IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 WP(C).No. 37958 of 2008(R) ------------------------------------- PETITIONER(S): ----------------------- MANJOOSH MATHEW, AMBATTUPOTHIYIL HOUSE, THIDANADU P.O., KOTTAYAM DISTRICT. BY ADVS. SRI.GEORGEKUTTY MATHEW SRI.GEORGE POONTHOTTAM RESPONDENT(S): ----------------------- 1. THE SECRETARY TO GOVERNMENT DEPARTMENT OF SCHOOL EDUCATION SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT EDUCATIONAL OFFICER, KANJIRAPPALY. 3. A.N.SABU, MANAGER, G.M.HIGH SCHOOL, PARATHODE, KANJIRAPPALLY, KOTTAYAM DISTRICT. *ADDL. R4 IMPLEADED. 4. V.R.RETNAKUMAR, MANAGER , G.M.HIGH SCHOOL, PARATHODE P.O., KANJIRAPPALLY, KOTTAYAM DISTRICT. *ADDL. R4 IS IMPLEADED AS PER ORDER DT. 27.3.2009 IN IA. 3148/2009. R1 BY GOVT. PLEADER SMT.SMITHA SUKUMARAN R3 & R4 BY ADVS. SRI.S.EASWARAN, SRI.P.MURALEEDHARAN (IRIMPANAM). THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/04/2011, ALONG WITH WPC NO. 5471 OF 2009 WPC NO. 9382 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.37958/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER DTD. 26.4.2007 PASSED BY THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM. P2:- COPY OF THE ORDER DTD. 4.8.07 PASSED BY D.P.I. P3:- COPY OF THE JUDGMENT DTD. 2.7.08 IN W.P.(C) NO.20296/07. P4:- COPY OF THE ORDER DTD. 24.11.2008 PASSED BY THE IST RESPONDENT. P5:- COPY OF THE COUNTER AFFIDAVIT DTD. 30.4.2007 FILED BY THE 2ND RESPONDENT HEREIN IN WP(C) NO.858/2007. RESPONDENT'S EXHIBITS R2(a):- COPY OF THE ABOVE LETTER DTD. 26.4.2006. R3(a):- COPY OF THE COMMUNICATION NO.45281/H3/08/G.EDN DTD. 7.9.08 ISSUED BY THE IST RESPONDENT. R4(a):- COPY OF THE APPEAL MEMO DTD. 1.2.2007 SUBMITTED BY THE PETITIONER BEFORE THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM. TRUE COPY P.A. TO JUDGE tss S. SIRI JAGAN, J. ----------------------------------- W.P.(C) Nos.37958/08, 5471/09 & 9382/2009 --------------------------------------- Dated this the 12th day of April, 2011 JUDGMENT These three writ petitions arise from the same set of facts and are therefore being heard and disposed of by this common judgment. W.P.(C)No.5471/2009 is filed by the Manager of Gracy Memorial High School challenging an order of the Government by which the appointment made by the Manager of a teacher (UPSA) namely, the petitioner in W.P.(C)No.37958/2008 (hereinafter referred to as the first teacher) was directed to be approved. W.P.(C)No.9382/2009 is filed by another teacher (hereinafter referred to as the second teacher) whom the Manager appointed during the next year in the vacancy to which the petitioner in W.P.(C)No.37958/2008 was appointed during the previous year. W.P.(C)No.37958/2008 is filed by the first teacher in whose favour the Government Order was passed, seeking implementation of the Government Order. 2. The situation arises in the following set of facts: W.P.(C)No.37958/08 & con.cases 2 In the School an additional division vacancy arose for the year 2005-2006. The first teacher was appointed to that vacancy by the Manager on 3.10.2005. Although the appointment order was forwarded by the Manager to the DEO for approval the documents necessary for such approval was not furnished by the Manager, despite repeated direction from the D.E.O. Therefore the D.E.O. referred to approve the appointment. The first teacher challenged the order of the D.E.O rejecting her appointment before the Deputy Director. In the meanwhile, during 2006-2007, the Manager appointed he 2nd teacher in the same vacancy. The Deputy Director allowed the appeal of the first teacher by order dated 26.04.2007 and directed approval of the appointment of the first teacher. The Manager challenged that order before the Director of Public Instruction who dismissed the same by order dated 4.08.2007. The Manager took the matter in revision before the Government in which the Government passed order dated 24.11.2008, which the manager and the second teacher challenge which the first teacher seeks to implement in these three writ petitions. By that order, the Government directed W.P.(C)No.37958/08 & con.cases 3 the DEO to approve the appointment of the first teacher as UPSA in the school with effect from 3.10.2005 in the additional division vacancy. The Manager and the 2nd teacher challenge the said order on the ground that since the first teacher was appointed on 3.10.2005 and the balance period of the vacancy for the year was less than 8 months, the same could have been approved only upto 31.3.2006 on daily wages and since the first teacher applied for maternity leave during the beginning of the next year, for which she was not entitled to under law Manager appointed the 2nd teacher to that vacancy. Therefore, according to the Manager and the 2nd teacher, the situation is covered by the decision of the Division Bench of this Court in Director of Public Instructions v. Mini Joseph [2009(1) KLT 923], wherein the Division Bench has held that if a teacher does not have 8 months' service as on the closing date for the year, she is not entitled to get vacation salary even if vacancy in which she was appointed extends beyond the period of vacation. Therefore, according to the Manager and the 2nd teacher, the action of the Manager in appointing the 2nd teacher during the next year in the said vacancy is W.P.(C)No.37958/08 & con.cases 4 perfectly valid and proper. 3. On the other hand, the learned Government Pleader and the learned counsel for the 1st teacher would contend that this situation is squarely covered by the later decision of the Division Bench of this Court in Unni Narayanan v. State of Kerala [2009(2) KLT 604]. According to them, the decision in Mini Joseph's case (supra) cannot be relied upon since the same was rendered in the context of the unamended rule 7A, which is not one applicable to the facts of this case whereas Unni Narayanan's case (supra) is squarely in the context of the rules in force as on the date of appointment of the 1st teacher and therefore, what is now applicable is the decision of the Division Bench in Unni Narayanan's Case (supra). It is also pointed out that the 2nd decision also was rendered by the same learned Judge, who rendered the judgment in the earlier case, although the learned 2nd judge of the Division Bench was different. 4. I have considered the rival contentions in detail. I have considered the very same question in W.P.(C) No.31629/2007, wherein I passed the following judgment: W.P.(C)No.37958/08 & con.cases 5 “The petitioner was appointed in a leave vacancy in the 3rd respondent's School as HSA (English) for the period from 11.6.2007 to 15.6.2008 by Ext.P1 appointment order in the leave vacancy of one Sri. Manoj Das, whose application for leave was sanctioned by Ext.P2 order. Pursuant to direction in judgment in W.P. (C) No.28589/07 the question of approval of the petitioner's appointment was considered by Ext.P5 order and the same was rejected on the ground that the petitioner has no previous approved service, which is necessary in accordance with G.O.No.169/04 dated 15.6.04. The contention of the petitioner is that the G.O. cannot override the provisions in the K.E.R. 2. The learned Government pleader on instructions submits that the said Government order has subsequently been replaced by an amendment to Rule 7A of Chapter XIVA of the K.E.R. and corresponding amendment has also been made to Rule 51A. Apparently, the whole issue revolves round the words 'less than one academic year' appearing in the amended Sub Rule 3 of Rule 7A. The petitioner's appointment is with effect from 11.6.2007. The contention appears to be that only if the appointment starts from 1st June and ends by 31st March the next year, the provisions of Sub Rule 3 would be complied with. If such an interpretation is adopted, then Rule 49 would become totally meaningless. Further only if employees take leave from 1st June of an year to 31st March of the next year, appointments can be made to leave vacancies, which prima facie appears to be absurd. Further if a person takes leave from the middle of one academic year to the middle of another academic year no appointments can be made under Sub Rule 3 above. So also if a literal interpretation is adopted vacancies which spill over to the next academic year cannot be filled up. A W.P.(C)No.37958/08 & con.cases 6 harmonious interpretation of Sub Rule 3 could be that vacancies which is less than the period corresponding to one academic year shall not be filled up by any appointment. However I find that the petitioner has already filed Ext.P7 appeal before the Deputy Director of Education in the matter. 3. In the above circumstances, it is only proper that the Deputy Director of Education considers Ext.P7 in accordance with the observations made above. Such orders on Ext.P7 shall be passed within one month from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner as well as the Manager of the School. The writ petition is disposed of as above. In order to overcome the effect of that judgment, the Government issued G.O.(P)No.104/08/G.Edn. dated 10.6.2008, the relevant portion of which reads as follows: “(i) If the period of appointments does not cover one academic year (i.e. from the re-opening day of the school after summer vacation to the closing day for summer vacation), the appointment shall be made only on daily wages. (ii) If the period of appointment commences after the beginning of the re-opening day but extends over the next academic year/years, the period up to the first vacation shall be approved on daily wages only. Re- appointment can be approved on regular basis, only if the duration of the period of re-appointment completes one academic year. If the period of re-appointment is also less than one academic year, that re-appointment will also be considered only on daily wages basis. In short, fractions of an academic year will not be considered for approval on regular basis.” W.P.(C)No.37958/08 & con.cases 7 The same was challenged in Unni Narayanan's case and the Division Bench held that Government Order cannot be applied since the same is contrary to the statutory provisions in the KER. The ratio of that decision in essence confirms the judgment in W.P.(C) No.31629/2007. In that case the Division Bench held as follows in paragraphs 7 and 8: “7. In certain circumstances, the Government may be able to issue executive instructions, but they have no efficacy to override the statutory provisions. We agree with the contentions of the writ petitioners that the offending conditions in Ext.P2 Government Order cannot stand with the statutory rules. Therefore, for enforcing them, the relevant rules require amendment. As long as the rules are not amended, Ext.P2 cannot be pressed into service by the Government. In this context, we notice R. 7A of Chap.XIV A of the K.E.R., which reads as follows: '7A (1) xxx xxx (2) Posts that may fall vacant on the closing date shall not be filled up till the reopening date except in the case of posts of non-vacation staff. (3) Vacancies, the duration of which is less than one academic year, shall not be filled up by any appointment.' 8. We notice that sub-r. (3) of R.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, 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 R.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 W.P.(C)No.37958/08 & con.cases 8 liable to be approved.” In fact the Government also have, by issuing G.O.(P) No.56/11/G.Edn. dated 26.2.2011, accepted that legal position, modifying and clarifying G.O.(P)No.104/08/G.Edn. dated 10.6.2008 thus: “1. ¥Çßµ ÁßÕß×X ÎâÜÕá¢ ÜÍcÎÞµáK ÎÞVºîí 31_Èí çÖ×Õá¢ Äá¿øáK ¥¢·àµcÄ ²ÝßÕáµ{ßæÜ ÈßÏÎÈBZAí æµ. §. ¦V ¥icÞÏ¢åXIV A. ùâZ 49_æÜ ÕcÕØíÅÏíAí ÕßçÇÏÎÞÏß ¥¢·àµÞø¢ ÈWµÞÕáKÄÞÃí. 2. ²øAÞÆÎßµ ÕV×JßW 8 ÎÞØJßW µáùÕí µÞÜÏ {ÕßçÜAáU ÈßÏÎÈBZ ÆßÕØçÕÄÈJßÜá¢ ¥ÄßW ¥ÇßµÎáU µÞÜÏ{ÕßæÜ ÈßÏÎÈBZ ù·áÜùÞÏá¢ (ÖO { ØíæµÏßÜßÜá¢) ¥¢·àµøßAÞÕáKÄÞÃí”. In view of the later decision in Unninarayanan's case interpreting the amended provisions of Rule 7A of Chapter XIVA of the KER, Mini Joseph's case (supra) dealing with the unamended Rule 7A cannot hold the field especially in view of the fact that the Government has also accepted that legal position. In view of the same, I am of opinion that the law holding the field as on the date of appointment of the 1st teacher is to the effect that if the vacancy extends beyond vacation for an year or more, the same is liable to be approved in the scale of pay applicable which only has been done as per W.P.(C)No.37958/08 & con.cases 9 the orders of the authorities under the KER, which are impugned by the Manager and the 2nd teacher. Therefore, there is no merit in the writ petitions challenging that order. In fact I am surprised by the attitude of the Manager in the matter. After having appointed the first teacher in the regular vacancy which arose in 2005-06, he had a duty to see that the same is approved. But despite all the authorities having held in favour of approval he has chosen to challenge the orders of approval. The conduct of the Manager may even lend credence to the allegations of the petitioner in W.P.(C) No.37958/2008 regarding the motive of the Manager in failure to forwarding documents necessary for approval and in appointing the 2nd teacher in the place of the 1st teacher. I do not want to probe further into that area and leave it at that. Accordingly, W.P.(C)No.5471/2009 and 9382/2009 are dismissed. Consequently, W.P.(C)No.37958/2008 is allowed and the educational authority namely, The District Educational Officer, Kanjirappally, is directed to implement the order of the Government, namely, Ext.P4 in that writ petition which is the W.P.(C)No.37958/08 & con.cases 10 order impugned in the other two writ petitions, as expeditiously as possible,at any rate, within one month from the date of receipt of a copy of this judgment. The monetary benefits arising therefrom due to the petitioner in W.P.(C) No.37958/2008 shall be disbursed to her within a further period of two months therefrom. S. SIRI JAGAN, JUDGE acd