IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 27TH JUNE 2011 / 6TH ASHADHA 1933 WP(C).No. 35807 of 2005(K) --------------------------------------- PETITIONER(S): --------------------------- 1. SUDHA.P.V, AGED 34 YEARS, W/O.RATHNAKARAN.T.K, HIGHER SECONDARY SCHOOL TEACHER (CHEMISTRY),IQBAL HIGHER SECONDARY SCHOOL, AJANUR, KASARAGOD, RESIDING AT SREEHARI,P.O. PILATHARA-670501, KANNUR DISTRICT. 2. PUSHPARANI GEORGE, AGED 33 YEARS, W/O.VINCENT JOSEPH, HIGHER SECONDARY SCHOOL TEACHER (MATHEMATICS), IQBAL HIGHER SECONDARY SCHOOL AJANUR, KASARAGOD, RESIDING AT PARAKKAT HOUSE, P.O.KOLAVAYAL, KANHANGAD. 3. PREMALATHA.K, AGED 30 YEARS, W/O.T.PADMANABHAN, HIGHER SECONDARY SCHOOL TEACHER, IQBAL HIGHER SECONDARY SCHOOL, AJANUR, KASARAGOD, RESIDING AT KOLAVAL.P.O, ITTAMAL, KANCHAGAD. BY ADV. SRI.P.V.MOHANAN RESPONDENT(S): ------------------------- 1. THE DIRECTOR, HIGHER SECONDARY EDUCATION, HOUSE BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, KANHANGAD. 4. THE PRINCIPAL, IQBAL HIGHER SECONDARY SCHOOL, ANJANUR, KASARAGOD. R1 TO R3 BY GOVT. PLEADER SMT.NISHA BOSE R4 BY ADV. SRI. AJITH KRISHNAN, ADDL.CGSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.35807/2005 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.ACD. B3/18286/HSE/01 DTD. 18.8.2003. P2:- COPY OF THE G.O.(MS) 162/98 G.EDN. DTD. 13.5.1998. P3:- COPY OF THE ORDER NO.ACD/B2/18286/HSE/01 DTD. 2.5.2003. P4:- COPY OF THE LETTER NO.B1/2874/03 DTD. 13.6.2003. P5:- COPY OF THE JUDGMENT IN WA. NO.460/2000 AND 469/2000 DTD. 28.11.2002. P6:- COPY OF THE JUDGMENT IN OP. NO. 33223/2002 DTD. 28.8.03. P7:- COPY OF THE JUDGMENT IN WP.(C) NO.25439/2003 DTD. 19.8.2005. P8:- COPY OF THE LETTER NO.B1/1851/05 DTD. 16.11.2005. P9:- COPY OF THE LETTER DTD. 28.11.2005. P10:- COPY OF THE G.O.(MS) 353/2004 G.EDN. DTD. 25.11.2004. P11:- COPY OF THE GO(MS) 261/2001 DTD. 17.8.2001. P12:- COPY OF THE GO(MS) NO.60/07 DTD. 12.3.2007. P13:- COPY OF THE GO(MS) 132/99 G.EDN. DTD. 11.6.1999. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 35807 of 2005-K - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of June, 2011. JUDGMENT Three petitioners are before this Court seeking for various reliefs including quashing of Exts.P8 and P9 and to declare that the petitioners are entitled to get the scale of pay of HSST (Full Time) with effect from the dates of their initial appointment as HSST (Part Time) with attended increments in the time scale of pay of HSST (Full time). Actually the petitioners were granted the benefit, viz. approval of appointment as HSST (Full time) with effect from 15.7.1999 in the time scale of pay of Rs.6675 – 10550 by Ext.P1 proceedings. Later, the Director of Higher Secondary Education cancelled the same without notice to the petitioners, by Exts.P3 and P4. 2. The petitioners were initially appointed as HSST (Part Time) in the time scale of pay of Rs.5500 – 9075 in an aided Higher Secondary School of which the fourth respondent is the Principal. The dates of appointment of the petitioners are respectively 14.9.1998, 14.9.1998 and 8.10.1998. Those appointments have been approved. According to the petitioners, as per the relevant Govt. Orders prevailing at that time, they were entitled to approval wpc 35807/2005 2 as HSST (full time) from the next academic year, viz. 1999 – 2000. 3. In the petitioners’ school an additional batch was sanctioned for the next academic year 1999 – 2000 on 12.7.1999 and the posts occupied by the petitioners were upgraded as Full Time. Even though approval was made by Ext.P1 as such, because of a general ban the consequential benefits were not disbursed. Even though the ban was lifted later, then also the entire arrears were not disbursed and the increments were also not sanctioned. It is at that stage the first respondent cancelled the approval as HSST (Full Time) from 15.7.1999 and altered the date to 15.7.2000, by Ext.P3 order. By Ext.P4, the Principal was directed to collect and refund the excess amount. The petitioners have traced out the various developments occurred in the Higher Secondary sector because of certain judgments of this Court including Exts.P5 and P6. 4. Challenging Exts.P3 and P4, the petitioners had filed W.P.(C) No.25439/2003. In the counter affidavit filed therein, it was averred that the three petitioners are eligible for full salary from the date of upgradation to 30.11.2011 in the light of G.O.(Ms) No.353/2004/G.Edn. dated 25.11.2004. The said writ petition was thus disposed of directing the Principal to prepare the bills and arrear claims of the petitioners and sanction the payment within one month, as per Ext.P7 judgment. But, wpc 35807/2005 3 again they did not get the benefit, going by the proceedings of the District Educational Officer as per Ext.P8 and they were directed by the Principal to refund various amounts as per Ext.P9. Ext.P10 is the copy of the Govt. Order dated 25.11.2004. 5. Heard learned counsel for the petitioners Shri P.V. Mohanan and learned Govt. Pleader appearing for the respondents. 6. Learned counsel for the petitioners submitted that additional batches were sanctioned for the school in the academic year 1999 - 2000. The Government, while sanctioning the same as per Ext.P13 order produced along with I.A. No.10026/2011, stipulated that “no additional teacher will be posted in any school, on account of these new batches.” It is pointed out that as far as the fourth respondent's school is concerned, the petitioners were already working as HSST (Part Time) and when additional batches were sanctioned to the school, they were taking classes and therefore there were sufficient periods for treating them as Full Time and accordingly Ext.P1 order was issued treating them as Full time teachers from 15.7.1999. No additional teachers were appointed also. It is pointed out that by Ext.P11 order dated 17.8.2001, the Government created various posts in the Higher Secondary Schools for the years 1999-2000 and 2000-2001 and it was specifically stipulated therein that upgradation of posts will be with wpc 35807/2005 4 retrospective. It is therefore pointed out that as far as the academic year 1999-2000 is concerned, upgradation of the posts of the petitioners will have to be made with retrospective effect and thus, what was done by Ext.P1 will stand regularised. My attention was also invited to various judgments of this Court to contend for the position that Higher Secondary School Teachers who are taking class on Full Time basis, cannot be discriminated, in the matter of payment of salary and allowances. 7. Learned Govt. Pleader submitted that Ext.P13 will show that there is a total ban on appointment of additional teachers for the year 1999-2000. Therefore, the importance given by the Government was to save financial burden for that year and if the petitioners are approved as Full Time teachers for the year 1999-2000, they will be entitled for monetary benefits, which should go against the stipulations in Ext.P13 order. My attention was also invited to the averments in the counter affidavit in that context. 8. What is pointed out in the counter affidavit in para 4, is that the additional batch comes for fixation only during the academic year 2000- 2001. 9. The crucial question is whether the petitioners should be deprived of the benefit of Full Time posts of HSST for the academic year 1999-2000. Since great reliance is placed by the learned Govt. Pleader on Ext.P13, the wpc 35807/2005 5 effect of the same will have to be understood in the context of the said order itself. A reading of Ext.P13 shows that for the year 1998-1999 Higher Secondary courses were sanctioned in a few schools. Because of some practical difficulties, new Higher Secondary Schools could not be sanctioned for the next year, viz. during 1999-2000. But for that year 90 batches of Pre degree courses were de-linked from various colleges in the State. Therefore, the Government had to compensate the situation and thus it was decided to provide additional batches to the existing Higher Secondary Schools for which applications were invited. Thus, additional Plus Two batches were sanctioned for existing Higher Secondary Schools during 1999-2000 and the school wherein the petitioners are working, was also benefited. Of course, there is a rider in Ext.P13, that no additional teachers will be posted in any school, on account of these new batches, during the financial year in question (1999-2000). Herein, no additional teachers have been appointed evidently. Ext.P11 dated 17.8.2001 is a later order issued by the Government. Ext.P13 is dated 11.6.1999. Ext.P11 order reiterates the entire history regarding creation of posts during various academic years. The subject therein is the creation of posts of Higher Secondary School Teachers. The posts sanctioned in respect of Government as well as aided schools are separately given and each wpc 35807/2005 6 category, viz. Full Time and Part Time are also given. Going by the same, for the year 1998-1999, in aided schools 1196 Full Time Posts and 2454 Part Time posts were sanctioned. In para 2, it is stated that “though sanctions were accorded for the Higher Secondary Courses in 1999-2000, no posts were created for this purpose.” It is also mentioned that in aided sector the teachers who were appointed in anticipation of Government sanction, are not paid salary since 1999. Para 3 of the said order relates to the additional posts which had to be created since 1999-2000 and 2000- 2001. In aided sector, for the year 1999-2000, 381 Full Time posts and 495 Part Time posts were created. It is also mentioned that 1493 Part Time posts in Aided Higher Secondary Schools have to be upgraded as Full Time from 1999-2000 and 396 posts from 2000-2001. Para 4 reads as follows: “4. A total number of 7368 posts (5314 full time and 2054 part time) are to be newly created and 1889 existing part time posts in the Aided Higher Secondary Schools are to be upgraded with retrospective effect.......” Thus, it can be seen that the Government has created the posts for the respective years, viz. 1998-1999, 1999-2000 and 2000-2001. Upgradation of 1493 part time posts in Aided Higher Secondary Schools as full time, from 1999-2000, is also mentioned in para 3. Evidently, therefore, as argued by the learned counsel for the petitioners, for the year 1999-2000 wpc 35807/2005 7 full time posts have been created in various Higher Secondary Schools by upgradation also. In that view of the matter, the petitioners will be entitled for approval for the year 1999-2000, if the number of posts created and upgraded ones, will include the fourth respondent's school also. 10. Already, approval has been granted as per Ext.P1. The Government Order, Ext.P13, and its effect is nullified actually, by the subsequent order passed as per Ext.P11, wherein the posts have been created for manning the Higher Secondary Schools for the year 1999-2000 also. Significantly, creation of posts and upgradation are on a retrospective basis. The idea behind is evident as it will ensure continuity for the respective years and will benefit the teachers appointed. 11. In the writ petition filed by the petitioners, viz. W.P.(C) No.25439/2003 challenging the rejection of approval for the academic year 1999-2000, a counter affidavit was filed by the District Educational Officer, wherein it was stated as follows: “As per G.O.(MS) NO.353/2004/G.Edn. dated 25.11.04, arrear salary from the date of upgradation to 30.11.2001 is admissible to the HSSTs who were appointed by upgradation from HSST (Jr). Accordingly the 3 petitioners are eligible for full salary from the date of upgradation to 30.11.01. the period as per G.O.(P) 56/02/Fin. dated 16.1.02 is modified by the above Government Order dated 25.11.04. The bill for arrear claims has not been wpc 35807/2005 8 received so far.” The petitioners have produced the Govt. Order dated 25.11.2004 as Ext.P10 herein. On a reading of Ext.P10, it can be seen that the said order has been passed in the light of various judgments of this Court. Para 6 of the order reads as follows: “6. In the circumstances Government order payment of the arrear salary from the date of such appointment upto 30.11.2001 admissible to the posts of Higher Secondary School Teachers (Junior)/Higher Secondary School Teachers, the teachers who have been appointed by transfer appointment from High School Assistants/UPSs/LPSAs, by upgradation of Higher Secondary School Teacher (Junior) and by deployment from Junior lecturers against the posts sanctioned during the academic years 1999-2000, 2000-2001 and 2001-2002 as per the Government order read as 1st paper above.” Specific mention therein is made to the upgradation of Higher Secondary School Teacher (Junior) for the various academic years, including 1999- 2000 in the light of the Government Order read as first paper in Ext.P10 order. The said Govt. Order is G.O.(Ms) No.261/2001/G.Edn. dated 17.8.2001 which has been produced herein as Ext.P11 and the effect of the same has already been discussed. Therefore, Ext.P10 sanctions the payment of salary including arrears. When, in the counter affidavit the same was wpc 35807/2005 9 agreed, there is no reason as to why it was denied to the petitioners by Exts.P8 and P9. Therefore, the matter will have to be reconsidered. 12. The writ petition is thus allowed. Exts.P8 and P9 are quashed. Exts.P3 and P4 are also quashed to the extent to which approval of appointment of the petitioners as HSST (Full time) is postponed from 15.7.1999 to 15.7.2000. The entire aspects will be reconsidered by the first respondent in the light of the findings herein and in the light of Exts.P10 and P11 Govt. Orders. The effect of creation of posts and the consequential effect of upgradation of the same in respect of the school wherein the petitioners are working, will be assessed and appropriate orders will be passed with regard to the approval of appointment of the petitioners as HSST (Full Time) from 15.7.1999, after hearing the petitioners, within a period of three months from the date of receipt of a copy of this judgment. Depending upon the orders passed, the salary of the petitioners will be refixed and arrears also will be disbursed to them. No costs. (T.R. Ramachandran Nair, Judge.) kav/