IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 WA.No. 1444 of 2008() --------------------- AGAINST THE JUDGEMENT IN WPC.33724/2007 Dated 06/06/2008 .................... APPELLANT/PETITIONER:- ------------------------------------- V.V.SANGEETHA, SUMA SADANAM, PAZHAYACHANTHA, KALLARA, TRIVANDRUM-695 608. BY ADV. SRI.S.MOHANDAS RESPONDENTS/RESPONDENTS:- -------------------------------------------- 1. STATE OF KERALA REPRESENTED BY PRINCIPAL SECY.TO GOVERNMENT, SCHEDULED CASTES/TRIBES DEV. (B)DEPARTMENT, GOVT.SECRETARIAT, TRIVANDRUM 695001. 2. DIRECTOR OF SCHEDULED TRIBES DEV. DEPARTMENT, VIKAS BHAVAN, TRIVANDRUM 695 003. 3. SRI.E.AYYAPPAN, DIRECTOR, SCHEDULED TRIBES DEV.DEPARTMENT, VIKAS BHAVAN, TRIVANDRUM 695 003. 4. PRINCIPAL, DR.AMBEDKAR VIDYA NIKETHAN (CBSE) MODEL RESIDENTIAL SCHOOL, ELANCHIYAM P.O., NJARANEELI, TRIVANDRUM 695. 5. SRI.SREEKUMAR, GRADUATE TEACHER(HINDI) ON DAILY WAGES, DR.AMBEDKAR VIDYA NIKETHAN(CBSE) MODEL RESIDENTIAL SCHOOL, ELANCHIYAM P.O, NJARANEELI, TRIVANDRUM 695. BY SPL.GOVT.PLEADER SRI.SANTHOSH KUMAR T. ADV. SRI.P.VIJAYAKUMAR. SRI.DEVAN RAMACHANDRAN FOR R6 SRI.K.M.ANEESH FOR R6 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06/08/2010 THE COURT ON 13/08/2010, DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S. GOPINATHAN, JJ. = = = = = = = = = = = = WA.No.1444 of 2008. = = = = = = = = = = = = Dated this the 13th day of August, 2010. J U D G M E N T Gopinathan, J. The writ appellant was appointed as a Hindi Graduate Teacher in Dr.Ambedkar Vidya Niketan CBSE Model Residential School, Njaraneeli on contract basis from 14-6- 2005 to 31-3-2006 by Ext.P1 order of appointment. She was again appointed for another one year from 1-6-2006 to 31-3-2007 by Ext.P2 order. Thereafter she was again appointed from 1-6-2007 to 31-3-2008 by Ext.P3 order. Ext.P7 is an agreement executed between the appellant and the first respondent. While working so, the writ appellant availed maternity leave from 3-7-2007 to 31-10-2007. After delivery, on request of the 4th respondent, the writ appellant reported for duty on 19-9-2007, but she was not allowed to work. On 1-11-2007, Ext.P13 order was served upon the WA.No.1444/2008. -: 2 :- writ appellant by the 2nd respondent terminating her service by stating that the writ appellant didn’t have the required qualification as provided in the CBSE bye-laws. 2. According to the writ appellant, she had sufficient qualification as evidenced by Exts.P8 and P9 and that the termination of the service of the writ appellant was arbitrary, illegal and unsustainable. Seeking a writ declaring that the writ appellant was eligible to continue in service upto 31-3-2008 and for a writ of mandamus directing respondents 2 and 4 to permit the writ appellant to resume duty and also for granting maternity leave benefits, WP(C)No.33724/2007 was filed. 3. The learned single Judge arrived at a finding that the writ appellant had no required educational qualification. Hence the learned single Judge declined to quash Ext.P13. However, the respondents were directed to pay leave salary and other benefits during the maternity leave period. Ext.P7 stipulates payment of two months salary in the event the contract is terminated without WA.No.1444/2008. -: 3 :- sufficient notice. The notice pay was also declined by the learned single Judge for the reason that the service of the appellant was terminated as she was having no required qualification. Assailing the above judgment dated 6-6- 2008, this appeal was preferred. 4. We heard the learned counsel appearing for the appellant and the Spl.Govt.Pleader Sri.T.Santhosh Kumar. 5. Admittedly, the writ appellant was appointed by Ext.P3 only for the academic year commencing from 1-6- 2007 and that was expired on 31-3-2008. The period of contract is over. So, the writ appellant is not entitled to be resumed in service any further. Consequently, the writ appellant is not entitled to the reliefs sought for on that ground. 6. According to the learned counsel for the writ appellant, the writ appellant has passed Hindi Sahithyacharya which is equivalent to graduate degree in Hindi and she is holder of Acharya certificate in Hindi which is equivalent to training certificate. In support of WA.No.1444/2008. -: 4 :- that argument the learned counsel had canvassed our attention to Ext.P5, a copy of the notification issued by the Kerala Public Service Commission for the post of High School Assistant in various schools in different districts in the State. Ext.P5 would show that Sahithyacharya certificate as well as Acharya certificate are treated as equivalent to degree and training for employment as graduate Hindi Teacher in State service. Ext.P5 would not help the writ appellant as it is only relating to the appointment to the post of High School Assistant in the State syllabus and not under CBSE rule or bye-law. However, since the term of appointment of the writ appellant is over, we find that it is not at all necessary to have an adjudication on that aspect. So, we leave open that dispute for resolution in appropriate proceedings in appropriate time in the event it is so warranted. 7. The learned counsel for the writ appellant submitted that as per Ext.P7, the writ appellant is entitled to notice pay in the event service is terminated before the WA.No.1444/2008. -: 5 :- contractual term. As we mentioned earlier that it is declined by the learned single Judge for the reason that her service was terminated as she was having no required qualification. Going by Ext.P7, we fail to find such any stipulation in the agreement. It is not disputed that the writ appellant was initially appointed by Ext.P1 after scrutinizing her qualification. This is not a case of total lack of qualification, but a case of technical objection, that too, without affording an opportunity to explain. In the above circumstance, there is no justification in declining the notice pay, even if the service of the writ appellant was terminated stating that the appellant had no required qualification. Irrespective of the reason for termination, the writ appellant is entitled to a writ to grant notice pay. The writ appellant is entitled to succeed to that extent. The learned single Judge had gone erred in declining notice pay. In the result, this writ appeal is allowed in part. While modifying the judgment impugned, we declare that WA.No.1444/2008. -: 6 :- the writ appellant is entitled to notice pay in addition to the salary and other benefits during the leave period. No order as to costs. C.N.RAMACHANDRAN NAIR, (Judge) P.S.GOPINATHAN, (Judge) Kvs/-