E.P. Sanil v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 8[TH] DAY OF APRIL 2024 / 19TH CHAITHRA, 1946 WP(C) NO. 5576 OF 2015** ## **PETITIONER:** ## **E.P.SANIL** **SON OF PURUSHOTHAMAN NAMBOODIRI, AGED 42 YEARS, JUNIOR SANSKRIT TEACHER, SREE KRISHNA HIGHER SECONDARY SCHOOL, ANANDAPURAM, IRINJALAKUDA, THIRUSSUR-680 323.** **BY ADVS. SRI.V.A.MUHAMMED SRI.M.SAJJAD** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT , THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY THIRRUVANANTHAPUTAM-695 014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION THRISSUR AT AYYANTHOLE-680 003.** - **4 THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKUDA, THRISSUR DISTRICT-680 121.** - **5 THE MANAGER SREE KRISHNA HIGHER SECONDARY SCHOOL ANANDAPURAM, IRINJALAKUDA, THRISSUR-680 323. SRI. BIJOY CHANDRAN. SR. GP.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = W.P.(C)No.5576 of 2015** **= = = = = = = = = = = = = = = = = = Dated this the 8[th] day of April, 2024** ## **JUDGMENT** Ext.P14 order of the 4[th] respondent recalling Ext.P12 order and modifying the approval of appointment of the petitioner from regular scale of pay basis to daily wages, is under challenge in this writ petition. 2. On 02.06.2008, the petitioner was appointed to a retirement vacancy. However, since the protected teacher was appointed only on 17.06.2008, the petitioner's appointment was approved only from 17.06.2008. Citing the reason that the appointment of the petitioner was in the midst of an academic year, his appointment was approved only on daily wage basis. 3. The petitioner challenged the same before this Court in W.P.(C)No.29379 of 2012. This Court as per Ext.P11 judgment, relying on the judgment of this Court W.P.(C)No.5576 of 2015 -: 2 :- in _Unni Narayanan v. State of Kerala [2009 (2) KLT 604]_ and taking note of the fact that a Special Leave Petition is pending before the Apex Court challenging the judgment in _Unni Narayanan_ , directed that the petitioner will be granted approval on regular scale of pay and the petitioner shall give an undertaking that, in the event of the Special Leave Petition being decided against the petitioner, he will reimburse the salary drawn. Pursuant thereto, the 4[th] respondent issued Ext.P12 order dated 25.03.2013 approving the appointment of the petitioner on regular scale of pay w.e.f. 17.06.2008. 4. On 22.04.2013, the 1[st] respondent issued Ext.P13 general order. Ext.P13 was based on the judgment in the SLP which in the meantime was disposed on 20.05.2013. Purportedly relying on Ext.P13, the 4[th] respondent cancelled Ext.P12 order and approved the appointment of the petitioner on daily wage basis. It is W.P.(C)No.5576 of 2015 -: 3 :- thereupon that the petitioner has approached this Court. 5. I have heard the learned counsel for the petitioner and the learned Senior Government Pleader. 6. Ext.P14 order is issued relying on Ext.P13 Government order, which narrates the directions given by the Apex Court in the SLP. The directions given by the Apex Court have been narrated in paragraph No.3 of Ext.P13 Government Order and the same read thus; _“(i) A teacher, who was relieved from service under Rules 49 and 53 of Chapter XIV A of the KER, is entitled to get preference for appointment under Rule 51A only if the teacher has a minimum prescribed continuous service in an academic year as on the date of relief._ _(ii) The Manager of an aided school can, however, appoint teachers in vacancies occurred due to death, retirement, promotion, resignation, long-term leave, etc., provided they are established vacancies and the approval can be granted subject to the conditions under Rule 49 of Chapter XIV A of the KER._ _(iii) Approval can also be granted to appointments made to the approved vacancies arising and continuing beyond 31[st] March_ W.P.(C)No.5576 of 2015 -: 4 :- _due to sanctioning of additional divisions._ _(iv) The Manager can make appointments in school even if the duration of which is less than on academic year but on daily wages basis and if the duration of vacancy exceeds one academic year that can be filled up on scale of pay basis._ _(v) The Manager is free to appoint teaches on a regular basis from the re-opening date itself against regular established vacancies and need not wait for the appointments till completion of the staff fixation as per the KER._ _(vi) Teaches who have been appointed in the midst of the academic year and not completed the requisite minimum continuous service before vacation will not be entitled to get vacation salary.”_ 7. It appears that the 4[th] respondent has erroneously construed that direction No. _(ii)_ above applies to the petitioner. Rule 49 of Chapter XIVA of the Kerala Education Rules, referred to in direction No. ## _(ii)_ , reads thus; _“_ _**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_ W.P.(C)No.5576 of 2015 -: 5 :- _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 on the closing day if their continuous service as on that day is less than the aforesaid period. Thus rule shall not apply to teacher appointed in training vacancies._ Evidently, the Rule applies only to appointments in vacancies, which are not permanent. In the present case, the petitioner is admittedly appointed to a regular vacancy. Hence, Rule 49 does not apply to the case of the petitioner. 8. The relevant portion of direction No. _(iv)_ stated above provides that, “...if the duration of vacancy exceeds one academic year, that can be filled up on scale of pay basis.” The vacancy to which the petitioner was appointed is a regular vacancy. The said part of direction No.(iv) squarely applies. Hence, the appointment of the petitioner is liable to be approved W.P.(C)No.5576 of 2015 -: 6 :- on regular pay basis. Ext.P14 is thus liable to be quashed. Resultantly, the writ petition is allowed. Ext.P14 order is quashed. The respondents shall grant approval of appointment of the petitioner since 17.06.2008 on regular scale of pay basis. All attendant benefits including the vacation salary shall be disbursed to the petitioner. Let the needful be done within four months from the date of receipt of a copy of this judgment. Sd/- **SATHISH NINAN JUDGE** yd W.P.(C)No.5576 of 2015 -: 7 :- ## **APPENDIX OF WP(C) 5576/2015** |**PETITIONER EXHIBITS**|| |---|---| |**EXHIBIT P1**|**TRUE COPY OF THE APPOINTMENT ORDER OF**| ||**THE PETITIONER DATED 15-07-2005**| |**EXHIBIT P2**|**TRUE**<br>**COPY**<br>**OF**<br>**THE**<br>**ORDER**| ||**NO.L.DIS.B5/7210/05 OF THE DISTRICT**| ||**EDUCATIONAL OFFICER DATED 11-05-2007.**| |**EXHIBIT P3**|**TRUE COPY OF THE ORDER NO.B2-12155/07**| ||**DATED 13-11-2007 OF THE DEPUTY DIRECTOR.**| |**EXHIBIT P4**|**TRUE**<br>**COPY**<br>**OF**<br>**THE**<br>**ORDER**| ||**NO,EM(6)/87251/07/DP1/K.DIS.DATED 20-05-**| ||**2008 OF THE 2ND RESPONDENT.**| |**EXHIBIT P5**|**TRUE COPY OF THE APPOINTMENT ORDER OF**| ||**THE PETITIONER DATED 02-06-2008**| |**EXHIBIT P6**|**TRUE COPY OF THE ORDER NO.B5-**| ||**4729/08/L.DIS.DATED 13-03-2009 OF THE**| ||**DISTRICT EDUCATIONAL OFFICER.**| |**EXHIBIT P7**|**TRUE COPY OF THE ORDER NO.B2-**| ||**5944/09/K.DIS DATED 24-07-2009 PF THE**| ||**DEPUTY DIRECTOR.**| |**EXHIBIT P8**|**TRUE**<br>**COPY**<br>**OF**<br>**THE**<br>**ORDER**| ||**NO.70306/E3/09/G/EDN.DATED 31-12-2009 OF**| ||**THE GOVERNMENT**| |**EXHIBIT P9**|**TRUE COPY OF THE REVISION FILED BEFORE**| ||**THE 2ND RESPONDENT DATED 29-05-2010 BY**| ||**THE MANAGER.**| |**EXHIBIT P10**|**TRUE COPY OF THE REVISION FILED BEFORE**| ||**THE GOVERNMENT DATED 06-05-2011 BY THE**| ||**MANAGER.**| |**EXHIBIT P11**|**TRUE COPY OF THE JUDGMENT IN**| ||**WPC.NO.29379/2012 DATED 10-12-2012.**| |**EXHIBIT P12**|**TRUE COPY OF THE ORDER NO.B5-**| ||**468/2013/K.DIS DATED 25-03-2013 OF THE**| ||**4TH RESPONDENT.**| |**EXHIBIT P13**|**TRUE**<br>**COPY**<br>**OF**<br>**THE**| ||**G.O.P.NO.144/2013/G.EDN.DATED 22-04-2013**| ||**OF THE GOVERNMENT.**| W.P.(C)No.5576 of 2015 -: 8 :- **EXHIBIT P14 TRUE COPY OF THE ORDER NO.B53076/13/K.DIS DATED 16-07-2013 OF THE 4TH RESPONDENT.**