IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 W.A.No. 1634 of 2009() AGAINST THE JUDGMENT IN WPC.9780/2008 Dated 02/07/2009 APPELLANTS: PETITIONERS IN THE W.P 1. R. MOHANA KUMAR, NON VOCATIONAL TEACHER IN ENGLISH, GOVT. VOCATIONAL HIGHER SECONDARY SCHOOL, VITHURA, THIRUVANANTHAPURAM DIST. 2. K. ANIL KUMAR, NON VOCATIONAL TEACHER IN ENGLISH, VOCATIONAL HIGHER SECONDARY SCHOOL, ERAVANKARA, ALAPPUZHA DIST. BY ADV. SRI.ELVIN PETER P.J. RESPONDENTS: RESPONDENTS IN THE W.P 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF VOCATIONAL HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. THE PRINCIPAL, GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL, VITHURA, THIRUVANANTHAPURAM DIST. 4. THE PRINCIPAL, GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL, ERAVANKARA, ALAPPUZHA DIST. BY SENIOR GOVT. PLEADER SRI. BENNY GERVASIS THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 1634 OF 2009 --------------------------------------------- Dated this the 28th day of July, 2009 JUDGMENT Balakrishnan Nair, J. The writ petitioners are the appellants. They are ministerial employees under the Department of Vocational Higher Secondary Education. Appointment to the post of Non-Vocational teachers in the Vocational Higher Secondary Education Department were being made provisionally, pending finalisation of the Special Rules. Ext.P3 Government Order prescribes the qualification for such appointment. The petitioners were considered for provisional appointment, pending finalisation of the Special Rules and were appointed as per Exts.P4 and P5 orders respectively on 17.6.2000 and 24.6.2000, as Lecturer in English. Subsequently, as per Ext.P8, Special Rules have been promalgated. It is an admitted position that the appellants did not have the qualification as per the Special Rules for appointment by transfer under the 10% quota set W.A. NO.1634/2009 2 apart for ministerial employees. So, the appellants/writ petitioners were ordered to be reverted to accommodate the eligible candidates under the 10% quota. Appointments under Rule 9(a)(i) of the Kerala State and Subordinate Services Rules, 1958 is a stop gap arrangement and so they can continue only till appointments are made in accordance with the Rules. Now, steps are being taken to make appointments by transfer from among the ministerial employees, who are qualified for the post. Therefore, the petitioners are being reverted. Feeling aggrieved by their reversion, the Writ Petition was filed. According to the petitioners, similarly placed persons appointed in aided schools have been regularised. Therefore, their claim also should have been considered. Omission to do so will infringe their rights under Articles 14 and 16 of the Constitution of India, it is submitted. 2. The respondents filed a detailed counter affidavit resisting the prayers in the Writ Petition. They pointed out that the appellants/writ petitioners were appointed only provisionally. Now, appointments have to be made in accordance with the Rules and, therefore, the petitioners have to be reverted. The respondents also denied the charge of discrimination. The method of appointment in aided schools is governed by different rules, though the qualifications may be the same, it is submitted. The learned W.A. NO.1634/2009 3 Single Judge, after hearing both sides, dismissed the Writ Petition. Hence, this appeal. 3. We heard the learned counsel for the appellant and also the learned senior Government Pleader for the respondents. The petitioners, being provisional appointees, have no legal right to insist for regularisation of their service. The same will do great injustice to the persons among the ministerial staff who are qualified and eligible for appointment. The selection for appointment in aided schools is different. The regularisation, if any, of an incumbent in an aided sector will not confer any right on the appellants to claim equal treatment. Appointments to the post in public service are governed by Article 16 of the Constitution of India. So, it can be done only fairly and in accordance with the rules governing the same. 4. The ground of discrimination raised by the appellants/writ petitioners is plainly untenable. Though the qualification and method of appointment for those in the aided sector can be prescribed by the Government, actual appointment is made by the Manager. So, the appellants cannot claim any benefit that is extended to those working in the aided sector. The appellants have to sustain their claim, based on their rights. In the absence of any right, the appellants cannot claim W.A. NO.1634/2009 4 regularisation of their service. Therefore, we find nothing wrong with the dismissal of the Writ Petition by the learned Single Judge. The Writ Appeal, therefore, fails and it is accordingly dismissed. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NO.1634/2009 5 K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.A. NO.1634/2009 JUDGMENT 28th July, 2009 W.A. NO.1634/2009 6