Vivek K.S. and Aswathy P.S. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 23RD DAY OF NOVEMBER 2020 / 2ND AGRAHAYANA, 1942** ## **WP(C).No.7260 OF 2020(F)** ## **PETITIONERS:** - **1 VIVEK K.S AGED 32 YEARS PHYSICAL EDUCATION TEACHER, SNDP HIGHER SECONDARY SCHOOL, ALUVA, ERNAKULAM DISTRICT.** - **2 ASWATHY P.S., FULL TIME MENIAL, SNDP HIGHER SECONDARY SCHOOL, ALUVA, ERNAKULAM DISTRICT.** ## **BY ADV. SRI.R.K.MURALEEDHARAN** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REP. PRINCIPAL SECRETARY TO FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF GENERAL EDUCATION, JAGATHI, THIRUVANANTHAPURAM-695014.** - **3 THE NODAL OFFICER, NATIONAL PENSION SYSTEM, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **4 SERVICE AND PAYROLL ADMINISTRATIVE REPOSITORY FOR KERALA(SPARK), REP. BY ADDITIONAL CHIEF SECRETARY (FINANCE), GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **5 THE DISTRICT EDUCATIONAL OFFICER, ALUVA, ERNAKULAM DISTRICT-683101.** **R1-5 BY GOVERNMENT PLEADER** ## **OTHER PRESENT:** **SR GP P.M. MANOJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2310-2020, THE COURT ON 23-11-2020 DELIVERED THE FOLLOWING:** W.P.(C).No.7260/2020 2 ## **JUDGMENT** ## **Dated this the 23[rd] day of November 2020** ## 1.The prayers in this writ petition are as follows :- “i)Issue a writ of certiorari or any other appropriate writ order or direction quashing Ext.P14 order issued by the 1[st] respondent dated 24.02.2020 and Ext.P6 order of the 5[th] respondent to the extent of excluding the vacation during 2012-13 for salary; And ii)Issue a writ of mandamus or any other appropriate writ order or direction directing the respondents to include the petitioners in Statutory Pension Scheme under Part III of KSR and also direct the 5[th] respondent to release salary to the 2[nd] petitioner during April, May 2013; iii)Issue a writ of mandamus or any other appropriate writ order or direction, directing the respondents to refund the contribution deducted towards NPS from their monthly pay and from the arrears paid with interest at the rate of 9% within a time fixed by this Hon’ble Court; “ ## 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. It is submitted that the 1[st] petitioner was appointed as Physical Education teacher in the SNDP Higher Secondary W.P.(C).No.7260/2020 3 School, Aluva. By Ext.P1 the initial appointment was with effect from 3.9.2012. However, the said appointment was not approved by the 5[th] respondent. Therefore, the 1[st] petitioner was again appointed as Physical Education teacher from 3.6.2013 and the said appointment was approved. The order rejecting approval of the 1[st] petitioner’s appointment from 3.9.2012 was taken in appeal by the Manager and by Ext.P3 order dated 26.7.2017, the appointment with effect from 3.9.2012 was approved excluding the vacation period from 1.4.2013. 4. The 2[nd] petitioner was appointed as Full Time Menial from 3.9.2012. The appointment was approved only from 1.6.2013. In appeal by the Manager, the 2[nd] respondent passed orders approving the appointment on a regular scale of pay, but excluding the vacation. It is stated that Ext.P7 revised staff fixation order, would show that the post of Physical Education teacher and Full Time Menial were available in the school from 2011-2012 onwards. It is stated that on the basis of approval of their appointment from 1.6.2013, the petitioners W.P.(C).No.7260/2020 4 were included in the National Pension Scheme and deductions were effected from their pay. When the petitioners’ appointments were approved from 3.9.2012, they made representations to the 1[st] respondent seeking the discontinuation of the contributions to the National Pension Scheme and inclusion in the Statutory Pension Scheme under Part III of the Kerala Service Rules. By Ext.P12 communication, the request of the petitioners was turned down by way of a letter from the Deputy Secretary (Finance) to the Principal stating that the additional division vacancies would become permanent vacancies only after three years and that therefore, the appointment of the petitioners would not confer any right on them to be included in the statutory pension scheme. 5.The petitioners challenged the said orders before this Court and by Ext.P13 judgment, Ext.P12 communication was set aside and the Government was directed to reconsider the matter with notice to the petitioners within two months. Thereafter, Ext.P14 order was passed stating that the W.P.(C).No.7260/2020 5 petitioners were appointed against additional division vacancies and that the additional division vacancies would become regular posts only after three years. It is further stated that since there was a break in service during vacation, the service from 3.9.2012 cannot be counted for pensionary benefits. 6. The learned counsel for the petitioners submits that creation of posts and their approval are governed by the provisions of the Kerala Education Act and Rules. It is submitted that there is absolutely no provision in law which states that an additional division vacancy becomes permanent only after three years. It is further stated that the Apex Court in **State** **of Kerala v. Sneha Cheriyan** 2013 (1) KLT 755(SC) has clearly held that appointments in permanent posts are liable to be approved on a scale of pay basis. It has been clarified by further decisions that incumbents in such posts are also entitled to vacation salary. It is, therefore, contended that the artificial break wrongly created by the respondents while approving appointments cannot be pleaded as a reason for W.P.(C).No.7260/2020 6 refusing to grant the benefits of statutory pension to the petitioners in view of the fact that the petitioners stood approved against regular vacancies with effect from 3.9.2012. 7.A counter affidavit has been placed on record by the 1[st] respondent. It is stated that in case of appointments made on or after 1.4.2013, the National Pension Scheme would be applicable and it is only where the appointments are made on an earlier date that the petitioners would be eligible for the benefit of statutory pension. It is stated that the appointments were approved from 3.9.2012 excluding the vacation period and therefore, there is a break in service and the continuous service would start only from June, 2013. It is therefore contended that the petitioners are out of view of the purview of statutory pension under Part III KSR. The respondents have also produced Ext.R1(a) letter issued by the Director General of Education stating that the additional division vacancies will become regular vacancies only after three years. W.P.(C).No.7260/2020 7 8.I have considered the contentions advanced. It is an admitted fact that the petitioners’ appointments had been made against vacancies which were available in the academic year 20122013. As a matter of fact, the petitioners’ appointments have been approved from 3.9.2012 onwards as is evident from Exts.P3 and P6 orders. The contention of the respondents is to the effect that additional division vacancies would become regular vacancies only after three years of their being sanctioned. In spite of an anxious consideration of the matter, I find absolutely no provision in the Kerala Education Act or the Rules framed there under which supports this notion of the respondents. Even though Ext.R1(a) communication of the Director General of Education is relied on, in the absence of any provision of law or competent Government order, I am unable to accept the contention that the additional division vacancies against which the petitioners were appointed would become regular vacancies only after three years. The rejection of the petitioners’ claim for inclusion in the statutory pension scheme on that ground is therefore completely untenable. W.P.(C).No.7260/2020 8 9. Further, the Apex Court in **State of Kerala** v. **Sneha Cherian,** has specifically held that a regular vacancy is liable to be filled up by making appointments on a scale of pay basis itself. The issue has been further considered by this Court in **NSS v.State of Kerala** [2013(4) KLT 921]. A learned single Judge of this Court held that what was sought to be rectified by amendments to sub-rule 3 of Rule 7A of Chapter XIVA KER was the evil of short spell appointments and creation of multiple claims under Rule 51A. It was further held that the contention of applicability of the amendment to Rule 7A(3) to regular vacancies was given up by the State before the Apex Court and that the Government Order dated 22.4.2013 which sought to backtrack from this position was liable to be set aside. 10. In the instant case, there is no dispute that the petitioners were appointed with effect from 3.9.2012 against sanctioned posts. From a reading of Exhibit P7 it is clear that the post available for the year 2010-2011 were allowed to continue for W.P.(C).No.7260/2020 9 the subsequent years also. It is not in dispute that the petitioners' appointments from 3.9.2012 were against regular vacancies. Rule 49 of Chapter XIVA KER refers to vacation salary of qualified teachers, except Headmaster appointed in vacancies which are not permanent. Since the appointment of the petitioners was against permanent vacancies, the provision that eight month's service is required for drawing vacation salary does not apply. The fact that the vacation salary was wrongly denied to them by the educational authorities cannot be a valid reason to state that they are not entitled to the benefits of the orders approving their appointment with effect from 3.9.2012 against regular vacancies. - 11.In the above view of the matter, I am of the opinion that the orders passed by the Government denying the benefits of statutory pension to the petitioners are completely untenable. The impugned orders are set aside. There will be a direction to the respondents to afford all consequential benefits of the approval of appointment to the petitioners from 3.9.2012 in W.P.(C).No.7260/2020 10 regular vacancies including vacation salary. They will also be entitled to inclusion in the statutory pension scheme under Part III of the KSR. Consequential orders shall be passed by the respondents within one month from the date of receipt of a copy of this judgment. The petitioners shall be entitled to refund of the National Pension contribution made by them, with applicable interest without delay, at any rate, within three months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. **sd/-** **Anu Sivaraman, Judge** sj W.P.(C).No.7260/2020 11 ## **APPENDIX** **' - PETITIONER S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE APPOINTMENT ORDER DATED 03.09.2012.** - **EXHIBIT P2** - **A TRUE COPY OF THE APPOINTMENT ORDER OF THE 1ST PETITIONER DATED 03.06.2013.** - **EXHIBIT P3 A TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 26.07.2017.** - **EXHIBIT P4 A TRUE COPY OF THE ORDER OF THE 5TH RESPONDENT DATED 27.09.2017** - **EXHIBIT P5 A TRUE COPY OF THE APPOINTMENT ORDER DATED 03.09.2012 AND THE PROCEEDING OF APPROVAL OF THE 5TH RESPONDENT DATED 01.07.2016.** - **EXHIBIT P6 A TRUE COPY OF THE ORDER PASSED BY THE 5TH RESPONDENT DATED 24.07.2018.** - **EXHIBIT P7 A TRUE COPY OF THE REVISED STAFF FIXATION OF THE SCHOOL FOR THE YEAR 2011-12 DATED 20.01.2012.** - **EXHIBIT P8 A TRUE COPY OF THE RELEVANT PAGES OF THE GO(P) NO.20/2013/FIN DATED 07.01.2013.** - **EXHIBIT P9 A TRUE COPY OF THE CONTRIBUTION DETAILS IN RESPECT OF THE PETITIONERS DURING FEBRUARY 2020.** - **EXHIBIT P10 A TRUE COPY OF THE ORDER DATED 27.03.2018 ISSUED BY THE 5TH RESPONDENT.** - **EXHIBIT P11 A TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT DATED 15.06.2018.** W.P.(C).No.7260/2020 12 **EXHIBIT P12 A TRUE COPY OF THE COMMUNICATION DATED 13.11.2018 BY THE 1ST RESPONDENT. EXHIBIT P13 A TRUE COPY OF THE JUDGMENT IN WP(C)NO.22201/2019 DATED 11.12.2019. EXHIBIT P14 A TRUE COPY OF THE GO(RT)NO.1500/2020/FIN DATED 24.02.2020. EXHIBIT P14(A) TRUE ENGLISH TRANSLATION OF EXT.P14.** ## **RESPONDENTS EXHIBITS:-** |**EXHIBIT R1(A)**|**TRUE COPY OF THE REPORT OF THE DIRECTOR**<br>**OF PUBLIC INSTRUCTIONS DATED**<br>**12.10.2018.**| |---|---| |**EXHIBIT R1(B)**|**TRUE COPY OF ORDER NO.B3/1056/17/D.DIS**<br>**DATED 27.9.2017 OF THE DISTRICT**<br>**EDUCATIONAL OFFICER, ALUVA.**| |**EXHIBIT R1(C)**|**TRUE COPY OF THE ORDER NO.B3/1691/17/D**<br>**DIS DATED 24.7.2018.**| ## **TRUE COPY** **PS TO JUDGE**