High Court of KeralaSingle Judge2019-10-15Writ petition allowed with directions to regula...

SHYLAJA A.R. v. STATE OF KERALA AND OTHERS (WP(C).No.15424 OF 2011)

Case / Petition Number:WP(C).No.15424 OF 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anu Sivaramman
Judgment Date: 2019-10-15
Court Decision / Holding: Writ petition is allowed. The court directs that the petitioner’s appointment from 03.11.2004 to 28.01.2005 be regularized on a regular scale of pay and that the appointment from 04.09.2007 onwards also be treated as regular, with vacation salary and arrears payable. The respondents are to grant such regularization and disburse all arrears within three months from the date of receipt of a copy of the judgment.
Final Disposition: Writ petition allowed with directions to regularize the petitioner’s appointment periods on the regular pay scale and to pay arrears and vacation salary within three months; arrears to be calculated from the date of copy of the judgment.

Parties to the Case

Appellants / Petitioners

ShyLaja A.R., wife of C.R. Jawahar, High School Assistant (Physical Science), S.N.V. Higher Secondary School for Girls, Paravur

Respondents

State of Kerala represented by the Principal Secretary, Department of General Education
Director of Public Instruction
Deputy Director of Education, Kollam
District Educational Officer, Kollam
Manager, S.N.V. Girls High School, Paravur

Legal Representation & Advocates

Counsels for Petitioners

• SMT. Rekha Vasudevan

Counsels for Respondents

• GP Shri. Ron Bastian
• GP Shri. N.B. Sunil Nath

Case Synopsis & Summary

ShyLaja A.R., the petitioner, challenges multiple orders denying regular time-scale pay and consequential benefits for her appointments as High School Assistant (Physical Science) at S.N.V. Girls High School, Paravur. She had initial short-term service from 2000–2001, with later short-term leave vacancies (01.11.2004 to 28.01.2005) and a subsequent appointment from 04.09.2007. The core legal issue concerns Rule 7A(3) of Chapter XIVA Kerala Education Rules and its amendments. Pre-amendment, Rule 7A(3) barred vacancies of duration two months or less from regular appointments; the 2004 leave vacancy lasted beyond two months, yet counsel argued that the vacancy should be regularized on a scale of pay. Amendments in 2005 extended the restriction to vacancies shorter than one academic year, while Government Order No. 169/04/G.Edn (15.06.2004), particularly Clause 6, was cited as affecting such appointments. The petitioner contends that vacancies existing prior to amendment could be regularized on the regular pay scale, and that the 2007–2008 period, though shorter than one academic year, involved a regular vacancy. The court relies on Sneha Cheriyan and related authorities to hold that regular vacancies must be regularized on the regular scale, granting arrears and salary for vacations. It directs the respondents to regularize both periods on the regular scale and to pay arrears within three months of copy of the judgment.

Provisions of Law Cited

Kerala Education Rules, Chapter XIVA, Rule 7A(3) (pre-amendment)Rule 7A(3) amended by Government Order dated 16.04.2005 (notified 27.04.2005)G.O.(P) No.169/04/G.Edn, dated 15.06.2004 (Clause 6)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that, under pre-amendment Rule 7A(3) of Chapter XIVA Kerala Education Rules, vacancies longer than two months could be regularized on the regular scale of pay. She contends that the 03.11.2004 to 28.01.2005 vacancy lasted beyond two months and, being before the amendment, should be regularized; the 04.09.2007 onwards period was a regular vacancy and hence liable to regularization on the regular scale with arrears and vacation salary. The opposition argues that such short-term vacancies could only be held on daily wages when restricted by the rule until amendment, and that Clause 6 of GO 169/04/G.Edn and the post-amendment rules control treatment; the 2007 period being less than an academic year was not eligible for regular pay before amendment and thus could be limited to daily wages. The petitioner cites Sneha Cheriyan and related authorities to support regularization of such vacancies.

Contentions of Respondents

The respondents contend that the 03.11.2004 to 28.01.2005 period fell under the rule that vacancies shorter than two months could not be filled; they argue that, despite duration, the pre-amendment regime and GO 169/04/G.Edn constraints must be applied, and that the 04.09.2007 to 31.03.2008 period could only be on daily wages if considered a non-regular vacancy; they rely on the amendments to Rule 7A(3) and the Government Orders to justify continuing daily wages and limited pay under the circumstances.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
State of Kerala and Others v. Sneha Cheriyan and Another	2013 (1) KHC 660	Positive	The judgment explicitly relies on Sneha Cheriyan to assert that regular vacancies are to be regularized on the regular scale, guiding the court’s decision on regularization of the petitioner’s 2007 period and supporting the interpretation that certain pre-amendment vacancies may be regularized on pay scales.
Manager, VKNM vocational Higher Secondary School v. State of Kerala and others	2016 (1) KHC 430	Positive	Cited as supportive precedent in the context of regularization and pay scale for vacancies in educational institutions; used to bolster the argument that such appointments can be regularized.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 15TH DAY OF OCTOBER 2019 / 23RD ASWINA, 1941** ## **WP(C).No.15424 OF 2011(C)** ## **PETITIONER:** **SHYLAJA A.R., WIFE OF C.R.JAWAHAR, AGED 42 YEARS, HIGH SCHOOL ASSISTANT (PHYSICAL SCIENCE), S.N.V.HIGHER SCHOOL FOR GIRLS, PARAVUR-691 301, RESIDING AT PANCHANTAZHIKAM, KONGAR, SOUTH PARAVUR, KOLLAM-691 301.** **BY ADV. SMT.REKHA VASUDEVAN** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF GENERAL EDUCATION (A, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM-695 014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION KOLLAM-691 300.** - **4 THE DISTRICT EDUCATIONAL OFFICER KOLLAM-691 300.** - **5 THE MANAGER S.N.V.GIRLS HIGH SCHOOL PARAVUR, KOLLAM-691 301.** **R1 BY GOVERNMENT PLEADER** - **GP SHRI. RON BASTIAN GP SHRI.N.B.SUNIL NATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.15424 OF 2011** **2** ## **JUDGMENT** This writ petition is filed seeking the following prayers: 1. Quash Exhibit P6 issued by the 4[th] respondent rejecting the approval to the appointment of the petitioner as H.S.A.(PS) from 4.9.2007, Exhibit P10 order by the 3[rd] respondent restricting the approval to the appointment of the petitioner as H.S.A.(PS) from 4.9.2007 to 31.03.2008 on daily wages, Exhibit P12 order by the 2[nd] respondent restricting approval to the appointment of the petitioner as H.S.A.(PS) from 3.11.2004 to 28.1.2005 on daily wages and Exhibit P14 order by the 1[st] respondent rejecting the Exhibit P13 appeal of the petitioner, by the issuance of writ of certiorari, or other appropriate writ, order or direction. 2. Declare that the appointment of the petitioner as H.S.A.(PS) for the period from 3.11.2004 to 28.1.2005 and from 4.9.2007 onwards is liable to be approved on regular time scale and that she is entitled to the consequential benefits of such approval and direct the respondents 1 to 4 to grant approval to the appointment of the petitioner as H.S.A.(PS) for the period from 3.11.2004 to 28.1.2005 and from 4.9.2007 onwards on regular time scale and to grant her consequential benefits including arrears of pay, within a time frame, by the issuance of writ of mandamus, or other appropriate writ, or direction. **WP(C).No.15424 OF 2011** **3** 2. Heard the learned counsel for the petitioner and the learned Government Pleader. It is submitted by the learned counsel for the petitioner that, the questions which arise for consideration in this writ petition are covered with the decisions of the Apex Court in _**State of Kerala and Others v. Sneha Cheriyan and Another**_ [2013 (1) KHC 660] _**and Manager, VKNM vocational Higher Secondary School v. State of Kerala and others**_ [2016 (1) KHC 430]. 3. Petitioner was initially appointed as H.S.A., Physical Science in a short term vacancy from 17.11.2000 to 22.01.2001. The said appointment was subsequently approved by Ext.P1 order dated 13.07.2006. The petitioner was thereafter appointed in another short term leave vacancy from 01.11.2004 to 28.01.2005. However, on the ground that the vacancy had a duration of less than one academic year, approval was ultimately granted only on daily wage basis. Later the petitioner was appointed as H.S.A. on 04.09.2007 till the vacancy exists. However, the petitioner’s appointment from 04.09.2007 to 31.03.2008 was approved only on daily wage basis. The appointment from the academic year 2008-09 onwards was **WP(C).No.15424 OF 2011** **4** approved on a scale of pay. 4. The learned counsel for the petitioner submits that Rule 7A(3) of Chapter XIVA Kerala Education Rules was amended only in April 2005. Pre-amendment, the Rule read that the vacancies of a duration of less than two months shall not be approved. Learned counsel for the petitioner submits that the vacancy to which the petitioner was appointed from 03.11.2004 to 28.01.2005 had a duration of more than two months and as such, applying the law as its stood at the relevant time, the appointment ought to have been approved on a scale of pay. Learned counsel submits that Clause 6 of G.O.(P) No.169/04/G.Edn dated 15.06.2004 and its effect on appointments made to vacancies having a duration of less than one academic year had been considered by this Court and it had been repeatedly held that Clause 6 of the Government Order cannot be applied contrary to the Provisions of the Rules and that appointments made before amendment to Rule 7A(3) are liable to be approved ignoring Clause 6 of the Government Order dated 15.06.2004. Relying on the decisions of the Apex Court, it is further contended that since the vacancy of H.S.A., Physical **WP(C).No.15424 OF 2011** **5** Science which arose on 04.09.2007 was a regular vacancy, the petitioner's appointment against the said vacancy is liable to be approved from 04.09.2007 onwards on a regular scale of pay. 5. A counter affidavit has been filed on behalf of the 4[th] respondent wherein it is contended that, the appointment of the petitioner from 03.11.2004 to 28.01.2005 was in a vacancy having a duration of less than one academic year and that the same could be only on a scale of pay basis. It is further submitted that, the period from 04.09.2007 to 31.03.2008 being of the duration of less than one academic year, the said period could also have been only approved on daily wages. 6. I have considered the contentions advanced. The appointment of the petitioner in a leave vacancy from 03.11.2004 to 28.01.2005 was before the amendment to Rule 7A(3) of Chapter XIVA of the Kerala Education Rules. Rule 7A(3) as it stood before the amendment read as follows: “[(3) Vacancies the duration of which is two months or less shall not be filled up by any appointment]”. The amendment to the effect that vacancies, the duration of which is less than one academic year, shall not be filled up was given effect to only by Government Order dated 16.04.2005 **WP(C).No.15424 OF 2011** **6** which was notified on 27.04.2005. Therefore, the said provision would be effective only after the amendment. At the time when the petitioner was appointed on 03.11.2004, the Rule position only provided that vacancies of a duration of less than two months shall not be filled up. The vacancy to which the petitioner was appointed had a duration of more than two months. In the above factual situation, the contention of the respondents that the said appointment could be approved only on daily wage basis cannot be sustained _**.**_ 7. With regard to the appointment of the petitioner as H.S.A., Physical Science from 04.09.2007 onwards, the issue is squarely covered by the dictum laid down by the Apex Court in _**Sneha Cheriyan's**_ case _**.**_ The vacancy was a regular vacancy. The fact that the petitioner was appointed only on 04.09.2007 cannot be a reason to contend that the period from 04.09.2007 to 31.03.2008 can be approved only on a daily wage basis. The said appointment of the petitioner from 04.09.2007 is liable to be approved on regular scale of pay and the petitioner would be entitled to vacation salary for the vacation in the academic year 2007-08 as well. It is declared so. **WP(C).No.15424 OF 2011** **7** 8. There will be a direction to the respondents to approve the appointment of the petitioner from 03.11.2004 to 28.01.2005 on a regular scale of pay and to release all arrears due to the petitioner within a period three months from the date of receipt of a copy of this judgment. The period from 04.09.2007 onwards will also be approved on a regular scale of pay and the consequential benefits including vacation salary shall also be calculated and disbursed to the petitioner within three months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. **Sd/-** **ANU SIVARAMAN JUDGE** mpm **WP(C).No.15424 OF 2011** **8** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE GO(RT) NO.2943/06/G.EDN. DATED 13/07/2006 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER DATED 02/11/2004 ISSUED BY THE 5TH RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER DATED 01/06/07 ISSUED BY THE 5TH RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE ORDER OF THE 5TH RESPONDENT DATED 04/09/2007.** **EXHIBIT P5 TRUE COPY OF THE ORDER NO.B5/5284/07/K.DIS. DATED 19/05/2008 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE ORDER NO.B5/8053/07/K.DIS DATED 19/05/2008 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE APPEAL DATED 16/06/2008 SUBMITTED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE APPOINTMENT ORDER ALONG WITH THE ORDER NO.B5/4549/08/K.DIS DATED 24/07/2009.** - **EXHIBIT P9 TRUE COPY OF THE ORDER NO.B54586/07/K.DIS DATED 23/04/2009 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P10 TRUE COPY OF THE ORDER NO.B612246/08/K.DIS DATED 28/02/2010 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P11 TRUE COPY OF THE REVISION PETITION DATED 05/10/2009 SUBMITTED BY THE 5TH RESPONDENT TO THE 2ND RESPONDENT.** - **EXHIBIT P12 TRUE COPY OF THE ORDER NO.ET(1)/3856/10/DPI/K.DIS DATED 11/05/2010 ISSUED BY THE 2ND RESPONDENT.** **WP(C).No.15424 OF 2011** **9** **EXHIBIT P13 TRUE COPY OF THE APPEAL DATED 16/02/2011 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT. EXHIBIT P14 TRUE COPY OF THE ORDER NO.17376/A3/2011/G.EDN. DATED 02/04/2011 ISSUED BY THE 1ST RESPONDENT.** // TRUE COPY // P.A. TO JUDGE