I. Mahendar and V.U. Fausia v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY ,THE 18TH DAY OF MARCH 2019 / 27TH PHALGUNA, 1940** ## **WP(C).No.32036 of 2014** ## **PETITIONERS:** **1 I. MAHENDAR AGED 39 YEARS SON OF LATE KRISHNANKUTTY NAIR, HIGH SCHOOL ASSISTANT (PHYSICAL SCIENCE) MNKM HIGHER SECONDARY SCHOOL, CHITTILANCHERRY -678 704, PALAKKAD DISTRICT.** **2 V.U.FAUSIA UPPER PRIMARY SCHOOL ASSISTANT, MNKM HIGHER SECONDARY SCHOOL, CHITTILANCHERRY -678 704, PALAKKAD DISTRICT.** **BY ADVS. SRI.V.A.MUHAMMED SRI.M.SAJJAD** ## **RESPONDENTS:** **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM- 695 014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION PALAKKAD DISTRICT - 678 001.** - **4 THE DISTRICT EDUCATIONAL OFFICER PALAKKAD DISTRICT - 678 001.** l **WP(C).No.32036 of 2014** **2** **5 THE MANAGER MNKM HIGHER SECONDARY SCHOOL, CHITTILANCHERRY -678 704, PALAKKAD DISTRICT.** **BY ADVS. GOVERNMENT PLEADER SRI.B.JAYASURYA SRI.V.A.VINOD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** l **WP(C).No.32036 of 2014** **3** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The 1[st] petitioner is a High School Assistant and the 2[nd] petitioner is an Upper Primary School Assistant in MNKM Higher Secondary School, Chittilancherry in Palakkad District. The writ petition has been filed challenging Ext.P4 order of the 1[st] respondent and seeking to direct the respondents to approve the appointments of the petitioners covered in Exts.P1 and P2 on regular basis. 2. The 1[st] petitioner was appointed as HSA - (Physical Science) on 06.03.2013 in the 5[th] respondent School against a regular vacancy arose due to the resignation of the incumbent. The said appointment has been approved from 06.03.2013 to 31.03.2013 on daily wage basis and from 03.06.2013 onwards on regular basis, as per Ext.P1. 3. The 2[nd] petitioner was appointed as UPSA from l **WP(C).No.32036 of 2014** **4** 01.10.2012 to 30.03.2015 in the school against a leave vacancy. The 2[nd] petitioner's appointment was approved from 01.10.2012 to 31.03.2013 on daily wage basis and from 03.06.2013 to 30.03.2015 onwards on regular basis. 4. The petitioners contend that Government, by Order dated 10.06.2008, directed that if the period of appointment commences after the beginning of the re-opening of the school after summer vacation but extends over the next academic year/years, the period up to the first vacation shall be approved on daily wages only. A Division Bench of this Court interfered with the said Government Order as per judgment in _**Unni Narayanan v. State of Kerala** [2009 (2) KLT 604]_ . Against the said judgment, Government approached the Apex court filing Civil Appeals. The Apex Court, as per judgment dated 22.02.2013, allowed the appeals and a direction, _inter alia,_ was given to the effect that the Manager can make appointments in the school even if the duration is less than one academic year on daily wage basis and if the duration l **WP(C).No.32036 of 2014** **5** of vacancy exeeds one academic year, that can be filled up on scale of pay basis. The petitioners contend that in view of the directions of the Apex Court, the petitioners are entitled to get regular approval in the scale of pay from initial date of their appointments. 5. Apprehendng delay in considering their case, the petitioners filed W.P.(C) No.5978/2014. As per Ext.P3 judgment, the said writ petition was disposed of directing the respondents to take a decision in the matter. Consequently, Ext.P4 Government Order has been passed. The petitioners contend that Ext.P4 has been passed without taking into account the decision rendered by the Apex Court. 6. The Government has filed a detailed counter affidavit and opposed the prayers in the writ petition. According to respondents 1 to 4, the 1[st] petitioner had worked only for 25 days in the academic year in question and, therefore, he is not eligible for vacation salary. The 1[st] petitioner's appointment from 06.03.2013 can be approved l **WP(C).No.32036 of 2014** **6** only on daily wage basis. Similarly, the 2[nd] petitioner was appointed in a leave vacancy from 01.10.2012 to 30.03.2015. Since the period of appointment of the 2[nd] petitioner for the academic year 2012-2013 is below 8 months, no approval can be granted in respect of the appointment of the 2[nd] petitioner. The appointment of the 2[nd] petitioner can be approved only on daily wage basis, as per Government Order dated 26.02.2011. 7. The learned Government Pleader further argued that the office of the 4[th] respondent approved the appointment of the petitioners as per instructions contained in Government Order dated 10.06.2008 and Government Order dated 22.04.2013, which were in force at that time. The office of the 4[th] respondent has acted in accordance with the Government Orders issued from time to time. The writ petition lacks merit and it is liable to be dismissed, contended the learned Government Pleader. 8. I have considered the pleadings in the writ petition and the arguments raised on either side. l **WP(C).No.32036 of 2014** **7** 9. During argument, it was brought to my notice that the Government of Kerala, General Education (J) Department has issued a Circular No.44977/J2/2013/G.Edn. dated 14.10.2015 pursuant to the judgment of the Apex Court in C.A. No.1643/2013. In the Circular issued by the Government of Kerala, pursuant to the judgment of the Apex Court, it has been stated that - _"Teachers appointed for a period of more than one academic year against vacancies occurred due to death, retirement, promotion, resignation, long term leave, etc. will be entitled to get regular scale of pay irrespective of the time in which he is appointed during the course of that academic year subject to Rule 49 of Chapter XIV A of KER which implies that he will not be getting his vacation salary if he does not complete 8 months.”_ Based on this Circular, it is evident that the petitioners are liable for regular scale of pay irrespective of the time in which they were appointed during the course of academic l **WP(C).No.32036 of 2014** **8** year, subject to Rule 49 of Chapter XIV A of KER. 10. This Court has considered the impact of Rule 49 on such appointment, in W.P.(C) No.20919/2015. In the judgment in the said writ petition, a learned Single Judge has held that- _" The restriction to vacation salary would be there only for short-term appointments in leave vacancy and woud not be applicable to permanent/regular vacancies. In such circumstance, the petitioner would be entitled to vacation salary also.”_ 11. A combined reading of the Government Circular dated 14.10.2015 referred to above and the judgment in W.P.(C) No.20919/2015 of this Court, would make it clear that both the petitioners are eligible to get approval for appointment for the scale of pay from their initial date of appointment. Going by the judgment in W.P.(C) No.20919/2015, the 1[st] petitioner will be eligible for vacation salary also for the academic year 2013-2014. l **WP(C).No.32036 of 2014** **9** Accordingly, Ext.P4 is set aside and this writ petition is disposed of directing the respondents to grant approval to the appointment of the petitioners in regular pay scale with effect from the date of their initial appointment. The 1[st] petitioner shall be granted vacation salary also for the academic year 2013-2014 for the months of April and May. Sd/- **N. NAGARESH, JUDGE** aks/18.03.2019 l **WP(C).No.32036 of 2014** **10** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE APPOINTMENT ORDER OF THE 1ST PETITIONER ALONG WITH APPROVAL DATED 6/3/2013.** **EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER ALONG WITH APPROVAL DATED 1/10/2012.** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN WPC NO.5978/2014-V DATED 3/3/2014.** **EXHIBIT P4 TRUE COPY OF THE G.O.(RT) NO.4360/2014/G.EDN. DATED 20/10/2014 OF THE GOVERNMENT.**