IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY TUESDAY, THE 15TH MARCH 2011 / 24TH PHALGUNA 1932 WA.No. 215 of 2011() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.33337/2007 Dated 03/12/2009 .................... APPELLANT(S): APPELLANT/THIRD PARTY ----------------------------------- INDU.T.K., H.S.S.T.(ZOOLOGY), ABDULLA KUNJU MEMORIAL HIGHER SECONDARY SCHOOL, MYLAPORE, KOLLAM. BY ADV. SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN RESPONDENT(S): PETITIONER & RESPONDENTS IN THE WP ------------------------------------------------- 1. SHARAFUDEEN.M.,H.S.S.T.(JUNIOR) IN ARABIC, A.K.M.H.S.SCHOOL, MYLAPORE, UMAYALLURM KOLLAM, PIN - 691 001. 2. DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM, PIN - 695 001. 3. MANAGER, A.K.M.H.S.SCHOOL,MYLAPORE, UMAYALLUR, KOLLAM, PIN - 691 001. 4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. MS.T.B.REMANI, GOVERNMENT PLEADER MS.P.V.ASHA FOR R1 MS.S.KARTHIKA FOR R3 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. C.N.RAMACHANDRAN NAIR & BHABANI PRASAD RAY, JJ. ---------------------------------- W.A.No.215 of 2011 --------------------------------- Dated, this the 15th day of March, 2011 J U D G M E N T Ramachandran Nair, J. This Writ Appeal filed based on the leave granted by this Court is against the judgment of the learned Single Judge holding that the 1st respondent is entitled to be treated as a Teacher appointed on transfer to the Higher Secondary School under the same management and eligible for full time scale as well. 2. We have heard learned counsel appearing for the appellant and learned counsel appearing for the 1st respondent and learned Government Pleader appearing for respondents 2 to 4. 3. The appellant's case is that the appellant and the 1st respondent joined as Higher Secondary School Teacher (Part- time/Junior) in the 3rd respondent School on the same day in different subjects. So far as interse seniority is concerned for both joining on the same day the older in age is admittedly entitled to seniority over the other. According to the appellant, she being elder W.A.No.215/2011 -2- should get seniority over the 1st respondent but for the judgment which gave the benefit of previous service rendered by the 1st respondent in the High School for the purpose of granting seniority in the Higher Secondary School. The short question arising for consideration is whether the learned Single Judge was right in holding that the 1st respondent was appointed to the Higher Secondary School as Junior Teacher (part time) on transfer basis from High School entitling him to count his service in the High School for seniority or whether the 1st respondent's appointment should be treated as a direct recruitment, no matter he has obviously served in the High School for some time. 4. The admitted facts are that the 1st respondent was appointed in a leave vacancy in the High School on 01/12/1999 and he continued up to 31/03/2000 i.e. till the closure of the school for summer vacation. Again in the same leave vacancy the 1st respondent was appointed on 05/06/2000 and while continuing so, he was appointed as a Part Time Higher Secondary School Teacher in a vacancy in his subject i.e. Arabic, on 20/08/2000. The case of the 1st respondent is that he is entitled to be treated as a Teacher appointed by transfer under Ext.P8 Government Orders. On the W.A.No.215/2011 -3- other hand, the contention raised by the appellant as well as the learned Government Pleader appearing for the State and the Educational Authorities is that the 1st respondent's appointment as a Part Time Teacher in the Higher Secondary School cannot be treated as appointment by transfer because his short term appointment for around 5 months in the High School in a leave vacancy does not entitle him to be treated as a regular High School Teacher, and so much so his appointment in the Higher Secondary School as a Part Time Teacher (Junior) should be treated as direct recruitment. The short question to be considered is whether the 1st respondent was qualified to be appointed as HSST on transfer basis as on the date of appointment i.e. on 20/08/2000. Learned counsel for the appellant and learned Government Pleader referred to Rules 3 & 6(a) of Chapter XIV-A of the Kerala Educational Rules (hereinafter referred to as the Rules for short), which provide that a High School Assistant will have to be appointed as a Teacher on probation and only on successful completion of probation for one year, the Teacher's appointment gets confirmed. Admittedly, the 1st respondent was appointed in the High School in a leave vacancy, and therefore he was not entitled to regularisation even if he continued more than W.A.No.215/2011 -4- one year as a High School Teacher in the leave vacancy. The benefit the 1st respondent would have got by serving in the High School in the leave vacancy for five months is preferential treatment for appointment in the same school in a vacancy arising in the future under Rule 51A of the Rules. Only when the 1st respondent gets regular appointment in such a vacancy and on completion of his probation he is entitled to be treated as a permanent High School Teacher, which qualifies him for appointment by transfer to the Higher Secondary School. 5. Learned counsel for the 1st respondent contended that Ext.P8 Government Order does not prohibit appointment by transfer of a High School Teacher working in a leave vacancy to Higher Secondary School on transfer basis. We are unable to accept this contention because appointment by transfer can be given only to persons permanently employed in a lower cadre and in this case, Rules 3 & 6(a) of Chapter XIV-A of the Rules make it clear that a Teacher in the High School become a permanent Teacher on completion of one year probation. Therefore, the appointment of the 1st respondent after five months' service in a leave vacancy in the High School to the Higher Secondary School cannot be treated as W.A.No.215/2011 -5- appointment by transfer, but should be treated as a direct recruitment and necessarily all consequences will follow. 6. Learned counsel for the 1st respondent also raised a contention that benefit of Ext.P5 i.e. pay as full time teacher is admissible to the 1st respondent. However, on going through Ext.P5, we notice that the benefit is available only to teachers appointed in the Higher Secondary School though on part time basis on transfer from the High School. The principle behind Ext.P5 notification is obvious because Teachers posted on transfer to the Higher Secondary Schools from High Schools are full time teachers drawing full emoluments, and it will be injustice to them if on transfer they are made part time teachers in the Higher Secondary Schools. Therefore, the Government felt that even when the teachers promoted from High Schools are appointed to Higher Secondary Schools on part time work, they should be given full wages available to full time teachers and it is essentially to protect the benefit they were enjoying as full time teachers in the High School where from they came on transfer. Even though learned counsel for the 1st respondent raised an objection against this Court deciding the latter issue in this appeal, which the appellant has not W.A.No.215/2011 -6- raised in this appeal, we decided the matter at the request of the learned Government Pleader who has filed another Writ Appeal on this issue which is pending in this Court, and the same is against the judgment which is followed by the learned Single Judge in the judgment impugned in this Writ Appeal. The contention of the learned counsel for the 1st respondent that the requirement of completion of probation for promotion applies to Government School Teachers only is also unacceptable because Rules 3 & 6(a) provide for probation to teachers appointed in aided schools as well. We therefore, reject this contention also. This Writ Appeal is allowed as above. (C.N.RAMACHANDRAN NAIR, JUDGE) (BHABANI PRASAD RAY, JUDGE) jg