Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE MRS. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 29TH DAY OF JANUARY 2013 9TH MAGHA 193 WA.No. 1954 of 2012 () IN WP(C).15461/2010 ------------------------------------------- AGAINST THE ORDER/JUDGMENT IN WP(C).15461/2010 of HIGH COURT OF KERALA APPELLANT(S)/APPELLANTS/RESPONDENTS 1 TO 4.------------------------------------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY DEPARTMENT OF GENERAL EDUCATION,SECRETARIAT THIRUVANANTHAPURAM.
2. THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM.
3. THE DEPUTY DIRECTOR OF EDUCATION KOLLAM.
4. THE DISTRICT EDUCATION OFFICER KOLLAM. BY SR.GOVERNMENT PLEADER SRI.P.I.DAVIS RESPONDENT(S)/RESPONDENTS/PETITIONERS : ---------------------------------------- 1. ELIZA V., AGED 4 YEARS W/O. JAYACHANDRAN,U.P.S.A.,CFHS KOTTIYAM,RESIDING AT JNJ COTTAGE,VELLIMON (W) P.O. KOLLAM-691511.
2. RITA JOLLY, AGED 4 YEARS W/O. JOHNSON CYRIL,UPSA,CFHS KOTTIYAM,RESIDING AT FORTUNES,KILIKOLLOOR P.O. KOLLAM-4.
3. THE CORPORATE MANAGER OFFICE OF THE CORPORATE MANAGER OF CATHOLIC SCHOOLS BISHOPS HOUSE,KOLLAM-691007. R3 BY ADV. SRI.JOHN JOSEPH VETTIKAD R3 BY ADV. SRI.C.JOSEPH JOHNY R1 AND R2 BY SMT.REKHA VASUDEVAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MANJULA CHELLUR, C.J & K.VINOD CHANDRAN, J.
---------------------------------------------- W.A.No. 1954 of 2012 ---------------------------------------------- Dated this the 29th day of January, 2013 JUDGMENT Manjula Chellur, C.J.
Heard learned Senior Government Pleader Sri.P.I.Davis as well as Smt.Rekha Vasudevan, learned counsel appearing for respondents 1 and 2.
2. It is not in dispute that respondents 1 and 2 herein approached the learned Single Judge being aggrieved by orders at Exhibits P15 and P16 refusing to regularise their appointments on regular pay scale instead of daily wages. The contention of the writ petitioners before the learned Single Judge was, in the wake of Rule 7A of Chapter XIV-A of the Kerala Education Rules (for short, 'KER'), the Government Orders relied upon by the State cannot have any enforceable status, therefore, they sought for relief as stated above. The contention of the State was, as a clarificatory nature the Government order in question was issued, which is not repugnant to Rule 7A of Chapter XIV-A KER. The entire situation revolves round whether the appointment of the WA.1954/12 2 writ petitioners was for one academic year or not. According to the writ petitioners, it was for more than one year and even as on date they are continued as UPSA on daily wages and not on regular pay scales. According to the learned Senior Government Pleader, Rule 7A of Chapter XIV-A KER, especially sub-rule (3) governs the field. Rule 7A of Chapter XIV-A KER reads as under: "7A. (1) x x x (2) Posts that may fall vacant on the closing date shall not be filled up till the reopening date except in the case of posts of non-vacation staff. (3) Vacancies, the duration of which is less than one academic year, shall not be filled up." Clauses 1 and 2 of the Government Order read as under: "1. If the period of appointment do not cover one academic year then the appointments can only be on daily wages.
2. If the period of appointments commence after the beginning of the reopening day and even if it extends over the next academic year, the periods up to the vacation/closing day should be approved only on daily wages. Thereafter further appointment has to be made and if the said appointment was also for a period less than 1 academic year the WA.1954/12 3 same shall be approved only on daily wage basis." 3. Apparently, by any stretch of imagination, one cannot understand from reading the above Rule that there is any restriction if the vacancy is for more than one academic year. The restriction is only to the effect that if it is below one academic year, there is no question of regular pay being paid to the appointees. Reading the Government Order and the Rule it is made very clear that in order to avoid payment on regular basis, this Government Order is issued, which runs quite contra to the Rule as stated above. If the facts of this case is taken into consideration, the vacancy arose on account of leave of regular teachers as early as on 26.5.2008. The writ petitioners were taken on daily wage basis from 30.6.2008 to 20.11.2009 in the first spell and they were continued till date; as the regular teachers extended their leave.
4. In that view of the matter, though different orders were given for continuation of the writ petitioners on daily wages, factually, right from 30.6.2008 till date they are working. In that view of the matter, the learned Single Judge was justified in observing that it was beyond one academic year and there is no impediment for payment on regular basis, therefore, there was no WA.1954/12 4 justification to deny such claim of the writ petitioners. While observing so, the learned Single Judge also placed reliance on other two judgments of this Court, which relied upon Unni Narayanan v. State of Kerala (2009(2) KLT
604) and the observation of the learned Single Judge is justified. We find no good ground to interfere with the said observation. Accordingly, the Writ Appeal is dismissed. MANJULA CHELLUR, CHIEF JUSTICE K.VINOD CHANDRAN, JUDGE vgs30.1