IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 WA.No. 390 of 2001() -------------------- AGAINST THE JUDGEMENT/ORDER IN OP.5834/1995 DATED 17.11.2000 .................... APPELLANT/PETITIONER: ----------- T.V.JAMES,H.S.A., ALL SAINTS HIGH SCHOOL, PUTHAYAM, KARUKONE P.O., KOLLAM DISTRICT. BY ADV. SRI.M.P.KRISHNAN NAIR RESPONDENTS/RESPONDENTS: ------------- 1.STATE OF KERALA, REP. BY CHIEF SECRETARY, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2.DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3.DEPUTY DIRECTOR OF EDUCATION, KOLLAM. 4.DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA. 5.THE MANAGER, ALL SAINTS HIGH SCHOOL, PUTHAYAM, KARUKONE P.O., KOLLAM DISTRICT. BY GOVERNMENT PLEADER SRI.BENNY GERVACIC FOR R1TO4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2008 ALONG WITH WA NO.768 OF 2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. ------------------------------- W.A.NOS.390 & 768 OF 2001 () ----------------------------------- Dated this the 11th day of June, 2008 J U D G M E N T KOSHY,J. Appellant/petitioner was appointed as High School Assistant on 11.6.1984 while he was awaiting the publication of the result of the B.Ed examination written by him in March 1984. He passed the examination and result was published on 10.8.1984 and since 11.8.1984 and 12.8.1984 were holidays, his appointment was approved only on 13.8.1984. His service was terminated on 31.3.1985 when vacation started. He had no continuous service for eight months for getting protection. He was reappointed on 1.6.1985 when School reopened and continued in the job upto 30.9.1988. Thereafter on the basis of inspection made by the Super Check Cell, that post was abolished for want of students. He contended that he was appointed on 11.6.1984 and his W.A.NOS.390 & 768 OF 2001 () 2 appointment was approved on 13.8.1984 in a permanent vacancy. Since he was appointed on a permanent basis, according to him, in view of Rule 49 of Chapter 14A of KER, he is entitled to protection and vacation salary. On the basis of the directions of this Court, his representation was considered and by Government Order dated 21.11.1994, Government condoned the break in service of the petitioner for 12 days from 1.8.1984 to 12.8.1984 for giving the benefit of protection only so that he can get vacation salary. His service was terminated on 30.9.1988 but he has got protection as per Government Order dated 6.3.1969 on the ground that he had acquired continuous qualifying service only with effect from 1.6.1985 and he does not have two years of continuous service. Meanwhile, proceedings were also taken for realising the excess salary received by him during the vacation. He challenged the order of termination of his service from 30.9.1988 and also the order to recover vacation salary from him. W.A.NOS.390 & 768 OF 2001 () 3 2. The learned Single Judge after considering the entire case in detail, found that his termination order, earlier as excess, was issued by the Director of Public Instructions, though signed by another officer on his behalf, cannot be said to be invalid. The learned Single Judge found that since his 12 days break in service was condoned by Ext.P5 order, he is entitled to vacation salary for the period from 1.4.1985 to 31.5.1985. If the salary is not disbursed, that should be disbursed. It was also held that he is entitled to protection as per G.O. dated 6.3.1969 recording his service from 1.8.1984. He is entitled to salary for the period he is in actual service and he is not entitled to salary for the period from 1.10.1988 to 14.6.1993 while he was out of service and alleged excess salary cannot be recovered. It is also stated that for the period from 1.10.1988 to 14.6.1993, during which petitioner is out of service should be regularised by granting eligible leave. Learned Single Judge at paragraph 10 of the judgment held as W.A.NOS.390 & 768 OF 2001 () 4 follows: “10. It is seen that as per Ext.P5 order the Government has condoned the break in the service of the petitioner for a period of 12 days from 1.8.1984 to 12.8.1984 for the limited purpose of extending the benefit of protection. Therefore, even though the appointment of the petitioner was approved as H.S.A. on 13.8.1984 after the publication of the result in the B.Ed. examination on 10.8.1984, 11th and 12th being holidays, by virtue of Ext.P5 order the petitioner is entitled to reckon his service from 1.8.1984 onwards and therefore, he will be entitled to the vacation salary during the year 1984-85 from 1.4.1985 to 31.5.1985 as he has completed the eight months service before 31.3.1985. Hence the refusal to pay the salary from 1.4.1985 to 31.5.1985 on the ground that the petitioner had no qualifying service for eight months prior to 31.3.1985, is not sustainable and the petitioner is entitled to his salary from 1.4.1985 to 31.5.1985.” Again at paragraph 15 it was held as follows: “15. In view of the fact that the 1st respondent has condoned the petitioner's break in service as H.S.A. for 12 days from 1.8.1984 to W.A.NOS.390 & 768 OF 2001 () 5 12.8.1984, he should be deemed to be in service from 1.8.1984 entitling to the benefits of protection. The contention of the petitioner that he was in continuous service from 1.6.1985 onwards till he was thrown out of service on 30.9.1988 due to fall of strength is not disputed by the respondents. But the respondents have contended that the petitioner is not entitled to protection in terms of the G.O. (MS).104/69/G.Edn. dated 6.3.69 since he had acquired qualifying service with effect from 1.6.1985 and does not have two years continuous service and drawal of two consecutive vacation salary which are essential for getting protection. It has to be noted that in view of Ext.P5, the petitioner was in service from 1.8.1984 to 31.3.1985 entitled to draw the vacation salary for the period from 1.4.1985 to 31.5.1985 and the contention of the petitioner that he was in continuous service from 1.6.1985 to 30.9.1988 is not denied by the respondents. Therefore, if in fact the petitioner was in service from 1.8.1984 to 30.9.1988, till he was thrown out of service due to fall of strength, he satisfies the two conditions to claim the benefit of protection under the G.O. Dated 6.3.69 since he had two years continuous service and drawn two consecutive vacation salary during the period from 1.8.1984 till 30.9.1988. Therefore, the contention of the respondents that the petitioner is not entitled to the benefit of protection as per the G.O. dated 6.3.69, is not sustainable.” W.A.NOS.390 & 768 OF 2001 () 6 Considering the totality of the circumstances, we are of the opinion that the benefits legally due were granted by the learned Single Judge. His contention that he is entitled to salary for the period he did not work cannot be accepted especially his termination of service in 1988 as excess hand cannot be challenged in 1995 when the writ petition was filed. Petitioner's contention to count service from 11.6.1984 was correctly rejected as it was unqualified service and Government condoned the lapse only from 1.8.1984. Since we fully agree with the views of the learned Single Judge, both appeals filed by the petitioner against the common judgment are dismissed. J.B.KOSHY, JUDGE P.N.RAVINDRAN, JUDGE prp J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------------------------- W.A.NOS.390 & 768 OF 2001 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 11th June, 2008