IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 WP(C).No. 28226 of 2008(I) -------------------------- PETITIONERS: --------------- 1. P.PRAMOD KUMAR, AGED 30, S/O.A.BALAKRISHNAN NAIR, WORKSHOP INSTRUCTOR, (AUTOMOBILE ENGINEERING)SWAMY NITHYANANDA POLYTECHNIC COLLEGE, KANHANGAD, KASARAGOD DIST. 2. ABILASH.K.P., PHYSICAL INSTRUCTOR, SWAMY NITHYANANDA POLY TECHNIC COLLEGE, KANHANGAD, KASARAGOD DISRICT. 3. P.SUMITH, WORKSHOP INSTRUCTOR(MECHANICAL ENGG.)SWAMY NITHYANANDA POLYTECHNIC COLLEGE, KANHANGAD, KASARAGOD DISTRICT. 4. K.V.ARUN KUMAR, DEMONSTRATOR(AUTOMOBILE ENGINEERING) SWAMY NITHYANANDA POLYTECHNIC COLLEGE KANHANGAD, KASARAGOD DISTRICT. 5. A.K.PREMARAJ, TRADESMAN (FOUNDRY) SWAMY NITHYANANDA POLYTECHNIC COLLEGE, KANHANGAD, KASARAGOD DISTRICT. BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENTS: ---------------- 1. THE PRINCIPAL, SWAMY NITHYANANDA POLYTECHNIC COLLEGE, KANHANGAD, KASARAGOD. 2. THE JOINT DIRECTOR, REGIONAL DIRECTORATE OF TECHNICAL EDUCATION, KOZHKODE. 3. THE DIRECTOR, DIRECTORATE OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. 4. THE STATE OF KERALA,REPRESENTED BY THE SECRETARY TO TECHNICAL EDUCATION, SECRETARIAT, THIRUVANATHAPURAM. R2 TO R4 BY GOVERNMENT PLEADER, SMT.SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC : 28226/08 APPENDIX PETITIONERS' EXHIBITS: EXT.P1(A) : TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT. EXT.P1(B) : TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT. EXT.P1(C) : TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT. EXT.P1(D) : TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT. EXT.P1(E) : TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT. EXT.P2(A) : TRUE COPY OF THE RELEVANT EXTRACT OF THE SERVICE BOOK OF THE 1ST PETITIONER. EXT.P2(B) : TRUE COPY OF THE RELEVANT EXTRACT OF THE SERVICE BOOK OF THE 2ND PETITIONER. EXT.P2(C) : TRUE COPY OF THE RELEVANT EXTRACT OF THE SERVICE BOOK OF THE 3RD PETITIONER. EXT.P2(D) : TRUE COPY OF THE RELEVANT EXTRACT OF THE SERVICE BOOK OF THE 4TH PETITIONER. EXT.P2(E) : TRUE COPY OF THE RELEVANT EXTRACT OF THE SERVICE BOOK OF THE 5TH PETITIONER. EXT.P3 : TRUE COPY OF THE JUDGMENT IN OP NO.13124/98 DATED 9.3.99. EXT.P4 : TRUE COPY OF THE JUDGMENT IN WA NO.1583/99 DATED 8.11.99. EXT.P5 : TRUE COPY OF THE JUDGMENT IN OP NO.20594/01 DATED 711.01. EXT.P6 : TRUE COPY OF THE JUDGMENT IN WPC : 21473/03. EXT.P7 : TRUE COPY OF THE JUDGMENT IN WPC : 10845/05 DATED 20.1.06. EXT.P8 : TRUE COPY OF THE JUDGMENT IN WPC : 7025/06. EXT.P9(A) : TRUE COPY OF THE APPOINTMENT ORDER DATED 27.2.08. EXT.P9(B) : TRUE COPY OF THE APPOINTMENT ORDER DATED 27.2.08. EXT.P9(C) : TRUE COPY OF THE APPOINTMENT ORDER DATED 27.2.08. EXT.P9(D) : TRUE COPY OF THE APPOINTMENT ORDER DATED 27.2.08. EXT.P9(E) : TRUE COPY OF THE APPOINTMENT ORDER DATED 27.2.08. /TRUE COPY/ PA TO JUDGE S. SIRI JAGAN, J. ------------------------------------------------- W.P.(C)No. 28226 OF 2008 ------------------------------------------------- Dated this the 18th day of June, 2009 JUDGMENT The petitioners were appointed as Instructor/Tradesman/ Demonstrator in the Swamy Nithyananda Polytechnic allegedly in permanent vacancies with effect from 06.03.08(1st petitioner) and 29.02.08(other petitioners). Their services were terminated on 31.03.08, purportedly under Section 21 of the Kerala Technical Education (Private Engineering Colleges/ Polytechnics) Service Rules, on the reason that they had not completed 8 months' service before vacation. Petitioners' contention is that the stipulation regarding 8 months' service is applicable only to temporary posts and not permanent posts as held by this Court in Exts.P3 to P8 judgments. Therefore, according to the petitioners, they are entitled to continue in service during vacation also. Petitioners therefore seek the following reliefs: “i. to call for the records leading to Exhibits P1 and P2 and to declare that the petitioners are entitled to continuity in service from the date of their first appointment with all consequential service benefits including vacation salary and other service benefits, without any artificial break during vacation. WPC : 28226/08 -:2:- ii. to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to remove the order of termination and the consequent break in service entered in their service book, Exhibits P2(a) to P2(e). iii. to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to disburse the consequential benefits including vacation salary with continuity in service from the date of the first appointment forthwith.” 2. This Court had directed the Government Pleader to get instructions as to whether the posts against which the petitioners have been appointed are permanent vacancies. Although a counter affidavit has been filed, there is no specific averment as to whether the vacancies are permanent, but they say that, they are substantive vacancies. Government Pleader also admits that the vacancies arose on the retirement, promotion and cadre change of the incumbents. That being so, the respondents cannot now dispute that the vacancies to which the petitioners were appointed are not permanent. In the counter affidavit in paragraph 4 a very strange reason is also mentioned. I shall extract paragraph 4. “4. Rule 4 of Kerala Technical Education(Private Engineering College/Polytechnics) Service Rules, clearly envisages that though the appointments are made to permanent vacancies it shall be temporary and temporary appointments shall be made WPC : 28226/08 -:3:- permanent after satisfactory completion of probation. Hence in the case of the petitioners the appointments were not made permanent and only with temporary nature as recorded inExhibitsP2(a) to P2 (e) Service Books. Besides, as per Rule 21, 22 of Kerala Technical Education, Service Rules, a person who has not completed 8 month service(irrespective of his/her appointment either in permanent or temporary vacancy) is to be terminated on the closing date itself before the summer vacation. The Rule is applicable to both aided Engineering Colleges and Polytechnics. Based on the above Rule, issued as per GO(MS) No.90/75/H.Edn. Dated 6.6.1975, the 1st respondent, the Principal, S.N. Polytechnic College, Kanhangad has terminated the service of the petitioners on the closing day of the Institution for summer vacations, vide Order No.SNP/15/EST/08 dated 31.03.08, merely because of the vivid reason that the petitioners had not completed eight months of continuous service on the closing date,. Hence the allegations of the petitioners are not true to facts.” I can only dismiss such contention with the contempt it deserves since the question which has to be considered is whether the vacancies are permanent or not and not whether the appointments are permanent. 4. Rule 21 on the basis of which the petitioners have been denied vacation salary and continuity in service reads thus: “A qualified teacher who is appointed in a vacancy which are not permanent but will extend over the summer vacation, and who continues in such vacancies, till the closing date shall be retained WPC : 28226/08 -:4:- in the vacancy during the vacancy during vacation, if their continuous service as on the closing day is not less than 8 months. The teacher shall be relieved on the closing day if his continuous service on that day is less than the aforesaid period. This rule shall not apply to a teacher appointed in training vacancy. A teacher appointed in training vacancy shall not be eligible for vacation salary, irrespective of the length of service.” 5. From the same it is abundantly clear that, the same applies only to temporary vacancies which extends beyond vacation but is for a period less than 8 months prior to vacation. Therefore, Rule 21 is not applicable to the petitioners in so far they have been appointed to permanent vacancies. I am also supported in that view by Exts.P3 to P8 judgments. In the above circumstances, the petitioners are entitled to the reliefs prayed for. Accordingly, the writ petition is allowed as prayed for. Consequential orders shall be passed and arrears of salary disbursed to the petitioners as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. S. SIRI JAGAN, JUDGE ttb WPC : 28226/08 -:5:-