IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 WP(C).No. 23275 of 2008(U) ---------------------------------------- PETITIONER(S): ----------------------- K.S.HELEN, W/O.KARTHIKEYAN, 50 YEARS, LOWER PRIMARY SCHOOL ASSISTANT ST.IGNATIUS U.P.SCHOOL, MANALUR THRISSUR-680617. BY ADVS. MR.V.A.MUHAMMED MR.K.E.HAMZA RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM 2. DEPUTY DIRECTOR OF EDUCATION AYYANTHOLE, THRISUR 3. ASSISTANT EDUCATIONAL OFFICER, THRISSUR 4. ACCOUNTANT GENERAL (A&E) KERALA TRIVANDRUM 5. HEADMISTRESS, ST.IGNATIOUS U.P.SCHOOL, MANALOOR, THRISSUR WEST-680 617. R1 TO R4 BY GOVERNMENT PLEADER MR.V.T.K.MOHANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.23275/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE G.O.(MS) BNO.275/99/G.EDN. OF THE GOVERNMENT DTD. 9.11.99. P2:- COPY OF THE EXTRACT OF THE OBJECTION (INSPECTION REPORT) DT. NIL. P3:- COPY OF THE REPLY LETTER NO.C.244/98 OF THE HEADMASTER DTD. 10.12.88. P4:- COPY OF THE COMMUNICATION LETTER NO.SPL. CELL (HQ) II/III/13-2643/188 OF THE SR. AUDIT OFFICER, DTD. 17.1.08. P5:- COPY OF THE LETTER NO.G6-14714/08 OF THE DY. DIRECTOR OF EDN. DTD. 9.6.08. P6:- COPY OF THE LETTER NO.G6/14714/98 OF THE DY. DIRECTOR OF EDN. DTD. 2.7.08. P7:- COPY OF THE G.O.(RT) NO.9348/05/GI.EDN. OF THE GOVERNMENT DT. 15.11.05. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.23275/2008-U ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 6th day of November, 2009 J U D G M E N T The petitioner is working as L.P.S.A in St.Ignatius U.P. School, Manalur and is having approved service from 30/03/1985 in a regular post. She was having broken spells of approved service during four different periods, which are detailed in paragraph (1) of the writ petition as follows:- 13/06/1979 to 31/03/1980, 07/09/1983 to 16/12/1983, 10/01/1984 to 12/03/1984 & 26/06/1984 to 29/03/1985. 2. The petitioner had been working from 26/06/1984 to 29/03/1985 in St.Thomas High School, Engandiyoor. This appointment was approved by the District Educational Officer, Chavakkad as per order dated 10/12/1984. Being a senior Rule 51 A claimant, she was appointed in St.Joseph's U.P.School, Kundannur from 30/03/1985 onwards against a regular vacancy. 3. Long after the declaration of the probation of the petitioner, objection was raised by the Accountant General as per Ext.P2. This was explained by the Headmaster as per Ext.P3. Ext.P4 shows that the objection has been closed. W.P.(C). No.23275/2008 -:2:- Thereafter, by Exts.P5 and P6, the Deputy Director of Education has again taken up the matter. 4. The crux of the objection raised as per Ext.P6 is that the petitioner was terminated with effect from 30/03/1985 for re-appointment in another school prior to the closing date of academic year violating the rules laid down in KER. Therefore, it has been ordered to recover the vacation salary paid to the incumbent concerned or from the Manager. 5. The learned counsel for the petitioner submitted that by Ext.P1, the Government has clarified that leave substitutes are entitled for regularistion against first arising permanent/regular vacancy. Therefore, the adjustment of the petitioner in a regular vacancy by the Management from the date of occurrence of the vacancy cannot be objected. It is also pointed out that the leave vacancy in which the petitioner was working in the year 1984-85 covers more than eight months i.e. from 26/06/1984 to 29/03/1985 in continuation to which she was appointed from 30/03/1985 in St.Joseph's U.P. School, Kundannur and, therefore, the petitioner had rightly claimed the vacation salary. It is submitted that after the audit objection was dropped, it was not proper for the departmental officers to raise objections again. Reliance is also placed on Ext.P7 W.P.(C). No.23275/2008 -:3:- to contend that Rule 6(a) of Chapter XIV A K.E.R reckons broken period of service for declaration of probation. 6. The stand taken in the counter affidavit is that appointment of the petitioner in the regular vacancy as on 30/03/1985 in the fag end of the academic year was objected to by the Accountant General. It is pointed out that the petitioner is eligible for declaration of probation only after the date of commencement of regular service reckoning broken spells. All transfers and postings within the Corporate Management schools are to be made after the re- opening date of each academic year. 7. Going by the facts of the case, it is evident that the petitioner was having more than eight months of service from 26/06/1984 to 29/03/1985. Therefore, if she had continued in a regular post, she would have been entitled for vacation salary. Herein, a regular vacancy arose in a different school on 30/03/1985. In terms of Rule 51 A Chapter XIV A K.E.R the petitioner was appointed in that vacancy. Therefore, she was granted the benefit of regular appointment in terms of the statutory right provided as per Rule 51 A Chapter XIV A K.E.R. True that the petitioner joined service in the regular service in the fag end of the academic year but the statutory rights as per Rule 51 A Chapter XIV A K.E.R cannot be denied. Going by Ext.P1 a W.P.(C). No.23275/2008 -:4:- leave substitute like the petitioner is liable to be regularised against the first arising permanent/regular vacancy. Since the Management had different schools, the right of the petitioner allowable as per Ext.P1 was also recognised by the manager. Therefore, the appointment granted to the petitioner as on 30/03/1985 in a regular vacancy at the fag end of the academic year cannot be said to be illegal. Further the appointment itself was approved. 8. As noticed already, the petitioner had more than eight months service in 1984-85 which entitles her for the vacation salary. Therefore, it is not a case where a fresh appointment is made in violation of Rule 7A of Chapter XIV A K.E.R. It will not be bar to appoint a senior Rule 51A claimant in a regular vacancy. 9. In that view of the matter, the objection raised as per Ext.P6 cannot be sustained and the same is quashed. Infact, the Government itself has clarified as per Ext.P7 that Rule 6(a) of Chapter XIV A K.E.R allows reckoning of broken spell of service for declaration of probation and, on that ground also, the petitioner is entitled to succeed. Therefore, the writ petition is allowed and there will be a direction to the third respondent to grant the writ petitioner her due increments, and pay revision benefits W.P.(C). No.23275/2008 -:5:- for the year 2004 onwards. Appropriate action will be finalised and the amounts will be disbursed within three months from the date of receipt of a copy of this Judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms