IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 5472 of 2008(B)
1. NAVAS A.M., HSST JUNIOR (HINDI),
... Petitioner
2. ALAVIKUTTY E.K.,
3. IBRAHIM M.P., HSST (POLITICAL SCIENCE)
4. JISSA JACOB, HSST JUNIOR (PHYSICS)
5. JAFAR PUTHUKUDY, HSST (BOTANY)
6. ISMAIL C.K.CHERUKUNNATH, HSST JUNIOR
7. PARTHASARATHIRAMAYI, HSST JUNIOR
8. SREEJITH R., HSST JUNIOR (CHEMISTRY)
9. SIJO MON P., HSST JUNIOR (ENGLISH)
10. GAYATHRI V., HSST (ZOOLOGY)
11. MOHAMMED ASHRAF M., HSST (BOTANY),
12. BAJINA M.P., HSST (ZOOLOGY),
13. MOHAMMED RIYAS A.V., HSST (ENGLISH)
14. REKHA K.M., HSST (MATHS), IKTHSS,
Vs
1. STATE OF KERALA,
... Respondent
2. THE DIRCTOR OF HIGHER SECONDARY
3. THE REGIONAL DEPUTY DIRECTOR,
For Petitioner :SRI.M.SASINDRAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :13/10/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) No. 5472 OF 2008 B
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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
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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
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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
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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
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