IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 WP(C).No. 12606 of 2007(A) -------------------------------------- PETITIONER(S): --------------------- MOTHER BONIFACE MARY, THE CORPORATE MANAGER, VIMALA HRIDAYA HIGH SCHOOL, VIRALY, UCHAKKADA P.O., KULATHUR, THIRUVANANTHAPURAM. BY MR.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE RESPONDENT(S): ------------------------ 1. SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, NEYYATTINKARA. 4. J.G.VALSALAKUMARI, CRAFT (AGRICULTURE), TEACHER, VIMALA HRIDAYA HIGH SCHOOL, VIRALY, UCHAKKADA, P.O.KULATHUR, THIRUVANANTHAPURAM. 5. SMT. DHEEMA RANI, SWEING TEACHER, VIMALA HRIDAYA HIGH SCHOOL, VIRALY, UCHAKKADA P.O., KULATHUR, THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER MR.DILIP MOHAN. R4 BY ADV. MR.P.N.MOHANAN. R5 BY ADV. MR.R.S.KALKURA, MR.M.S.KALESH, MR.HARISH GOPINATH, MR.V.VINAY MENON, MR.KIRAN SANKAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2009, ALONG WITH WPC NO. 12895 OF 2007 AND WPC NO. 35105 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 12606/2007-A APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER OF D.E.O. DATED 28/12/1985. EXT.P2: COPY OF THE GOVT. ORDER DATED 19/04/1996. EXT.P3: COPY OF THE ORDER DATED 13/05/1996 ISSUED BY FORMER MANAGER. EXT.P4: COPY OF THE ORDER IN O.P. NO. 11838/96 DATED 05/09/1996 HIGH COURT OF KERALA. EXT.P5: COPY OF THE EXPLANATION DATED 25/08/2001 OF THE PETITIONER. EXT.P6: COPY OF THE JUDGMENT IN O.P. NO. 11838/96 DATED 23/08/2005 HIGH COURT OF KERALA. EXT.P7: COPY OF THE ORDER OF 1ST RESPONDENT DATED 23/08/2006. EXT.P8: COPY OF THE ORDER DATED 12/09/2006 OF D.E.O. EXT.P9: COPY OF THE ORDER OF 1ST RESPONDENT DATED 09/03/2007. EXT.P10: COPY OF THE ORDER DATED 24/09/1969 OF 1ST RESPONDENT. EXT.P11: COPY OF THE LETTER OF DPI. EXT.P12: COPY OF THE GOVERNMENT LETTER. EXT.P13: COPY OF THE GOVERNMENT CIRCULAR DATED 17/12/1988. EXT.P14: COPY OF THE GOVT. ORDER DATED 15/2/1992. RESPONDENT'S EXHIBITS: EXT.R4(a): COPY OF THE ORDER 84-85 . EXT.R4(b): COPY OF THE APPOINTMENT ORDER DATED 14/08/1985. EXT.R4(c): COPY OF THE STAFF FIXATION ORDER. EXT.R4(d): COPY OF THE JUDGMENT DATED 23/08/2005 IN O.P. NO. 11838/1996 BEFORE THIS HONOURABLE COURT. EXT.R4(e): COPY OF THE ORDER NO.71994/J1/EDN. DATED 24/09/1969. EXT.R4(f): COPY OF THE LETTER NO.H9-94836/87/DPI DATED 08/01/1988. EXT.R4(g): COPY OF THE LETTER NO.49524/J1/88/EDN. DATED 20/07/1988. EXT.R4(h): COPY OF THE GOVT. CIRCULAR NO.78932/J1/88/G.EDN. DATED 17/12/1988. EXT.R4(i): COPY OF THE GO (RT)NO.565/92/G.EDN. DATED 15/02/1992. (PTO) WP(C) NO. 12606/2007-A EXT.R4(i)(1): COPY OF THE GO(RT)NO.5274/2000/G.EDN. DATED 22/12/2000. EXT.R4(i)(2): COPY OF THE GO(RT)NO.583/04/G/EDN. DATED 05/02/2004. EXT.R4(i)(3): COPY OF THE GO(RT)NO.24375/98/G.EDN. DATED 23/06/1998. EXT.R4(i)(4): COPY OF THE GO(RT)NO.74/98/G.EDN. DATED 06/01/1998. EXT.R4(i)(5): COPY OF THE GO(RT)NO.397/98/G.EDN. DATED 28/01/1998. EXT.R4(i)(6): COPY OF THE GO(RT)NO.5202/2000/G.EDN. DATED 19/12/2000. EXT.R4(i)(7): COPY OF THE GO(RT)NO.1267/32/G.EDN. DATED 18/04/1991. EXT.R4(i)(8): COPY OF THE GO(RT)NO.1552/90/G.EDN. DATED 04/05/1990. EXT.R4(i)(9): COPY OF THE GO(RT)NO.3905/97/G.EDN. DATED 11/11/1997. EXT.R4(i)(10): COPY OF THE GO(RT)NO.4107/2000/G.EDN. DATED 10/10/2000. EXT.R4(i)(11): COPY OF THE GO(RT)NO.205/97/G.EDN. DATED 13/06/1997. EXT.R4(i)(12): COPY OF THE GO(RT)NO.4613/98/G.EDN. DATED 28/11/1998. EXT.R4(i)(13): COPY OF THE GO(RT)NO.3145/2000/G.EDN. DATED 29/07/2000. EXT.R4(i)(14): COPY OF THE GO(RT)NO.1238/91/GI. DATED 12/04/1991. EXT.R4(i)(15): COPY OF THE GO(RT)NO.468/01/G.EDN. DATED 02/02/2001. EXT.R4(j): COPY OF THE JUDGMENT IN O.P. NO. 15817/1996 DATED 04/02/2002. EXT.R4(k): COPY OF THE JUDGMENT IN CA NO.10409/95 OF THE HONOURABLE SUPREME COURT. EXT.R4(l): COPY OF THE ORDER DATED 27/06/2007 ISSUED BY THE GOVERNMENT. EXT.R1(a): COPY OF THE ORDER DATED 17/04/2007 IN WP(C) NO. 12895/2007. EXT.R1(b): COPY OF THE ORDER DATED 28/05/2007 IN WP(C) NO. 12606/2007. EXT.R1(c): COPY OF THE ORDER DATED 07/06/2007 IN WP(C) NO. 12606/2007. EXT.R1(d): COPY OF THE ORDER DATED 05/10/2007 IN WP(C) NO. 12606/2007. EXT.R1(e): COPY OF THE GOVT. LR.NO.20995/K3/2007/G.EDN. DATED 27/06/2007. EXT.R1(f): COPY OF THE GOVT. LR. NO.20995/K3/2007/G.EDN. DATED 18/10/2007. //TRUE COPY// P.S. TO JUDGE rs. S. Siri Jagan, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= W. P (C) Nos. 12606, 12895 & 35105 of 2007 =-=-=-=-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 13th July, 2009. J U D G M E N T These three writ petitions are directed against the same Government Order, but challenging different directions in that order. Therefore, they are heard and disposed of by this common judgment. For convenience, I shall refer to the rank of parties and exhibits as obtaining in W.P(C) No. 35105/2007. 2. W.P(C) No. 35105/2007 is filed by a craft teacher named Smt. Valsalakumari J.G appointed by the 3rd respondent to a retirement vacancy which arose on 31-3-1985. Smt. Valsalakumari was appointed to that vacancy on 14-8-1985. But that appointment was refused to be approved on the ground that on the retirement of the erstwhile incumbent, the post itself stands abolished by virtue of Rule 6B of Chapter XXIII of the Kerala Education Rules. Subsequently, the management cancelled the appointment of Smt. Valsalakumari. Smt. Valsalakumari J.G approached this Court by filing O.P. No. 11838/1996 in which there was an order of stay of termination of service of Smt. Valsalakumari. While so, the management changed in 1996. As per the staff fixation order for the year 2004-05, a vacancy of a sewing teacher was sanctioned along with that of a craft teacher. The petitioner in W.P(C) No. 12895/2007 Smt. Dheema Rani was appointed to the post of sewing teacher sanctioned in 2004. Her appointment was also not approved, probably due to the situation prevailing on account of non-approval of the appointment of Smt. Valsalakumari. By Ext. P4 judgment dated 23-8-2005, O.P. No. 11838/1996 filed by Smt. Valsalakumari was allowed and the Government was directed to re-consider the matter. Pursuant thereto, the Government re-considered the matter and passed an order directing approval of the appointment of Smt. Valsalakumari J.G with effect from 1-11-2004, by converting the post W.P.C. No. 12606/07 etc. -: 2 :- of sewing teacher held by Smt. Dheema Rani and directing payment of salary for the period from 14-8-1985 to 1-11-2004 to Smt. Valsalakumari J.G, which was directed to be recovered from the Manager invoking Section 8 of the Kerala Education Act, 1958. The Manager and Smt. Dheema Rani challenged the same in W.P(C) Nos. 24521/2006 and 25421/2007 in which that order was quashed by judgment dated 27-11-2006 and the Government was directed to re- consider the matter after hearing Smt. Smt. Valsalakumari J.G, Smt. Dheema Rani and the Manager. It is pursuant to that judgment, Ext. P13 order has been passed by the Government, but the same was in terms of the earlier order itself. W.P(C) No. 35105/2007 is filed by Smt. Valsalakumari J.G against that part of Ext. P13 order, by which she has been denied approval of appointment with effect from 14-8- 1985. W.P(C) No. 12895/2007 is filed by Smt. Dheema Rani challenging that part of the order, whereby the post of sewing teacher is directed to be converted to that of a craft teacher. W.P(C) No. 12606/2007 is filed by the management challenging that part of the order whereby the salary to be paid to Smt. Valsalakumari J.G for the period from 14-8-1985 to 1-11-2004 has been directed to be recovered from the Manager invoking Section 8 of the Kerala Education Act, 1958. 3. If W.P(C) No. 35105/2007 filed by Smt. Valsalakumari J.G is allowed and her appointment is directed to be approved from 14-8- 1985, then automatically the other two writ petitions also have to be allowed. Therefore, I shall consider W.P(C) No. 35105/2007 first. 4. The question as to whether by virtue of Rule 6B of Chapter XXIII of K.E.R., the post of specialist teacher or craft teacher stands abolished on the retirement of the incumbent after 1969-70 has been a vexing question which was the subject matter of various decisions of W.P.C. No. 12606/07 etc. -: 3 :- the Government and this Court . Ultimately, that issue was settled by the decision of a Full Bench of this Court in Harikumar v. State of Kerala, 2003(1) KLT 797 (F.B), holding that on the retirement of the incumbent of the post, the post would stand abolished. Strictly going by that judgment, Smt. Valsalakumari J.G may not be entitled to succeed in her writ petition. But, the question is not that simple. At the relevant time, when Smt. Valsalakumari J.G was appointed and subsequently, this question was considered by the Government in various orders. By Ext. P5 order dated 24-9-1969, the Government held that the posts of specialist craft teachers sanctioned before 1969- 1990 will be continued even if the incumbent retired or left the post for other reasons and that the post will be allowed to be filled up by qualified hands. Again by Ext. P6 order dated 8-1-1988 referring to G.O. Ms. No. 87/79/G. Edn. dated 2-6-1979, the Government have clarified that when the incumbent holding the post vacated the post, such post can be restored as full time or part time according to the availability of periods for the specialist subjects and that as long as thiat Government Order existed, restoration shall be continued. Still later, by Ext. P7 dated 20-7-1988, the Government informed the Director of Public Instruction that the posts of specialist teachers and craft teachers which existed during 1987-88 against which specialist teachers and craft teachers were appointed and approved will continue as such until further orders and they may be paid as usual. By Ext. P8 circular dated 17-12-1988, the Government again clarified that none of those posts will be deemed to have been abolished in subsequent years for any reason whatsoever and the post will be treated as continuous. The substitutes appointed against the vacancies were also permitted to be paid salary continuously. This was directed to include all appointments made against vacancies W.P.C. No. 12606/07 etc. -: 4 :- during the year 1988-1989 also. By Ext. P9 order dated 15-2-1992, referring to four teachers who were similarly appointed, the Government held that if the approval of those four teachers was made before the issuance of G.O.(MS) 154/89/G. Edn. dated 22-8-1989, they could have been paid salary and continued as per Ext. P8 circular dated 17-12-1983 as they were in service before issuance of the Government Order dated 22-8-1989. By Ext. P10(a) dated 22-12- 2000, the Government held as follows: “Government have examined the case w.e.f. the report from the Director of Public Instruction and found that the appointment of Sri. J. Shylock was made on 3.10.1985 during the prevalence of Government Circular No. 78932/J1/88/GE dated 17.12.88 even though the circular was cancelled with the issuance of G.O.(MS) 154/89/GE dated 22.8.1889. Which has no retrospective operation. In the circumstances, Government are pleased to accord sanction for the restoration of the post of craft teacher (Agriculture) in the Victory High School, Olathanny w.e.f. 3.10.1985 onwards and to approve the appointment of Sri. J. Shylock as craft teacher (Agriculture) against the above restored post subject to the condition that the post will cease to exist with the vacation of the post by the present incumbent through retirement, resignation, death or like reasons if it is otherwise in order.” In Ext. P10(b) dated 5-2-2005 a similar appointment dated 19-6-1986 was directed to be approved. By Ext. P10(c) dated 23-6-1998, the appointment dated 31-10-1985 of a specialist teacher was directed to be approved by the Government. By Ext. P10(d), another appointment dated 1-8-1989 was directed to be approved. By Ext. P10(e) dated 28-1-1998, an appointment dated 4-8-1988 was directed to be approved. By Ext. P10(f) dated 19-12-2000, the post abolished in 1992-93 was directed to be restored and appointment to that post was approved. By Ext. P10(g) order dated 18-4-1981, an appointment W.P.C. No. 12606/07 etc. -: 5 :- dated 20-7-1975 was directed to be approved. By Ext. P10 (h) dated 4-5-1990, an appointment dated 7-6-1989 was directed to be approved. In Ext. P10 (i) dated 11-11-1997, an appointment on 3-8- 1983 was directed to be approved. By Ext. P10(j), appointment dated 3-6-1985 was directed to be approved. By Ext. P10(k) dated 13-6- 1997, a post for 1987-88 was restored and appointment approved. By Ext. P10(l) dated 28-11-1998, an appointment dated 30-10-1986 was approved. By Ext. P10(m) dated 29-7-2000 an appointment dated 3-6-1985 was directed to be approved. By Ext. P10(n) dated 12-4- 1991, an appointment for the year 1987-1988 was directed to be approved. By Ext. P10(o) dated 2-2-2001, an appointment dated 1-6- 1993 was directed to be approved. Therefore, despite the prescription in Rule 6B, the Government themselves had even restored the abolished post and directed approval of appointment similar to that of Smt. Valsalakumari J.G. In fact, in Ext. P11 judgment in O.P.No. 15817/1996, a learned Judge of this Court noting a similar situation, finding that similar appointments have been approved by the Government themselves in several cases, held that the petitioner in that original petition is also entitled to get the same treatment as otherwise it would be discriminatory, especially since the Rules were not very clear on the subject and the appointments were not wantonly made. I am of opinion that Smt. Valsalakumari J.G is entitled to a similar relief insofar as several other similarly placed teachers have been given the very same benefit which Smt. Valsalakumari J.G seeks in her writ petition. 5. In this connection, I note two things. One is that in Harikumar's case (supra), the Full Bench was considering a case of appointment of a physical education teacher on March, 31, 1995. Further, the Government themselves, by G.O(P) No. 174/2008/G. W.P.C. No. 12606/07 etc. -: 6 :- Edn. dated 6-10-2008 amended Rule 6B to read as follows: “6B, Notwithstanding anything contained in any other rule in this Chapter except sub-rule (2) hereunder no post of Specialist Teacher or Craft Teacher shall be allowed to continue in any Upper Primary School or Upper Primary School section of a High School except for the continuance of the qualified teachers who were actually holding the said post on the 6th day of March, 1979. Provided that the specialist teachers appointed in Upper Primary School or Upper Primary School section of a High School after the 6th day of March 1979 but before 22nd day of August, 1989 whose appointments were approved shall be allowed to continue as such till their retirement, resignation, death or transfer and the posts of such Specialist Teachers shall be allowed to continue for their such continuance till they vacate the post.” It is clear from the said amendment that the Rules themselves permitted appointments made between 6-3-1979 and 22-8-1989, which were approved to be continued till their retirement, resignation, death or transfer. If such appointments illegally approved shall be continued, I see no reason why Smt. Valsalakumari's appointment should not be directed to be approved in tune with the other cases referred to above and the amended Rule 6B. 6. In view of my above findings, I am satisfied that Smt. Valsalakumari J.G is entitled to have her appointment with effect from 14-8-1985 as a craft teacher (agriculture) approved with effect from that date. Once it is approved, the appointment made by the manager stands ratified and salary paid to Smt. Valsalakumari J.G cannot be recovered from the Manager. 7. Insofar as for the year 2004-2005, as per Ext. P5 staff fixation order, both the posts of a craft teacher and a sewing teacher have been sanctioned, it is not necessary to convert the post of sewing teacher to that of craft teacher. In the above circumstances, the direction to convert the post of sewing teacher to that of craft teacher W.P.C. No. 12606/07 etc. -: 7 :- in the impugned order is also set aside. But, I make it clear that Smt. Valsalakumari J.G is not entitled to any additional monetary benefits arising from the approval of her appointment with effect from 14-8-1985 before 1-11-2004 other than what has been already paid to her. However, her service from 14-8-1985 would be counted for all other service benefits, including retirement benefits. The writ petitions are disposed of as above. S. Siri Jagan, Judge. Tds/