Thottathil B. Radhakrishnan, J.
1. The first respondent was appointed as an High School Assistant (H.S.A.) on 15.7.1974 in an aided school. The petitioner was appointed as an H.S.A. in that school on 15.7.1976. Both of them had continuous service of more than 12 years immediately preceding 31.3.1999, on which date the post of the Head Master of the School fell vacant on superannuation of the then incumbent. Both of them possessed the requisite qualifications for being promoted to the post of the Head Master.
2. The unfortunate fate of the School in question is that, in view of the disputes between the participants in the educational agency, at that time there appears to have been an arrangement whereby there would be a change of management between rival groups during every financial year (academic year).
3. By Ext.P1 dated 31.3.1999, the then Manager of the School appointed the petitioner as the Headmistress.
4. By virtue of the aforesaid arrangement as regards management, a new Manager came in on 1.4.1999, i.e., the day immediately succeeding the issuance of Ext. P1 order. He issued Ext.P2 on 1.4.1999, appointing the first respondent as the Headmistress.
5. It is stated at the bar that as of now the second respondent is the Receiver as regards the School.
6. Be that as it may, the short question arising for decision is as to who among the petitioner and the first respondent is to be preferred.
7. The statutory authorities under the Kerala Education Act and Rules have held in favour of the first respondent. Those decisions are under challenge in this Writ Petition.
8. Though, among the two, the first respondent was appointed as H.S.A. earlier to her, the writ petitioner's case is built on a plea that there is a break in the service of the first respondent and accordingly the first respondent has ceased to be senior to the petitioner. Though the first respondent had joined service on 15.7.1974, i.e., two years before the petitioner entered service, the first respondent had applied for and obtained leave for a spell of five years from 1.2.1978 to 31.1.1983 for serving abroad, which leave was granted as leave without allowances. This was followed by yet another spell of leave granted as per Ext.P10 Government Order on 10.6.1983 with effect from 1.2.1983 to 31.1.1986. Ext.P10 is an order granting leave without allowances to the first respondent in relaxation of Rule 56(4) of Chapter XIV(A) of Kerala Education Rules with permission to take up appointment abroad subject to the condition that 'the period of leave without allowances will not be reckoned for any service benefits including pension and the fact recorded as such in the service book.......' .
9. Relying on the aforesaid condition imposed as per Ext.P10, it is argued by the learned counsel for the petitioner that the said condition should be treated as one depriving the first respondent of her entitlement to count the period during which she was on leave in terms of Ext.P10 order, for counting her continuous service to reckon seniority.
10. In so far as leave is concerned, Kerala State and Subordinate Service Rules apply to those governed by Kerala Education Rules. As per Rule 27(c) of Part II of K.S. & S.S.R., seniority of an officer in a grade will be determined by the date of first advice unless reduced to a lower rank as an act of punishment. To put Appendix XIIA of Kerala Service Rules in conformity with Rule 27 of Part II of K.S. & S.S.R., the Government issued Ext.R1(c) order dated 19.11.2003. However, even that Government Order need not be referred to for the purpose of construing the effect of the condition imposed in Ext.P10.
11. The question is not as to whether the first respondent had 12 years' continuous service to her credit as on the date of the occurrence of the vacancy against which she has been appointed. If that were the question, the obvious answer is in the affirmative since, even if the period of service is reckoned from 1.2.1986, the date immediately succeeding the period of leave granted as per Ext.P10, she had a continuous service of more than 12 years before 31.3.1999, the date of the occurrence of the vacancy of Head Master. Therefore, the ratio of the decision of the Division Bench in The Principal Secretary to Government v. Jayaprakash, 2004 (2) ILR Kerala 245, cited by the learned counsel for the petitioner is not decisive.
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 Rule 56(4) of Chapter XIVA 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.
13. Though it is disputed on behalf of the petitioner that no seniority list was ever maintained or published, it goes without saying that on the admitted facts, no other conclusion could be arrived at since it is nobody's case that the first respondent had, at any time, been punished or kept out of service.
So much so, the impugned decisions cannot be found fault with. The Writ Petition, therefore, fails and it is accordingly dismissed. However, there will be no order as to costs.