WP(C) Nos. 26118 of 2021 and 26631 of 2021 (Safeer Muhammed Haneefa P.T. v District Education Officer, Tirurangadi; Ali Akbar P.V. v District Education Officer, Tirurangadi)

## **`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. ```