Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR THURSDAY, THE4H DAY OF DECEMBER201413TH AGRAHAYANA, 1936 WP(C).No. 11048 of 2014 (E) ---------------------------- PETITIONER(S): -------------------------- 1. SMITHA KELOTH, HSST (JR) HINDI, ST.THOMAS H.S.S., KELAKAM P.O,KELAKAM KANNUR DISTRICT, PIN:
670. 674.
2. SMT.VIJI P.T., HSST COMMERCE, ST.THOMAS H.S.S. KELAKAM, P.O.KELAKAM KANNUR DISTRICT, PIN:670 674. BY ADVS.SRI.V.C.JAMES SRI.SEBASTIAN JOSEPH (KURISUMMOOTTIL) RESPONDENT(S): ---------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT GENEAL EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM. 695 001 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 695 001 3. THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCTION, REGIONAL OFFICE, KOZHIKODE. 673 101 4. THE MANAGER, ST.THOMAS HIGHER SECONDARY SCHOOL, KELAKAM, KANNUR DISTRICT. 670 674 R1 -R3BY GOVERNMENT PLEADER SMT.SUNITHA VINOD R4 BY ADV.SRI.SAJI.P.JOSEPH R4 BY ADV.SRI.A.JOSEPH GEORGE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON0412-2014 ALONG WITH WPC.NO.15651/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 11048 of 2014 (E) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXT.P1: THE TRUE COPY OF THE CIRCULAR NO.B5/47005/HS/2010 DATED1511/2011 OFTHE DIRECTOR OF HIGHER SECONDARY EDUCATION. EXT.P2: THE TRUE COPY OF THE GOVERNMENT ORDER
G.O.(RT) NO.211/2011/G.G.EDN. DATED2410/2011 REFERRED TO IN EXT.P1 REFERENCE NO.2. EXT.P3:TRUE COPY OF THE ORDER
NO.B4/14035/2011(3) DATED119/2012. EXT.P4:TRUE COPY OF THE ORDER
NO.B4/14035/2011(2) DATED129/2012. EXT.P5: THE PHOTOCOPY OF THE GOVT. ORDER
G.O.(MS)NO.126/1992/G.EDN, DATED176/1992. EXT.P6: COPY OF THE ORDER
A3/12735/11 DATED194.2012. EXT.P7: COPY OF COMMUNICATION NO.ACD-C3/53830/HSE/2013 DATED1912.2013. RESPONDENT(S)' EXHIBITS: NIL --------------------------------------- //TRUE COPY// P.S.TO JUDGE A.K.JAYASANKARAN NAMBIAR, J.
------------------------------- W.P.(C).NO.11048 OF2014(E) & W.P.(C).NO.15651 OF2014(F) ----------------------------------- Dated this the 4th day of December, 2014
JUDGMENT
As the issues involved in both these writ petitions are similar, they are taken up together for consideration and disposed by this common judgment. For the sake of convenience, the reference to the facts and exhibits is from W.P.(C).No.15651/2014.
2. The petitioners are persons who were appointed as Higher Secondary School Teachers [HSST] to various posts that were created, pursuant to Ext.P1 order dated 24.10.2011, in the Schools under the management of respondents 4 to 6. The grievance of the petitioners in the writ petition is that while they were formally appointed in various Schools, the 3rd respondent, while approving their appointments with effect from the date of their appointments, qualified the approvals with the condition that the candidate would not be eligible for salary during the ensuing vacation, in terms of Rule 49 of Chapter XIVA of the Kerala Education Rules [KER]. Exts.P3 to W.P.(C).NO.11048/2014 & 2 W.P.(C).NO.15651/2014 P21 orders of the 3rd respondent approving the appointment of the petitioners, all contain the said qualification inserted by the 3rd respondent, as a condition for the grant of approval to the appointment of the petitioners. In the writ petition, the petitioners impugn the said orders of the 3rd respondent, to the extent they qualify the approval with the condition that the petitioners will not be entitled for salary during the vacation period in the year of their appointment.
3. In W.P.(C).No.11048/2014, the petitioners impugn Exts.P3 and P4 orders passed by the 3rd respondent in similar circumstances as in the case of the petitioners in W.P.(C).No.15651/2014.
4. I have heard Sri.Grashious Kuriakose, the learned senior counsel appearing on behalf of the petitioners in W.P.(C). No.15651/2014, Sri.Sebastian Joseph Kurisummoottil, the learned counsel appearing for the petitioners in W.P.(C).No.11048/2014 as also Smt.Sunitha Vinod, the learned Government Pleader appearing on behalf of the respondents in both the writ petitions. W.P.(C).NO.11048/2014 & 3 W.P.(C).NO.15651/2014 5. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that in the orders issued by the 3rd respondent, approving the appointments of the petitioners to posts of HSST Junior in the respective Colleges, there is a condition inserted which qualified their approval by stating that the petitioners would not be entitled to vacation salary in the year of their appointment. The orders passed by the 3rd respondent would indicate that the stand taken by the 3rd respondent was on account of Rule 49 of Chapter XIVA of KER which deals with the non-payment of vacation salary to teachers appointed in terms of that Chapter under certain specified circumstances. While no provision has been brought to my notice that would suggest that there is a similar Rule applicable in respect of persons appointed as HSSTs in Higher Secondary Schools covered by Chapter XXXII of the KER, I note that by way of Ext.P22 order of the Government and Ext.P23 clarification issued by the Directorate of Higher Secondary Education, it has been made clear that persons such as the petitioners, who were appointed to permanent vacancies in Higher Secondary Schools, would be entitled to vacation salary so long as the appointment persisted even for the period subsequent to 31st March of the calender year. In the light of W.P.(C).NO.11048/2014 & 4 W.P.(C).NO.15651/2014 Ext.P23 clarification, I do not see any reason why the petitioners should be denied the benefit of vacation salary, more so when there is no statutory provision that is brought to my notice which would indicate that the petitioners are not entitled to such vacation salary. It might also be relevant to refer to the judgment of the Division Bench of this Court in Pathanapuram Taluk Samajam Corporate Management Schools v. Sreelatha - [2006 (3) KLT867, which was rendered in the context of a case where the applicability of Rule 51B of Chapter XIVA of the KER to appointments effected under Chapter XXXII of the KER, came up for consideration, and it was held that unless a similar provision, as contained in Rule 51B, was incorporated in Chapter XXXII, it was not possible to contend that the benefits of employment assistance available to dependents of aided High School and Primary School teachers could be extended to vacancies available in Higher Secondary Section. Drawing analogy from the said decision, and also noticing that there is no provision similar to Rule 49A of Chapter XIVA in Chapter XXXII of the KER, I am of the view that the condition impugned in the orders passed by the 3rd respondent cannot be legally sustained. Accordingly, I quash Exts.P3 to P21 in W.P.(C).No.15651/2014 and Exts.P3 and P4 in W.P.(C).NO.11048/2014 & 5 W.P.(C).NO.15651/2014 W.P.(C).No.11048/2014, to the extent they impose a condition that the candidate in question is not entitled to vacation salary in the year 2012 in terms of Rule 49 of Chapter XIVA of the KER. The respondents shall take immediate steps to disburse the vacation salary that is due and payable to the petitioners in the writ petitions within a period of three months from the date of receipt of copy of this judgment. Both the writ petitions are disposed as above. A.K.JAYASANKARAN NAMBIAR JUDGE prp