Tenetowl LogoTenetowl
High Court of KeralaSingle JudgeWrit petitions allowed; quashing of prior daily...

Safeer Muhammed HaneeFa P.T. v District Education Officer, Tirurangady; Manager, M.H.S.S Moonniyur; Headmaster, M.H.S.S Moonniyur; Ali Akbar P.V v District Education Officer, Tirurangadi; District Educational Officer, Tirur; Manager, M.H.S.S Moonniyur; Headmaster, M.H.S.S Moonniyur

Case / Petition Number:WP(C) Nos. 26118 of 2021 and 26631 of 2021

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Raja Vijayaraghavan V.
Judgment Date
2022-06-02
Court Decision / Holding
Writ petitions allowed. Exhibits P1 and P2 (and P8 in one petition) are quashed. The approval of the appointment of the petitioners in WP(C) No. 26631 of 2021 is directed to be granted from 26.11.2011 onwards on a regular basis, and in WP(C) No. 26118 of 2021 from 08.07.2009 onwards on a regular basis. The petitioners are entitled to all attendant benefits, including vacation salary, during the specified periods.
Final Disposition
Writ petitions allowed; quashing of prior daily-wage approvals; direction to grant regular approvals from the respective dates; entitlement to vacation salary and attendant benefits; clarification on applicability of Rule 49 to regular vs non-permanent vacancies.

Parties to the Case

Appellants / Petitioners

  • Safeer Muhammed HaneeFa P.T.
  • Ali Akbar P.V

Respondents

  • District Education Officer, Tirurangady
  • District Educational Officer, Tirur
  • Manager, M.H.S.S Moonniyur
  • Headmaster, M.H.S.S Moonniyur
  • SMT Nisha Bose, Sr GP
  • SMT Sabeen A P Ismail GP

Legal Representation & Advocates

Counsels for Petitioners

  • • P. C. Sasidharan

Counsels for Respondents

  • • Nisha Bose, Sr GP
  • • Sabeen A P Ismail GP

Case Synopsis & Summary

These twin writ petitions challenge the non-approval of appointments of HSTs (Arabic) and HSTs (English) at Moonniyoor Higher Secondary School, an aided institution managed by the Moonniyur management. The petitioners contend that the vacancies arose on 26.11.2011 (HST Arabic) due to the promotion of a predecessor and on 07.07.2009/08.07.2009 (HST English) due to resignation; both vacancies were regular in nature and could not be filled only on a daily wage basis under Exhibit P1. They relied on Chapter XIV A, Rule 49 of the Kerala Education Act and Rules (KER) and on the Supreme Court’s decision in State of Kerala v. Sneha Cherian and Others, 2013 (1) KLT 755, which held that when regular vacancies exist, appointments require continuous approval from the date of appointment. They also cite government orders and clarifications (Exts P3–P5, P4) that permanent vacancies in aided schools entitle teachers to vacation salary, irrespective of service length, and that Rule 49 applies to such vacancies only when not permanent. The respondents, represented by government pleaders, contend that the Manager appointed petitioners on daily wage basis and regularisation cannot be granted. After hearing, the court found the vacancies to be regular and established, quashed the daily-wage approvals, and directed that approvals be granted from the dates of appointment with attendant benefits, including vacation salary, in accordance with the governing rules and Sneha Cherian principle.

Provisions of Law Cited

Kerala Education Act & Rules (KER) Chapter XIV A, Rule 49

Legal Doctrines & Maxims

  • Sneha Cherian doctrine (State of Kerala v. Sneha Cherian and Others, 2013 (1) KLT 755) establishing that appointments in established regular vacancies require approval under Rule 49 and that vacation salary can be payable for permanent vacancies in aided schools as clarified by government orders

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that the vacancies that arose on 26.11.2011 (HST Arabic) and on 08.07.2009 (HST English) were established regular vacancies that required regular filling with continuous approval under Rule 49, Chapter XIV A KER. They rely on Exts P3–P5 and government clarifications, and on the Supreme Court’s decision in Sneha Cherian to assert that vacation salary should be paid for permanent vacancies, irrespective of service length. They seek quashing of daily-wage approvals and grant of regular approvals from the dates of appointment with attendant benefits.

Contentions of Respondents

The respondents contend that petitioners were appointed on daily wage basis and thus not eligible for regular approval. They rely on government orders clarifying that Rule 49 applies to non-permanent vacancies and that vacation salary is not triggered by daily-wage appointments. They argue that the establishments rules and clarifications do not mandate regularisation in these cases and highlight that the vacancies may not have been permanently established for regular appointment.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
State of Kerala v. Sneha Cherian and Others2013 (1) KLT 755PositiveCited as controlling authority to support that regular vacancies must be filled with continuous approval under Rule 49 and that regularisation can be from the date of appointment.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Safeer Muhammed HaneeFa P.T. v District Education Officer, Tirurangady; Manager, M.H.S.S Moonniyur; Headmaster, M.H.S.S Moonniyur; Ali Akbar P.V v District Education Officer, Tirurangadi; District Educational Officer, Tirur; Manager, M.H.S.S Moonniyur; Headmaster, M.H.S.S Moonniyur and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 2[ND] DAY OF JUNE 2022 / 12TH JYAISHTA, 1944`** ## **`WP(C) NO. 26118 OF 2021`** ## **`PETITIONER/S:`** ``` SAFEER MUHAMMED HANEEFA P.T. AGED 35 YEARS S/O. MOHAMMED HANEEFA P.T, H.S.A ENGLISH, M.H.S.S MOONIYUR, RESIDING AT PANDARATHODI HOUSE, PULAMANTHOLE P.O, MALAPPURAM DISTRICT, PIN - 679323. BY ADV P.C.SASIDHARAN ``` ## **`RESPONDENT/S:`** ``` 1DISTRICT EDUCATION OFFICER TIRURANGADY, MALAPPURAM DISTRICT, PIN - 676306. 2THE MANAGER, M.H.S.S MOONNIYUR, MOONNIYUR P.O, MALAPPURAM DISTRICT, PIN - 676311. 3THE HEADMASTER, M.H.S.S. MOONNIYUR, MOONNIYUR P.O, MALAPPURAM DISTRICT, PIN - 676311. SMT NISHA BOSE SR GP, SMT SABEEN A P ISMAIL GP THISWRITPETITION(CIVIL)HAVINGCOMEUPFOR ADMISSIONON02.06.2022,ALONGWITHWP(C).26631/2021,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NOs. 26118 & 26631 OF 2021 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 2[ND]DAY OF JUNE 2022 / 12TH JYAISHTA,1944 ``` ## **`WP(C) NO. 26631 OF 2021`** ## **`PETITIONER/S:`** ``` ALI AKBAR P.V AGED 42 YEARS S/O. ABOOBACKER P.V, H.S.T ARABIC, M.H.S.S MOONNIYUR, RESIDING AT PONGODANCHALIL HOUSE, KARUVAMPOYIL P.O, KOZHIKODE DISTRICT PIN 673 572 BY ADV P.C.SASIDHARAN RESPONDENT/S: 1THE DISTRICT EDUCATION OFFICER TIRURANGADI, MALAPPURAM DISTRICT, PIN 676 306 2THE DISTRICT EDUCATIONAL OFFICER TIRUR, MALAPPURAM DISTRICT, PIN 676 306 3THE MANAGER M.H.S.S MOONNIYUR, MOONNIYUR P.O, MALAPPURAM DISTRICT, PIN 676 311 4THE HEADMASTER M.H.S.S MOONNIYUR, MOONNIYUR P.O, MALAPPURAM DISTRICT, PIN 676 311 SMT NISHA BOSE SR GP, SMT SABEEN A P ISMAIL GP THISWRITPETITION(CIVIL)HAVINGCOMEUPFOR ADMISSIONON02.06.2022,ALONGWITHWP(C).26118/2021,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NOs. 26118 & 26631 OF 2021 ``` ``` 3 ``` ## **JUDGMENT** The petitioners in these writ petitions have been working as HST (Arabic) and HST (English) in Moonniyoor Higher Secondary School, an Aided School managed by the 3rd respondent in W.P.C.No.26631/2021 (2nd respondent in W.P.C.No. 26118/2021). They have approached this Court being aggrieved by the non-approval of their appointment from 26.11.2011 and 08.07.2009 respectively. 2. The petitioner in W.P(C.) No. 26631 of 2021 contends that the vacancy of HST (Arabic) arose in the 3rd respondent school owing to the promotion of one Sri. Muhammed V.P., HSA (Arabic), as Higher Secondary School Teacher w.e.f. 26.11.2011. According to the petitioner, though the vacancy which arose on 26.11.2011 were to be filled up on a regular basis with continuous approval in terms of Chapter XIV A, Rule 49 of the Kerala Education Act & Rules (KER), the 2nd respondent approved the appointment only on daily wage basis as per Exhibit P1. 3. Insofar as the petitioner in W.P.(C.) No. 26118 of 2021 is concerned, he was appointed in the vacancy of HST (English) which arose in the School due to the resignation of Sri. Ismail. P, (HSA) English from 07.07.2009. He also contends that since the vacancy is a regular vacancy ``` WP(C) NOs. 26118 & 26631 OF 2021 ``` ``` 4 ``` which arose on 08.07.2009, and the same ought to have been filled up on a regular basis with continuous approval with effect from the very same date. However, by Exhibit P1 order, the 1st respondent has approved the appointment only on a daily wage basis. 4. The petitioners contend that there is absolutely no justification for issuing the appointment order limiting the regular vacancy. The petitioners rely on the judgment rendered by the Hon’ble Supreme Court in **State of Kerala v. Sneha Cherian and Others** [2013 (1) KLT 755] and it is contended that the Apex Court had made it clear that as against regular vacancies in terms of Rule 49 of Chapter XIV A of the KER, the approval has to be granted from the date of appointment including vacation salary. Reliance is placed on Exts.P3 to P5 and it is contended that the Government had made it clear that teachers appointed in permanent vacancies in aided schools are eligible for vacation salary irrespective of the length of service. It is in the afore circumstances that the petitioners are before this Court seeking to quash the impugned orders to the extent that it denies approval of appointment on regular basis from the respective dates of appointment. ``` WP(C) NOs. 26118 & 26631 OF 2021 ``` ``` 5 ``` 5. I have heard the learned Senior Government Pleader who refers to Exhibits P1 and P2 and it is pointed out that the Manager has appointed the petitioners herein on a daily wage basis and hence the benefit of Government Order cannot be conferred to them. 6. It is undisputed that the petitioners herein have been appointed in established vacancies. In **Sneha Cherian** (supra), the Apex Court had held that the Manager of an aided school is entitled to appoint teachers in vacancies which have occurred due to death, retirement, promotion, resignation, long term leave etc. provided those are established vacancies and the approval can be granted, subject to the conditions under Rule 49 of Chapter XIV A of the KER. The records reveal that the petitioners were appointed in regular vacancies which had occurred due to the resignation of a teacher in W.P.(C) 26118 of 2021 and the promotion of a teacher in W.P.(C) No.26631 of 2021. Instead of filling up the vacancies on a regular basis, the 1st respondent has approved the appointment only on a daily wage basis. The DGE has already issued Ext.P4 order clarifying that teachers appointed in permanent vacancies in aided schools shall be eligible for vacation salary irrespective of the length of service and also that Rule 49 Chapter XIV A of the KER is only applicable to the aided ``` WP(C) NOs. 26118 & 26631 OF 2021 ``` ``` 6 ``` school teachers appointed in vacancies which are not permanent. In view of the discussion above, the petitioners are entitled to succeed. These writ petitions will stand allowed and the following order is passed: (i) Exhibits P1 and P2 in W.P. (C) No. 26631 of 2021 and Exhibits P1, P2 and P8 in W.P.(C) No. 26118 of 2021 will stand quashed. (ii) The approval of appointment of the petitioner in W.P.(C.) No.26331 of 2021 shall be granted from 26.11.2011 onwards on regular basis. (iii) The approval of the appointment of the petitioner in W.P.(C.) No. 26118 of 2021 shall be granted from 08.07.2009 onwards on regular basis. (iv) The petitioners shall also be entitled to all attendant benefits including the vacation salary during the aforesaid period. ## **Sd/RAJA VIJAYARAGHAVAN V** **JUDGE** ``` avs ``` ``` WP(C) NOs. 26118 & 26631 OF 2021 ``` ``` 7 ``` ## **`APPENDIX OF WP(C) 26631/2021`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1TRUE COPY OF THE PROCEEDINGS NO. KDIS.B5/190/2013 DATED 15-10-2013 ISSUED BY THE 2ND RESPONDENT. ``` ``` Exhibit P2TRUE COPY OF ORDER NO. KDIS B5/4507/2013 DATED 02-07-2013 THE 2ND RESPONDENT ``` ``` Exhibit P3TRUE COPY OF GOVT. LETTER NO. 44977/J2/13/G.EDN DATED 14-10-2015 ``` ``` Exhibit P4TRUE COPY OF THE CLARIFICATION LETTER NO G.EDN J3/182/2017-G.EDN DATED 05-03-2018 ISSUED BY THE GOVERNMENT. ``` - `Exhibit P5 TRUE COPY OF ORDER NO. B1/561/2019 KDIS DATED 09-08-2019 BY THE 1ST RESPONDENT` ``` Exhibit P6TRUE COPY OF THE REPRESENTATION DATED 22-01-2020 BY THE PETITIONER. ``` ``` WP(C) NOs. 26118 & 26631 OF 2021 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 26118/2021`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 ``` ``` TRUE COPY OF THE APPOINTMENT CUM APPROVAL ORDER DATED 21.12.009 ISSUED BY THE 1ST RESPONDENT. ``` - `Exhibit P2 TRUE COPY OF THE ORDER NO.KDIS.B5/5711/2010 DATED 20.11.2010 THE 1ST RESPONDENT.` - `Exhibit P3 TRUE COPY OF GOVERNMENT LETTER NO. 44977/J2/2013/G.EDN DATED 14.10.2015.` ``` Exhibit P4TRUE COPY OF THE CLARIFICATION LETTER NO. G.EDN.J3/182/2017-G.EDN DATED 05.03.2018 ISSUED BY THE GOVERNMENT. ``` - `Exhibit P5 TRUE COPY OF THE ORDER NO. B1/561/2019 KDIS DATED 09.08.2019 BY THE 1ST RESPONDENT.` - `Exhibit P6 TRUE COPY OF THE REPRESENTATION DATED 24.01.2019 BY THE PETITIONER.` ``` Exhibit P7TRUE COPY OF THE REPRESENTATION DATED 04.11.2020 BY THE PETITIONER. ``` ``` Exhibit P8TRUE COPY OF THE COMMUNICATION DATED 21.11.2010 OF THE 1ST RESPONDENT. ```