IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 WP(C).No. 19786 of 2007(E) ----------------------------------- PETITIONER(S): --------------- T.THOMAS, H.S.S.T.(JR) MALAYALAM, CARDINAL HIGHER SECONDARY SCHOOL, TRIKKAKKARA, KOCHI-682 021. BY ADV. SRI.ABRAHAM VAKKANAL, SENIOR ADVOCATE SRI.PAUL ABRAHAM VAKKANAL SRI.BIJIMON C.CHERIAN SRI.ARUL KUMAR.P SRI.LOWEL CHERIAN RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM. 3. THE MANAGER, CARDINAL HIGHER SECONDARY SCHOOL, THRIKKAKKARA, KOCHI-682 021. ADV. SRI.NAVEEN.T FOR R3 SRI. ANTONY MUKKATH - GOVERNMENT PLEADER FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 19786 of 2007 APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF PROCEEDINGS OF THE DIRECTOR, HIGHER SECONDARY EDUCATION. EXT.P2: COPY OF THE APPOINTMENT ORDER ISSUED BY R3. EXT.P3: COPY OF THE APPROVAL ORDER ISSUED BY R2. EXT.P4: COPY OF THE G.O.(MS)NO.351/2004/G.EDN. EXT.P5: COPY OF THE PETITION FILED BEFORE R2. EXT.P6: COPY OF THE JUDGMENT IN W.P.(C)32702/06 OF THE HIGH COURT. EXT.P7: COPY OF THE PETITION FILED BY R3 TO R2. EXT.P8: COPY OF THE ORDER NO.ACD.A6/943/H.S.E/07 ISSUED BY R2. EXT.P9: COPY OF GO(MS)NO.60/07/G.EDN. EXT.P10: COPY OF THE CERTIFICATE OF THE PRINCIPAL, CARDINAL HSS, TRIKKAKARA. RESPONDENTS' EXHIBITS EXT.R3(a): COPY OF LETTER TO FORWARD THE SERVICE BOOK OF THE PETITIONER. EXT.R3(b): COPY OF THE POSTAL RECEIPT FOR HAVING SENT THE SERVICE BOOK OF THE PETITIONER, TOGETHER WITH ACK-CARD. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ----------------------------- W.P.(C).No. 19786 OF 2007 ----------------------------------- Dated this the 1st June, 2011 J U D G M E N T The petitioner joined service as a Higher Secondary School Teacher (Jr.) Malayalam, in the Cardinal Higher Secondary School, managed by the 3rd respondent from 1999 onwards. As per Ext.P1 staff fixation order dated 24.12.2001, there was a vacancy of a Higher Secondary School Teacher (Jr.) Malayalam, in the Higher Secondary School w.e.f. July 2000. But, at that time, the rules relating to appointment of Higher Secondary School Teachers in the State were in a nebulous state, and many cases were pending before the Supreme Court in respect thereof. The Supreme Court directed that no appointments to aided higher secondary school teachers be made until the case is finally decided. That ban on appointment continued till 12.11.2001, when the Government framed Special Rules for appointment as Higher Secondary School Teachers in aided schools. Subsequently, the petitioner was appointed as H.S.S.T (Jr.) Malayalam, in the by-transfer quota of 25% from among H.S.As, on 12.11.2002. The petitioner submits that since the vacancy W.P.(C).No. 19786 OF 2007 :2: arose in July 2000, and the Manager was prevented from making appointment to that vacancy only because of the ban imposed by the Supreme Court, petitioner should be given monetary benefits in respect of his appointment at least notionally w.e.f. July 2000. Petitioner points out that defying the ban, certain managers made appointments of H.S.S.Ts (Jr.). Ultimately pursuant to orders of Supreme Court, the Government finally decided that the said H.S.S.Ts. (Jr.) should also be given the salary as applicable to H.S.S.T. insofar as in Government schools there is no distinction between H.S.S.T. and H.S.S.T. (Jr.) on the basis of number of periods available. Ext.P4 is the Government Order. The Petitioner submits that the said benefit was not extended to the petitioner although the petitioner was eligible for appointment in July 2000, but was not so appointed by the manager only because of the ban imposed by the Supreme Court. When persons appointed as H.S.S.T. (Jr.) defying the ban were given the benefits applicable to the H.S.S.Ts, it is discrimination to deny the same to persons, who were eligible to be appointed, but was not so appointed by the managers only because of the ban. W.P.(C).No. 19786 OF 2007 :3: Petitioner therefore filed a representation before the Government seeking notional benefits in the scale of pay applicable to H.S.S.T as given by Ext.P4 Order of the Government in respect of appointments defying the ban, for the petitioner also. But the same was rejected by Ext.P8 order. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “(i) to issue a writ of certiorari or other appropriate writ or order quashing Exhibit P-8 order being arbitrary and illegal. (ii) to issue a writ of mandamus or other appropriate writ or direction, commanding respondents to give the benefit of full-time scale of H.S.S.T to the petitioner on a notional basis from July 2000 and monetary benefits from the actual date of his appointment viz' 12-11-02, as he was fully entitled for the post of H.S.S.T (Jr.) from July 2000 and as the delay in making the appointment in time, was solely due to ban orders of authorities. (iii) to declare that the petitioner is entitled to get the full time scale of H.S.S.T from July 2000 on a notional basis till date of actual appointment on 12.11.02 and thereafter the monetary benefits also on that basis, as he was fully eligible for it and as the delay happened on account of ban orders of authorities.” 2. The 2nd respondent has filed a counter affidavit controverting the claims of the petitioner. According to the learned Government Pleader, whatever be the reason, the petitioner's appointment was only on 12.11.2002. In Ext.P4 W.P.(C).No. 19786 OF 2007 :4: Government Order, it is specifically stated that the said Government Order “will not be applicable to those who were appointed under the provisions of the Special Rules since 12.11.2001.” The learned Government Pleader would contend that insofar as the petitioner has not challenged Ext. P4, the petitioner cannot now contend that the petitioner is entitled to the benefits of Ext. P4 insofar as Ext. P4 specifically stipulates that those appointed under the provisions of the Special Rules since 12/11/2001 are not entitled to the benefits of the said Government Order. 3. The 3rd respondent has filed a counter affidavit supporting the claim of the petitioner. 4. I have considered the rival contentions in detail. 5. Admittedly, the petitioner was appointed only on 12.11.2002. The petitioner did not challenge that appointment on the ground that the petitioner ought to have been appointed in July 2000, when a vacancy actually stated to have arisen. Admittedly, the staff strength and the number of periods available warranted appointment of the petitioner only as a W.P.(C).No. 19786 OF 2007 :5: H.S.S.T. (Jr.). That being so, as per the Special Rules, petitioner is entitled to only salary attached to the post of H.S.S.T. (Jr.) (Malayalam). The benefits as per Ext.P4 were given to certain persons only because of the orders of the Supreme Court which had to be passed only because of the nebulous state of affairs prevailed at that time regarding appointment of Higher Secondary School Teachers in the State, until the the imbroglio was resolved by the Special Rules and the Supreme Court granted some benefits to certain persons who were appointed before the commencement of the Special Rules. 6. Orders passed by the Supreme Court, in order to do complete justice among the parties cannot enure to the teachers appointed after the ban. If that is done, Higher Secondary School Teachers (Jr.) in aided schools would have to be given benefits of H.S.S.T against the provisions of the Special Rules which could not have been the intention of the Supreme Court and the Government. As rightly pointed out by the learned Government Pleader in Ext.P4, it is specifically stated that the benefits of the said W.P.(C).No. 19786 OF 2007 :6: Government Order, will not be applicable to those who were appointed under the provisions of the Special Rules since 12.11.2001. The petitioner has not chosen to challenge that order. Admittedly, the petitioner was appointed after 12.11.2001. Therefore, the petitioner is not eligible for the benefits of Ext.P4 order. In the above circumstances, I am unable to countenance the claims of the petitioner in this writ petition. Accordingly, the writ petition is dismissed. S. SIRI JAGAN, JUDGE smt