Sujatha P. v. District Educational Officer, Medical College Junction, Alappuzha; Deputy Director of Education, Kodiveedu, Alappuzha; Directorate of Public Instruction, Thiruvananthapuram; Mary Immaculate High School, Poomkavu; The Manager, Mary Immaculate High School, Poomkavu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 27[TH] DAY OF JULY 2021 / 5TH SRAVANA, 1943** ## **WP(C) NO. 27148 OF 2019** ## **PETITIONER:** SUJATHA P., AGED 56 YEARS W/O.K.K.SASINDRAN, KALIYANATTU HOUSE, KARUVATTA, ADOOR, PATHANAMTHITTA DIST., KERALA - 691 523. BY ADV K.SHAJ ## **RESPONDENTS:** 1 THE DISTRICT EDUCATIONAL OFFICER, MEDICAL COLLEGE JUNCTION, ALAPPUZHA - 688 005. 2 THE DEPUTY DIRECTOR OF EDUCATION OFFICE OF THE DEPUTY DIRECTOR, KODIVEEDU, ALAPPUZHA, KERALA - 688 001. 3 THE DIRECTORATE OF PUBLIC INSTRUCTION, VAZHUTHACAUD, POOJAPPURA ROAD, JUNCTION, DPI, JAGATHY, THIRUVANANTHAPURAM, KERALA - 695 014. 4 THE MARY IMMACULATE HIGH SCHOOL POOMKAVU, PATHIRAPPALLY P.O., ALAPPUZHA, KERALA, PINCODE - 688 521, REP. BY ITS MANAGER. 5 THE MANAGER, MARY IMMACULATE HIGH SCHOOL POOMKAVU, PATHIRAPPALLY, P.O.ALAPPUZHA, KERALA, PINCODE - 688 521 SRI.S.SUBHASH CHAND SMT.K.S.ARCHANA SRI. P.M.MANOJ - SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 27148 OF 2019 2 ## **JUDGMENT** The petitioner, who is stated to have been working as a High School Teacher (HSA) in Malayalam in the services of the “Mary Immaculate High School”, Poomkavu, Alappuzha, has approached this Court seeking that respondents 1 to 3 be directed to pay her vacation salary during the period between 01.04.2008 and 31.05.2008 & between 01.04.2009 and 31.05.2009. 2. The petitioner submits that she was originally appointed in the services of the School between 01.06.2007 and 31.03.2008, which was approved and therefore, she was entitled to the vacation salary for that year. She adds that it is the same with respect to her appointment with effect from 02.06.2008 to 31.03.2009, which would also legitimately entitle to her the vacation salary for that year also. 3. The petitioner says that, however, even though her appointments were approved, the vacation salary was declined without any cogent reason, except that in Ext.P2, the District Educational Officer concerned has recorded that her approval is limited from 02.06.2008 to 31.03.2009, as per WP(C) NO. 27148 OF 2019 3 Government Letter No.58189/E3/10/G.Edn, a copy of which is on record as Ext.P4. 4. The petitioner shows me that, in Ext.P4, the Government has ordered that since the School in question is a “newly upgraded one”, the Manager ought to have appointed a protected teacher and that unless that had been done, the approval of the petitioner cannot be granted. The petitioner contends that this stand in Ext.P4 is wholly untenable; and that in any event of the matter, after the Hon'ble Supreme Court delivered judgment in **State of Kerala v. Sneha Cheriyan [2013 (1) KLT 755],** these objections cannot remain in force. 5. After saying as afore, the learned counsel for the petitioner, Sri.Vinayak G. Menon, submitted that his client had, in fact, appealed to the Hon'ble Minister for Education through Ext.P8, which led to the Government issuing Ext.P9, wherein, the same stand has been reiterated and he therefore, prays that the said order also be set aside. **6.** The learned counsel for the Manager, Sri.S.Subhash Chand, submitted that, in normal circumstances, the petitioner's request for grant of salary for the two spells WP(C) NO. 27148 OF 2019 4 aforementioned should have been granted; and he affirmed that, as far as the former spell, is concerned - namely between 01.04.2008 and 31.05.2008 - the petitioner has been paid the same through the Government Order dated 05.02.2019. He submitted that his client is not aware as to why the petitioner's appointment has been limited by the DEO in Ext.P2 to 31.03.2009 and he showed me that, in the said appointment order, she was engaged from 02.06.2008 to 31.03.2011 against the vacancy of another teacher who had taken leave without allowances. Sri.Subhash Chand then proceed to submit that, therefore, the petitioner ought to have been granted approval for the entire academic year and that this is more so because she was shifted to a substantial vacancy with effect from 01.06.2009. He resultantly prayed that this Court order this writ petition, as requested by the petitioner. 7. The learned Senior Government Pleader, Sri.P.M.Manoj, submitted that a counter affidavit has been filed by the first respondent, wherein, it has been explained as to why the petitioner was not granted leave salary for the period between 01.04.2009 to 31.05.2009. He showed me WP(C) NO. 27148 OF 2019 5 that in paragraph 4 of the counter affidavit it has been averred that the said benefit was not given to the petitioner because the vacancy to which she was appointed on 01.06.2009, was an anticipatory post and that since the school was a “newly upgraded one”, the Manager was obligated to appoint a protected teacher into the same. He thus argued that no error can be ascribed by the petitioner to either Exts.P5 and P6 or P9 and that the action of the Authorities in having limited her approval, through the endorsements on Ext.P2, till 31.03.2009, is irreproachable. He, therefore, prayed that this writ petition be dismissed. 8. As I have noticed above, Sri.Subhash Chand confirms that the petitioner has already been paid her leave salary in the year 2008 through the Government Order dated 05.02.2019. Therefore, the only question which survives is whether she is entitled to vacation salary for the year 2009. 9. There can be no doubt that the petitioner was appointed in the academic year 2008-09, through Ext.P2, from 02.06.2008 to 31.03.2011. However, while granting approval to the same, the District Educational Officer, Alappuzha, confined the appointment till 31.03.2009, based on Ext.P4. When one examines Ext.P4, it is clear that the WP(C) NO. 27148 OF 2019 6 only reason why the petitioner has been denied the benefit of vacation salary is because the school was stated to be a “newly upgraded one”, into which the Manager was expected to appoint only a protected teacher. However, this position has been completely altered on account of the judgment of the Hon'ble Supreme Court in **Sneha Cheriyan** (supra) and I thus fail to understand how the Authorities can maintain the same even today. 10. That apart, going by the counter affidavit on record on behalf of the first respondent, the sole reason stated as to why the petitioner has been denied her vacation salary between 01.04.2009 and 31.05.2009, is because the vacancy to which she was subsequently appointed was an anticipatory new post and that Ext.P9 Government Order would, therefore, cover it. 11. However, as I have already indited above, the contents of Ext.P9 cannot find my favour consequent to the declarations of law in **Sneha Cheriyan** (supra). 12. In the afore circumstances, I am left with no doubt that the petitioner is entitled to be paid vacation salary between 01.04.2009 and 31.05.2009, particularly because she has already been paid the said benefit in the previous WP(C) NO. 27148 OF 2019 **==> picture [6 x 7] intentionally omitted <==** academic year, based on a Government Order dated 05.02.2019. 13. I must, however, record that an adscititious objection has been raised by the learned Senior Government Pleader that, without the endorsement on Ext.P2 being specifically challenged by the petitioner, no relief can be granted to her as prayed for herein. I am afraid that the afore contention of the learned Senior Government Pleader is too technical in nature because, when the petitioner seeks the vacation salary for the period between 01.04.2009 and 31.05.2009, she is effectively challenging the limiting of her approval of appointment as ordered in Ext.P2. I am, therefore, of the view that notwithstanding this objection, this Court will be justified in ordering this writ petition as under. 14. Resultantly, I allow this writ petition with a direction to the Government to reconsider the claim of the petitioner for vacation salary during the period from 01.04.2009 to 31.05.2009, de hors the endorsements on Ext.P2 limiting her approval until 31.03.2009. 15. The afore exercise shall be completed and the resultant order issued to the petitioner by the Government as expeditiously as is possible, but not later than three months WP(C) NO. 27148 OF 2019 8 from the date of receipt of a copy of this judgment. Needless to say, the Government will also consider the regularisation of the petitioner's service from 01.06.2007 onwards and this will also be touched upon in the resultant order to be issued in terms of the afore directions. **Sd/- DEVAN RAMACHANDRAN** **JUDGE** **stu** WP(C) NO. 27148 OF 2019 9 ## **APPENDIX OF WP(C) 27148/2019** PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE APPOINTMENT LETTER DATED 01/06/2007 ISSUED BY THE MANAGER, M.I.H.S. POOMKAVU AND APPROVAL OF SUCH APPOINTEMNT BY DEO, ALAPPUZHA DATED 17/03/2011. - EXHIBIT P2 THE TRUE COPY OF THE REAPPOINTMENT LETTER DATED 02/06/2008 OF THE PETITIONER ISSUED BY THE MANAGER, M.I.H.S POOMKAVU AND APPROVAL OF SUCH APPOINTMENT BY DEO, ALAPPUZHA DATED 16/01/2014. - EXHIBIT P3 THE TRUE COPY OF THE LETTER REGARDING THE APPOINTMENT OF THE PETITIONER BY DEPUTY DIRECTOR OF EDUCATION OFFICE, ALAPPUZHA DATED 21/06/2013. - EXHIBIT P4 THE TRUE COPY OF THE LETTER DATED 19/08/2013 ISSUED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT. - EXHIBIT P5 THE TRUE COPY OF THE LETTER DATED 30/04/2016 ISSUED BY THE GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM TO THE PETITIONER. - EXHIBIT P6 THE TRUE COPY OF THE LETTER DATED 04/08/2017 ISSUED BY THE ADDITIONAL DIRECTOR (GENERAL) GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM TO THE PETITIONER. - EXHIBIT P7 THE TRUE COPY OF THE ORDER NO.GEDNJ3/182/2017 DATED 05/03/2018 ISSUED BY THE SECRETARY TO GOVERNMENT OF KERALA TO THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. EXHIBIT P8 THE TRUE COPY OF THE APPEAL PETITION DATED 30/04/2018 FILED BY THE PETITIONER BEFORE WP(C) NO. 27148 OF 2019 10 THE MINISTER (EDUCATION) KERALA. EXHIBIT P9 THE TRUE COPY OF THE LETTER NO.3/157/2018 DATED 05/02/2019, ISSUED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM TO THE PETITIONER ALLOWING TO DRAW VACATION SALARY FROM THE YEAR 2007-09.