Kerala High Court
Jaseera P.P vs State Of Kerala
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
WEDNESDAY, THE 26TH DAY OF OCTOBER 2016/4TH KARTHIKA, 1938
WP(C).No. 33671 of 2011 (H)
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PETITIONER(S):
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JASEERA P.P.,HIGH SCHOOL ASSISTANT
(ENGLISH),NATIONAL HIGH SCHOOL,KOLATHUR,
MALAPPURAM DISTRICT, RESIDING AT
PUTHANPALLY HOUSE, PULAMANTHOLE P.O.,
MALAPPURAM DISTRICT - 679 323.
BY ADVS.SRI.K.JAJU BABU
SRI.BRIJESH MOHAN
SMT.DHANYA CHANDRAN
SRI.T.R.SADEESAN
SRI.T.S.SHYAM PRASANTH
SMT.M.U.VIJAYALAKSHMI
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT,
GOVERNMENT SECRETARIAT,TRIVANDRUM - 695 001.
2. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
TRIVANDRUM - 695 001.
3. THE DEPUTY DIRECTOR OF EDUCATION,
MALAPPURAM - 676 505.
4. THE DISTRICT EDUCATIONAL OFFICER,
MALAPPURAM - 676 505.
5. THE MANAGER,
NATIONAL HIGH SCHOOL, KOLATHUR,
MALAPPURAM DISTRICT, PIN - 679 338.
R1-R4 BY GOVERNMENT PLEADER SRI.BEJOY CHANDRAN
R5 BY ADV. SRI.M.V.JOSEPH (ALAPPUZHA)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 26-10-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
msv/
WP(C).No. 33671 of 2011 (H)
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APPENDIX
PETITIONER(S) EXHIBITS
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EXHIBIT P1 TRUE COPY OF G.O (Rt) NO.2065/06/G/EDN. DATED 22.5.06
ISSUED BY THE IST RESPONDENT.
EXHIBIT P2 TRUE COPY OF ORDER NO.EM(4)52176/07/DPI/K.DIS.
DATED 5.12.08 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF ORDER NO.K.DIS/B3/5207/07 DATED 13.1.2009
ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P4 TRUE COPY OF JUDGMENT DATED 25.11.2009 IN W.P(C)
NO.33250/09 OF THIS HON'BLE COURT.
EXHIBIT P5 TRUE COPY OF G.O(Rt)NO.1534/2010/G.EDN DATED 6.4.2010
ISSUED BY THE IST RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE ORDER G.O (P)NO.56/11/GEN.EDN.
DATED 26.02.2011 ISSUED BY THE IST RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 12.04.2011 IN W.P(C)
NO.37212/2010(B) OF THIS HON'BLE COURT.
EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 28.05.2011 MADE
BEFORE THE GOVERNMENT BY THE PETITIONER.
EXHIBIT P9 TRUE COPY OF THE ORDER G.O(Rt)NO.4331/2011/G/EDN.
DATED 17/10.11 ISSUED BY THE IST RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE LETTER NO.4087E/32/2011.G.EDN
DATED 20.08.2011 ISSUED BY THE IST RESPONDENT.
RESPONDENT(S)' EXHIBITS
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NIL
//TRUE COPY//
P.S.TO JUDGE
msv/
ANU SIVARAMAN, J.
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W.P(C).No. 33671 of 2011
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Dated this the 26th October, 2016
JUDGMENT
The petitioner was appointed in a long leave vacancy of High School Assistant (English) in the 5th respondent school. The vacancy, to which the petitioner was appointed, was from 12.6.2006 to 6.12.2007. By Exhibit P2 proceedings of the 2nd respondent Director of Public Instruction, the appointment of the petitioner from 12.6.2006 to 6.12.2007 was approved on daily wages. Her appointment was adjusted against a regular vacancy which arose in the school on 1.6.2007. By Exhibit P5 order of the Government, the period of service of the petitioner from 12.6.2006 to 31.3.2007 was approved on daily wages and from the beginning of the academic year 2007-2008 onwards it was approved on a scale of pay. The petitioner had approached this Court challenging Exhibit P5 to the extent it declines approval of appointment from 12.6.2006 to 31.3.2007 on a scale of pay. By Exhibit P7 judgment dated 12.4.2011, Exhibit P5, to the extent it declines approval from 12.6.2006 to 31.3.2007 on a scale of pay, was set aside and reconsideration was ordered. The petitioner had relied on Exhibit P6 Government order dated 25.2.2011 to contend that since the appointment of the petitioner was in a long leave WP(C).33671/11 2 vacancy from 12.6.2006 to 6.12.2007, she was entitled to approval of the said appointment on a scale of pay. By Exhibit P9 order, the request made by the petitioner has again been rejected on the ground that Exhibit P6 Government order has only prospective effect.
2. Heard learned counsel for the petitioner and the learned Government Pleader.
3. The petitioner contends that though Exhibit P6 Government order modifies the Government orders dated 15.6.2004 and 10.6.2008, the Government have held that Exhibit P6 Government order has no retrospective operation on the basis of Exhibit P10 circular issued by the Government. Learned counsel for the petitioner would also contend that going by the specific provisions of Rule 49 of Chapter XIVA KER, the petitioner, who was appointed in a vacancy, which had a duration of more than one academic year, was entitled to have her appointment approved in a scale of pay. Rule 49 of Chapter XIVA KER reads as follows:
"49. Qualified teachers except Headmasters appointed in vacancies which are not permanent which extend over the summer vacation and who continue in such vacancies till the closing date shall be retained in the vacancies during the vacation, if their continuous service as on the closing day is not less than eight months. The teachers so retained shall be entitled to the vacation salary. These teachers shall be relieved WP(C).33671/11 3 on the closing day if their continuous service as on that day is less than the aforesaid period. This rule shall not apply to teacher appointed in training vacancies.
Explanation:- For the purpose of this rule, 'Headmaster' includes Teacher-in-charge also."
4. Learned Government Pleader appearing for the respondents, on the other hand, would contend that though the petitioner's appointment was in a leave vacancy from 12.6.2006 to 6.12.2007, the petitioner was subsequently appointed in a regular vacancy with effect from 11.7.2007. Approval of the said appointment was initially rejected by the 4th respondent for the reason that there was a Rule 43 claimant. Thereafter, it is submitted that by Exhibit P5, the petitioner's appointment for the period from 12.6.2006 to 31.3.2007 was approved on daily wage basis and the appointment from the beginning of the academic year 2007-2008 was approved in a regular pay. It is further contended that Exhibit P6 has only prospective operation and therefore, the claim of the petitioner could not have been approved.
5. I have considered the contentions advanced on either side. It is clear that the appointment of the petitioner is in the vacancy created by Exhibit P1 order. Duration of the said vacancy was from 7.6.2006 to 6.12.2007. The petitioner was appointed with effect from 12.6.2006 to the said vacancy. Exhibit P6 Government order modifies the earlier WP(C).33671/11 4 Government orders on the subject and provides that the appointments made in an academic year, which vacancies were for a duration of more than eight months, should be approved on a scale of pay. Since Exhibit P6 seeks to modify the Government orders dated 15.6.2004 and 10.6.2008, I am of the opinion that the view taken in Exhibits P9 and P10 orders that Exhibit P6 Government order has only prospective operation cannot be countenanced. Going by the provisions of Rule 49 of Chapter XIVA KER also, it is clear that a person appointed in a vacancy which has a duration of more than eight months is entitled to approval of appointment in a scale of pay. The petitioner is also entitled to grant of vacation salary for the vacation during the academic year 2006-2007. This Court, in Nair Service Society v. State of Kerala [2013(4) KLT 921] and the Apex Court in State of Kerala v. Sneha Cherian [2013(1) KLT 755 (SC)] have also spoken on the subject. It is now settled that appointments made to vacancies of a duration of more than an academic year can be approved on a scale of pay. The petitioner would therefore be entitled to be paid vacation salary also since the appointment was for a period of more than one academic year.
In the above circumstances, Exhibit P9 is set aside. The 4th respondent is directed to approve the appointment of the petitioner WP(C).33671/11 5 from 12.6.2006 onwards as High School Assistant (English) in a scale of pay within two months from the date of receipt of a copy of this judgment. The vacation salary and all other consequential benefits shall be disbursed to the petitioner within two months thereafter.
The writ petition is ordered accordingly.
ANU SIVARAMAN JUDGE vgs27/10