IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 18TH FEBRUARY 2008 / 29TH MAGHA 1929 WP(C).No. 29154 of 2003(U) ---------------------------------------- PETITIONERS: ---------------------- P.N.JAYASREE, PART-TIME LECTURER IN BOTANY, MARTHOMA COLLAGE FOR WOMEN, PERUMBAVOOR, NOW ON DEPLOYMENT AS HIGHER SECONDARY SCHOOL TEACHER, GOVERNMENT HIGHER SECONDARY SCHOOL, MULANTHURUTHY, ERNAKULAM DIST. BY ADV. SRI.ELVIN PETER P.J. SRI.P.N.SANTHOSH SRI.S.D.ASOKAN SRI.NAVEEN.T RESPONDENTS: ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, THIRUVANANTHAPURAM. 3. THE REGISTRAR, MAHATMA GANDHI UNIVERSITY, KOTTAYAM. 4. THE MANAGER, MAR THOMA COLLEGE FOR WOMEN, PERUMBAVOOR-683 542. 5. THE PRINCIPAL, GOVERNMENT HIGHER SECONDARY SCHOOL, MULANTHURUTHY, ERNAKULAM DIST. 6. THE PRINCIPAL, MAR THOMA COLLEGE FOR WOMEN, PERUMBAVOOR-683 542. R1,R2 & R5 BY SR.GOVT.PLEADER SMT. M.R. SREELATHA R3 BY SRI. T.A. SHAJI, SC, M.G.UNIVERSITY BY SRI.V.K.MUHAMMAD YOUSUF, SC, M.G.UTY. R4 & R6 BY ADV.SRI.BABU VARGHESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/012008 ALONG WITH WPC NO.3410 OF 2006, WPC NO. 3796 OF 2007 AND WPC.NO.31672 OF 2006, THE COURT ON 18/02/2008 DELIVERED THE FOLLOWING: Kss WPC.NO.29154/2003 U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF APPOINTMENT ORDER DTD. 3/01/1996 OF THE 4TH RESPONDENT. EXT.P2: COPY OF ORDER NO.AC.B.IV-1-246/88 DTD. 21/05/1996 OF THE M.G.UNIVERSITY. EXT.P3: COPY OF ORDER DTD. 1/07/99 ISSUED BY THE M.G.UNIVERSITY. EXT.P4: COPY OF ORDER, G.O.(MS) NO.253/94/(9)/FIN. DTD. 19/03/1994. EXT.P5: COPY OF ORDER, G.O.(MS) NO.145/2000/H.EDN. DTD. 5/10/2000. EXT.P6: COPY OF APPLICATION DTD. 5/10/2000 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P7: COPY OF CERTIFICATE DTD. 6/01/2001 ISSUED BY THE 4TH RESPONDENT. EXT.P8: COPY OF ORDER DTD. 14/06/2001 ISSUED BY THE 4TH RESPONDENT. EXT.P9: COPY OF REPRESENTATION DTD. 12/06/2001 SUBMITTED BY THE PETITIONER TO THE DIRCTOR OF COLL.EDN. EXT.P10: COPY OF JUDGMENT DTD. 16TH OCTOBER, 2001 IN O.P.NO.22163/2001 OF THIS HON.COURT. EXT.P11: COPY OF LIST OF COLLEGE TEACHERS DEPUTED AS H.S.S.Ts. IN HIGHER SECONDARY SCHOOLS AND LIST OF JUNIOR LECTURERS SANCTIONED DEPLOYMENT TO H.S.Ss. AS H.S.S.Ts. EXT.P12: COPY OF ORDER NO.AD B4/6326/03/HSE DTD. 4/06/2003 ISSUED BY THE 2ND RESPONDENT. EXT.P13: COPY OF DECLARATION DTD. 20/06/2003 ISSUED BY THE 4TH RESPONDENT. EXT.P14: COPY OF CERTIFICATE DTD. 20/06/2003 ISSUED BY THE 6TH RESPONDENT. EXT.P15: COPY OF COMMUNICATION DTD. NIL FROM THE 6TH RESPONDENT TO THE 5TH RESPONDENT. Kss ..2/- ...2.... WPC.NO.29154/2003 U EXT.P16: COPY OF THE ORDER DTD. 11/10/2004 ISSUED BY THE FIRST RESPONDENT. EXT.P17: COPY OF THE ORDER DTD. 28/09/2005 IN CONT.CASE NO.322 OF 2005. EXT.P18: COPY OF THE STATEMENT SHOWING THE SALARY OF PART TIME LECTURER AND THE HIGHER SECONDARY SCHOOL TEACHER. 6TH RESPONDENT'S EXHIBITS: EXT.R6(A): COPY OF RELIEVING ORDER DTD. 29/03/1996. EXT.R6(B): COPY OF RELIEVING ORDER DTD. 31/03/1997. EXT.R6(C): COPY OF RELIEVING ORDER DTD. 31/03/1998. EXT.R6(D): COPY OF RELIEVING ORDER DTD. 31/03/1999. EXT.R6(E): COPY OF THE RELEVANT PAGE OF PETITIONER'S SERVICE BOOK. EXT.R6(F): COPY OF THE OFFICIAL REPLY TO THE CLARIFICATIONS SOUGHT, GIVEN BY THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM & REGISTRAR OF UNIVERSITY DTD. 19/06/201. EXT.R6(G): COPY OF THE OFFICIAL REPLY TO THE CLARIFICATIONS DTD. 12/06/2001. /TRUE COPY/ P.A.TO JUDGE Kss S.SIRI JAGAN, J. ================== W.P.(C).Nos.29154 of 2003, 3410/2006, 31672/2006 and 3796/2007 ================== Dated this the 15th day of February, 2008 J U D G M E N T W.P(C).Nos.29154/2003 and 3796/2007 are filed by Smt.P.N.Jayasree and W.P(C).Nos.3410/2006 and 31672/2006 are filed by Smt.Prescilla Chandramathy. Issue arising in all the writ petitions are common and are therefore, the writ petitions are disposed of by this common judgment. 2. Smt.P.N.Jayasree was appointed as a part time lecturer in Botany in Mar Thoma College for Women with effect from 3.1.1996, which appointment was approved by the University. She submits that she has all the qualifications prescribed by the UGC for appointment as a lecturer. Although she was appointed without specifying any term, she was being relieved by the management during vacations and re-appointed when the college reopens. However, during vacations also, she was being assigned examination duties by the University. She claims to be eligible for UGC scales of pay. w.p.c.29154/03 etc. 2 3. While Smt.Jayasree was so working, Pre-degree course was delinked from colleges in the State. Pursuant thereto, the Government of Kerala issued G.O(Ms).No.145/2000/H.Edn. dated 5.10.2000 for deployment of excess teachers in colleges to Higher Secondary Schools. For this purpose in that G.O., the excess teachers were categorised into 4, namely. (i) Junior Lectures with M.Sc. B.Ed. qualification who were appointed as per Government order dated 12.2.1996. (ii) Those teachers under 48% category (Pre-degree teachers) not included in the UGC scheme. (iii) The teachers under 52% category included in the UGC Scheme. (iv) Those claim holders and others who also were appointed after 24.4.97. These four categories of teachers were directed to be deployed to higher secondary schools in accordance with the conditions stipulated in the said Government order. With the support of a certificate dated 6.1.2001 issued by the manager of the college to the effect that Smt.Jayasree was an excess teacher of the Department of Botany of the College, the petitioner applied to the w.p.c.29154/03 etc. 3 Director of Higher Secondary Education for deputation to a Higher Secondary School, on 5.10.2000. However, thereafter, by order dated 11.6.2001 received by her on 14.6.2002, the services of Smt.Jayasree were terminated by the manager. She challenged the same in O.P.No.22613/2001 and this court by judgment dated 16.10.2001 directed her to approach the Director for Deployment. She was thereafter included in the list dated 15.10.2001, of college teachers to be deployed as Higher Secondary School Teachers and based on the same she was deployed as H.S.S.T. in Government H.S.S. Mulanthuruthy by order dated 4.6.2003, pursuant to which she joined duty on 27.6.2003. While working in the Higher Secondary School, as per the arrangement made by the Government, salary was being drawn and paid by the principal of the college from which she was deployed. While she was so working, the Principal of Mar Thoma College for Women sent a communication to the Principal of HSS, Mulanthuruthy, stating that Smt.Jayasree did not have regular service in the college and therefore, the college cannot claim salary for her. Thereafter, the principal of the school did not allow the petitioner to mark attendance. Therefore, the w.p.c.29154/03 etc. 4 petitioner filed W.P(C).No. 29154/2003 seeking the following reliefs: “i) issue a writ of mandamus or any other appropriate writ, direction or order declaring that on the basis of Ext.P1 order of appointment which was approved by the University by Ext.P2 petitioner was holding a regular post of part-time Lecturer in Botany in Marthoma College for Women, Perumbavoor from 3-1- 1996 till she was relieved by Ext.P8 order dated 14-6-2001. ii) issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents to disburse the salary to the petitioner under the U.G.C. Scheme by the revision of pay effected with effect from 1-1-1996 by G.O. (P) No.171/99/H.Edn. Dated 21-12-1999 as provided in Clause 10.1 from 3-1-1996 to 14-6-2001. iii) issue a writ of mandamus or any other appropriate writ, direction or order declaring that the petitioner is entitled to get deputation as Higher Secondary School Teacher treating her as a regular College Teacher in terms of Ext.P5 order issued by the Government. iv) issue a writ of mandamus or any other appropriate writ, direction or order declaring that the petitioner is entitled to get salary as Higher Secondary School Teacher from 27-6-2003, the date on which she joined duty as Higher Secondary School Teacher. v) issue a writ of mandamus or any other appropriate writ, direction or order directing Respondents 4 to 6 to see that the salary as Higher Secondary School Teacher available to the petitioner is disbursed by the Marthoma College for Women, Perumbavoor on the basis of the directions issued by the Government. vi) issue a writ of mandamus or any other appropriate writ, direction or order declaring that the action of the 5th respondent, Principal, Govt. H.S.S., Mulanthuruty, in preventing the petitioner from working as H.S.S.T. in Govt. H.S.S., Mulanthuruty from 3-9-2003 is illegal and unauthorised and the petitioner should be deemed to be continued as H.S.S.T. during the period when she was prevented from making attendance from 3-9-2003 onwards. w.p.c.29154/03 etc. 5 vii) issue a writ of mandamus or any other appropriate writ, direction or order declaring that the petitioner is entitled to work as Higher Secondary School Teacher in Govt. H.S.S., Mulanthuruthy on the basis of Ext.P12 order and that Ext.P15 communication sent by the Principal, Marthoma College for women, Perumbavoor should not in any way affect the petitioner's right to continue as H.S.S.T in Govt. H.S.S., Mulanthuruthy” In that writ petition Smt.Jayasree moved I.A.No.1559/2004 in which this court passed an interim order dated 16.9.2004, directing payment of salary. While she was so continuing, one Bushra.S, a candidate advised by the PSC was appointed in the school where the petitioner was working, showing Smt.Jayasree as a supernumerary hand. In such circumstances, Smt.Jayasree filed W.P(C).No. 3796/2007 seeking the following reliefs: “i) issue a writ of certiorari or any other appropriate writ, direction or order calling for the records leading to Ext.P12 order and quashing the same, to the extent it posts the 4th respondent in the place of the petitioner. ii) issue a writ of mandamus or any other appropriate writ, direction or order declaring that the petitioner is not liable to be treated as supernumerary hand and she is not liable to be sent out of service on the basis of Rxt.P12.” 4. Smt.Priscilla Chandramathy had various spells of temporary service in the Christian College, Kattakkada upto 7.2.1993 for a total period of 4 years, 9 months and 10 days. After delinking of Pre-degree, she was deployed as H.S.S.T. in w.p.c.29154/03 etc. 6 Govt. Model Boys H.S.S. Chalai, Thiruvananthapuram, by order dated 20.10.2001. Her salary was being drawn and paid by the principal of the college. She was paid salary upto August, 2003. Thereafter, she was not being paid salary on the ground that she was not in regular service as on the date of delinking of pre- degree and she is not eligible for the benefit of G.O.No.145/2000. Therefore, she filed W.P(C).No. 3410/2006 seeking the following reliefs: “i) issue a writ of certiorari of any other appropriate writ, order or direction calling for the records leading to Ext.P6 and quash the same. ii) declare that the petitioner is entitled to regular payment of monthly salary and allowances along with the arrears thereof pending payment from September 2003 onwards with interest at the rate of 12% per annum. iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to pay monthly salary and all allowances to the petitioner regularly and also to pay her the arrears thereof pending payment since September, 2003 forthwith.” While so, by order dated 23.11.2006, the Government held that Smt.Priscilla Chandramathy was found ineligible for deployment as excess hand. Therefore, she filed W.P(C).No. 31672/2006 seeking the following reliefs: “i) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to appoint the petitioner as Higher Secondary School Teacher in one of the vacancies in w.p.c.29154/03 etc. 7 any one of the Higher Secondary Schools belonging to the Corporate Management. ii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents for deployment/deputation of the petitioner being an excess staff in Christian College, Kattakkada due to Pre-degree delinking in view of Ext.P10 Government Order to any one of the Government Higher Secondary Schools mentioned in Ext.P11 application submitted before the Director, Higher Secondary Education as expeditiously as possible and at any rate within a time limit to be fixed by this Hon'ble Court. iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the Director, herein to dispose of Ext.P13 representation as expeditiously as possible.” 5. The contention of the State is as follows: In 1997 the Government had taken steps to ensure that no new appointments are made in aided colleges to facilitate delinking of pre-degree course from the colleges in the State. In spite of the same, some of the managements continued to make appointments of lecturers. The Government, by order dated 24.4.1997, issued a ban on new appointments. The date of that order imposing ban on new appointments was fixed as the cut off date for eligibility for deployment of excess teachers to Higher Secondary Schools. According to the Government, only regular teachers who were in service on or after 24.4.1997 are eligible for deployment to Higher Secondary Schools as per G.O No.145/2000. Smt.Jayasree was only a part time lecturer and not w.p.c.29154/03 etc. 8 a regular teacher. She does not come within the purview of any of the four categories of excess teachers mentioned in the Government order. Smt.Priscilla Chandramathy had only temporary service till 1993 and she, although a claim holder for future appointments in the college, was not in service as on 24.4.1997 or anytime thereafter. Therefore, both of them were not eligible for deployment as HSST as per the Government Order. However, while preparing the list of eligible teachers for deployment in haste to avoid contempt proceedings in another case, the names of these teachers were also mistakenly included as per recommendation of the managers/principals of the respective colleges without verifying their eligibility for benefit of the G.O. When this mistake was later found out, the action impugned in these writ petitions were taken, which are in accordance with the Government orders governing the subject. 6. The 4th respondent, Smt.Bushra, in her counter affidavit points out that she was appointed through PSC and for the purpose of accommodating PSC hands, the posts occupied by 4 junior lectures under orders of deployment were treated as vacant posts because the Special Rules do not provide for the w.p.c.29154/03 etc. 9 appointment of anybody by way of deployment from the college service or elsewhere, which action was approved by this court in W.P(C).No.18178/2005 and connected cases. 7. The petitioners would further contend that the four categories mentioned in G.O(Ms).145/2000 was later modified by G.O(Ms). 176/2000/H.Edn. dated 17.11.2000 as follows: “In partial modification of Government Order, cited, Government are pleased to order as follows: i) Category (ii) mentioned in the G.O. will be modified as “teachers having less than 6 years service”. ii) Category (iii) mentioned in the G.O. will be modified as “teachers having more than 6 years service”. The conditions of deployment in the category (ii) would be modified as “the teachers under category (ii) should also be deputed to Higher Secondary Schools, if necessary.” According to the petitioners, they would be eligible for deployment in view of this modification. 8. I have considered the rival contentions in detail. 9. A reading of G.O(Ms).No.145/2000 as amended would give no room for doubt that only regular full time teachers who were claim holders in service as on 24.4.1997 or thereafter would be eligible for deployment. Admittedly, Smt.Jayasree was never appointed as a Full Time lecturer at any time. Smt.Priscilla w.p.c.29154/03 etc. 10 Chandramathy ceased to be in service long before 24.4.1997. Therefore, both are not eligible for the protection of the Government order. G.O.(Ms).176/2000 modifies only categories (ii) and (iii) in G.O(Ms).145/2000. The petitioners cannot stake claim or benefits as category (ii) or (iii). Therefore, there is no merit in their contention on the basis of G.O(Ms).176/2000 also. Therefore, there is no merit in the claim in any of the four writ petitions for deployment as HSS Teacher. They cannot take advantage of the mistaken inclusion of their names in the list of lecturers to be deployed to Higher Secondary Schools prepared for the purpose. As far as the 4th respondent in W.P(C).No. 3796/2007 is concerned in Ext.R4(a) judgment in W.P(C).No. 18178/2005, this court has held thus: “20. There is force in the submission made by the counsel for the petitioners that posts occupied by Junior Lectures under order of deployment shall be deemed to be vacant posts because the Special Rules do not provide for the appointment of anybody by way of deployment from the college service or elsewhere. It is only reasonable to find that the aforesaid 5 posts shall be deemed to be vacant and 5 Junior Lectures working as HSST on deployment can be allowed to continue against supernumerary posts, until they are repatriated to their parent service or regularly absorbed as HSST in accordance with law.” For this reason also, the contention of Smt.Jayasree cannot be countenanced. However, the claim of Smt.Priscilla Chandramathy w.p.c.29154/03 etc. 11 for appointment in future vacancies in the college is left open to be agitated by her appropriately in any of the future vacancies, if she is eligible for the same. With the above observation these writ petitions are dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge