IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE KURIAN JOSEPH TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 WA.No. 2699 of 2007 --------------------------- AGAINST THE JUDGEMENT IN WPC.18811/2007 Dated 05/10/2007 .................... APPELLANT/PETITIONER ----------------------------------- RESMI KURIAKOSE, KAVATTUPARAMBIL HOUSE, KOOTHATTUKULAM P.O. BY ADV. SRI.B.GOPAKUMAR RESPONDENTS/RESPONDENTS ---------------------------------------------- 1. DISTRICT EDUCATIONAL OFFICER, MUVATTUPUZHA. 2. MANAGER, ST.JOHN'S SYRIAN HIGH SCHOOL, VADAKARA, OLIYAPPURAM P.O., KOOTHATTUKULAM. 3. THE HEADMASTER, ST.JOHN'S HIGH SCHOOL, VADAKARA, OLIYAPPURAM P.O., KOOTHATTUKULAM. 4. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO THE DEPARTMENT OF EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. ADDL.5. FR.JOY KADUKKUMMAKKIL, S/O.CHAKOCHAN, AGED 42, VICAR, ST.JOHN'S ORTHODOX SYRIAN CHURCH, VADAKARA, OLIYAPURAM P.O., KOOTHATTUKULAM. (ADDL.5TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 16.6.2009 IN I.A.NO.293 OF 2009) R1 & R4 BY SR.GOVERNMENT PLEADER SRI.BENJAMIN PAUL SRI.GEORGE VARGHESE (MANACHIRACKEL) FOR R.3 SMT.ANJU MEERA BIRLA FOR R.3 SRI.K.JAJU BABU FOR R2 SRI.S.SREEKUMAR FOR ADDL.R5 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R.Bannurmath, C.J. & Kurian Joseph, J. ------------------------------------------ W.A. No. 2699 of 2007 ------------------------------------------ Dated, this the 16th day of June, 2009 JUDGMENT Kurian Joseph, J. Appellant is the writ petitioner. As per Ext.P1, the writ petitioner was appointed under the second respondent as High school Assistant (Physical Science). The appointment order shows that the appointment is to a newly sanctioned post with effect from 21.11.2005. The order further shows that the appointment is till the vacancy exists. However, the first respondent District Educational Officer, though approved the appointment of the petitioner as Probationary High School Assistant with effect from 21.11.2005, the approval was limited to 31.3.2006. Apparently the said restriction is in view of Rule 49 of Chapter XIV(A) of the Kerala Education Rules. The Manager who appointed the petitioner as per Ext.P1 again issued another proceedings dated 22.5.2006 stating that the vacancy exists and hence the writ petitioner was re-appointed. That was turned down by the first W.A.No.2699 of 2007 - 2 - respondent as per Ext.P4 mainly on the ground that the appointment of the writ petitioner was not by an approved Manager. The learned Single Judge disposed of the writ petition relegating the petitioner to pursue her statutory remedy. 2. The learned counsel appearing for the appellant submits that since the writ petitioner was appointed against a newly sanctioned post, the first respondent should have approved the appointment of the petitioner without any restriction, until the expiry of the vacancy. Learned counsel appearing for the party respondent, however, submits that the District Educational Officer is justified in limiting the approval upto 31.3.2006 in view of Rule 49 of Chapter XIV(A) of the Kerala Education Rules. We are afraid, this submission cannot be appreciated. Rule 49 of Chapter XIV(A) of the Kerala Education Rules reads as follows: “49. Qualified teachers except Headmasters appointed in vacancies which are not permanent which extend over the summer vacation and who continue in such vacancies till the closing date shall be retained in the vacancies during the vacation, if W.A.No.2699 of 2007 - 3 - their continuous service as on the closing day is not less than eight months. The teachers so retained shall be entitled to the vacation salary. These teachers shall be relieved on the closing day if their continuous service as on that day is less than the aforesaid period. This rule shall not apply to teacher appointed in training vacancies. Explanation- For the purpose of this rule, 'Headmaster' includes 'Teacher-in-charge' also. 3. It is clear from a bare reading of the provision that the retention during vacation is only in respect of teachers who are appointed to vacancies having life for more than eight months. The Rule does not speak about approval. The Rule only speaks about retention of a teacher during vacation. In other words, a teacher appointed to a short term vacancy having a duration of below eight months will not be entitled to be retained in vacation and consequential vacation salary. In the case of the writ petitioner, the appointment is against a newly sanctioned post as can be seen from Ext.P1. True, it is stated in the order itself that the appointment is till the vacancy exists. That is the fate of every appointment. The appointment is only till a W.A.No.2699 of 2007 - 4 - vacancy in respect of the post exists. That does not in any way indicate that this is an appointment against a vacancy for a period of eight months or below. In that view of the matter, a further appointment as such is unnecessary. 4. Be that as it may. Since the learned Single Judge has already relegated the petitioner to pursue the statutory remedy of appeal and since the higher authorities are also to look into the facts, we are also of the view that the petitioner should pursue that statutory remedy so that the departmental authorities will get an opportunity to refer to the facts. It is brought to our notice that in between the related issues have been considered by the departmental authorities upto the level of Director of Public Instruction. Therefore, the parties agree that the statutory remedy that is to be pursued by the writ petitioner be the revisional authority, namely the Government. 5. In the above circumstances, we dispose of the writ appeal making it clear that in the event of the writ petitioner pursuing her remedy by way of revision within a period of 30 days from today, the same shall be treated to have been filed in time and the Government W.A.No.2699 of 2007 - 5 - shall dispose of the revision petition with notice to the writ petitioner and the party respondent within another three months, in the light also of the observations contained in the judgment. Monetary benefits, if any, to which the writ petitioner if found eligible in the process shall be disbursed within two months thereafter and if not the same would carry interest at the rate of 8% from the date of eligibility and the officers responsible for the delay shall be personally liable for the same. S.R.Bannurmath, Chief Justice Kurian Joseph, Judge vns