IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 WP(C).No. 5472 of 2008(B) --------------------------------------- PETITIONERS: ---------------------- 1. NAVAS A.M., HSST JUNIOR (HINDI), PPTMYHSS, CHEROOR P.O., VENGARA, MALAPPURAM. 2. ALAVIKUTTY E.K., HSST (POLITICAL SCIENCE) BYKHSS, VALAVANJOOR, MALAPPURAM. 3. IBRAHIM M.P., HSST (POLITICAL SCIENCE) DHOHSS, POOKARATHARA, MALAPPURAM. 4. JISSA JACOB, HSST JUNIOR (PHYSICS) SSMHSS, THEYYALINGAL, MALAPPURAM. 5. JAFAR PUTHUKUDY, HSST (BOTANY) ORIENTAL HSS, TIRURANGADI, MALAPPURAM. 6. ISMAIL C.K.CHERUKUNNATH, HSST JUNIOR (CHEMISTRY), PPTMYHSS, CHEROOR, MALAPPURAM. 7. PARTHASARATHIRAMAYI, HSST JUNIOR (POLITICAL SCIENCE) SSMHSS, THEYYALINGAL, MALAPPURAM. 8. SREEJITH R., HSST JUNIOR (CHEMISTRY) SSMHSS, THEYYALINGAL, MALAPPURAM. 9. SIJO MON P., HSST JUNIOR (ENGLISH) SSMHSS, THEYYALINGAL, MALAPPURAM. 10. GAYATHRI V., HSST (ZOOLOGY) SSMHSS, THEYYALINGAL, MALAPPURAM. Kss ..2/- ...2..... WPC.NO.5472/2008 B 11. MOHAMMED ASHRAF M., HSST (BOTANY), DARUL ULOOM HSS, THOOTHA, MALAPPURAM. 12. BAJINA M.P., HSST (ZOOLOGY), DRUL-ULOOM HSS, THOOTHA, MALAPPURAM. 13. MOHAMMED RIYAS A.V., HSST (ENGLISH) ORIENTAL HSS, TIRURANGADI, MALAPPURAM. 14. REKHA K.M., HSST (MATHS), IKTHSS, CHERUKULAMBA, MALAPPURAM DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.TOJAN J. VATHIKULAM RESPONDENTS: ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM. 2. THE DIRCTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, REGIONAL OFFICE, KOZHIKODE. GOVERNMENT PLEADER SMT. T.B.REMANI FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/10/2008, THE COURT ON 13/10/2008 DELIVERED THE FOLLOWING: Kss WPC.NO.5472/2008 B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER NO.A1/678/06/K.DIS. DTD. 29/06/2007. EXT.P2: COPY OF THE ORDER NO.A1/2173/06/K.DIS. DTD. 21/03/2007. EXT.P3: COPY OF THE ORDER NO.A1/1747/06/K.DIS. DTD. 05/02/2007. EXT.P4: COPY OF THE ORDER NO.A1/1686/06/K.DIS. DTD. 18/01/2007. EXT.P5: COPY OF THE ORDER NO.A1/1426/06/K.DIS. DTD. 29/03/2007. EXT.P6: COPY OF THE ORDER NO.A1/9985/07/K.DIS. DTD. 31/12/2007. EXT.P7: COPY OF THE ORDER NO.A1/2646/06/K.DIS. DTD. 12/01/2007. EXT.P8: COPY OF THE ORDER NO.A1/7989/06/K.DIS. DTD. 15/05/2007. EXT.P9: COPY OF THE ORDER NO.A1/1906/06/K.DIS. DTD. 18/01/2007. EXT.P10: COPY OF THE ORDER NO.A1/1687/07/K.DIS. DTD. 4/09/2007. EXT.P11: COPY OF THE ORDER NO.A5/1196/06/K.DIS. DTD. 17/03/2007. EXT.P12: COPY OF THE ORDER NO.A5/898/06/K.DIS. DTD. 23/03/2007. EXT.P13: COPY OF THE ORDER NO.A1/2342/06/K.DIS. DTD. 21/01/2007. EXT.P14: COPY OF THE ORDER NO.A1/1967/07/K.DIS. DTD. 7/05/2007. EXT.P15: COPY OF THE REPRESENTATION SUBMITTED BY THE MANAGER OF THE SCHOOL IN WHICH THE 1ST PETITIONER IS WORKING BEFORE THE 2ND RESPONDENT. EXT.P16: COPY OF THE ORDER NO.ACD/A2/1792/HSE 2001 DTD. 24/06/2003. EXT.P17: COPY OF THE CIRCULAR DTD. 7/03/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss ANTONY DOMINIC, J. = = = = = = = = = = = = = = = W.P.(C) No. 5472 OF 2008 B = = = = = = = = = = = = = = = Dated this the 13th day of October 2008 J U D G M E N T By Exts. P1 to P14 orders issued by the Regional Deputy Director of Higher Secondary Education, Kozhikode, appointment of the petitioners were approved, but however, making it clear that as per Rule 49, Chapter XIV A, K.E.R. the teacher is not eligible for vacation salary. It would appear that against Ext. P1 order the Manager has filed an appeal and that orders have not been passed. Contending that in Ext. P16 order passed by the Director of Higher Secondary Education in a similarly situated case, no clause denying vacation salary has been incorporated and that in view of Ext. P17 clarification issued by the Director, the petitioners are also entitled to vacation salary, this writ petition has been filed. The prayer made is to quash Exts. P1 to P14, to the extent it deprives the petitioners from receiving vacation salary and to direct the respondents to revise Exts. P1 to P14 by deleting the stipulation to W.P.(C) No. 5472 OF 2008 -2- the above effect. 2. The main contention raised is that the petitioners have been appointed against permanent vacancies and therefore Rule 49 Chapter XIV A is inapplicable. It is also their case that in identical circumstances the Director has issued Ext. P16 which does not contain a provision similar to the one objected to herein. Yet another contention raised is that by Ext. P17 the Director has clarified that appointment of a teacher in a permanent vacancy means appointment in a regular vacancy and that a teacher appointed in a permanent regular vacancy is eligible to get approval of his service from his or her date of appointment and also is eligible for vacation salary. Thus the whole contention of the petitioners is on the basis that they have been appointed against permanent vacancies. 3. Counter affidavit has been filed by the 3rd respondent. The 3rd respondent does not dispute the position that if appointment is made to permanent vacancies or vacancies exceeding 8 months prior to the commencement of the vacation, the teacher is entitled to vacation salary. However, it is contended W.P.(C) No. 5472 OF 2008 -3- that all appointments of H.S.S.T. are on temporary basis. It is stated that in so far as the higher secondary schools are concerned staff fixation order was issued only for the years 2000-01 and 2001- 2002 and that thereafter no staff fixation order has been issued in respect of the petitioners' school so far. Therefore, it is contended that as all posts created in the H.S.S.T. section are temporary, the teacher should at least render 8 months service prior to the commencement of the vacation to be eligible for vacation salary. It is also stated that against the provision contained in Exts. P1 to P14 denying the teachers the benefit of vacation salary, none of the affected parties have filed any appeal as is provided in the K.E.R. 4. Thus the whole controversy will depend upon the question whether the appointment of the petitioners is against permanent vacancies. While on the one hand the petitioners are contending that their appoint is against the permanent vacancies and for that reason they are eligible for vacation salary, the respondents are denying this factual position. Both sides have not produced any documentary evidence to support their respective case. In such a factual situation, I do not think that this Court will be justified in W.P.(C) No. 5472 OF 2008 -4- enquiring into the correctness or otherwise of a disputed question of fact and decide it one way or the other. In my view, the appropriate course open to the petitioners or their respective managers is to file appeal against the impugned clause in Exts. P1 to P14. It is directed that if the petitioners file an appeal as above within one month from today, that will be entertained by the respective appellate authority and the issue will be decided on merits as expeditiously as possible, at any rate within 2 months thereafter with notice to all concerned. If the petitioners file an appeal, it will be open to them to produce a copy of this judgment before the concerned appellate authority. With this direction, the writ petition is disposed of. ANTONY DOMINIC JUDGE jan/-