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Kiran Aravind v. the State of Kerala and Others

Kerala HC15 Jul 2016WP(C)/18335/2007

Case brief

AI extract

What is this about?

The High Court of Kerala directed the State Education Department to approve the petitioner's appointment as a Higher Secondary School Teacher with effect from 23.1.2002. The court held that while the appointment in a regular vacancy is valid, the petitioner is not entitled to vacation salary for the academic year in which she did not complete the minimum service period.

What did the court decide?

Second respondent directed to pass orders approving petitioner's appointment with effect from 23.1.2002, but without benefit of vacation salary for academic year 2001-2002.

Kiran Aravind Vs the State of Kerala and Others — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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FRIDAY, THE 15TH DAY OF JULY 2016/24TH ASHADHA, 1938

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WP(C).No. 18335 of 2007 (G)

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PETITIONER(S):

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KIRAN ARAVIND, W/O.JYOTHI SIVANANDAN, AGED 53 YEARS, HIGHER SECONDARY SCHOOL, ASSISTANT (ENGLISH), R.V.S.M. HIGHER SECONDARY, SCHOOL, PRAYAR, ALAPPUZHA DISTRICT.

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BY ADV. SRI.V.A.MUHAMMED

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RESPONDENT(S):

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1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT,, SECRETARIAT, TRIVANDRUM.

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2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING,

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SANTHI NAGAR, TRIVANDRUM - 1.

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3. THE MANAGER, R.V.S.M. HIGHER SECONDARY SCHOOL, PRAYAR, ALAPPUZHA DISTRICT.

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R3 BY ADV. SRI.P.B.SAHASRANAMAN R3 BY ADV. SRI.K.JAGADEESH R3 BY ADV. SRI.T.S.HARIKUMAR R1 AND R2 BY GOVERNMENT PLEADER SRI.BABY THOMAS

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24,6,2916, THE COURT ON 15-07-2016 DELIVERED THE FOLLOWING:

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WP(C).No. 18335 of 2007

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APPENDIX

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PETITIONER'S EXHIBITS: EXHIBIT P1: COPY OF ORDER NO.ACD.C3/19611/HSE/2001 OF THE 2ND RESPONDENT. EXHIBIT P2: COPY OF ORDER NO.ACD.C3/18611/HSS/2001 OF THE 2ND RESPONDENT. EXHIBIT P3: COPY OF JUDGMENT IN W.P(C).24500/2006. EXHIBIT P4: COPY OF ARGUMENT NOTES. EXHIBIT P5: COPY OF G.O.(Rt)NO.880/2007/G.EDN. OF THE GOVERNMENT. EXHIBIT P6: COPY OF DECISION REPORTED IN 2005(4) KLT SN NO.17 PAGE 15. EXHIBIT P7: COPY OF ORDER NO.ACD.B3/18272/HSE/2001 OF THE 2ND RESPONDENT.

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/TRUE COPY/

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PS TO JUDGE

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ANU SIVARAMAN, J.

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----------------------------------------------W.P(C).No. 18335 of 2007

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----------------------------------------------Dated this the 15^th July, 2016

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JUDGMENT

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This writ petition is filed challenging Exhibit P5 order issued by the Government rejecting the petitioner's request for approval of her appointment as Higher Secondary School Teacher with effect from 23.1.2002. It is submitted that though the petitioner was appointed as Higher Secondary School Teacher (English) in the 3^rd respondent School with effect from 23.1.2002, the appointment was initially approved by Exhibit P1 with effect from 30.6.2003. Subsequently on re-verification, it was approved with effect from 5.8.2002. Aggrieved by the refusal to approve the appointment with effect from 23.1.2002, the petitioner had approached this Court and Exhibit P3 judgment was issued directing consideration of the said request. The contention of the petitioner is that the post against which she was appointed on 23.1.2002, was a regular post which was in existence from 15.7.2001 onwards by virtue of the staff fixation order for the year 2001-2002. There were no qualified teachers to be appointed under the 25% promotion quota. It is submitted that since the vacancy was a regular one in the post of Higher Secondary School Teacher, there was no Rule or provision of law which stood in the way of approval of the regular appointment

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WP(C).18335/07 2

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of the petitioner from 23.1.2002 itself. However, the Government considered the request as well as the report of the Director of Higher Secondary Education and held that “as per the relevant rules, an appointment at the fag end of an academic year will be approved only if there is atleast a span of 60 days between the date of appointment and the date of closing of the school”. It is contended that there were only 49 days between the date of appointment and the date of closing of the school and hence, she is not eligible for getting approval with effect from 23.1.2002. It is further stated that the Plus-I classes for the academic year 20022003 started on 5.8.2002 and that the approval of appointment with effect from that date was therefore fully in order.

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Heard learned counsel for the petitioner and the learned Government Pleader appearing for the respondents.

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Learned counsel for the petitioner contends that the petitioner was appointed as Higher Secondary School Teacher while she was working as Upper Primary School Teacher. The refusal of approval with effect from 23.1.2002 has resulted in loss of service and service benefits, it is submitted. It is further stated that being a Higher Secondary School Teacher, the provisions of Chapter XIV-A KER which have been relied on by the Government are not applicable to the petitioner. The learned counsel placed reliance on a decision reported in Mini Joseph v. Director of Public Instruction (2005(4) KLT SN 15) to contend that sub-rule (3) of

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WP(C).18335/07 3

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Rule 7A of Chapter XIV-A can have no application in the case of appointment to regular vacancies. The said decision had however been partly modified in the writ appeal and it was held by the Division Bench that the incumbent, even in such case, would not be entitled to vacation salary. The question in hand is, as a matter of fact, covered by a decision of the apex court reported in State of Kerala v. Sneha Cheriyan [2013(1) KLT 755(SC)], which has been followed by a learned single Judge of this Court reported in Nair Service Society v. State of Kerala [2013(4) KLT 921]. In case of appointment in regular vacancies, the apex court has specifically held as follows:

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“ii) The Manager of an aided school can, however, appoint teachers in vacancies occurred due to death, retirement, promotion, resignation, long-term leave etc., provided they are established vacancies and the approval can be granted subject to the conditions under R.49 of Chapter XIVA of the K.E.R.

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iii) Approval can also be granted to appointments made to the approved vacancies arising and continuing beyond 31st March due to sanctioning of additional divisions.

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iv) The Manager can make appointments in school even if the duration of which is less than one academic year but on daily wages basis and if the duration of vacancy exceeds one academic year that can be filled up on scale of pay basis.

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WP(C).18335/07

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v) The Manager is free to appoint teachers on a regular basis from the re-opening date itself against regular established vacancies and need not wait for the appointments till completion of the staff fixation as per the K.E.R.

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vi) Teachers who have been appointed in the midst of the academic year and not completed the requisite minimum continuous service before vacation will not be entitled to get vacation salary.”

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In view of the decision of the apex court referred to above and in the light of the Government orders, as are applicable to Higher Secondary School Teachers in the matter of appointment and approval, the writ petitioner would be entitled to approval of appointment with effect from 23.1.2002. However, she would not be entitled to be paid vacation salary in respect of the academic year 2001-2002.

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The Writ Petition is therefore ordered directing that the second respondent shall pass orders approving the appointment of the petitioner with effect from 23.1.2002, but without the benefit of vacation salary for the academic year 2001-2002.

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ANU SIVARAMAN

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Kiran Aravind v. the State of Kerala and Others

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Kiran Aravind v. the State of Kerala and Others

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