IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 WA.No. 2518 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.17560/2008 Dated 08/09/2009 .................... APPELLANT(S): 1ST PETITIONER ---------------------------- SHILNA RAJAPPAN, LPSA, S.R.R.L.P.SCHOOL, PATTUKULAM, CHETTICAD, ALAPPUZHA. BY ADV. SRI.C.K.SAJEEV RESPONDENT(S): RESPONDENTS & 2ND PETITIONER ------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. TH DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA. 4. THE ASST.EDUCATIONAL OFFICER, CHERTHALA. 5. THE MANAGER, S.R.R.L.P.SCHOOL, PATTUKULAM, CHETTICAD, ALAPPUZHA DISTRICT. 6. R.BINEETHA, L.P.S.A., S.R.R.L.P.SCHOOL, PATTUKULAM, CHETTICAD, ALAPPUZHA DISTRICT. GOVERNMENT PLEADER SMT. R. BINDU FOR R1 TO 4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 2518 OF 2009 --------------------------------------------- Dated this the 11th day of January, 2010 JUDGMENT Balakrishnan Nair, J. The appellant was the first petitioner in the Writ Petition. She was appointed as Lower Primary School Assistant in the 5th respondent's school, as per Ext.P1, on 4.11.2004. The said appointment was approved by the Assistant Educational Officer, the 4th respondent herein. Later, on account of audit objection, the 4th respondent cancelled the approval of appointment on the ground that the duration of the vacancy is less than one academic year and, therefore, the appointment should have been made only on daily wage basis. The matter was carried before the higher authorities, including the Government. All the statutory authorities held against the appellant. So, those orders were challenged before this Court by filing the Writ Petition. The learned Single Judge allowed the Writ Petition, quashing the impugned order, but held that the appellant/first petitioner is not entitled to the salary for the vacation period of April-May, 2005. This W.A. NO. 2518/2009 2 appeal is preferred challenging the judgment only to the above extent of denial of salary for the vacation period. 2. We heard the learned counsel on both sides. Learned counsel for the appellant took us through Rule 49 of Chapter XIV A of the Kerala Education Rules and submitted that since the vacancy in which the appellant was appointed is a permanent vacancy, the pre-requisite of eight months' service for drawing salary for the vacation period cannot be insisted. 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 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.” 3. Going by the above rule, we agree with the contention raised by the appellant. As is evident from Ext.P1, the appellant was appointed in a W.A. NO. 2518/2009 3 regular vacancy. Eight months' service, for claiming vacation salary, is insisted only in the case of persons working in vacancies which are not permanent. In view of the above position, the Writ Appeal is allowed. The judgment of the learned Single Judge to the extent it is impugned by the appellant is reversed. It is declared that the appellant is entitled to get salary during the vacation period of April-May, 2005. Therefore, the salary already paid to the appellant shall not be recovered. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NO. 2518/2009 4 K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.A.NO.2518/2009 JUDGMENT 11th January, 2010 W.A. NO. 2518/2009 5