IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 25TH MARCH 2011 / 4TH CHAITHRA 1933 WP(C).No. 29615 of 2006(A) -------------------------- PETITIONER(S): ----------------------- BEENA PAUL, HIGHER SECONDARY SCHOOL TEACHER (HINDI), ST.JOHN'S HIGHER SECONDARY SCHOOL, KAVALANGAD, NELLIMATTOM P.O., ERNAKULAM DISTRICT. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM. 3. THE MANAGER, ST.JOHN'S HIGHER SECONDARY SCHOOL, KAVALANGAD, NELLIMATTOM P.O., ERNAKULAM DISTRICT. GOVERNMENT PLEADER SRI.T.T. MUHAMOOD FOR R1 AND R2. ADVS. SRI.MURALI PURUSHOTHAMAN FOR R3 SRI.P.M.BENZIR FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: kp W.P.C.No.29615 OF 2006 APPENDIX: PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE G.O.(Ms) No.162/98 G.Edn. DATED 13.5.1998. EXT.P2 : TRUE COPY OF THE G.O.(Ms) 341/99/G.Edn. DATED 30.12.1999 EXT.P3 : TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETTINER BEFORE THE 3RD RESPONDENT MANAGER ON 29.7.2000. EXT.P4 : TRUE COPY OF THE G.O.(Ms) 298/2000/G.Edn. DATED 25.8.2000. EXT.P5 : TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST AND 2ND RESPNDENTS ON 14.9.2000. EXT.P6 : TRUE COPY OF THE ORDER DATED 14.11.2000 OF THE HON'BLE SUPREME COURT. EXT.P7 : TRIE COPY OF THE ORDER OF APPOINTMENT OF THE PETITIONER DATED 1.10.2001. EXT.P8 : TRUE COPY OF THE LETTER No.A1/18080/HSE/2001 DATED 9.9.2002. EXT.P9 : TRUE COPY OF THE JUDGMENT IN O.P.29896/03-H AND CONNECTED CASES DATED 22.1.2003 OF A DIVISION BENCH OF THIS HON'BLE COURT. EXT.P10 : TRUE COPY OF THE CERTIFICATE OF SET EXAMINATION DT.15.12.2002. EXT.P11 : TRUE COPY OF THE COVERING LETTER DATED 16.9.2002 OF THE 3RD RESPONDENT. EXT.P12 : TURE COPY OF THE JUDGMENT IN O.P.No.30079/02 DATED 21.1.2003 OF THIS HON'BLE COURT. EXT.P13 : TRUE COPY OF THE APPOINTMENT ORDER OF PETITIONER DATED 1.8.2000. EXT.P14 : TRUE COPY OF THE JUDGMENT DATED 21.2.2003 IN W.P.(C).27434/2000 OF THIS HON'BLE COURT. EXT.P15 : TRUE COPY OF THE APPOINTMENT ORDER OF PETITIONER DT. 28.3.2003. EXT.P16 : TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 24.3.2003. EXT.P17 : TRUE COPY OF THE ORDER DATED 5.7.2003 OF THE DEPUTY DIRECTOR. PETITIONER'S EXHIBITS: EXT.P18 : TRUE COPY OF THE ORDER No.Acd.A1/18080/HSC/2001 DATED 21.1.2004 OF THE DIRECTOR OF HIGHER SECODARY EDUCATION. EXT.P19 : TRUE COPY OF THE G.O.(Rt) No.143/2005/G.Edn. DATED 10.1.2005. EXT.P20 : TRUE COPY OF THE JUDGMENT IN W.P.C.26574/03-L DATED 10.3.2006 OF THIS HON'BLE COURT. EXT.P21 : TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT DATED 17.4.2006. EXT.P22 : TRUE COPY OF THE G.O.(Rt) No.3773/2006/G.Edn. DATED 24.8.2006. EXT.P23 : TRUE COPY OF THE ORDER No.Acd.A1/18080/HSE/01 DATED 28.10.2009 OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE. T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.29615 Of 2006-A ----------------------------------------------------- DATED THIS THE 25th DAY OF MARCH, 2011 J U D G M E N T The petitioner's appointment as Higher Secondary School Teacher has been approved with effect from 1.10.2001 and the petitioner seeks for approval from 1.8.2000, the date on which the vacancy has arisen. The appointment was to the post of HSST Hindi. It is averred in paragraph No.1 of the Writ Petition that the post of HSST (Hindi) was sanctioned along with other posts with effect from 1.8.2000. The Government by Exhibit P2 order introduced passing the State Eligibility Test(SET) as an additional qualification. It was specified in the said order that as an interim measure appointments to Higher Secondary School Teachers during the year 1999-2000 and 2000-2001 can be made from the candidates having the required educational qualifications subject to the condition that such candidates should pass the SET within a period of two years from the date of appointment. 2. Initially, the appointment of the petitioner was made W.P.(C)No.29615/06 -2- as per Exhibit P7 order from 1.10.2001. The order of approval has been produced as Exhibit P23 wherein the Director of Higher Secondary Education granted approval of the appointment from 1.10.2001 to 14.7.2005. 3. The petitioner had been seeking for approval from 1.8.2000. In respect of another teacher Smt.D.Retnamony who was also similarly appointed, by Exhibit P12 judgment, this Court upheld her claim from the date of occurrence of vacancy. This Court accepted the principle that the petitioner therein is entitled to have her claim considered from date of occurrence of vacancy. In accordance with the said judgment, the Manager appointed Smt.D.Retnamony as per Exhibit P13 order with effect from 1.8.2000. It is submitted that the said appointment has been approved already. Claiming the benefit of the said judgment, the petitioner also approached the Manager and thereafter the Manager issued an order as per Exhibit P15 whereby the petitioner is appointed with effect from 1.8.2000. It is pointed out that earlier the petitioner had approached this Court by filing O.P.No.27434/2000 wherein this Court directed the Manager to consider her claim. Accordingly, the order was passed by the W.P.(C)No.29615/06 -3- Manager. 4. Exhibit P17 is the order thereafter passed by the Director of Higher Secondary Education rejecting the claim of the petitioner for approval from 1.8.2000 stating that she was not having the SET qualification. This was challenged before the Government and the Government by Exhibit P22 order upheld the order passed by the Director of Higher Secondary Education. 5. The learned counsel for the petitioner submitted that a reading of the order passed by the Government Exhibit P22 will show that mainly the Government found that the approval of appointment of Smt.D.Retnamony was granted in terms of the direction issued by this Court. But the Government refused to consider the claim of the petitioner even though according to the learned counsel, the petitioner was also similarly placed. 6. It is true that the Manager initially appointed the petitioner on 1.10.2001. There is no dispute that the date of occurrence of vacancy is on 1.8.2000 as the post was created from that date. Even though the learned Government Pleader pointed out that in the light of Exhibit P4 order, the petitioner who was not having SET qualification was not entitled for W.P.(C)No.29615/06 -4- appointment, evidently, in the light of Exhibit P2 order SET was not insisted in respect of persons appointed in 1999-2000 and 2000-2001. Time was granted for acquiring SET qualification by two years. Thus Exhibit P4 cannot go against the petitioner. 7. The principle under which this Court considered the case of Smt.D.Retnamony is that she is entitled for approval with effect from the date of occurrence of vacancy. The legal position as regards the same admits of, no doubt. 8. This Court after considering various aspects declared that the petitioner therein, without insisting for SET, should have been appointed provided she was having all the qualifications prescribed by the executive orders then in force. Evidently, the case of the petitioner is also similar in nature and there are no distinguishing factors. Therefore, the principle in Exhibit P12 judgment ought to have been applied in the case of the petitioner also. 9. In the light of the above, it is declared that the petitioner is entitled for approval with effect from 1.8.2000. Exhibits P17 and P22 orders are quashed to that extent. There will be a direction to the 2nd respondent-Director of Higher W.P.(C)No.29615/06 -5- Secondary Education to approve the appointment of the petitioner in terms of the appointment order Exhibit P15 with effect from 1.8.2000. But, it is made clear that she will be entitled for payment of salary only from 1.10.2001 and appropriate orders will be passed within a period of one month from the date of receipt of a copy of this judgment. The petitioner will produce a copy of this judgment before the 2nd respondent-Director of Higher Secondary Education for compliance. The Writ Petition is allowed as above. T.R.RAMACHANDRAN NAIR, JUDGE. dsn