IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 WP(C).No. 34047 of 2008(C) ---------------------------------------- PETITIONER(S): ------------------------ JEENA.K.S., UPSA, VPM SNDP HSS, KAZHIMBRAM, THRISSUR. BY ADVS. MR.PHILIP T.VARGHESE MR.THOMAS T.VARGHESE RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP. BY THE SECRETARY GENERAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA THIRUVANANTHAPURAM. 2. DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD 3. CORPORATE MANAGER, SNDP YOGAM SCHOOLS, KOLLAM. 4. HEAD MASTER, VPM SNDP HSS, KAZHIMBRAM, THRISSUR. R1 & R2 BY GOVT. PLEADER SMT.M.R.SREELATHA R3 BY ADV. MR.A.N.RAJAN BABU, SC, S.N.TRUST THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.54047/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPOINTMENT ORDER ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DTD. 3.12.01. P2:- COPY OF THE APPOINTMENT ORDER ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DTD. 12.6.02. P3:- COPY OF THE APPOINTMENT ORDER ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DTD. 25.6.04. P4:- COPY OF THE APPOINTMENT ORDER ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DTD. 25.7.06. P5:- COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DTD. 11.1.08. P6:- COPY OF THE WRITTEN SUBMISSION GIVEN BY THE PETITIONER TO THE 2ND RESPONDENT DTD. 12.2.08. P7:- COPY OF THE LETTER NO.B5-21/08 DTD. 23.10.08 ISSUED BY THE 2ND RESPONDENT. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 34047 of 2008-C - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of November, 2009. JUDGMENT Learned counsel for the petitioner submitted that the legal issue that is raised in this writ petition is covered by the judgment of this Court in W.P. (C) No.5895/2009. 2. The petitioner herein is aggrieved by Ext.P7 order passed by the District Educational Officer. The short facts leading to the dispute are the following: The petitioner is working as a UPSA in the school managed by the third respondent. She was first appointed as UPSA in a leave vacancy from 3.12.2001 to 30.1.2002. The said appointment was approved as per Ext.P1. Thereafter, the petitioner was appointed for the period from 12.6.2002 to 24.6.2004 in the leave vacancy of one Smt. M.M. Deepa. That appointment was also approved as per Ext.P2. 2. Thereafter, the petitioner was appointed from 25.6.2004 to 24.6.2009 in another leave vacancy. When a regular vacancy arose in the school with effect from 19.7.2006 due to the promotion of Smt. M.M. Deeba as H.S.A., the petitioner was absorbed in the said vacancy as per Ext.P4, but so far the said appointment has not been approved. wpc 34047/2008 2 3. The present dispute has nexus with the maternity leave granted to the petitioner for the period from 2.9.2002 to 14.1.2003. An objection was raised by the second respondent as per Ext.P5 in the matter. The petitioner appeared pursuant to the notice issued and the matter was heard. The objection raised by the second respondent is based on Note 4 to Rule 100 of Part I K.S.R. Ultimately, by Ext.P7, overruling the objections raised in Ext.P5, it was held that the maternity leave sanctioned is irregular and therefore the petitioner is liable to be terminated from service. 4. The question turns upon the interpretation of the relevant rule, viz. Rule 100 of Part I K.S.R. and the Note thereof. The said position has been examined by this Court in W.P.(C) No.5895/2009 and it was held thus in paragraphs 7 to 11: “7. What remains is the period covering the maternity leave. The relevant provision is Note 4 below Rule 100 of Part I K.S.R. which reads as follows: “Maternity leave under this rule and Rule 101 shall be admissible to provisional female recruits continuing in service in a single department beyond one year provided they would continue in service but for proceeding on such leave.” The stand taken by the respondents is that since the petitioner had availed of leave prior to the expiry of one year service, she is not wpc 34047/2008 3 entitled for sanction of the leave. The same is evident from para 5 of the counter affidavit. Learned counsel for the petitioner submitted that the view taken by the Government that the petitioner is a provisional female recruitee, cannot be supported. She was actually working as a leave substitute in a leave vacancy consequent on grant of leave without allowance for a period of five years. It is against a sanctioned post. In terms of the relevant rules of Chapter XIV-A K.E.R., the said period was reckoned for the purpose of declaration of probation and for grant of increment. She was never a provisional female recruitee. Reliance is placed on Ext.P8 which is a copy of letter dated 30.1.1993 from the Government to the Director of Public Instruction, especially para 2 therein. It is stated in para 2 as follows: “ As regards the grant of maternity leave to those appointed on leave vacancies if the appointment made against the vacancies the duration of which is beyond one year, maternity leave will be admissible as per KSR vide Note 4 Rule 100 Part I K.S.R.” It is therefore clear that going by the view reflected therein, the contention raised by the petitioner has to be accepted. Herein, the petitioner was appointed initially against a vacancy, the duration of which is beyond one year. The intention behind Note 4 of Rule 100 is clear that it applies in a case where the provisional appointment is for a period beyond one year. This aspect is clear from the contents of of the said Note, viz. “Maternity leave under this rule and Rule 101 shall be admissible to provisional female wpc 34047/2008 4 recruits continuing in service in a single department beyond one year provided they would continue in service but for proceeding on such leave.” There is no bar for applying the leave before the expiry of one year. 8. In Dr. Daizy Philip v. The State of Kerala and others (ILR 1999 (1) Ker.619), it was held by a Division Bench of this Court that provisional employees appointed for a period beyond one year only are entitled to maternity leave. The relevant findings contained in para 3, are the following: “We have carefully gone through the above rule and in our opinion Note 4 is clear enough that a provisional female recruit viz., a temporary employee will not be eligible for maternity leave unless she continues in service beyond one year as provided in the rules. Here, as already noticed the term of appointment of the appellant was from 8th June 1994 to 12th April 1995 and the maternity leave applied for by the appellant was from 21st February 1995 to 12th April 1995. The period of leave and period of appointment terminated on the very same day. Therefore, as rightly pointed out by the learned Government Pleader a temporary recruit will not be eligible for maternity leave, unless the incumbent continues in service beyond one year.” In that view of the matter, the stand taken by the respondents cannot be accepted. 9. The petitioner is also relying upon Ext.P14 Government circular wherein it is specified that “in the case of lave substitute wpc 34047/2008 5 aided school teachers annual increments are given. Hence, there is no rationale in denying the benefit of higher grade to aided school teachers irrespective of the fact whether they are working against leave vacancies or on regular vacancies.” Therefore, the Government clarified that fully qualified aided school teachers appointed as leave substitutes and who are given annual increments can be given service based higher grades. Therefore, the idea conveyed by the said circular is also important. 10. It is the contention of the petitioner by relying upon Ext.P11 that even a provisional employee will be eligible for maternity leave. In fact, in Ext.P11 it is ordered that Maternity Leave under Rules 100 and 101 of Part I K.S.R., be treated as duty for the purpose of probation. The petitioner was granted maternity leave from 1.10.1999 to 12.2.2000, during the period of probation. In that view of the matter, the stand taken in Ext.P6 that the maternity leave sanctioned is irregular, also cannot be supported. Learned counsel for the petitioner invited my attention to Ext.P12 which is a letter addressed to the Government by the Director of Collegiate Education. Therein, the Government clarified that appointments in private colleges against leave vacancies, cannot be considered as provisional or temporary. 11. As far as the words 'provisional female recruitee' is concerned. it cannot be disputed that it relates to a provisional appointment as such in terms of the relevant rules. Under the Kerala Education Rules, normally there cannot be an appointment on provisional basis. Whenever a vacancy arises, the duration of wpc 34047/2008 6 which permits appointment under Chapter XIV-A K.E.R., the manager is entitled to fill up the vacancy. There may be various types of vacancies including leave vacancies. Herein, the petitioner was earlier appointed as a leave substitute and not as a provisional teacher or a temporary teacher at all. Ext.P1 shows that the appointment is approved as U.P.S.A. The word 'provisional' and 'temporary' cannot have any relevance as far as the appointment under Chapter XIV-A is concerned. Therefore, the said words in Rule 100 of Part I K.S.R. will not apply as far as a leave substitute like the petitioner is concerned. As already noticed, the said period has been counted for the purpose of declaring the probation and for grant of increments and other benefits.” 5. In the light of the above dictum laid down by this Court, the petitioner is entitled to succeed. Herein, the maternity leave was for the period from 2.9.2002 to 14.1.2003. The period of appointment was from 12.6.2002 to 24.6.2004 in a leave vacancy, which appointment was approved already. The interpretation given by the second respondent to the rule cannot therefore be sustained. The direction to terminate the petitioner's service on the reason that she is ineligible to be granted the leave cannot stand scrutiny. 6. Therefore, Ext.P7 is quashed. There will be a direction to the second respondent to disburse the salary for the period the petitioner was wpc 34047/2008 7 continuing in service on the basis of approval granted in terms of various orders. In the light of the fact that Ext.P7 is quashed, the second respondent will pass appropriate orders for granting approval based on Ext.P4 appointment order. The orders as above, will be passed within a period of two months from the date of receipt of a copy of this judgment. Depending upon the final order, the petitioner will be granted the monetary benefits. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/