IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 WP(C).No. 33337 of 2007(R) ---------------------------------------- PETITIONER(S): ------------------------- SHARAFUDEEN.M., HSST JR. IN ARABIC, AKMHS SCHOOL, MYLAPORE, UMAYALLUR, KOLLAM. BY ADV. SMT.P.V.ASHA RESPONDENT(S): --------------------------- 1. DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 2. MANAGER, AKMHS SCHOOL, MYLAPORE, UMAYALLUR, KOLLAM. 3. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. R1 & R3 BY GOVERNMENT PLEADER SMT. M.R. SREELATHA R2 BY ADVS. SMT.S.KARTHIKA, MR.M.S.UNNIKRISHNAN, SMT.K.P.GEETHA MANI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2009, THE COURT ON 3/12/2009 DELIVERED THE FOLLOWING: Kss WPC.NO.33337/2007 R APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE APPOINTMENT ORDER DTD. 1/12/1999 OF PETITIONER. P1A: COPY OF THE APPOINTMENT ORDER 5/06/00 OF PETITIONER. P2: COPY OF ORDER NO.ACD.B3/19252/HSE/01 DTD. 21/07/02. P3: COPY OF THE G.O.(MS) NO.351/2004/G.EDN. DTD. 20/11/04. P4: COPY OF THE ORDER NO.ACD.B3-19252/HSE/05 DTD. 28/12/2005. P5: COPY OF THE LETTER DTD. 29/05/06 OF THE REGIONAL DIRECTOR. P6: COPY OF THE LETTER DTD. 29/08/06 OF THE DIRECTOR. P7: COPY OF THE LETTER DTD. 3/10/06 OF THE MANAGER. P8: COPY OF THE G.O.(MS) 162/98/G.EDN. DTD. 13/05/98. P9: COPY OF THE ORDER NO.ACD.B3/19252/01/HSE DTD. 27/01/2007. P10: COPY OF THE JUDGMENT DTD. 5/06/07 IN WPC.NO.8415/2007. P11: COPY OF THE ORDER NO.ACD.B3/8415/HSE/06 DTD. 10/08/2007. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 33337 of 2007-R - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of December, 2009. JUDGMENT The claim raised by the petitioner relates to the eligibility for full time benefit as HSST which was once granted, but was cancelled by a later Govt. Order. 2. The petitioner was appointed as H.S.A. Arabic in the school managed by the second respondent, in a vacancy which arose consequent on the sanction of leave without allowance to the regular teacher for a period of five years. His appointment was approved from 1.2.1999 to 31.3.2000. He was re-appointed from the date of reopening on 5.6.2000 for the period upto 17.10.2003 and the said appointment was also approved. Exts.P1 and P1A are the respective orders. 3. In the meanwhile Higher Secondary course was sanctioned to the school. In terms of the Govt. Order in force with regard to the appointment of teachers, the petitioner and another H..S.A. who were qualified, have been appointed as HSST with effect from 20.8.2000 under 25% quota. This was approved as per Ext.P2 by the first respondent, with effect from wpc 33337/2007 2 2.0.8.2000. By Ext.P3, the Government ordered to grant full time benefit to all the aided HSSTs appointed by transfer from among qualified HSA/UPSA/LPSA as in the case of Govt. HSSTs as ordered in G.O.(MS) No.162/98/G.Edn. dated 13.5.1998. It was also clarified that the order was not applicable to those appointed under the Special Rules. Arrears were credited in the provident fund account. Ext.P4 is the consequential order granting benefits to the petitioner. Therein, the appointment has been approved with effect from 2.8.2000. Later, clarifications were sought from the Regional Director as per Exts.P5 and P6 and the objection appears to be that the petitioner was not a regular HSA at the time of appointment as HSST. In Ext.P6, the view taken is that the petitioner's appointment cannot be termed as a by transfer appointment as he is an open market candidate and hence not eligible for the benefit of Ext.P3 Govt. Order. Ext.P7 is the representation filed by the petitioner. But finally by Ext.P9 the benefit was cancelled stating that the petitioner did not come under the by transfer category, as he was not working as a regular HSA. By Ext.P10 judgment, this Court directed the first respondent to pass fresh orders after hearing the petitioner. By Ext.P11 again the same position has been reiterated. This is under challenge in this writ petition. wpc 33337/2007 3 4. In Ext.P11, the view taken is that only by transfer appointee working on regular basis are granted full time benefit as per Govt. Order dated 20.11.2004. Being a leave vacancy appointee, the petitioner is not entitled for full time benefits as per the said Govt. Order. 5. Learned counsel for the petitioner submitted that as a leave substitute, the petitioner's appointment was approved. There is no restriction regarding the appointment of a leave substitute in the regular vacancy. The relevant Govt. Order does not prohibit appointment of a HSA who was appointed in a leave vacancy. Reliance is placed on various judgments of this Court. It is also pointed out that by a recent judgment of this Court in W.P.(C) No.27077/2005, the claim of direct recruitees for the benefit of Ext.P3 Govt. Order was considered. It has been held therein that persons appointed under 75% quota cannot be discriminated and they are also liable to be granted full time scale of pay. In that view of the matter also, the petitioner cannot be denied the benefit. 6. Going by the facts of the case, the petitioner was a leave substitute when the higher secondary course was started. His appointment was approved as per Exts.P1 and P1A. The Govt. Order dated 13.5.1998 directed filling up of vacancies of HSST of an extent of 25% by transfer wpc 33337/2007 4 from existing teachers, viz. HSA/UPSA/LPSA. Learned counsel for the petitioner relied upon two recent decisions of Division Benches of this Court in Arshad Beegum v. Najeeb (2009 (4) KLT 389 and Geetha v. Geo Thomas (2009 (4) KLT 514) to contend for the position that the appointment of the petitioner as HSST cannot be said to be irregular. In Arshad Beegum’s case (2009 (4) KLT 389) the issue was considered under the Kerala University (Conditions of Service of Teachers and Members of Non-teaching Staff) First Statutes, 1979. Therein, the claim of a leave substitute appointed in a college for promotion in a vacancy which arose in the higher category, was considered. After examining the various contentions in the light of Sections 57 and 63 of the Kerala University Act and the relevant Statutes, it was held in para 13 that “going by the provisions of the Statutes, we find that there is no distinction in the matter of selection for the post of regular vacancies or temporary vacancies. A person appointed to a temporary vacancy in a private college is entitled to be accommodated in a temporary vacancy of longer duration or a regular vacancy, that may arise in the meantime. So, a person appointed in a temporary vacancy in a private college has to be considered as a member of the service and he cannot be equated with a R.9(a)(i) appointee, under the wpc 33337/2007 5 Government. If a person appointed in a temporary vacancy is entitled to be considered for appointment to regular vacancies, there is no reason, why he should not be considered for promotion also, to the vacancies arising in higher grade posts. Since we have already taken the view that the appellants should be treated as a member of the service, even if she is appointed in a temporary vacancy, we have no doubt that such an appointee is entitled to be considered for promotion to vacancies, that may arise in the higher grade posts, while she is in service.” 7. The above dictum shows that a person working in a temporary vacancy will also be considered as a member of the service. In Geetha's case (2009 (4) KLT 514), a similar question was considered. Therein, the person was appointed in a maternity leave vacancy and while so, a regular vacancy in the cadre of UPSA arose. A fresh appointment was made by the Manager. The question arose whether the teacher working in the leave vacancy ought to have been appointed in the regular vacancy. It was held that “when the regular vacancy arose appellant should have been accommodated in that vacancy and a fresh hand could have been appointed only in the remaining portion of maternity leave vacancy, in which appellant was working.” Therefore, the right of the leave substitute for regular wpc 33337/2007 6 appointment was recognized by this Court. In para 6, it was further held that “the legal position that the Manager cannot deny promotion or re- appointment for the reason that original appointment was not yet approved, is covered by the Division Bench decision of this Court in Joshy v. Krishna P. Rajan (2007 (2) KLT SN 63 - Case No.85). 8. If we draw an analogy here also, the right of the petitioner as a member of the service and as a leave substitute for by transfer appointment under 25% quota cannot be denied merely on the ground that the petitioner has not been appointed in a regular vacancy. He was entitled to be appointed in a regular vacancy which may arise in future. 9. The appointment of the petitioner has been approved already by Ext.P2 order. In Ext.P3 the Government ordered to grant the benefit of full time scale for appointees by transfer from among qualified HSA/UPSA/LPSA. It is clear that the petitioner was appointed by transfer as HSST. No disqualification can be attached to the appointment on the ground that the petitioner was appointed only in a leave vacancy as HSA. Going by the system prevalent under KER and as held by this Court in Geetha's case (2009 (4) KLT 514), a leave substitute is entitled to be considered for regular appointment and promotion even if original wpc 33337/2007 7 appointment has not been approved. Therefore, the objection taken to deny the benefit to the petitioner on the ground that he cannot be treated as a by transfer appointee, cannot survive. 10. If the petitioner cannot be considered as a by transfer appointee, he will have to be considered as an appointee under the 75% quota by direct recruitment. The question whether the benefit of Ext.P3 is applicable to persons appointed in aided schools under 75% quota is also now settled by this Court in W.P.(C) No.27077/2005. Therein, the contention that was considered is whether the refusal to grant the benefit given to HSSTs appointed by transfer to direct recruits, is patently discriminatory and illegal, as both are discharging the very same duties and functions. After examining the question it was held thus in para 5: “There cannot be any dispute that the qualifications required for appointment, duties and functions of the two sets of teachers are the same. Apart from the source of appointment there is absolutely no difference between the two sets of teachers. As such as Higher Secondary School Teachers, they cannot be discriminated in the scale of pay as there is no justifiable classification as to exclude the same from the vice of arbitrariness and discrimination from which Articles 14 and 16 of the Constitution of India guarantees protection to identically situated persons.” wpc 33337/2007 8 In that view of the matter also, the petitioner is entitled to succeed. Therefore, the writ petition is allowed. Ext.P11 is quashed. There will be a direction to the respondents to restore the benefit granted to the petitioner as per Exts.P4 andP5 and disburse the benefits in accordance with the same, from time to time. No costs. (T.R. Ramachandran Nair, Judge.) kav/