IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 WP(C).No. 17560 of 2008(M) ------------------------------------- PETITIONER(S): ------------------------ 1. SHILNA RAJAPPAN, L.P.S.A., S.R.R.L.P. SCHOOL, PATTUKALAM, CHETTICAD, ALAPPUZHA. 2. R.BINEETHA, L.P.S.A., S.R.R.L.P. SCHOOL, PATTUKALAM, CHETTICAD, ALAPPUZHA. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.T.S.SHYAM PRASANTH RESPONDENT(S): ------------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION- DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA. 4. THE ASSISTANT EDUCATIONAL OFFICER, CHERTHALA. 5. THE MANAGER, SRR L.P.SCHOOL, PATTUKALAM, CHETTICAD, ALAPPUZHA DISTRICT. R1 TO R4 BY GOVERNMENT PLEADERMR.BINOY CHANDRAN R5 BY ADV. MR.P.R.VENKETESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.17560/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER APPOINTMENT APPROVED BY THE 4TH RESPONDENT TO THE PETITIONER. P2:- COPY OF THE APPROVAL ORDER DTD. 15.7.04 OF THE 4TH RESPONDENT TO THE PETITIONERS P3:- COPY OF THE NOTICE NO.C/658/2005 DTD. 7.3.2007 ISSUED BY THE 4TH RESPONDENT. P4:- COPY OF THE LETTER NO.F3/293 94/05 TD. 31.10.07 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT. P5:- COPY OF THE LETTER NO.F3/47382/2007/DPI DTD. 2.8.07 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT. P6:- COPY OF THE LETTER NO.23029/H2/08/G.EDN. DTD. 25.4.08 ISSUED BY THE IST RESPONDENT TO THE 3RD RESPONDENT. P7:- CO-P G.O.(P) NO.169/04/G.EDN. DTD. 15.6.04 ISSUED BY THE IST RESPONDENT. P8:- COPY OF THE LETTER NO.25711/H2/07/G.EDN. DTD. 4.7.07 ISSUED BY THE IST RESPONDENT TO THE 3RD RESPONDENT. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.17560 of 2008-M - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of September, 2009. JUDGMENT The petitioners are aggrieved by the orders culminating in Ext.P6 by which the approval of appointment for the year 2004-05 is directed to be treated as on daily wage basis with a further direction to recover the salary paid to them. The petitioners were appointed as LPSAs. by the Manager in vacancies which arose on 4.11.2004 an 15.7.2004. The vacancies are of permanent nature which were caused by the relief of existing teachers for joining Government service. By Exts.P1 and P2, the appointments have been approved by the District Educational Officer. The trouble arose when Ext.P3 order was issued after three years, based on an audit objection. Reliance is placed on G.O.(P) No.169/2004/G.Edn. dated 15.6.2004 wherein it is pointed out that the approval can be only on daily wage basis for the academic year 2004-05. By Ext.P4, the audit objection against the petitioners was disposed of by the Deputy Director of Education. The matter was taken up before the Director of Public Instruction by the petitioners and the Director of Public Instruction by Ext.P5 addressed to the Deputy Director of Education, took the view that the objection regarding wpc 17560/08 2 approval of appointment cannot be sustained. Direction was issued to waive the audit objection in respect of the petitioners. But it was held that recovery of vacation salary is in order. Against the said portion of the order the Manager approached the Government, but the Government while disposing of the said petition, directed in Ext.P6 to approve the appointment of the petitioners with effect from 14.11.2004 to 31.3.2005 and from 15.7.2004 to 31.3.2005 respectively, but on daily wage basis and from the next academic year onwards, on regular basis in terms of G.O.(P) No.169/2004/G.Edn. dated 15.6.2004. The petitioners are relying upon Ext.P8 order issued in favour of one Smt. Lekshmipriya K., LPSA whereby the Government directed to grant approval on regular basis with effect from 1.9.2004, since the vacancy is a regular one. It is pointed out that the same treatment ought to have been meted out to the petitioners, since the vacancies are not restricted to one academic year and it is of a permanent nature. 2. The respondents have filed a counter affidavit in support of the orders issued. The fact that the petitioners were appointed in the resultant vacancies which arose due to the relief of existing teachers for joining Government service, is admitted in the counter affidavit. But the contention raised is that even though they were appointed against the regular vacancies wpc 17560/08 3 occurred due to relieving of the teachers to take up Government employment, the duration of period of appointment in the academic year 2004-05 was less than one year and the appointment ought to have been made on daily wage basis in the light of G.O.(P) No.169/04/G.Edn. dated 15.6.2004. 3. Learned counsel for the petitioners raised two contentions. It is pointed out that since the vacancies are of permanent nature which arose subsequent on the relief of existing teachers, they extend beyond one academic year and the fact that the period that is covered by the academic year 2004-05 is less than one academic year is immaterial. It is pointed out that even going by para 6 of Govt. Order dated 15.6.2004, viz. Ext.P7, approval granted to the petitioners cannot be objected. Para 6 of Ext.P7 is extracted below: “Hereafter the claim for re-appointment under rule 51A of the KER will be limited to those who have been appointed against regular/leave vacancies having a duration of not less than one academic year. The vacancies having duration of less than one academic year will be filled up on daily wage basis.” Actually, para 6 refers to consideration of claim for appointment under Rule 51-A and it is specified that the same will be limited to those who have been appointed in a vacancy having a duration of less than one academic year. wpc 17560/08 4 The specification in para 6 regarding the filling up of vacancy on daily wages is confined to vacancies having duration of less than one academic year only. Therefore, it is essential to find out whether the vacancies are limited to less than one academic year or not. Going by the facts pointed out above, it is clear that the vacancies are not limited to a period less than one academic year. Merely because during the year 2004-2005, the duration of the vacancy is less than one academic year, it cannot be termed that para 6 of Ext.P7 will apply. 4. I am fortified in this view by the recent judgment of a Division Bench of this court in Unni Narayanan v. State of Kerala (2009 (2) KLT 604). Therein, the similar clauses in a later Govt. Order, viz. G.O.(P) No.104/08/G.Edn. dated 10.6.2008, were considered. In fact para 5 (i) of the said Govt. Order states that “if the period of appointments does not cover one academic year (i.e. from the reopening day of the school after summer vacation to the closing day for summer vacation), the appointment shall be made only on daily wages.” The Division Bench after noticing Rule 7A of chapter XIV A K.E.R., held thus in para 8: “We notice that sub-rule (3) of Rule 7A speaks of vacancies, the duration of which is less than one academic year. In other words, if the vacancy is having a duration of one academic year or more, wpc 17560/08 5 appointment can be made to fill up the same. The term of appointment need not be co-terminous with the term of the vacancy. If, in fact, the vacancy is having a duration of one academic year or more, even if, there is some delay in making the appointment, such appointment will have to be approved. The reason is that Rule 7A speaks of duration of vacancy and not duration of appointment. So, we are of the view that if appointments are made to vacancies, having duration of one academic year or more, they are liable to be approved.” In that view of the matter, the interpretation of para 6 of Ext.P7 will also be governed by the said Division Bench decision. 5. Apart from that, it is evident from Ext.P5 that the Director of Public Instruction has considered the matter in the right perspective. He was of the view that the approval of appointments made against regular/permanent vacancies cannot be objected in the light of G.O. (P) No.169/04/G.Edn. dated 15.6.2004. But still, the Government, without considering the various aspects, directed that the approval be on daily wages for the remaining period of the academic year 2004-05. Plainly, that cannot be supported. Therefore, Exts.P3, P4 and P6 are quashed. 6. What remains is the claim for payment of vacation salary. The relevant rule is Rule 49 of Chapter XIV-A K.E.R. Going by the said rule, for getting the vacation salary there should be not less than eight months wpc 17560/08 6 service in the particular academic year, as on the closing day of the academic year. It is specifically made mention thereof that teachers so retained shall be entitled to the vacation salary. 7. The term of appointment of the first petitioner starts from 4.11.2004. Therefore, it is less than eight months. As far as the second petitioner is concerned, the period of appointment starts from 15.7.2004. Hence, she will be entitled for vacation salary. Therefore, the writ petition is allowed, declaring that the approval granted as per Exts.P1 and P2 are legal and valid. The first petitioner will not be entitled for payment of vacation salary during the year 2004-05, whereas the second petitioner will be entitled for vacation salary for the said year. If the first petitioner has already received vacation salary for the year 2004-05, the same will be refunded within a period of two months from today. No costs. (T.R. Ramachandran Nair, Judge.) kav/