning seniority positions of long standing. Essentially, the doctrine of sit back would apply both in cases where challenge against settled positions are mounted belatedly and in cases where the challenge to administrative actions overturning settled seniority positions are sought to be defended.” 7. In the light of the above judgment, I am of the considered opinion that the belated challenge against the seniority list need not be entertained by this Court by invoking the powers under Article 226 of the Constitution of India, that also after a decade of settling the seniority, even if no third-party rights are involved. In service jurisprudence, “sit back theory” is an accepted principle. When you have a right, the simple question is why did you 'sit back' and allow the march of your juniors ahead of you? This is a country in which talented people are plenty. If the seniority of a person is overlooked, he/she has to challenge it then and there. Sitting back in an armchair and watching the parade of your juniors ahead of you and thereafter complaining, after a long period about seniority cannot be accepted, especially in the Indian scenario, because this is a country where the usual match is between Talents vs. Talents. Therefore, on the simple ground of delay, the dispute about the seniority list raised by the petitioner is to be dismissed. 8. Even assuming that there is a delay in challenging the seniority list, whether the petitioner has made out any case, is the next question to be decided in this case. For that purpose, the facts of the case are to be considered. 8. Even assuming that there is a delay in challenging the seniority list, whether the petitioner has made out any case, is the next question to be decided in this case. For that purpose, the facts of the case are to be considered. It is an admitted fact that the 7th respondent availed leave from 02.07.1997 for joining her spouse abroad under Appendix XIIC Part I of Kerala Service Rules (hereinafter referred to as, “KSR”). Her leave was extended from 02.07.2002 to 01.07.2007 as per Ext.R7(a) order. Thus, the 7th respondent was on leave without allowance for about 10 years. The contention of the petitioner is that in the light of Rule 56(4) of Chapter XIV(A) of KER, the teachers shall cease to be in service after a continuous absence of 5 years whether with or without leave. Therefore, while calculating the service of the 7th respondent, the leave without allowance cannot be reckoned and the 7th respondent’s service is to be reckoned only from 02.07.2007 is the contention raised by the petitioner. 9. Rule 56 of Chapter XIV(A) of KER deals with leave rules. As per Rule 56(1), 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. Rule 56(4) of Chapter XIV(A) of KER reads like this: “A Teacher shall cease to be in service after a continuous absence of 5 years whether with or without leave.” Whether the cessation of a teacher from service is automatic after 5 years of absence with or without leave is the question to be decided first. Admittedly no disciplinary proceedings were initiated against the 7th respondent in connection with the leave availed by her beyond 5 years. If that is the case, as per the judgment of this Court in Devaky’s case (supra), the termination of a teacher by the Manager without following the procedures laid down in Rule 75 of Chapter XIV(A) is not valid. Admittedly no disciplinary proceedings were initiated against the 7th respondent in connection with the leave availed by her beyond 5 years. If that is the case, as per the judgment of this Court in Devaky’s case (supra), the termination of a teacher by the Manager without following the procedures laid down in Rule 75 of Chapter XIV(A) is not valid. It will be better to extract the relevant portions of that judgment hereunder: “At the outset, it may be stated that R. 56(4) has to be understood as laying down the rule that a teacher shall cease to be in service after a continuous absence of five years without leave, as otherwise, a teacher cannot be so treated after five years if he or she absent after obtaining leave. From the above provisions, what flows is that (1) dismissing or removing a teacher in an aided school can be done only with the previous sanction of the concerned officer in the Education Department; (2) while so doing R. 75 of Chapter XIV-A has to be followed; (3) but however, if a teacher absented himself or herself for a continuous period of five years without obtaining leave then the teacher ceases to be in service. Or in other words, if a teacher absented for the period stipulated above without leave then the Manager can proceed on the basis that the teacher is not a staff in that school and make new appointment as per the rules. The next question is can it be said that by virtue of the communication dated 26.9.1981 sent by the Director of Public Instruction to the District Educational Officer, Kozhikode, a copy of the same is marked as Ext. P12(b) in the O.P., wherein the District Educational Officer, Kozhikode has been informed that the appointments in the leave vacancies can be approved from the date of occurrence of the vacancy without waiting for the sanction of leave applied for if the sanctioned post continues to be in the establishment and also by virtue of the Circular No. 1/95/G.Edn. dated 28.4.1995 (Ext. P22), the action on the part of the Manager in terminating the services of respondents 4 and 5 could be justified. The answer is in the negative. This is because departmental instructions or circulars cannot supersede and prevail over the Kerala Education Rules. dated 28.4.1995 (Ext. P22), the action on the part of the Manager in terminating the services of respondents 4 and 5 could be justified. The answer is in the negative. This is because departmental instructions or circulars cannot supersede and prevail over the Kerala Education Rules. In this view of the matter, the Manager ought to have forwarded the application of the 5th respondent for extension of leave to the Government to pass necessary orders. As far as the 4th respondent is concerned, she did not send any application seeking extension of leave. This Court has to hold that the Manager not having followed the procedure laid down under R. 75 of Chapter XIV-A of the Kerala Education Rules, the orders of termination passed against respondents 4 and 5 are not valid.” 10. Following the above judgment, in Elsy P. Oomman’s case (supra), this Court considered the matter in detail again. It will be better to extract the relevant portions of the above judgment also: “6. This Court had an occasion to consider the scope of R.56(4) of Chap.14 A of KER in 1999 (2) KLT SN 11. It was a case wherein the concerned teacher was terminated from service on the ground of absence from duty for a continuous period of 5 years without leave, by invoking provisions under R.56(4) of Chap.14 A of KER. After referring to the related provisions under KER, this Court found that dismissal or removal of teacher of an aided school could be done only with previous sanction from the concerned officer and for that all the prescribed procedures under R.75 of Chap.14 A of KER had to be followed. The question whether a teacher absented from duty for a period of 5 years without leave, would cease to be in service, by virtue of the aforesaid provisions was considered in that case and it found that the termination of the concerned teacher was invalid. In essence, the dictum laid down by this Court in the aforesaid decision is that despite the provisions of R.56(4) of Chap.14 A the Manager is bound to follow the procedures laid down in R.75 of Chap.14A before passing an order of termination. In this case, There is nothing on record to show that disciplinary action was initiated against the petitioner under R.75 of Chap.14A. In this case, There is nothing on record to show that disciplinary action was initiated against the petitioner under R.75 of Chap.14A. R.56(1) of Chap.14A assumes relevance in this context and the same reads thus: 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. R.56(4) reads thus: A teacher shall cease to be in service after a continuous absence of 5 years whether with or without leave. 7. It is evident from R.56(1) that it is the leave rules that are applicable to the teachers of Government schools in the service regulations that are applicable to the teacher of aided schools. There cannot be any doubt that Appendix XII - C is the relevant provision which is applicable in case of this nature. In fact the said provision has been referred to in Exts. P4 to P6. Instead of Appendix XII - C and Appendix XII - A was misquoted in Exts. P2 and P3. In view of the facts obtained in this case, what is applicable can only be Appendix XII - C as admittedly, the petitioner had applied for LWA for joining her spouse. It is pertinent to note that even according to the 3rd respondent it is the relevant provision that is applicable as is obvious from the contentions raised in paragraph 7 of the Counter Affidavit. Appendix XII - C Clause (6) of KER is also relevant of this context. It reads thus: The maximum period of leave that may sanctioned to officers under these rules, including the leave sanctioned under Appendix XII A, if any, during their entire service shall be limited to twenty years [and such leave shall not extend beyond twelve months before their date of superannuation.] If the officers who have availed of the leave without allowances for a total period of fifteen years, whether continuously or in broken periods, do not return to duty immediately on the expiry of the leave, their service shall be terminated after following the procedure laid down in Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. The aforesaid provision permits initiation of disciplinary proceedings against the officers who had availed leave without allowance for a total period of 15 years, whether continuously or broken periods and do not return to duty immediately on the expiry of the leave. The said rule provides for termination of service of such employees after following the procedures laid down in KCS (CCA) R.1960. In this particular case, the petitioner is an aided school teacher and therefore, disciplinary proceedings has to be initiated against the petitioner not in terms of KCS (CCA) Rules whilst only in accordance with the R.75 of Chap.14 A of the KER. The question is whether the 3rd respondent has initiated disciplinary proceedings against the petitioner in terms of R.75 of Chap.14 of KER. Incidentally, another question also calls for consideration that is, even if disciplinary proceedings were initiated against the petitioner whether permission should have been declined to rejoin duty especially, in the light of Exts. P1 to P12. Government have made clear in Ext. P12 that even in the case of a person who remains absent from duty without leave such person has to be readmitted in service in terms of paragraph 53(6) of the Manual for disciplinary proceedings. No doubt the case of the petitioner stands on a firmer footing. Indisputably, the petitioner was granted leave without allowance by the Government as can be seen from Exts. P1 to P6. In terms of R.56(1), Appendix XII - C and other related provisions that governs the teachers of the Government School are applicable to the aided school teachers. Therefore, merely because of the fact that the petitioner had been absent from duty continuously for more than 5 years with leave (on the strength of Exts. P1 to P6) could not have been assigned as a reason for treating that the petitioner has ceased to be in service relying on the provisions under R.56(4) of Chap.14 A. In the light of R.56(1) holding a teacher as ceased to be in service after a continuous period of 5 years with leave in terms of R.56(4) of Chapter XIA - A would definitely make the other provisions redundant. A harmonious consideration is required in view of the relevant provisions extracted above. A harmonious consideration is required in view of the relevant provisions extracted above. Therefore, I am of the view that in spite of the provisions under R.56(4), a teacher can be terminated from the service only after following the provisions as prescribed under R.75 of Chap.14 A of KER. I am fortified in my view by the decision of this Court reported in 1999 (2) KLT SN 11.” 11. Admittedly no disciplinary proceedings were initiated against the 7th respondent for availing leave without allowance for a period beyond 5 years. It is also an admitted fact that the 7th respondent was granted leave without allowance by the leave sanctioning authority. Under such situation, the cessation of service after a continuous absence of 5 years, whether with or without leave as mentioned in Rule 56(4) is not applicable in the light of the dictum laid down in Devaky’s case (supra) and Elsy P. Oomman’s case (supra), without a disciplinary proceedings as per rules. 12. The counsel for the petitioner relied on Exts.P2 to P5 judgments to support his contentions. But, in my opinion, Exts.P2 to P5 judgments are not applicable to the facts in this case. Ext.P2 is a judgment delivered by a Division Bench of this Court in W.P. (C) No. 30452 of 2015. That was a referred case. It will be better to extract the reference order dated 10.02.2016 in W.P. (C) No. 30452 of 2015 to understand why the case was referred by the learned single judge. The reference order is extracted hereunder: “The petitioner is an L.P.S.A. who is now a resident of the United Kingdom, and has filed the above writ petition through a Power of Attorney holder. The petitioner has been on continuous “Leave Without Allowance” from 15.11.2005. The petitioner's leave application for five years was allowed as per Ext.P1 between 15.11.2005 to 14.11.2010. The subsequent application made by the petitioner was also allowed by Ext.P2 between 15.11.2010 to 14.11.2015. The reason stated for such leave was to join spouse abroad. 2. The leave had been sought for under Appendix XII C of Kerala Service Rules (KSR). The petitioner is now aggrieved with the fact that the further application for leave without allowance, from 15.11.2015 to 14.11.2020 has been rejected by the Manager and Head Master by Exts.P7 and P8. The reason stated for such leave was to join spouse abroad. 2. The leave had been sought for under Appendix XII C of Kerala Service Rules (KSR). The petitioner is now aggrieved with the fact that the further application for leave without allowance, from 15.11.2015 to 14.11.2020 has been rejected by the Manager and Head Master by Exts.P7 and P8. The contention raised by the petitioner, relying on the decision of this Court in Deepa S. vs. State of Kerala, 2010 (4) KHC 820 , is that the Manager or the Head Master does not have any authority to reject the application and the same has to be forwarded to the Government through the Educational Officer, and that the Manager and the Head Master would only have the authority to make remarks on the leave application, bringing out the attendant circumstances existing and either recommend or seek for rejection of the leave application. The discretion is found to be conferred exclusively on the Government and the Government would either accept the recommendation made or deviate from it, and can grant or refuse the leave applied for. A reading of the provisions would indicate that there can be no dispute to the above proposition laid down by the learned Single Judge. 3. However Rule 56 (4) of Chapter XIV A of the Kerala Education Rules, 1959, (for brevity ‘KER’) carries with it a prohibition, which reads as under: “A Teacher shall cease to be in service after a continuous absence of 5 years whether with or without leave.” Hence, the employees of aided schools, whether it be teachers or non-teaching staff (for reason of Chapter XXIVA importing the provisions of Chapter XIV A to the non teaching staff mutatis mutandis) would be regulated by the above provision. Rule 56 (1) has adopted the Rules for teachers of Government Schools in the service regulations for the time being in force. On a harmonious construction of the rules under the KER and those available in the Kerala Service Rules, the learned Single Judge found that a teacher covered by the provisions of the KER would also be entitled to leave beyond the period of five years as it is available in the KSR. On a harmonious construction of the rules under the KER and those available in the Kerala Service Rules, the learned Single Judge found that a teacher covered by the provisions of the KER would also be entitled to leave beyond the period of five years as it is available in the KSR. The learned Counsel also would refer to Rule 56 (1) which indicates that the service regulations as applicable for the time being in force, would be applicable to the persons covered under the KER and, hence, the restriction would be only in applying for leave beyond 20 years. 5. With due respect, I am unable to agree to the harmonious construction made by the learned Single Judge. Appendix XII C Rule 6 provides for a maximum period of leave that may be sanctioned to an Officer during his entire service, to be limited to 20 years. This was brought in by substituting Rule 6 with effect from 5.2.1996. Even after that, sub rule (4) of Rule 56 of Chapter XIV A of KER remained as such in the rule book applicable to teachers and non-teaching staff in aided schools. The said sub rule was added by a notification in the Gazette dated 2.2.1965 as sub rule (3) and later re-numbered as sub rule (4). In the circumstance of the Executive Government having not taken away the specific rule restricting the period of leave for employees covered under the KER to five years, this Court is of the opinion that no harmonious construction was warranted and the rule available in the KER restricted leave without allowances to five years. The particular provision applicable to employees of aided schools would prevail over the general provisions (“Generalia specialibus non derogant”) 6. The finding with respect to the discretion vested in the Government, however, cannot be disputed which has to be exercised in consonance with the rules. The Manager or the Headmaster cannot reject the application outright and in that context the rejection made by either of them is of no consequence and cannot visit the petitioner with any adverse consequence as of now, only since the judgment of the learned Single Judge now holds the field. In such circumstance, the Manager or the Head Master, if so advised, could always forward the application to the Government through the Educational Officer after making remarks, as provided in the applicable provisions. In such circumstance, the Manager or the Head Master, if so advised, could always forward the application to the Government through the Educational Officer after making remarks, as provided in the applicable provisions. The remarks could also include the specific provision applicable to aided school teachers, which prohibits leave beyond five years. 7. The judgment of the learned Single Judge on the issue of leave without allowances, under the KER, beyond five years, in the context of the difference of opinion, needs to be considered by a Division Bench, for which reference is made by this Court. The Registry shall place the matter before the Hon'ble the Chief Justice for necessary orders.” 13. Based on the above reference order, the Division Bench considered the matter. A reading of the facts in Ext.P2 judgment will show that it was a case in which the Manager refused to extend the leave beyond 15 years up to 20 years. Challenging the same, that writ petition was filed. The contention is that in the light of the provisions in the KSR, Rule 56(4) of Chapter XIV(A) of KER is not applicable. But that contention was rejected by the Division Bench in Ext.P2 in paragraphs 5 and 6. It will be better to extract paragraphs 5 and 6 of Ext.P2 judgment: “5. On a consideration of the rival submissions, we are of the view that on the facts in the instant case, the provisions of Rule 56 of Chapter XIVA KER have to be seen as carving out an exception in the matter of sanctioning of casual leave and all other kinds of leave to teachers of aided schools. While Rule 56 (1) suggests that in the matter of casual leave and all other kinds of leave, the teachers of aided schools shall be governed by the same Rules as those applicable for teachers of Government schools, Sub Rule 4 of Rule 56 clearly carves out an exception for teachers in aided schools by making it clear that the said teachers would cease to be in service after a continuous absence of 5 years whether with or without leave. In our view, the effect of Sub Rule 4 of Rule 56 would be that, on the expiry of the continuous period of 5 years, there would be no requirement of referring to the KSR for determining the leave entitlement of the teacher in an aided school whether it be casual leave or any other kinds of leave. This would be because the reference to the KSR envisaged under Rule 56 (1) would be required only for the time limited permitted by the provisions of Rule 56 (4), and on expiry of the period of 5 years mentioned in Rule 56 (4), the teacher of a private aided school cannot look to the KSR for determining her leave entitlement. We, therefore, disapprove of the view taken by the learned Single Judge in Deepa S. vs. State of Kerala and Others, 2010 (4) KHC 820 to the extent it holds otherwise. We also find that, at any rate, there was no consideration of the interplay between the two sets of Rules in the said judgment, as the learned Judge despite noticing a conflict between the rules, felt it was not necessary for the purpose of disposal of the Writ Petition to resolve that controversy. 6. The upshot of the above discussion is that we do not find any illegality in the actions of the Manager in issuing Ext.P7 order impugned in the Writ Petition. Ext.P8 communication of the Headmaster, that was also impugned in the Writ Petition, also does not require any interference. The Manager of the school was not legally obliged to follow the procedure under Rule 58 in respect of a leave that was not contemplated in terms of Rule 56 (4) of the KER.” 14. Considering the circumstances in which the above observation is made about the applicability of the provisions in KSR for extension of leave beyond 15 years, in my opinion, that judgment is not applicable to the facts of this case. The Division Bench only observed that a teacher of a private school after the expiry of 5 years as mentioned in Rule 56(4) need not look into the KSR for determining her leave entitlement. The Division Bench only observed that a teacher of a private school after the expiry of 5 years as mentioned in Rule 56(4) need not look into the KSR for determining her leave entitlement. In the case in hand, the question is whether a teacher ceases to be in service after a continuous absence of 5 years, whether with or without leave, based on Rule 56(4), without disciplinary proceedings initiated under Rule 75 of Chapter XIV(A) of KER, in the light of the decision of this Court in Devaky’s case (supra) and Elsy P. Oomman’s case (supra). That is not the issue decided in Ext.P2 judgment. 15. Similarly in Ext.P3 also, the question is whether 12 years of graduate service is there as per Rule 44A of Chapter XIV(A) of KER. There is no dispute in the present case that the 7th respondent has 12 years of graduate service even if the period of her service is reckoned from the date on which the 7th respondent completed her leave and re-joined duty. Ext.P3 judgment is only an interpretation of Rule 44A of Chapter XIV(A) of KER and therefore Ext.P3 judgment is also not applicable to the facts of the case. Ext.P4 is the judgment confirming Ext.P3 judgment. Similarly Ext.P5 is also a judgment by which this Court has only considered the proposition 'continuous service' as mentioned in Rule 44A of Chapter XIV(A) of KER. Therefore these decisions are not applicable to the facts of this case. 16. Moreover, as per Appendix XIIC of Part I of KSR relating to the Rule for the grant of leave without allowance for joining spouse abroad, would clearly show that those who availed leave will lose all service benefits including earning of leave, increment, gratuity, pension etc and also promotional chances as may arise with reference to their seniority in the post from which they proceeded on leave during the currency of the period of leave. In Mohammed Abdulla M. v. State of Kerala and Others [2008 (1) KLT 712], the Apex Court considered an identical rule in Appendix XIIA of KSR and observed that an employee who availed leave without allowance is entitled restoration of seniority of his juniors on re-joining duty provided his junior has not been promoted to higher grade before he joins. In Mohammed Abdulla M. v. State of Kerala and Others [2008 (1) KLT 712], the Apex Court considered an identical rule in Appendix XIIA of KSR and observed that an employee who availed leave without allowance is entitled restoration of seniority of his juniors on re-joining duty provided his junior has not been promoted to higher grade before he joins. This Court, in Ibrahimkutty K. vs. Chairman and Managing Director, KSRTC, Tvm, 2015 (1) KHC 474 followed the above decision. Relevant portions of the above judgment is extracted hereunder: 39. The question is whether Ext. P2 can be considered or interpreted in isolation without reference to the statutory scheme governing the service conditions of the employees of the respondent Corporation. It is axiomatic that the management and the unions of any establishment are always at liberty to bind themselves with mutually agreed covenants, say service conditions. It is equally indisputable that such contractual freedom shall be within the sphere of the statutory norms operating in the field. Indeed, Appendix - XIIA of KSR, having statutory force, has been adopted by the respondent Corporation. In fact, Ext. P5 proceedings provide the revised guidelines governing the cases of Leave Without Allowance. If we examine paragraph 3 thereof, there is a specific reference to the loss of seniority, apart from the application of “dies - non.” Thus, it is profitable to examine the said stipulation, which is as under: “Permanent employees on the employees who have completed probation in their entry cadre in the regular service of the Corporation will be granted leave without allowances for taking up employment outside the country as well as inside. In such cases, during the currency of the leave period, the employees shall lose all service benefits including commutation leave benefits, half pay leave benefits, increment, pension, et cetera., and also promotion chances as may arise with reference to their seniority in the posts from which the left such employees on leave without allowances, to take upon employment elsewhere shall be treated as “dies - non” for all kinds of service benefits. They shall lose seniority also in the grade with reference to those who might get promoted before they rejoin duty.” (Emphasis added) 40. It needs no reiteration that any statutory provision is required to be read holistically to comprehend its meaning. They shall lose seniority also in the grade with reference to those who might get promoted before they rejoin duty.” (Emphasis added) 40. It needs no reiteration that any statutory provision is required to be read holistically to comprehend its meaning. In the above extract, the respondent Corporation desires to view the expression “shall lose seniority also” in isolation. As has already been discussed, 'seniority' is not the same for the grade promotion as for cadre promotion. Grade promotion provides monetary incentives without enhancing the rank of the employee; whereas the cadre promotion not only provides monetary incentive but also enhances the rank of the employee. It can be stated that grade promotion is horizontal and cadre promotion, vertical. 41. To be entitled to monetary incentive, regularity counts; concerning the enhancement of rank, the length of service counts, lest for every day's leave, even if sanctioned, the juniors gain a march over the seniors, thus leading to incongruity, inter alia, affecting the morale of the senior employees. 42. Fortification for this view is available from the decision of the Hon'ble Supreme Court in M. Mohammed Abdulla (Supra), where Paragraph 4 of Appendix - XIIA to KSR has come to be interpreted. Even otherwise, the Grade Promotion Rules expressly exclude the period of LWA as qualifying service for grade promotion alone. 43. It is relevant to observe that this issue is a hydra, at least as far as the respondent Corporation is concerned. Every time this Court answers the issue, the respondent Corporation, yet again, confounds it with another veil of reasoning. Let us examine the decided cases up to this point of time, notwithstanding the valiant efforts of the learned Standing Counsel that they do not have any bearing on the present factual matrix. 44. This Court disposed of K. Selvaraj and Others vs. KSRTC, W.P. (C) No. 15731/2014, through a judgment dated 13.08.2012, applying the ratio of the judgment of even date in W.P. (C) No. 4969/2007. M.G. Chandrasekharan Nair vs. KSRTC, W.P. (C) No. 38683/2003, in turn, was disposed of relying on the judgment dated 12/03/2003 in OP No. 14175/2002 and the decision of a learned Division Bench of this Court in WA Nos. 1167/2003 and 1179/2005, apart from other unreported judgments. In all the above cases similar contentions of the Corporation were rejected. 45. In M.R. Mathew and Others vs. KSRTC, (judgment dated 12.03.2003 in OP Nos. 1167/2003 and 1179/2005, apart from other unreported judgments. In all the above cases similar contentions of the Corporation were rejected. 45. In M.R. Mathew and Others vs. KSRTC, (judgment dated 12.03.2003 in OP Nos. 14175/2002 and 32006/2001), the issue that fell for consideration was whether the Driver had lost his seniority by reason of his availing himself of leave without allowance. The Court has observed that the seniority in a cadre is computed in the light of the provisions contained in R.27 of KS & SSR, which has been adopted by the respondent Corporation. It is further observed that a direct recruitee through Public Service Commission is entitled to count his seniority with effect from the date of first effective advice and a promote is entitled to count his seniority from the date of appointment. In the end, the Court has concluded that availing oneself of leave without allowance will not in any way affect the seniority. Adverting to R.4 of Appendix - XIIA, the Court has observed that it only says that during the absence of the employee, his juniors can be promoted to the higher grade and in that event, the juniors will gain seniority in the higher grade even though the employee is subsequently promoted. It is emphatically observed that the said Rule will have no bearing on the seniority position of the incumbents in the entry cadre. 52. Conclusions: In the light of the above discussion, the whole issue can be summed up thus: (1) The LWA affects the grade seniority, but does not affect cadre seniority, which is governed by Paragraph 4 of Appendix - XIIA to KSR. (2) The Grade Promotion Rules cannot impact or impair the overall seniority of an employee, seeking cadre or rank promotion. (3) Dies - non does not result in cessation of service, affecting the length of service. (4) The seniority, as far as the rank promotion is concerned, is governed by R.27 of KS & SSR. (5) The seniority of the juniors who actually got promoted while a senior employee is on LWA remains unaffected. (3) Dies - non does not result in cessation of service, affecting the length of service. (4) The seniority, as far as the rank promotion is concerned, is governed by R.27 of KS & SSR. (5) The seniority of the juniors who actually got promoted while a senior employee is on LWA remains unaffected. (6) Even after rejoining, the employee's grade seniority is to be resumed from where it has been left vis-a-vis his juniors, but the said employee's over – all service seniority continues to run all through, in terms of R.27 of KS & SSR, like an undercurrent, without affecting those that have already been promoted in the rank. (7) Ext. P2 conditions are required to be read in conjunction with Paragraph 4 of Appendix - XIIA to KSR, as well as R.27 of KS & SSR. 17. Similarly, a Division Bench of this Court, in Ghosh K.V. vs. Managing Director, KSRTC Tvm and Others, 2014 (1) KHC 382 again considered the same issue. The relevant portions of the judgment are extracted hereunder: “4. In cases where permanent employees and employees who have completed probation in their entry cadre in the regular service are granted leave without allowances for taking up employment outside the country as well as inside, the employees shall lose all service benefits including commutation leave benefits, half pay leave benefits, increment, pension etc. during the currency of the leave period. They would also lose promotion chances as may arise with reference to their seniority in the posts from which they left on such leave. The period will be treated as ‘Dies - Non’ for all kinds of service benefits. They shall lose seniority also in the grade with reference to those who might get promoted before they rejoin duty. Therefore, insofar as seniority in the grade is concerned, they would only lose the seniority qua any particular person who gets promoted before the person who had availed leave rejoins duty. KSRTC has no case of any such nature against the appellant and the mere availing of Leave Without Allowances under Appendix XIIA or under the aforenoted order of KSRTC does not deprive the eligibility to continue at the same seniority position. KSRTC has no case of any such nature against the appellant and the mere availing of Leave Without Allowances under Appendix XIIA or under the aforenoted order of KSRTC does not deprive the eligibility to continue at the same seniority position. The view that we take above is also in conformity with the decision of this Court in OP No. 32006 of 2001 (Annexure - A7) and the decision of the Division Bench (Annexure - A8) in WA No. 1179 of 2005 confirming it. We are in complete agreement with the propositions stated therein. Hence, he is entitled to the reliefs sought for, in the writ petition.” 18. In Sreedevi Amma’s case (supra) also, this Court interpreted Rule 56(4) of Chapter XIV(A) of KER. It will be better to extract paragraph 12 of that judgment: “12. However, the issue is as to whether the seniority of the first respondent over the petitioner, by reason of the date of her initial appointment, is lost by virtue of the condition imposed on her as per Ext. P10, which has been quoted earlier. In my view, there is no such loss of seniority. This is because seniority is not a service benefit. By Ext. P10 Government Order, cessation of service contemplated under R.56(4) of Chap.14-A K.E.R. has been relaxed by the Government. This means that the leave granted as per Ext. P10 will not result in cessation of the first respondent from being in service. If she had not ceased to be in service, there is no reason why the period covered by Ext. P10 shall also not be reckoned for the purpose of seniority. So much so, the seniority of the first respondent which she has, by reason of her having been appointed two years before the petitioner, accrues and continues with her. It is stated in the impugned Ext. P4 order of the Deputy Director of Education that the seniority list shows that the first respondent is senior to the petitioner. In my view, such placement in the seniority list is legal and correct.” 19. From the above discussions, it is clear that Rule 56(4) of Chapter XIV(A) of KER is not a bar for reckoning the period of leave for the purpose of cadre seniority. Of course leave without allowance may affect the grade seniority. The cadre seniority is governed by paragraph 4 of Appendix XIIA of KSR. From the above discussions, it is clear that Rule 56(4) of Chapter XIV(A) of KER is not a bar for reckoning the period of leave for the purpose of cadre seniority. Of course leave without allowance may affect the grade seniority. The cadre seniority is governed by paragraph 4 of Appendix XIIA of KSR. Even after availing the leave, and after re-joining, the employee’s grade seniority is to be resumed from where it has been left vis-a-vis his juniors, but the said employee’s over all service seniority continues to run all through, in terms of Rule 27 of Kerala State and Subordinate Service Rules,1958 (in short, “KS & SSR”) like an undercurrent, without affecting those that have already been promoted in the rank as observed in Ibrahimkutty K. case (supra). Moreover, the 7th respondent admittedly has all the qualification as per Rule 44A of Chapter XIV(A) of KER. Moreover, as per Exts.P1 and R7(b), the 7th respondent is senior to the petitioner. All these were considered by the Government in Ext.P10 order. 20. Thus, there is no need to interfere with Ext.P10 order. In my opinion, the contentions raised by the petitioner in this writ petition are unsustainable. There is no merit in this writ petition and hence it is dismissed.