Neetha Lukose vs State Of Kerala
2021 Latest Caselaw 7736 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                 THE HONOURABLE MR. JUSTICE GOPINATH P.

     FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942

                       WP(C).No.34725 OF 2019(M)


PETITIONER:

               NEETHA LUKOSE
               AGED 56 YEARS, W/O.M.T.BABU (LATE),
               MANAMEL, KARUKALTHRA, CRA-99,
               CHENCHERRY, NALANCHIRA, THIRUVANANTHAPURAM.

               BY ADVS.
               SRI.V.MADHUSUDHANAN
               SRI.T.ISSAC

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION
               DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.

      2        THE DIRECTOR GENERAL OF EDUCATION,
               JAGATHY, THIRUVANANTHAPURAM-695014.

      3        THE DEPUTY DIRECTOR OF EDUCATION,
               THIRUVANANTHAPURAM-695001.

      4        THE DISTRICT EDUCATIONAL OFFICER,
               THIRUVANANTHAPURAM-695001.

      5        THE MANAGER,
               ST.JOSEPH'S HIGHER SECONDARY SCHOOL,
               THIRUVANANTHAPURAM-695001.

               R1-4 BY GOVERNMENT PLEADER

OTHER PRESENT:

               SMT REKHA C NAIR-GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD            ON
05.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P (C) No.34725/2019                    -2-

                                 JUDGMENT

DATED THIS THE 5th DAY OF MARCH, 2021

Gopinath, J:

The petitioner, a retired Upper Primary School Teacher, had a claim

for appointment under Rule 51B of Chapter XIVA of the Kerala Education

Rules in a school managed by the 5th respondent. It appears from the

record that the petitioner was appointed for different spells in the following

manner.

  Sl.                                 Appointment against the
              Vacancy (period)                                      Approval
  No.                                        vacancy
   1      28-07-2010 to 31-12-2013   15-07-2010 to 31-12-2013   Scale of pay basis
                                     (Xavier) HSA promotion
   2      01-10-2013 to 13-01-2014   14-01-2010 to 13-01-2014   Daily wages basis
                                     (John E. Jayan) HSA
                                     promotion
   3      01-06-2014 to 13-01-2015   14-01-2014 to 13-01-2015   Daily wages basis
          01-06-2014 to 13-01-2015   (John E. Jayan)
   4      14-01-2015 to 31-03-2015   01-10-2014 to 31-03-2015   Daily wages basis
                                     (Joy P.) HST promotion
   5      01-06-2015 to 31-03-2017   11-06-2012 to 05-06-2017   Daily wages basis
                                     (Xavier) LWA
   6             01-06-2016          01-06-2016 promoted as       Regular basis
                                     HSM (Rajan V. Pozhiyur)

Certain spells of the above service of the petitioner were later approved on

a scale of pay basis though initially it was approved on daily wages. As

nothing turns on this fact, the details of the same need not be noticed. The

petitioner was regularly appointed against her claim under Rule 51B only

on 01-06-2016 and she retired from service on 31-03-2019.

2. The learned counsel for the petitioner contends that practically from

28-07-2010 onwards the petitioner has been accommodated although

against vacancies arising on account of promotion or on account of leave

for almost the entire period up to the date on which she was regularly

appointed with effect from 01-06-2016. He submits that in respect of

service which was less than one year in duration the Rules provided that

approval could be granted only on a daily wage basis. In respect of other

spells (even when approval was initially granted on a daily wage basis) it

was found later that the petitioner was entitled to a scale of pay and that

benefit was also extended to the petitioner. He submits that considering the

nature of service rendered by the petitioner she was entitled to salary on a

scale of pay basis for the entirety of her service and also for vacation salary

(salary during the periods of summer vacation between two spells of

service). Ext. P.18 order through which this claim was rejected is therefore

challenged in this Writ Petition. Reliefs consequential to the quashing of

Ext.P.18 are also sought. The learned Government Pleader, on the other

hand, with reference to the counter affidavit, contends that the petitioner

has no claim to any of the reliefs sought.

3. I have considered the contentions raised. It is not disputed that

the appointment and approval of different spells of service rendered by the

petitioner has not been challenged in any manner and those have become

final. The petitioner, therefore, accepted the conditions upon which she

was accommodated from time to time. The petitioner cannot at this point

of time claim that she is entitled to vacation salary and scale of pay in

respect of the service rendered by the petitioner especially when the

restriction of the benefit of a scale of pay to spells of service exceeding one

year is supported by statutory Rules. Since the appointment of the

petitioner was during different spells she also cannot get the benefit of

vacation salary as such appointment was against vacancies which

terminated at the end of an academic year and those which can thereafter

be filled up from the beginning of the next academic year only. In that view

of the matter the petitioner is not entitled to any relief in this writ petition.

Writ petition fails and is accordingly dismissed.

(Sd/-) GOPINATH P.

JUDGE

AMG

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 28.7.2010 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.

EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER DATED 1.10.2013 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.

EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER DATED 14.1.2014 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.

EXHIBIT P4 TRUE COPY OF THE APPOINTMENT ORDER DATED 14.1.2015 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.

EXHIBIT P5 TRUE COPY OF THE APPOINTMENT ORDER DATED 1.6.2015 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.

EXHIBIT P6 TRUE COPY OF THE APPOINTMENT ORDER DATED 1.6.2016 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.

EXHIBIT P7 TRUE COPY OF THE APPEAL DATED 10.12.2014 SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 3RD RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 22.7.2015 OF THIS HON'BLE COURT IN W.P.(C) NO.21974 OF 2015.

EXHIBIT P9 TRUE COPY OF THE ORDER NO.K.DIS./B3/5390/2017/DDE DATED 20.6.2017 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P10 TRUE COPY OF THE ORDER NO.B(5)1758/17/K.DIS/DEO DATED 21.3.2018 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P11 TRUE COPY OF THE APPEAL DATED 16.8.2017 SUBMITTED BY THE 5TH RESPONDENT BEFORE THE DIRECTOR OF PUBLIC INSTRUCTIONS.

EXHIBIT P12 TRUE COPY OF THE ORDER NO.ET(4)85091/17/DPI DATED 25.1.2018 ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS.

EXHIBIT P13 TRUE COPY OF THE REVISION PETITION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

EXHIBIT P14 TRUE COPY OF THE ORDER NO.H1/53/2018/G.EDN DATED 12.4.2019 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P15 TRUE COPY OF THE ORDER NO.B13/19525/2017/LDS DATED 13.6.2018 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P16 TRUE COPY OF THE PETITION DATED 11.3.2019 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

EXHIBIT P17 TRUE COPY OF THE JUDGMENT DATED 21.6.2019 OF THIS HON'BLE COURT IN WP(C) NO.16902 OF 2019.

EXHIBIT P18 TRUE COPY OF THE ORDER GO(RT) NO.5138/2019/GEDN DATED 27.11.2019 ISSUED BY THE 1ST RESPONDENT.