IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 WA.No. 1826 of 2005() --------------------- AGAINST THE JUDGEMENT IN OP.16838/1997 Dated 10/06/2005 .................... APPELLANT(S)/RESPONDENTS 1 TO 3: -------------- 1. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR (EDUCATION), ERNAKULAM. 3. THE DISTRICT EDUCATIONAL OFFICER, MUVATTUPUZHA. BY GOVERNMENT PLEADER SRI.NOBLE MATHEW RESPONDENT(S)/PETITIONER & 4TH RESPONDENT: --------------- 1. NINI JOSEPH, HIGH SCHOOL ASSISTANT (MATHS), M.K.M.H.S., PIRAVAM. 2. THE MANAGER, M.K.M. HS, PIRAVAM. ADV. SRI.ABRAHAM VAKKANAL (SR.) FOR R1 SRI.SAJI KURIACHAN FOR R1 SRI.PAUL ABRAHAM VAKKANAL FOR R1 SRI.ARUL KUMAR.P FOR R1 SRI.SAJI VARGHESE KAKKATTUMATTATHIL FOR R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ----------------------------------------- W.A. NO. 1826 OF 2005-C ----------------------------------------- Dated 28th January, 2009. JUDGMENT Balakrishnan Nair, J. The respondents 1 to 3 in the Original Petition are the appellants. The 1st respondent herein was the petitioner. The 1st respondent approached this Court, claiming approval of her appointment made as per Ext.P1 with effect from 5.2.1996 without any time limit, so that she can draw salary till the end of that academic year and also during the ensuing mid-summer vacation. 2. The brief facts of the case are the following: The Headmaster of the 2nd respondent's school sought voluntary retirement and as a result, a vacancy arose in that post with effect from 1.2.1996. The senior-most H.S.A. Smt.P.T.Annamma was promoted as Headmistress with effect from the said date. In the resultant vacancy, the 1st respondent was appointed as a probationary teacher on 5.2.1996. The Manager, by Ext.P2 communication, sought approval of that appointment. But, the D.E.O., by Ext.P3 order dated WA 1826/05 2 4.3.1996, declined to approve the appointment of the 1st respondent. The D.E.O took the view that since the schools are going to be closed by the end of March. the vacancy does not have a duration of two months. Therefore, her appointment is irregular. This view was taken, apparently, relying on sub-rule (3) of Rule 7A of Chapter XIV-A of the K.E.R. The 2nd respondent Manager appealed by filing Ext.P4 before the Deputy Director (Education) (2nd appellant). During the pendency of the appeal, the 1st respondent was again appointed as H.S.A.(Maths) on 3.6.1996. 3. The appeal filed by the Manager was rejected by the Deputy Director (Education), by Ext.P7 order. The Manager moved the Director of Public Instruction (1st appellant), challenging Ext.P7 by filing Ext.P8. The D.P.I also dismissed the said motion by Ext.P10 order. In the meantime, the appointment of the 1st respondent as H.S.A. (Maths) with effect from 3.6.1996 was already approved by the D.E.O. Aggrieved by the non- approval of her appointment from 5.2.1996, the Original Petition was filed. 4. The 3rd appellant filed a counter affidavit, resisting the prayers in the O.P. The learned Single Judge, after hearing both sides, allowed the O.P and directed approval of the appointment of the 1st respondent from 5.2.1996 and also ordered to pay her salary for the vacation period also. The appellants, feeling aggrieved by the said direction, have preferred this WA 1826/05 3 appeal. 5. The learned Government Pleader, who appeared for the appellants, submitted that since the vacancy available before the mid-summer vacation was having a duration of less than two months, the decision of the authorities is correct. Alternatively, it is pointed out that since the vacancy available by the promotion of Smt.P.T.Annamma from 1.2.1996 will terminate on 15.7.1996, it is only a temporary vacancy of short duration. Since the 1st respondent does not have eight months' service before the commencement of the vacation, at any rate, she is not entitled to get vacation salary, it is submitted. 6. The learned counsel appearing for the 1st respondent submitted that Smt.P.T.Annamma was working in a regular post and the vacancy available on her vacating that post is a regular vacancy. Therefore, the provisions of sub-rule (3) of Rule 7A of Chapter XIV-A of the K.E.R are not applicable. Further, Rule 49 of Chapter XIV-A also does not have any bearing on the claim of the 1st respondent for approval of her appointment and salary from 5.2.1996, it is submitted. 7. Rule 7A of Chapter XIV-A of the K.E.R., as it stood then, reads as follows: “7A. ............................... WA 1826/05 4 (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 two months or less shall not be filled up by any appointment.” Rule 49 of Chapter XIV-A of the K.E.R. 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. Explanation:-- for the purpose of this rule, 'Headmaster' includes Teacher-in-charge also.” A combined reading of the above Rules would show that if the duration of the vacancy in which the 1st respondent was appointed was two months or less, the same could not have been filled up. If the vacancy in which the 1st respondent is accommodated, is not a permanent vacancy, then she is not entitled to get salary during the summer vacation. 8. But, in this case, we notice that the post of H.S.A held by Smt.P.T.Annamma may be a regular post. When she vacates that post, the 1st respondent steps into her place. But, she is treated as the junior-most WA 1826/05 5 among the H.S.As available. Therefore, whether that post will continue or not after 15.7.1996, is a matter which can be decided only after the staff fixation order comes. Therefore, when the 1st respondent was appointed, the vacancy was available only up to 15.7.1996. Since she does not have eight months' service as on the closing date of the school, she is not entitled to get vacation salary. But, since the vacancy was having a duration of more than five months, that is, from 1.2.1996 to 15.7.1996, her appointment is not hit by sub-rule (3) of Rule 7A. So, her appointment is liable to be approved from 5.2.1996 to the closing date of the school during that year In the result, the appeal is allowed in part. The appointment of the 1st respondent shall be approved for the period from 5.2.1996 to the last day of that academic year. The direction to approve her appointment during the mid-summer vacation is vacated. K.BALAKRISHNAN NAIR, JUDGE. K.SURENDRA MOHAN, JUDGE. nm/