IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 WP(C).No. 15507 of 2005(U) --------------------------------------- PETITIONER(S): ---------------------- P.V. ALPHONSA, HIGH SCHOOL ASSISTANT, ST.SEBASTIAN HIGH SCHOOL, MANNAMANGALAM. BY ADV. MR.P.N.MOHANAN RESPONDENT(S): ------------------------- 1. GOVERNMENT OF KERALA, REP. BY THE SECRETARY, GENERAL EDUCATION (A) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE HEADMASTER, ST.THOMAS HIGH SCHOOL, AMMADAM, THRISSUR. 3. DISTRICT EDUCATIONAL OFFICER, THRISSUR. R1 & R3 BY GOVERNMENT PLEADER MR.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 15507/2005-U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER PASSED BY THE 1ST RESPONDNT DATED 31/05/1999. EXT.P2: COPY OF THE JUDGMENT DATED 21/03/2001 BEFORE THE HONOURABLE COURT. EXT.P3: COPY OF THE ORDER DATED 25/04/2005 OF THE 1ST RESPONDENT. EXT.P4: COPY OF THE LETTER DATED 18/01/2005 OF THE 3RD RESPONDENT. EXT.P5: COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT DATED 02/03/2005. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE Rs/ P.N.RAVINDRAN, J. ------------------------------------- W.P.(C).No.15507 of 2005 -------------------------------------- Dated 24th March, 2009 JUDGMENT Heard Sri.P.N.Mohanan, the learned counsel appearing for the petitioner and Sri.T.T.Muhamood, the learned Government Pleader appearing for respondents 1 and 3. 2. The petitioner is an aided school teacher. She entered service as Lower Primary School Assistant (`LPSA' for short) on 5.8.1985. She was appointed as Upper Primary School Assistant (`UPSA' for short) with effect from 5.6.1986. She commenced continuous service as LPSA on 14.8.1986. While she was working as LPSA, she applied for and the Headmaster of the school granted her, leave without allowances on medical grounds for a period of 117 days from 3.8.1987 to 27.11.1987. She was regularly appointed as High School Assistant (H.S.A for short) on 7.7.1995. Shortly after the petitioner was regularly appointed as H.S.A., she availed leave without allowances for a period of 76 days from 17.7.1995 to 30.3.1995, suffixing the holidays from 1.10.1995 to 4.10.1995. She re-joined duty on 4.10.1995 and again availed leave without allowances for a period of 79 days from 5.10.1995 to 31.12.1995 suffixing the X' mas vacation. She rejoined duty on 1.1.1996 and again availed leave without allowances for a WP(C).No.15507/2005 2 period of 88 days from 2.1.1996 to 29.03.1996, suffixing the summer vacation. Thus, during the academic year 1995-96, the petitioner had actually worked in the school only for a period of 48 days. 3. The petitioner rejoined duty on 2.6.1996 when the school re- opened during the academic year 1996-97. She worked for 27 days and again availed leave without allowances for a period of 65 days from 1.7.1996 to 3.9.1996. Since 4.9.1996 was a holiday, she rejoined duty on 5.9.1996. She again availed leave without allowances for a period of 117 days from 6.9.1996 to 31.12.1996. She rejoined duty on 1.1.1997 and again availed leave without allowances for a period of 84 days from 2.1.1997 to 26.3.1997 The summer vacation was also suffixed with the leave period. During the academic year 1996-97, the petitioner actually worked as H.S.A. only for 29 days. In short, during the academic years 1995-96 and 1996-97, the petitioner attended the school only for 77 days. 4. The petitioner was however paid vacation salary during the academic years 1995-96 and 1996-97. The payment of vacation salary and the order passed by the Headmaster sanctioning leave without allowances on medical grounds for 117 days during the period from 3.8.1987 to 27.11.1987 were objected to during audit and steps were taken to effect recovery. The petitioner thereupon moved the Government WP(C).No.15507/2005 3 by submitting a representation dated 16.2.1998 requesting that the grant of leave without allowances for 117 days from 3.8.1987 to 27.11.1987 and payment of vacation salary for the academic years 1995-96 and 1996-97 may be ratified. On that request, the Government passed Ext.P1 order dated 31.5.1999 directing that the leave without allowances availed by the petitioner for a period of 117 days from 3.8.1987 to 27.11.1987 will be regularised as leave without allowances under Rule 88 of Part I, KSR, subject to the condition that it will not count for any service benefit including pension. Taking note of the fact that the petitioner had worked only for 48 days during the academic year 1995-96 and for 29 days during the academic year 1996-97 and also the fact that the petitioner was not on duty when the school closed on 31.3.1996 and 31.3.1997, the Government held that she was not entitled to draw vacation salary during the academic years 1995-96 and 1996-97. The Government accordingly directed the Deputy Director of Education, Thrissur to recover the vacation salary drawn by the petitioner during the academic years 1995-96 and 1996-97. 5. The petitioner challenged the direction in Ext.P1 that the leave without allowances availed by her for 117 days from 3.8.1987 to 27.11.1987 will not count for pension, by filing O.P.No.21270 of 1999 in this Court. By Ext.P2 judgment delivered on 21.3.2001, the said writ petition WP(C).No.15507/2005 4 was allowed holding that such a condition could have been stipulated only if the leave applied for was leave without allowances for taking up employment abroad or for joining spouse who is employed abroad and therefore, the Government could not have directed that the leave without allowances availed by the petitioner will not count for pension. 6. After Ext.P2 judgment was delivered, the Government issued Ext.P3 order dated 25.4.2005 wherein the Government took the stand that though the leave without allowances availed by the petitioner for 117 days from 3.8.1987 to 27.11.198 can be reckoned for the purpose of pension, she was not entitled to draw vacation salary during the academic years 1995-96 and 1996-97. The District Educational Officer thereupon took steps to effect recovery of the vacation salary drawn by the petitioner. This writ petition was thereupon filed challenging such recovery and seeking a declaration that the petitioner was entitled to draw vacation salary during the academic years 1995-96 and 1996-97. 7. The learned counsel for the petitioner contended relying on the decisions of this Court in Jolly v. State of Kerala (1975 KLT Short Note 108) and Santha v. State of Kerala (1992(2) KLT 549) that as the petitioner's appointment was against a regular vacancy, Rule 49 of Chapter XIV A of the Kerala Education Rules has no application and, therefore, the WP(C).No.15507/2005 5 petitioner was entitled to draw vacation salary. The petitioner also contends that even if Rule 49 applies, as she had eight months' service as on 31.3.1996 and 31.3.1997, she was entitled to draw vacation salary. The learned counsel appearing for the petitioner contended that Rule 49 does not insist that the teacher appointed against a regular vacancy should not avail leave or that if leave is availed it will be excluded in computing eight months' continuous service and, therefore, the mere fact that the petitioner had availed leave for a substantial period during the academic years 1995- 96 and 1996-97, cannot result in non-payment of vacation salary. The respondents have filed a counter affidavit resisting the writ petition. They contend that as the petitioner had not worked for eight months continuously as on the closing date, she was not entitled to draw vacation salary during the academic years 1995-96 and 1996-97. 8. Rule 49 of Chapter XIV A of the Kerala Education Rules 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 WP(C).No.15507/2005 6 day is less than the aforesaid period. This rule shall not apply to teacher appointed in training vacancies. 9. In Jolly's case (supra), a learned Single Judge of this Court interpreting Rule 49 held that a teacher is entitled to retention in service either by reason appointment in a permanent vacancy or by reason of continuous service of eight months with continuity in service extending over the summer vacation. It was held that no further requirement can be read into the rule. A similar view was taken by another learned Single Judge of this Court in Santha's case (supra) wherein it was held that a teacher who is appointed against a permanent vacancy meaning a regular vacancy is entitled to continue in service even during the vacation and draw vacation salary and that a teacher appointed against a vacancy which is not regular but has continuous service of not less than eight months as on the date on which the school closes for the summer vacation (31st March of the concerned academic year), is also entitled to payment of vacation salary. 10. As held by this Court in Jolly's case (supra) and Santha's case (supra), a teacher who is appointed against a regular vacancy is entitled to draw vacation salary. Such entitlement is not dependent on continuous service for eight months. Teachers who are appointed against vacancies which are not permanent, i.e., leave vacancies, are also entitled WP(C).No.15507/2005 7 to vacation salary if their continuous service as on the close of the academic year is not less than eight months. In both these contingencies, the teacher concerned is entitled to continue in service over the summer vacation and also for payment of vacation salary. 11. The petitioner was admittedly appointed as H.S.A. on 7.7.1995 against a regular vacancy, which extended over the summer vacation. Therefore, the petitioner was entitled to payment of vacation salary. Rule 49 of Chapter XIV A KER does not stipulate that a teacher appointed against a regular vacancy which extends over the summer vacation will be retained in service during the vacation and paid vacation salary only if he/she has continuous service of not less than eight months. Rule 49 contemplates payment of vacation salary to two categories of teachers, viz., teachers who are appointed against regular vacancies which extend over the summer vacation and teachers who have a continuous service of not less than eight months as on the closing date. Rule 49 does not in express terms state that if the teacher appointed against a regular vacancy avails leave after such appointment and before the close of the school for summer vacation, such period shall be deducted in computing the continuous service of eight months. In other words, the stand taken by the respondents is not referable to the stipulations in Rule 49 of Chapter WP(C).No.15507/2005 8 XIV A of the K.E.R. As held by this Court in Jolly's case (supra) such a requirement cannot be read into Rule 49. No Government order which contains such a stipulation, even assuming the Government can validly issue an order containing such a stipulation when the field is occupied by a statutory rule, was also brought to my notice. I am therefore persuaded to hold that the petitioner was entitled to draw vacation salary during the academic years 1995-96 and 1996-97. The writ petition is accordingly allowed, Exts.P1 and P3 to the extent they hold that the petitioner was not entitled to draw vacation salary during the academic years 1995-96 and 1996-97 are quashed and the respondents are restrained from recovering the vacation salary drawn by the petitioner during the academic years 1995-96 and 1996-97. P.N.RAVINDRAN Judge TKS