IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 12TH OCTOBER 2011 / 20TH ASWINA 1933 WP(C).No. 15699 of 2006(R) -------------------------- PETITIONER: ----------------- BIJY GEORGE, HIGHER SECONDARY SCHOOL TEACHER (MATHEMATICS), ST.IGNATIOUS VOCATIONAL AND HIGHER SECONDARY SCHOOL, KANJIRAMATTOM, ERNAKULAM DISTRICT. BY ADVS. SRI.ELVIN PETER P.J. SRI.S.RAMESH SRI.P.N.SANTHOSH SRI.NAVEEN.T SRI.T.G.SUNIL (PRANAVAM) SMT.POOJA SURENDRAN RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPRTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM 1. 3. THE MANAGER, ST.IGNATIUS VOCATIONAL AND HIGHER SECONDARY SCHOOL KANJIRAMATTOM, ERNAKULAM. R1 BY GOVERNMENT PLEADER SRI.RUPESH VIJYAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/10/2011, THE COURT ON 12/10/2011 DELIVERED THE FOLLOWING: WP(C).No. 15699 of 2006(R) -------------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS ----------------------------------- EXT.P1. COPY OF PROMOTION ORDER DATED 23.1.2003 F THE PETITIONER ISSUED BY THE MANAGER. EXT.P2. COPY OF REPRESENTATION DT. 17TH OCTO. 2003 FILED BY THE PETITIONER TO THE 2ND RESP0NDENT. EXT.P3. COPY F JUDGMENT DT. 28TH AUGUST, 2003 IN OP NO.33223/2002 OF THIS HON. COURT. EXT.P4. COPY OF ORDER, G.O. (MS) N0. 351/2004/G.EDN DATED 20.11.2004 ISSUED BY THE GOVT. EXT.P5. COPY OF APPOINMENT ORDER DT. 2.7.2003 ISSUED TO THE PETITIONER BY THE MANAGER. EXT.P6. COPY OF COMMUNICATION DT. 18.8.2003 FROM THE MANAGER TO THE 2ND RESPONDENT. EXT.P7. COPY OF ORDER NO.ACD. A6/20389/HSE/01. DATED 20.1.2004 ISSUED BY THE 2ND RESPONDENT. EXT.P8. COPY OF COMMUNICATION DT. 19.12.2005 SENT BY THE MANAGER TO THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS : NIL --------------------------------------- / TRUE COPY / P.A. TO JUDGE VK S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.15699 OF 2006 ---------------------------------------------- Dated this the 12th day of October, 2011 JUDGMENT The petitioner was a UPSA working in an aided school. When a vacancy of Higher Secondary School Teacher arose in the Higher Secondary section of the school, the petitioner was appointed by transfer with effect from 22.1.2003. But, the petitioner was designated as Higher Secondary School Teacher (Junior). The petitioner has filed this writ petition claiming that, in view of Ext.P3 judgment in O.P.No.33223/2002, the petitioner is entitled to be appointed as Higher Secondary School Teacher instead of Higher Secondary School Teacher (Junior). It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i) issue a writ of mandamus or any other appropriate writ, direction or order directing respondents 2 and 3 to appoint the petitioner as Higher Secondary School Teacher in Mathematics with effect from 23-1-2003 and to appoint her from that date and to made available all benefits flowing out of that to the petitioner. ii) issue a writ of mandamus or any other appropriate writ, direction or order declaring that the stipulation contained in Ext.P4 that the benefit of Ext.P4 restricting it to those Higher Secondary School Teachers appointed W.P.(C)No.15699/06 2 before 12-11-2001 is illegal and without the authority of law. iii) issue a writ of mandamus or any other appropriate writ, direction or order declaring that Higher Secondary School Teachers promoted from lower categories before or after 12-11-2001 are entitled to get appointment in the full time post of Higher Secondary School Teacher and not in the part time post of Higher Secondary School Teacher in Aided Schools. iv) issue a writ of mandamus or any other appropriate writ, direction or order declaring that the petitioner should be appointed as Higher Secondary School Teacher (Mathematics) with effect from 23-1- 2003 and the said appointment has to be approved. v) issue a writ of mandamus or any other appropriate writ, direction or order directing respondents 1 and 2 to forthwith give approval of appointment of the petitioner as Higher Secondary School Teacher made by the Manager by Ext.P5 and disburse the salary due to her.” 2. A counter affidavit has been filed by the 2nd respondent taking the stand that as per staff fixation order dated 1.7.2002, there were three posts of Higher Secondary School Teacher (F.T) in Maths and one post of Higher Secondary School Teacher (Junior) in Maths for the said aided school and the petitioner was appointed by transfer to the vacancy of HSST (Junior), which is perfectly valid and correct. 3. I have considered the rival contentions in detail. Ext.P3 judgment reads as follows: “The petitioners were High School Assistants who were appointed as H.S.S.T. by transfer. But their appointments were approved only as Part Time Higher Secondary School Teachers. The Government issued orders enabling their counter parts in Government service to draw wages of full W.P.(C)No.15699/06 3 time Higher Secondary School Teachers. Similarly placed appointees like the petitioners approached this court claiming full time salary and the relief sought by them was granted by a Divsion Bench of this court by Ext.P7 judgment. Following that judgment, the claim of other similarly placed Higher Secondary School Teachers has also been allowed by Ext.P8 judgment. 2. I heard the learned Government Pleader for the official respondents also. In view of the above position, the original petition is disposed of directing the second respondent to treat the petitioner also as full time teachers and grant them all consequential benefits within three months from the date of receipt of a copy of this judgment. It is clarified that the petitioners shall be paid the salary with effect from the date of their approved appointment provided there are sanctioned posts to accommodate them as per the staff fixation orders issued by the second respondent for the relevant years.” I am of opinion that, that judgment was rendered in the circumstances prevailing at the relevant time when the entire appointments in the Higher Secondary School in the State were in a nebulous state for want of special rules governing appointments in Higher Secondary Schools. That situation has completely changed subsequently. On coming into force of the special rules wherein for the post of a Higher Secondary School Teacher, minimum 15 periods is compulsory. For less than 15 periods only a HSST (Junior) alone can be appointed. Therefore, the question as to whether the petitioner should be appointed as Higher Secondary School Teacher or Higher Secondary School Teacher (Junior) depends upon as to W.P.(C)No.15699/06 4 whether there is a vacancy of Higher Secondary School Teacher in which the petitioner can be accommodated. The petitioner does not have a case that despite availability of a vacancy of Higher Secondary School Teacher, the petitioner has been appointed as Higher Secondary School Teacher (junior). On the other hand, in the counter affidavit, the specific contention is that only a vacancy of a HSST (Junior) was available to accommodate the petitioner to which only the petitioner has been appointed by transfer. In the above circumstances, I do not find any merit in this writ petition and accordingly, the same is dismissed. S. SIRI JAGAN, JUDGE acd W.P.(C)No.15699/06 5 W.P.(C)No.15699/06 6