Abhilash T.S. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932** **WP(C).No. 31639 of 2009(Y)** **--------------------------** **PETITIONER:** - **------------------** **ABHILASH T.S., S /O.T.K.SOMAN, TAZHATHETHIL HOUSE,VENNIKULAM,THIRUVALLA, (HSA (ENGLISH) TKMRM VOCATIONAL HIGHER SECONDARY SCHOOL,VALLANA)** **BY ADVS. SRI.S.SUBHASH CHAND SMT.M.P.MARY** **RESPONDENT** - **-------------------** **1. DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM.** **2. DEPUTY DIRECTOR (EDUCATION), OFFICE OF THE DEPUTY DIRECTOR (EDUCATION), PATHANAMTHITTA AT THIRUVALLA.** **3. DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, THIRUVALLA.** **4. MANAGER, TKMRM VOCATIONAL HIGHER SECONDARY SCHOOL, VALLANA, ERUMAKKADU,PATHANAMTHITTA.** **5. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM.** **BY GOVERNMENT PLEADER SRI.DILIP MOHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2010 ALONG WITH WP(C) NO.22929/2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 31639 of 2009(Y)** **--------------------------------------** ## **APPENDIX** **--------------** ## **PETITIONER'S EXHIBITS** **------------------------------------** **EXT.P1. COPY OOF THE APPOINTMENT ORDER DATED 16.7.2007 ISSUED BY RESPONDENT NO.4.** **EXTP2. COPY OF THE STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2007-08 DATED 24.12.2007 ISSUED BY RESPONDENT 3 (EXCLUDING THE APPENDIX)** **EXT.P2(A). COPY OF THE GOVERNMENT ORDER BEARING GO (MS) NO.11/ 2002/G.EDN DATED 7.1.2002 ISSUED BY RESPONDENT NO.1** ## **EXT.P3. COPY OF THE ORDER DATED 28.12.2007 PASSED BY RESPONDET NO.3** **EXT.P4.COPY OF THE APPEAL DATED 18.1.2008 SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.2** **EXT.P5. COPY OF THE COMMUNICATION DATED 16.6.2008 ISSUED BY RESPONDENT NO.3** **EXT.P6. COPY OF THE ORDER DATED 19.9.2008 PASSED BY RESPONDENT NO.2** **EXT.P7. COPY OF THE STATUTORY REVISION PETITION DATED 25.9.2008 SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.1 (EXCLUDING ANNEXURES).** **EXT.P8. COPY OF THE JUDGMENT DATED 30.10.2008 PASSED BY THIS HON'BLE COURT IN WP(C) NO.31924/2008.** **EXT.P9. COPY OF THE HEIRSHIP CERTIFICAE DATED 13.8.2009 ISSUED BY THE TAHSILDAR, KOZHENCHERRY.** **EXT.P10. COPY OF THE ORDER DATED 4.3.2009 PASSED BY RESPONDENT NO.1** **EXT.P11. COPY OF THE ORDER DATED 18.1.2010 THUS PASSED BY RESPONDENT NO.3** **RESPONDENT'S EXHIBITS : IL** **-----------------------------------** **/ TRUE COPY /** **P.A TO JUDGE** **VK** ## **C.T.RAVIKUMAR, J.** ------------------------------------------------ W.P.(C)Nos.31639 of 2009, 11781, 19535, 21776, 21992, 22662 & 22929 of 2010 -----------------------------------------------Dated 28[th] July, 2010 ## **JUDGMENT** Common questions involved in these writ petitions. Therefore, they were heard jointly and are being disposed of by this common judgment. 2. The common questions are as follows:- - (1) Whether G.O.(P) No.104/08/G.Edn. dated 10.6.2008 are contrary to Rule 7A of Chapter XIVA of the Kerala Education Rules, 1959 (for short `KER') and are valid ? - (2) Whether Rule 7A of Chapter XIVA of KER speaks of duration of vacancy and not duration of appointment ? These questions came up for consideration before this Court in W.P.(C) No.25176 of 2008 filed by one Unni Narayanan and certain connected matters and they were heard and allowed by this Court as per a common judgment dated 6.4.2009. The said common judgment in _**Unni Narayanan**_ v. _**State of Kerala**_ was reported in **2009 (2) KLT 604** . 3. In all those writ petitions G.O.(P)No.104/08/G.Edn. dated 10.6.2008 is challenged to the extent it directs that if the term of appointment of an incumbent does not extend to one academic year, even if duration of vacancy, in which he/she is appointed, is one academic year or more, appointment shall be approved only on daily WP(C).No.31639/2009 & connected cases 2 wage basis. The offending clauses in the said Government order dated 10.6.2008, viz., Clause 5(i) and (ii) are as follows:- - _“(i) If the period of appointments does not cover one academic year (i.e. from the re-opening day of the school after summer vacation to the closing day for summer vacation), the appointment shall be made only on daily wages._ - _(ii) If the period of appointment commences after the beginning of the re-opening day but extends over the next academic year/years, the period up to the first vacation shall be approved on daily wages only. Re-appointment can be approved on regular basis, only if the duration of the period of reappointment completes one academic year. If the period of re-appointment is also less than one academic year, that re-appointment will also be considered only on daily wages basis. In short, fractions of an academic year will not be considered for approval on regular basis.”_ The said Government order is challenged in the light of the provisions under Rule 7A of the KER and it, in so far as relevant for decision of the issues involved in these cases reads thus:- ## _“_ _**Rule 7A.(1) xxxxx**_ _**(2)** Posts that may fall vacant on the closing date shall not be filled up till the reopening date except in the case of posts of non-vacation staff._ _**(3)** Vacancies, the duration of which is less than one academic year, shall not be filled up.”_ The Division Bench after considering the aforesaid provisions under Rule ## WP(C).No.31639/2009 & connected cases 3 ## 7A held as follows:- _“7. In certain circumstances, the Government may be able to issue executive instructions, but they have no efficacy to override the statutory provisions. We agree with the contentions of the writ petitioners that the offending conditions in Ext.P2 Government Order cannot stand with the statutory rules. Therefore, for enforcing them, the relevant rules require amendment. As long as the rules are not amended, Ext.P2 cannot be pressed into service by the Government. In this context, we notice R.7A of Chap.XIVA of the K.E.R., which reads as follows:-_ ## _“_ _**Rule 7A.(1) xxxxx**_ _**(2)** Posts that may fall vacant on the closing date shall not be filled up till the reopening date except in the case of posts of non-vacation staff._ _**(3)** Vacancies, the duration of which is less than one academic year, shall not be filled up.”_ _8. We notice that sub-r.(3) of R.7A speaks of vacancies, the duration of which is less than one academic year. In other words, if the vacancy is having a duration of one academic year or more, appointment can be made to fill up the same. The term of appointment need not be co-terminus with the term of the vacancy. If, in fact, the vacancy is having a duration of one academic year or more, even if, there is some delay in making the appointment, such appointment will have to be approved. The reason is that R.7A speaks of duration of vacancy and not duration of appointment. So, we are of the view that if appointments are made to vacancies, having duration of one academic year or more, they are_ WP(C).No.31639/2009 & connected cases 4 ## _liable to be approved.”_ 4. A scanning of the contentions in these writ petitions would reveal that in all these writ petitions the concerned petitioners were appointed against vacancies occurred either as a result of retirement or long term leave extending to more than one academic year. In W.P.(C) No.11781 of 2010, the question whether such an appointee is entitled to get maternity leave also crops up for consideration. Indisputably, the impugned order in these writ petitions are liable to be interfered with in the light of the Division Bench decision in **Unni Narayanan's** case (supra) as the appointments of the petitioners were approved only on daily wage basis solely in the light of the aforesaid Government order dated 10.6.2008 ignoring the provisions under Rule 7A of Chapter XIV-A of the KER. In **Unni Narayanan's** case (supra) the Division Bench upheld the contentions of the petitioner that the said Government order dated 10.6.2008 could not be pressed into service, without amending the Rules and rejected the contentions of the Government to the contrary. In **Unni Narayanan'** s case (supra) viz., W.P.(C)No.25176 of 2008 Ext.P1 order of approval of appointment of the petitioner on daily wage basis up to 31.3.2009 was quashed and it was directed to be approved in a time scale from 6.10.2008 to 7.7.2013 and to retain the said petitioner ## WP(C).No.31639/2009 & connected cases 5 in service as HSA till the vacancy is available. Consequently, it was directed to issue orders of approval and to release the salary, within six weeks from the date of production of a copy of the said judgment. In all other connected writ petitions orders, if any passed, approving their appointments on daily wage basis, relying on the said Government order dated 10.6.2008 were quashed and consequential directions were issued to the effect that all appointments concerned, whether pending approval or already rejected, shall be considered/reconsidered by the concerned Educational Officers and fresh orders shall be passed in the light of the decision in W.P.(C)No.25176 of 2008 filed by Unni Narayanan and for granting consequential benefits. 5. In these cases, besides reiterating the contentions heard and decided against by the Division Bench in **Unni Narayanan's** case (supra) the learned Government Pleader submitted that against **Unni Narayanan's** case reported in **2009 (2) KLT 604** , i.e., W.P.(C) No.25176 of 2008 and connected writ petitions, Special Leave Petitions (Civil) were filed before the Hon'ble Aplex Court and the Hon'ble Apex Court in SLP (Civil) No.22260 of 2009 and connected cases passed an interim order as follows:- WP(C).No.31639/2009 & connected cases 6 _“Delay condoned._ _Issue Notice in those SLPs in which notice is already not issued._ _In the meanwhile, we direct that the respondents will continue to receive their salaries/allowances as per the impugned G.O. till the present matters are decided.”_ 6. The learned counsel for the petitioners in these writ petitions contended that the said interim order would apply only to the party respondents in the SLPs pending before the Hon'ble Apex Court and that apart, relying on a decision of a Division Bench of this Court reported in _**Abdu Rahiman**_ v. _**District Collector, Malappuram**_ (2009 (4) KLT 485), contended that even when a decision of a Division Bench was stayed by the Supreme Court, the decision of the Division Bench continues to be a binding precedent. 7. On perusal of the interim order passed by the Hon'ble Apex Court, produced as Ext.R3(c) in W.P.(C)No.31639 of 2009, which is extracted above, I am of the view that the decision of the Division Bench in **Unni Narayanan's** case (supra) was not stayed as such by the Hon'ble Apex Court whilst as per Ext.R3(c) the Hon'ble Apex Court only directed that the respondents therein would continue to receive their salaries/allowances as per the impugned Government order viz., Government order dated 10.6.2008 till the present matters are decided. WP(C).No.31639/2009 & connected cases 7 In the said circumstances, I am bound by the Division Bench decision in **Abdu Rahiman's** case (supra) wherein it was held:- _“The learned Single Judge should not have ignored the two Division Bench decisions on the ground that in the appeal filed against one of the said decisions before the Apex Court, there was a stay against it. Even when a decision of Division Bench of this Court is stayed by the Apex Court, the learned Single Judges of this Court are bound to follow the decision of the Division Bench, as it continues to be a binding precedent for them. The interim order of stay only relieves the concerned parties from obeying the judgment under appeal. “_ In view of the discussions above, these writ petitions are disposed of as hereunder:- In W.P.(C)No.31639 of 2009, 11781 of 2010, 19535 of 2010, 21776 of 2010, 21992 of 2010 and 22929 of 2010 the impugned orders to the extent it grants approval only on daily wage basis are quashed. Accordingly, these writ petitions are disposed of with a direction to reconsider the claims of the petitioners to approve their respective period of appointments as on regular basis and pass orders afresh in the light of the decision in _**Unni Narayanan**_ v. _**State of Kerala**_ reported in **2009 (2) KLT 604** . In W.P.(C)No.22662 of 2010 Ext.P4 revision petition which is pending before the first respondent is directed to be considered expeditiously in the light of **Unni Narayanan's** case (supra). In all WP(C).No.31639/2009 & connected cases 8 these cases, fresh consideration/reconsideration shall be done within a period of two months from the date of receipt of a copy of this judgment . Needless to say, after such consideration the petitioners shall be given the consequential benefits including monetary benefits. Sd/C.T.RAVIKUMAR Judge TKS // true copy // P.S. to Judge