IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 6TH OCTOBER 2008 / 14TH ASWINA 1930 WP(C).No. 31910 of 2004(W) ---------------------------------------- PETITIONER: ------------------ C.LOVIDASAN, HIGHER SECONDARY SCHOOL TEACHER GOVERNMENT HIGHER SECONDARY SCHOOL, MANACAUD, THIRUVANANTHAPURAM. BY ADV. SRI.D.KISHORE SMT.MEERA GOPINATH RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION VIKAS BHAVAN, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION SOUTH ZONE, KOLLAM. 4. THE DIRECTOR OF HIGHER SECONDARY EDUCATION OFFICE OF THE DIRECTOR OF HSE HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM. 5. THE PRINCIPAL, ST.XAVIERS COLLEGE, THUMPA, THIRUVANANTHAPURAM. 6. THE MANAGER, ST.XAVIERS COLLEGE, THUMBA, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT.T.B.RAMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.31910/2004 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE ORDER G.O.(MS) NO.30/96/ H.EDN. DT. 12.2.96 ISSUED BY THE IST RESPONDENT. EXT.P2:- COPY OF THE APPOINTMENT ORDER DT. 30.1.97 IF THE 6TH RESPONDENT. ET.P3:- COPY OF THE ORDER G.O.(MS) NO.171/97/H.EDN. DT. 8.12.97 OF THE SIT RESPONDENT. EXT.P4:- COPY OF THE COMMUNICATION NO.UGC CELL I(1) 15715/98/COLL. EDN. DT. 2.5.98 ISSUED BY THE 2ND RESPONDENT. EXT.P5:- COPY OF THE ORDER G.O.(MS) 145/2000 H.EDN. DT. 5.10.2000 OF THE IST RESPONDENT. EXT.P6:- COPY OF THE CIRCULAR NO.AD.B1/15660/2000/HSE DT. 23.9.00 ISSUED BY THE ADMINISTRATIVE OFFICER OF THE 4TH RESPONDENT. EXT.P7:- COPY OF THE REPRESENTATION PRODUCED AS EXT.P9 IN OP. 26995/01 SUBMITTED BY THE PETITIONERBEFORE THE 2ND RESPONDENT DT. 16.9.01. EXT.P8:- COPY OF THE STATEMENT FILED ON BEHALF OF THE 2ND RESPONDENT IN OP. NO.26995/01 DT. 28.6.02. EXT.P9:- COPY OF THE ORDER NO.AD B3/5742/03/HSE DT. 9.4.2003 OF THE 4TH RESPONDENT. EXT.P10:- COPY OF THE RELIEVING ORDER DT. 6.5.03 OF THE 5TH RESPONDENT. EXT.P11:- COPY OF THE ORDER NO.D3 7336/03/DCE DT. 8.8.03 OF THE 2ND RESPONDENT. EXT.P12:- COPY OF THE JUDGMENT DT. 18.3.04 IN OP. NO.26995/01 OF THIS HONOURABLE COURT. EXT.P13:- COPY OF THE STATEMENT FILED BY THE 3RD RESPONDENT IN CONTEMPTS CASE IN 907/04. EXT.P14:- COPY OF THE JUDGMENT DT. 9.9.04 IN CONTEMPT CASE NO.707/04 OF THIS HONOURABLE COURT. EXT.P15:- COPY OF THE ORDER G.O.(RT) NO.820/04/H.DN. DT. 19.6.04 OF THE IST RESPONDENT. /TRUE COPY/ P.A. TO JUDGE tss ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.31910/2004 ----------------------------------------------------------- Dated this the 6th day of October, 2008 JUDGMENT The claim of the petitioner is for salary for the period 1.6.2000 to 16.3.2001 and for 16.3.2001 to 9.4.2003. Admittedly, the petitioner commenced his service in a leave vacancy in St. Xavier's College, Thumba from 30.1.1997 and for the period up to 31.5.2000 his service was approved and he was paid salary. In the meanwhile, by Ext.P1, following the introduction of U.G.C scheme, a new cadre of teachers were created in the Collegiate Education Subordinate Service for pre-degree classes and the appointment of the petitioner by Ext.P2 was made thereafter. Petitioner refers to Ext.P3, Government Order which reads as follows; “2. In the above circumstances Government are pleased to order as follows; WP(c).No.31910/2004 2 i. The zonal Deputy Directors of Collegiate Education are authorized to accord approval for the appointments of junior lecturers made by the Private College Managements strictly in accordance with G.O (MS) No.30/96/H. Edn. dated 12.2.1996. ii. Their salaries will be disbursed with effect from the date of appointment on the basis of the approval accorded by the deputy directors of collegiate Education. iii. These junior lecturers will be transferred to Higher Secondary Schools when the Pre-Degree is delinked. 3. The approval given by the Deputy Director of Collegiate Education is intended only for disbursement of salary and other service benefits till they are suitably re-deployed to Higher Secondary Schools on Pre-Degree delinking.” 2. Thereafter, the Government issued Ext.P4, which inter alia provided that the persons appointed in leave WP(c).No.31910/2004 3 vacancies are to be terminated as and when the incumbent joining duty on expiry of the leave and that their claim can be considered for future vacancies by observing rotation formula. Still later, Government issued Ext.P5, where it was provided that protection will be restricted only to those who were in service as on 24.4.1997. It also provides that Corporate Management should order Intra-University transfer to accommodate excess staff in vacancies elsewhere. When by Ext.P6, applications are invited for deployment as HSST, Petitioner also applied for the same. It was at that stage, complaining that those who were appointed on leave vacancies were discriminated as against those who were appointed on regular basis, the petitioner filed O.P.No.26995/2001. It is contended that by Ext.P8, a counter affidavit filed by respondents in that writ petition, an undertaking was given that the respondent will not discriminate the petitioner in the matter of deploying him to the Higher Secondary Schools. Petitioner submits that in view of all these by Ext.P9 order issued on 9.4.2003, he was deployed as HSST and in order to join the post he was also WP(c).No.31910/2004 4 relieved by Ext.P10. On that basis, the Original Petition was also closed by Ext.P12 judgment. Complaining that the judgment was not complied with the petitioner filed a Contempt of Court Case as CCC.No.704/2004. In the affidavit filed in that case, a contention was raised to the effect that the petitioner was not eligible for deployment. Therefore, leaving open the aforesaid contention to be resolved in a writ petition, the contempt was closed by Ext.P14. It is thereafter that this writ petition was filed by the petitioner. 3. As already noticed, essentially the petitioner claiming salary for the period 1.6.2000 to 16.3.2001 and also for the subsequent period till 9.4.2003. The main contention that is raised by the learned counsel for the petitioner is relying on Ext.P15, an order issued by the Government of Kerala. Petitioner submits that, 156 junior lecturers mentioned in Ext.P15 and deployed to Higher Secondary Schools, are similarly situated like him. They were given benefit of arrears of salary for the period from August, 2001 to December, 2003, treating the period as WP(c).No.31910/2004 5 duty. Petitioner contends that he is also entitled to the similar benefit. 4. Learned Government Pleader on the other hand would contend that the case of the petitioner stands on a different footing. According to the Government Pleader the appointment of the petitioner was in a leave vacancy. It is also pointed out that the service for the period from 1.6.2000 to 16.3.2001 was not approved. It is also stated that for the period subsequent to 16.3.2001, not even an order of appointment was issued to the petitioner. On this basis, it is contended that the petitioner having been initially appointed in a leave vacancy, was not even entitled to protection or even deployment. It is stated that going by the instruction now received, his inclusion in Ext.P9 and the deployment was erroneous. 5. The fact remains that the petitioner was deployed following Ext.P9 dated 9.4.2003 and he is working and is being paid on that basis. The correctness or otherwise of such deployment does not arise for consideration in this writ petition and if necessary it is for the respondents to WP(c).No.31910/2004 6 take appropriate action in the matter. 6. According to the Petitioner he is entitled to parity in treatment with the beneficiaries of Ext.P15. Petitioner's case is that the beneficiaries of Ext.P15 were appointed on leave vacancies and have been treated similarly with those who were appointed on regular basis and were given benefits. According to him, in his case alone a different yardstick has been adopted. This is a matter for the respondents to consider. If as contended by the counsel for the petitioner people situated similar to him, have been given benefit of Ext.P15, it is clarified that the Petitioner will also get the benefit which have been granted to them. For this the Petitioner may approach the 2nd respondent, in which case, the second respondent will consider the eligibility of the Petitioner for the benefit of Ext.P15 and pass appropriate orders in the matter. Petitioner shall produce a copy of the judgment before the 2nd respondent, who shall determine the issue, within three months thereafter. vi ANTONY DOMINIC, JUDGE WP(c).No.31910/2004 7 JUDGE vi.