V. Santha vs State of Kerala and Others

P.K. Shamsuddin, J.—The Petitioner was appointed by the fifth Respondent as U.P. School Assistant for the period 9th July 1984 to 29th March 1985 in a vacancy caused by deputation of a teacher for training. This appointment'' was approved by the fourth Respondent, the District Educational Officer, Palghat. Ext. P-1 is the said order. Subsequently the third Respondent sanctioned a regular post of U.P.S.A. in the school with effect from 17th September 1984. The Petitioner was entitled to be posted against this regular post. In the circumstances the fifth Respondent shifted the Petitioner to that post and reported the matter to the fourth Respondent for approval. By Ext. P-2 order the fourth Respondent approved the appointment in the regular vacancy as U.P.S.A. with effect from 17th September 1984. However, it was ordered that she will not be eligible for vacation salary. Aggrieved by the denial of vacation salary the Manager filed an appeal before the Deputy Director of Education, the third Respondent. However, that appeal was dismissed by Ext. P-3 order dated 15th April 1986. Thereupon the Manager filed revision before the second Respondent, the Director of Public Instruction, which was disposed of by Ext. P-4 order rejecting the revision. Thereupon a further revision was filed under Chapter XIVA, Rule 49 Kerala Education Rules by the Manager before the Government which was disposed of by Ext. P-5 order upholding the orders passed by the lower authorities.

In this Original Petition, the Petitioner has challenged that part of the order of Ext. P-2 which denied the vacation salary to the Petitioner as well as the appellate order Ext. P-3 and the re visional orders Exts. P-4 and P-5. In order to appreciate the contention raised by the learned Counsel it is necessary to refer to Chapter XIV-A Rule 49 which reads as follows:

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 teachers appointed in training vacancies. Explanation: For the purpose of this rule, ''Headmaster'' includes ''Teacher-in-charge'' also.

The vacation salary is denied for the reason that the Petitioner did not have eight months'' continuous regular service as on the closing day. If the total service as on the closing day is taken into account there cannot be any doubt that the Petitioner has continuous service of more than eight months. But she was denied that benefit for the reason that the services in the training vacancy cannot be counted for the purpose of retaining her during the vacation in view of the provisions contained in Rule 49 of Chapter XIVA of the K.E.R.

Learned Counsel for the Petitioner Sri K.A. Abdul Gafoor pointed out that a reading of Rule 49 would only lead to the conclusion that the requirement of eight months'' service would not apply to appointment made in the permanent vacancies. The expression ''permanent, vacancies'' can only be understood as "regular vacancies" in this context. The one of contention of the Petitioner''s counsel is that the appointment of the Petitioner with effect from 17th September 1984 being in a regular vacancy, the question of minimum service of eight months for enabling the Petitioner to get the benefit of services during vacation does not arise. In this context learned Counsel invited my attention to a decision of Poti, J. as he then was, in Jolly v. State of Kerala 1975 KLT SN. 43 O.P. 3766/73. Dealing with the provisions contained in Chapter XIV-A Rule 49 learned Judge held that the purport of Rule 49 is that a person is entitled to retention in service either by reason of appointment in permanent vacancy or by reason of continuous service of eight months with continuity in service extending over the summer vacation. I am in respectful agreement with the view expressed by the learned Judge in the light of the provisions contained in Rule 49 of Chapter XIV-A. In the circumstances the petitioner is entitled to vacation salary for the period 1984-85. I accordingly declare that she is entitled to the vacation salary for the period 1984-85 and quash Exts. P-3, P-4 and P-5 and that part of the order Ext. P-2 which holds that the Petitioner is not entitled to vacation salary.

Original petition is disposed of as indicated above.