Manju Sankar, Athira K. S. and Sheena K. S. v State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`WEDNESDAY, THE 19[TH] DAY OF JULY 2023 / 28TH ASHADHA, 1945`** ## **`WP(C) NO. 315 OF 2016`** ## **`PETITIONERS:`** ``` 1MANJU SANKAR AGED 33 YEARS D/O.SANKARAN, HIGH SCHOOL ASSISTANT (MALAYALAM)R M P HIGH SCHOOL, PANANGATTIRI, PALAKKAD 678506 ``` ``` 2ATHIRA K S AGED 29 YEARS D/O.SUDEVAN K C, HIGH SCHOOL ASSISTANT (PHYSICAL SCIENCE) R M P HIGH SCHOOL, PANANGATTIRI, PALAKKAD 678506 ``` ``` 3SHEENA K S AGED 31 YEARS W/O.BALAGANGADHARAN, HIGH SCHOOL ASSISTANT(SOCIAL STUDIES) R M P HIGH SCHOOL, PANANGATTIRI, PALAKKAD 678506 ``` ``` BY ADV SRI.U.BALAGANGADHARAN ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM 695001 ``` - `2 THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM 695001` ``` 3THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD 678001 ``` - `4 THE DISTRICT EDUCATIONAL OFFICER PALAKKAD 678001` ``` WP(C) NO. 315 OF 2016 ``` ``` 2 ``` - `5 THE ACCOUNTS OFFICER OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD 678001` - `6 THE HEADMISTRESS R M P HIGH SCHOOL, PANANGATTIRI, PALAKKAD 678506` ``` SRI.ARUN AJAY SHANKAR SR. GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 315 OF 2016 ``` ``` 3 ``` ## **JUDGMENT** 1. The grievance of the petitioners three in number are that they were appointed as High School Assistants after having undergone the process of regular appointment which was ultimately approved by District Education Officer on different dates vide Exts.P1, P2 and P3 respectively and have been thereafter officiating in the post without any break. There was a controversy with regard to the interpretation of the word “vacancy” appearing in Rule 7A(3) of Chapter IVX A of Kerala Education Rules. Deputy Director of Education, on receipt of audit objection that the appointment had to be from the next academic session, passed the impugned order Ext.P4 ordering for recovery of the amount of salary paid for the period wherein the petitioners had rendered service. It was contended that the said action was not sustainable in view of the Government Order dated 14.10.2015 and the judgment of the Supreme Court in _**State of Kerala and Others**_ v. _**Sneha Cheriyan and Another**_ wherein it has been held that the expression ‘vacancy’ used in ``` WP(C) NO. 315 OF 2016 ``` ``` 4 ``` Sub-Rule 3 to Rule 7A has to be read along with the expression 'academic year' which does not restrict the right of managers in making appointments in the established vacancies. In such circumstances, the impugned order is liable to be set aside. 2. Sri.Arun Ajay Shankar, learned Government Pleader submitted that as per the Government Order dated 10.06.2008, if the period of appointment does not cover one academic year, teachers are not entitled to salary for that period. It is in that account the order was passed. 3. I have heard the learned counsel for the parties and appraised the paper book. 4. Order dated 14.10.2015 is on the basis of the judgment referred to above by the learned counsel on behalf of the petitioner and it has been held that expression “vacancy” has to be read along with the “academic year”. The academic year thus cannot be construed to be the next academic year. It has been made clear that the teachers appointment for a period of more than one academic year against the vacancies occurred ``` WP(C) NO. 315 OF 2016 ``` ``` 5 ``` 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 they have been appointed during the course of that academic year. The contents of the same reads as under: Attention is invited the reference cited. Hon'ble Supreme Court in para 26 of the Judgment dated, 22.2.2013 in CA No. 1643/13 Sneha Cherian Vs. State of Kerala [2013 (1) KLT 755] has laid down the following directions. - (i) A teacher, who was relieved from service under Rules 49 and 52 of Chapter XIV A of the KER, is entitled to get preference for appointment under Rule 51 A 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, longterm 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, ``` WP(C) NO. 315 OF 2016 ``` ``` 6 ``` made to the approved vacancies arising and continuing beyond 31st March due to sanctioning of additional divisions. - (iv) The Manager can make appointments in school even if the duration of which is less than one 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 teachers 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) Teachers 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. In order to ensure that the judgment shall not be interpreted differently, Government hereby issue the following clarifications: 1. Teachers appointed for a period of more than one academic year against vacancies occurred the to death.retirement.promotion, resignation, long term leave etc will be entitled to get regular scale ``` WP(C) NO. 315 OF 2016 ``` ``` 7 ``` 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. 2. The Manager can make appointments in school even if the duration of which is less than one academic year but on daily wages basis 3. To become eligible for a claim under Rule 51 A of Chapter XIV A, of KER one should have an approved minimum continuous service of one academic year on the date of relief. DPI shall issue necessary instructions to bring this to the notice of all Educational Officers.” 5. In this view of the matter, I am of the view that the impugned order was not sustainable, even otherwise there was no fault on behalf of petitioners as there was no intentional misrepresentation on behalf of the petitioners. Accordingly, the impugned order is set aside, writ petition stands allowed. ## **Sd/-** ## **AMIT RAWAL** nak **JUDGE** ``` WP(C) NO. 315 OF 2016 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 315/2016`** ``` PETITIONER EXHIBITS ``` ``` A TRUE COPY OF THE APPOINTMENT ORDER DTD EXHIBIT P1:-8/12/2011 OF THE FIRST PETITIONER ``` ``` A TRUE COPY OF THE APPOINTMENT ORDER DTD EXHIBIT P2:-3/9/2012 OF THE 2ND PETITIONER ``` ``` A TRUE COPY OF THE APPOINTMENT ORDER DTD EXHIBIT P3:-8/12/2011 OF THE 3RD PETITIONER A TRUE COPY OF THE LETTER OF 3RD EXHIBIT P4:- RESPONDENT DTD 4/11/2015 ```