IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 WP(C).No. 19222 of 2004(L) -------------------------- PETITIONER(S): ----------------------- ASHA K.S. R/A. ALPHA COTTAGE, POTHENCODE, THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR SRI.SAJU JOHN RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, DIRECTORATE OF VOCATIONAL HIGHER SECONDARY SCHOOL, THIRUVANANTHAPURAM. 3. THE PRINCIPAL, GOVERMENT V.H.S.S. PIRAPPANCODE, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.ANTONY MUKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.19222/04 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF PROVISIONAL APPOINTMENT ORDER NO.E4/4619/2000 DT 22.11.2001 ISSUED BY THE 2ND RESPONDENT. EXT.P2: TRUE COPY OF ORDER NO.GO(P) NO.39/2002/P&ARD DT 26.8.2002 ISSUED BY THE FIRST RESPONDENT. EXT.P3: TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT DT 23.1.2003 IN OP NO.11968 OF 2002. EXT.P4: TRUE COPY OF ORDER NO.GO(RT) NO.3832/03/G1.EDN. DT 23.9.2003. EXT.P5: TRUE COPY OF JUDGMENT DT 11.12.2003 IN WPC NO.35978 OF 2003 OF THIS HON'BLE COURT. EXT.P6: TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DT 21.5.2004. EXT.P7: TRUE COPY OF LETTER NO.E4-6565/04 DT 17.6.2004 ISSUED by THE 2ND RESPONDENT TO THE 3RD RESPONDENT. EXT.P8: TRUE COIPY OF LETTER DT 26.6.09 ISSUED BY THE PRINCIPAL, GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL, THAMARASSERY TO K.S.HARIKRISHNAN. EXT.P9: TRUE COPY OF THE LETTER DT 25.6.09 ISSUED BY THE PRINCIPAL, GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL, ATHOLI TO K.S.HARIKRISHNAN. EXT.P10: TRUE COPY OF THE LETTER DT 1.7.09 ISSUED BY THE PRINCIPAL, GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL, PAYYANAKKAL TO K.S.HARIKRISHNAN. EXT.P11: TRUE COPY OF THE LETTER DT 1.7.09 ISSUED BY THE PRINCIPAL, GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL, MADAPPALLI TO K.S.HARIKRISHNAN. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 19222 OF 2004 (L) ===================== Dated this the 1st day of June, 2010 J U D G M E N T Petitioner is a Post Graduate in Physics with B.Ed. She was appointed under Rule 9 (a) (1) of the Rules as a Non Vocational Lecturer. From the pleadings, it would appear that she rendered almost 10 years of service and the last order extending her the period of appointment is Ext.P1. 2. She claimed regularization by filing OP No.11968/02 and during its pendency, her services were dispensed with from 31/3/2003. In the meanwhile, Government issued Ext.P2 order dated 26/8/02 directing continuance of persons like the petitioner in deserving and exceptional cases. Ext.P2 to the extent it is relevant, reads as under: Government have examined the matter in detail and are pleased to order that the services of the provisional employees continuing in service asper the Circular No.9516/Adv.Cl/02/P&ARD dated 9.3.95 and Government letter No.9516/Adv.Cl/92/P&ARD dt 17.3.98 will not be regularised. It is also ordered that each case of the provisional employees continuing in service as per the Circular No.9516/Adv.Cl/92/P&ARD dt 9.3.95 will be examined and those deserving exceptional consideration on humanitarian grounds may be permitted to continue in service purely on a provisional basis, invoking rule 39 of the Kerala State and Subordinate Service Rules without regularising their services. The concerned Administrative WPC No. 19222/04 :2 : Departments will take necessary further action in the matter accordingly. 3. Taking note of Ext.P2, OP No.11968/02 filed by the petitioner was disposed of by Ext.P3 judgment directing consideration of her representations in the light of Ext.P2. Accordingly, her claim was considered and Ext.P4 order was issued by the 1st respondent on 23/9/03 declining her claims for regularization, but however, ordering that the petitioner be engaged as a Guest Lecturer. The relevant portion of the order reads as under: Government examined the case in detail in consultation with P&ARD and are pleased to order as follows in compliance with the direction of the Hon'ble High Court in its judgment read above. (i) Since the petitioners' appointment in Vocational Higher Secondary Education Department is purely on temporary basis under Rule 9(a)(i) of General Rules, she has no right to claim regularization in service. Therefore, the request is rejected. The incumbent will be terminated with immediate effect. (ii) Taking a lenient view, Smt.Asha K.S. may be engaged as Guest Lecturer after termination of her provisional service, following the present practice in engaging Guest Lecturer in the Vocational Higher Secondary Education Department. 4. Asserting the petitioner's claim for continuance on the strength of Ext.P2, she again filed WP(C) No.35978/03. That writ WPC No. 19222/04 :3 : petition was disposed of by Ext.P5 judgment rendered on 11th of December, 2003. In Ext.P5, taking note of the fact that several persons similar to the petitioner were continuing in service, this Court held that she is entitled to continue in service on the strength of Ext.P2 order. On that basis, the contention of the learned Government Pleader that there was no vacancy to accommodate the petitioner in the school concerned was rejected. Finally, taking note of the realities, this Court held that the petitioner will be considered for engagement in the next arising vacancy. 5. Immediately after Ext.P5 judgment was rendered, petitioner submitted Ext.P6 representation to the 3rd respondent. The 2nd respondent also issued Ext.P7 directing the 3rd respondent to implement Ext.P5 judgment. There was no progress in the matter. Therefore, the writ petition was filed praying essentially for appointment of the petitioner as a Non Vocational Lecturer in Physics in terms of Ext.P2 Government Order. 6. Counter affidavit has been filed by the respondents, in which, the main contention is that by GO(P) 81/04/G.Edn. dated 12/3/04, the qualification for Non Vocational Teachers in WPC No. 19222/04 :4 : Vocational Higher Secondary Schools have been prescribed by the Government as per the Kerala Vocational Higher Secondary Education Subordinate Services Rules 2004. It is stated that among the qualifications prescribed, pass in the State Eligibility Test is one of the qualifications and that the petitioner does not possess the said qualification. It is stated that therefore, the petitioner is ineligible for continued engagement. 7. Thus, the question that arises for consideration is whether absence of pass in the State Eligibility Test (SET) is a disqualification for the petitioner to be engaged as Non Vocational Teacher. In my considered view, this cannot be. As can be seen from Ext.P2, this order was issued by the Government as early as on 26/8/02 directing continued engagement of the Non Vocational teachers. The claim of the petitioner for continuance on the strength of Ext.P2 was upheld by this Court in Ext.P5 judgment rendered on 11/12/03. It is accepting this claim of the petitioner that this Court directed that the petitioner be considered against the next arising vacancy. It was subsequent to Ext.P5 judgment that Special Rules were framed. Therefore, the right of the petitioner for continued engagement, (not for regularization) was WPC No. 19222/04 :5 : upheld by this Court in Ext.P5 judgment. If that be so, the continued engagement could not have been denied to her on the ground that she did not possess the SET qualification as prescribed in the Special Rules framed in 2004. In addition to this, according to the petitioner, several other teachers are continuing in service on the strength of Ext.P2 and they have not passed SET. If that be so, irrespective of the fact that the petitioner has not passed SET, petitioner is entitled to be engaged on the strength of Ext.P2. 8. In view of this, the writ petition is disposed of directing the 3rd respondent to engage the petitioner as Non Vocational Teacher in terms of Ext.P2 Government Order as directed in Ext.P5. Petitioner shall produce a copy of this judgment before the 3rd respondent for compliance. ANTONY DOMINIC, JUDGE Rp