The Kerala High Court ruled on Wednesday that for holiday pay to be claimed, the teacher must have eight months’ continuous service in the vacancy (not permanent) which extends over the summer holidays, under Rule 49 of Chapter XIV-A of the Education Rules in Kerala .
The Court came to this conclusion when answering the specific question whether service under two different appointments against two different vacancies that are not permanent can be counted towards claiming holiday pay.
The Division Bank consisting of Justice PB Sureshkumar and Justice CS Sudha noticed,
“the term “vacancies” has been used in the provision as there are different types of vacancies which are not permanent and the purpose of the Rule is to provide the benefit of holiday pay to anyone appointed to such vacancies, if duly paid to the terms of the provision If the provision is so understood there can be no doubt that the expression “permanent service” has been used in the context of those vacancies which extend over the summer holidays in which the teacher is appointed “.
The court heard an appeal filed by a primary school teacher, appointed to temporary vacancies, seeking vacation pay. She was initially appointed for a period from 28.07.2010 to 31.12.2013. During this period, another temporary vacancy arose in the School on 01.10.2013 and the Manager of the School transferred her, where she worked until January 13, 2014 on a daily wage basis. in another temporary vacancy on 14.01.2014, which was initially also only approved on a daily wage basis in two periods between 14.01.2014 and 31.03.2014 and from 01.06.2014 to 13.01.2015.
Appellant has again been appointed to another temporary vacancy for the period from 14.01.2015 up to and including 31.05.2017 and after the creation of a new vacancy on 01.06.2015, the Manager has moved her appointment to said vacancy for the period from 01.06 .2015 through 31.03. 2017. Since no decision had been taken prior to her transfer approving her appointment for the period from 14.01.2015 to 31.05.2017, the Education Officer only approved the said appointment of the petitioner for the period from 14.01.2015 to 31.03.2017 on daily wage base . Subsequently, the appointment for the period 01.06.2015 to 31.03.2017 was approved by the education manager on 31.01.2017.
The appellant challenged the appointment order thus issued by the education officer with the government on the grounds that the appointment should have been approved on a regular basis. However, the government rejected this. The written application contesting this before the single judge was also rejected on the ground that, since the appellant had not challenged the various orders approving her appointment under different time limits and since those orders had become final, she was not entitled to any exemption from the summons.
It is in this context that the cross-appeal has been lodged.
Lawyers VA Muhammed, M. Sajjad, and PA Jenzia argued on behalf of the appellant that the Petitioner worked without interruption on a regular scale from 01.10.2013 to 31.03.2014 and there was no reason to withdraw her salary for the holiday after the 2013-2014 academic year. It was further argued that since the petitioner’s appointment for the period from 14.1.2015 to 31.05.2017 covered a period spanning more than one academic year, there was absolutely no reason to exclude only part of the said period from 14.01.2017 to approve. .2015 to 31.03.2015 on a daily wage basis in order to deprive her of her regular scale for the said period.
The court finds that the complainant’s complaint is twofold. As to the first part, it has reviewed Article 49 of Chapter XIV-A of the Kerala Education Rules and found that teachers appointed in vacancies which are not permanent are entitled to holiday pay if the vacancy they are appointed to extends over the summer holidays , if their continuous service on the closing day is not less than eight months.
After the academic year 2013-2014, the appellant was not denied a holiday salary because she did not have an uninterrupted employment contract of eight months from the date of her appointment until the closing day, according to the court. However, the appellant had argued that on the last day before the summer holidays she had an uninterrupted employment of more than eight months if her employment was counted from 01.10.2013, although her uninterrupted employment from 01.10.2013 to 31.03.2014 under two different appointments against two different vacancies that were not fixed.
Thus, the Court ruled that in order to claim holiday pay, the teacher had to have eight months of continuous service in the vacancy which extends over the summer holidays, and found no basis for the petitioner’s allegations in this regard.
As regards the appellant’s second ground of appeal, the Court held that, since no decisions had been taken approving the appointment of the appellant for the period from 14.01.2015 to 31.05.2017 before she was transferred to the vacancy posted on 1.06.2015 arose, the The education officer approved the said appointment of the petitioner for the period from 14.01.2015 to 31.03.2015 only on the basis of daily wages, and the officer could not be blamed for this. The court reasons that this is because the appellant had accepted her appointment to the vacancy that had arisen on 01.06.2015 and, after she had accepted it, she could not be heard to argue that her previous appointment to the vacancy for the period from 14.01.2015 to 31.05.2017 must be approved by the educational manager.
Under these circumstances, the cross-appeal was declared unfounded.
Senior advocate AJ Varghese appeared on behalf of the respondents.
Case title: Neetha Lukose v. Kerala State & Ors.
Quote: 2022 LiveLaw (Ker) 645
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