V. Nirmaladevi Vs. State of Kerala Rep. by Secretary and ors. - Court Judgment

Excerpt:
- what remains to be seen is as to whether pinki died an un-natural death within seven years of her marriage and whether her death was attributable to the demand of dowry and further whether she was dealt with cruelty soon before her death. if these ingredients are proved by the prosecution then the conviction of the accused under section 304b, ipc will be complete.[para 9] the question is, in the absence of corpus delicti, could it be presumed that the accused persons alone were responsible for the death of pinki. we must hasten to add here that the accused persons have already been acquitted of the murder charge. [para 9] it is clear that pinki's death was caused because of the burns and not in the normal circumstances. the finding of the trial court and the appellate court in that behalf is correct. for this reason we are not impressed by the argument of the learned counsel that in the absence of corpus delicti, the conviction could not stand. [para10] it is clear that the prosecution has not only proved the offence under section 304b, ipc with the aid of section 113b, indian evidence act but also the offence under section 201, ipc. [para 15] held: we have gone through the judgments of the trial court as well as the appellate court carefully and we find that both the courts have fully considered all the aspects of this matter. we, therefore, find nothing wrong with the judgments and confirm the same. the appeal is, therefore, dismissed.[para 16]k. balakrishnan nair, j.1. the writ petitioner is the appellant. the short question that arises for consideration in this appeal is, whether an aided school teacher will lose seniority, if he avails leave without allowance under rule 56 of chapter xiv-a of the kerala education rules read with appendix xii-c of the kerala service rules.2. the brief facts, necessary for the disposal of the case, are the following:the appellant and the sixth respondent were upper primary school assistants (for short, 'u.p.s.a.') working in the fifth respondent's school. they have continuous qualifying service in the post of u.p.s.a. from 20.8.1990 and 1.6.1988 respectively. the sixth respondent availed leave without allowance to join her spouse, as per ext.p1 government order dated 10.6.1993, which is an order granting leave under appendix xii-c of the kerala service rules (for short, 'k.s.r').the leave was granted as per ext.p1, subject to the condition that 'the leave period will not count for any service benefits including pension and the fact will be so recorded in the service book of the incumbent.3. on 1.4.2005, a vacancy arose in the post of headmaster. the manager appointed the appellant as headmistress. the sixth respondent, being senior to the appellant, moved the assistant educational officer against the approval of the appointment of the appellant and also claiming appointment to the said post. accepting her contention, the assistant educational officer (for short, 'a.e.o') declined to approve the appointment of the appellant. but, on appeal, the district educational officer (for short, 'd.e.o') directed the a.e.o., as per ext.p4 proceedings dated 31.5.2007, to approve the appointment of the appellant. the sixth respondent challenged that order before the director of public instruction (for short, 'd.p.i'). the d.p.i. reversed ext.p4, by ext.p6 order dated 6.9.2007. aggrieved by the said order of the d.p.i., the appellant moved the government, in revision under rule 92 of chapter xiva of the kerala education rules (k.e.r). the said revision was dismissed by the government, by ext.p8 order dated 29.1.2008. challenging exts.p6 and p8 orders, the writ petition was filed. the learned single judge dismissed the writ petition, holding that the point raised by the appellant is covered against her by several decisions of this court and the apex court. feeling aggrieved by the said judgment, this appeal is preferred by the writ petitioner.4. we heard the learned counsel on both sides. rule 37 of chapter xiva of the k.e.r. deals with seniority of teachers. the said rule reads as follows:37. (1) seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit provided he is duly qualified for the post.(2) in the case of teachers in the same grade in the same unit whose date of commencement of continuous service is the same, seniority shall be decided with reference to the date of first appointment. if the date of first appointment is also the same, seniority shall be decided with reference to age, the older being the senior.according to the learned counsel for the appellant, the sixth respondent does not have longer continuous service in the grade of u.p.s.a. than the appellant and therefore, she cannot be treated as senior to the appellant. the condition imposed in ext.p1, which is already quoted above, would result in ignoring the service period of the sixth respondent covered by ext.p1. so, her total period of service has to be reduced by five years, it is submitted.5. the rule governing leave of aided school teachers is rule 56 of chapter xiva of the k.e.r. sub-rule(1) of the said rule, which is relevant in this case, reads as follows:56. leave rules.- (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.provided that in the matter of leave, the teachers appointed for limited periods, i.e. those appointed in short vacancies and those appointed in regular vacancies but not eligible for vacation salary under rule 49, shall be governed by the leave rules in appendix viii of the kerala service rules.in view of the said provision, the sixth respondent was granted leave as per ext.p1, subject to the condition contained in appendix xii-c in the kerala service rules. rule 4 of appendix xii-c reads as follows:rule 4.- permanent officers and non permanent officers who have completed probation in their entry cadre in the regular service of the government may be granted leave without allowances under these rules. in such cases, for, and during the currency of the period of leave, the officers shall lose all service benefits including earning of leave, increments, gratuity, pension etc., and also promotion chances as may arise with reference to their seniority in the post from which they proceed on leave. they shall also lose seniority in the higher grade(s) with reference to their juniors who might get promoted to such grade(s) before they rejoin duty.6. a reading of the above rule would show that if the vacancy in the post of headmaster arose during the sixth respondent's leave period, the appellant could have been promoted and on her return, the sixth respondent should continue as a u.p.s.a. the sixth respondent, in that event, will not have any claim for promotion as headmaster, reverting the appellant. but, in this case, no vacancy arose during the sixth respondent's leave period. therefore, in the lower cadre of u.p.s.a., the sixth respondent will not lose seniority and, in preference to the appellant, she is entitled for promotion to the vacancy which arose after her leave period. in view of the above position, we find that the director of public instruction and the government, as per exts.p6 and p8 orders, decided in favour of the sixth respondent rightly. so, the learned single judge has correctly dismissed the writ petition.in the result, the writ appeal fails and it is accordingly dismissed.