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 22ND MARCH 2011 / 1ST CHAITHRA 1933 WA.No. 816 of 2010() -------------------- AGAINST THE JUDGEMENT IN WPC.27077/2005 Dated 05/12/2008 .................... APPELLANTS/RESPONDENTS IN THE WPC ------------------------------------------------------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT.T.B.RAMANI RESPONDENTS/PETITIONERS IN THE WPC ------------------------------------------------------------ 1. JYOTHISH KUMAR, HIGHER SECONDARY SCHOOL TEACHER (MATHEMATICS), JAYAKERALAM HIGHER SECONDARY SCHOOL, PULLUVAZHY, ERNAKULAM DISTRICT. 2. MOLY ABRAHAM, HIGHER SECONDARY SCHOOL TEACHER (MALAYALAM), JAYAKERALAM HIGHER SECONDARY SCHOOL, PULLUVAZHY, ERNAKULAM DISTRICT. 3. MINI MATHAI, HIGHER SECONDARY SCHOOL TEACHER (BOTANY), JAYAKERALAM HIGHER SECONDARY SCHOOL, PULLUVAZHY, ERNAKULAM DISTRICT. 4. SHEELA N.R., HIGHER SECONDARY SCHOOL TEACHER (ENGLISH), JAYAKERALAM HIGHER SECONDARY SCHOOL, PULLUVAZHY, ERNAKULAM DISTRICT. WA.No. 816 of 2010() --------------------------------- 5. DR.P.N.SUDARSANAN, HIGHER SECONDARY SCHOOL TEACHER (SANSKRIT), JAYAKERALAM HIGHER SECONDARY SCHOOL, PULLUVAZHY, ERNAKULAM DISTRICT. BY ADVS. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.S.SHYAM PRASANTH THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22/03/2011, ALONG WITH WA NO. 1351 OF 2010 AND CONNECTED CASES. THE COURT ON THE SAME DELIVERED THE FOLLOWING: VK C.R. C .N. RAMACHANDRAN NAIR, & BHABANI PRASAD RAY, JJ. -------------------------------------------- W.A. Nos. 816, 1351,1352, 1353 , 1635 & 2001 of 2010 -------------------------------------------- Dated this the 22nd day of March, 2011 JUDGMENT Ramachandran Nair, J. The question arising in all the Writ Appeals filed by the State being the same, we have combined the cases together, heard both sides and proceed to dispose of the same by this common judgment. 2. The short question arising for consideration is whether the Government orders, G.O.(Ms) No. 162/98/G. Edn. dated 13.5.1998 and the later notification G.O.(Ms) No. 351/2004/G.Edn. dated 20.11.2004 are discriminatory and violative of Article 14 of the Constitution of India, and if so, whether the learned single Judge was justified in extending the relief, under the notifications, eligible to the Full Time High School teachers promoted as Part-time Higher Secondary school teachers to the directly recruited part-time teachers of the Higher Secondary Schools. There is no need for us to extract the notifications as such, because the contents and scope of the notifications are free from doubt. W.A. Nos. 816, 1351,1352, 1353, 1635 & 2001 of 2010 2 3. The facts that led to the controversy are the following. The teachers engaged in the Higher Secondary Schools are two categories, one part-time teachers (Junior Teachers) and the other Full Time teachers. In a given subject if the periods of work in a week are 15 or below, only a Part-time teacher (Junior) can be appointed in that subject. On the other hand, if the periods of work in the subject in a week are above 15 but below 25, the post is that of Full Time teacher. Both part-time and full-time teachers in the Higher Secondary Schools are appointed partly by promotion from among qualified teachers in the High Schools and in the absence of High School teachers, by teachers in the U.P. or L.P. Sections of the school who have the educational qualification to teach in Higher Secondary Schools and the balance by direct recruitment. However, it is worthwhile to mention here that promotions as HSS teachers are given only to permanent full- time teachers in the High Schools or in the UP or LP Sections of the schools, which is based on seniority in service of the teachers in such schools who have the required educational qualification to teach in the Higher Secondary Schools. While 25% of the posts of Higher Secondary School teachers both part-time and full-time are to be filled up through promotions of permanent teachers from High Schools and W.A. Nos. 816, 1351,1352, 1353, 1635 & 2001 of 2010 3 in their absence from lower schools, 75% of the posts, both part-time and full-time in the Higher Secondary Schools, are to be filled up by direct recruitment from among eligible candidates. Taking into account the fact that teachers promoted from High Schools and other schools to Higher Secondary Schools as part-time teachers (Junior) were full-time teachers serving for several years, Government decided to give them pay and allowances of Full time teachers in the H.S.S. In other words, when a full-time teacher from High School or lower School is promoted as Higher Secondary School teacher (part-time / Junior), he/she will be entitled to pay and allowances applicable to a full-time teacher in the Higher Secondary School. This is the scope of notification first above referred wherein the benefit was conferred only to Government schools. However, on account of subsequent challenge against the same by the aided school teachers and court's interference, Government decided to extend it to the aided schools also under the second notification above referred because both the Government school teachers and aided school teachers are paid by the Government. Consequent upon these notifications full-time teachers promoted from High Schools and in their absence from lower schools as part-time teachers (Junior) to the Higher Secondary Schools are eligible for full- W.A. Nos. 816, 1351,1352, 1353, 1635 & 2001 of 2010 4 time pay and allowances. Respondents were directly recruited part- time teachers (Junior) in the Higher Secondary Schools whose case is that they are doing the same periods of work as part-time teachers in the Higher Secondary Schools as the promoted part time teachers who came on transfer from lower Schools and therefore they are entitled to the same pay and allowances that is full time teachers' that are given to the promoted teachers under the notifications above referred. The learned single Judge held that the benefit of the notifications should be extended to direct recruit part-time teachers also. It is against this judgment of the learned single Judge, Writ Appeals are filed by the State. 4. The learned Government Pleader appearing for the State contended that respondents who are freshers as part-time teachers in the Higher Secondary Schools cannot be treated as equal to those teachers who have long period of service in the High Schools and lower Schools and who are promoted from the post of full-time teachers to part-time teachers in the Higher Secondary Schools. According to Government Pleader notifications are intended to retain the status of full-time teachers which they were enjoying until promoted from the High Schools and other Schools to the posts of Part W.A. Nos. 816, 1351,1352, 1353, 1635 & 2001 of 2010 5 time teachers in the Higher Secondary Schools. Counsel appearing for the respondents on the other hand contended that since there is no difference between promoted teachers, and direct recruits for the periods of work done both are entitled to the same wages and allowances. Counsel also cited several decisions, one of which is that of the Division Bench of this Court in STATE OF KERALA V. DAISY, KV., I.L.R. (2006) 4 Ker. 772 and the decision of the Supreme Court in KAMLAKAR V. UNION OF INDIA, AIR. 1999 SC 2300. Besides the above decisions, counsel for the respondents also relied on the decisions referred to in the decision of this Court in SANGEETHA V. STATE OF KERALA, (2010)1 KLT 612, which is also impugned in these appeals. 5. After hearing both sides and after going through the judgments, and the scheme of notifications, we are unable to uphold the judgments because in our view promoted teachers and respondents cannot be treated as equal, no matter they are doing the same periods of work as part-time Higher Secondary School teachers. A teacher engaged even for one period in a week is a part-time teacher and the position remains the same, even if he is engaged for teaching upto 15 periods in a week. Only those teachers who are engaged for teaching W.A. Nos. 816, 1351,1352, 1353, 1635 & 2001 of 2010 6 for 16 periods and above in a week are full time teachers. Obviously, part-time and full-time teachers constitute different classes and respondents would not have had any grievance if teachers promoted from High Schools and other Schools to the post of part-time teachers in H.S.S. were given only the scale of pay of part time teachers. Even though part time teachers in HSS whether came on promotion from lower schools on promotion or through direct recruitment do the same periods of work, the question to be considered is whether the Government was justified in treating promotees differently from direct recruitees which is allegedly to be solely based on method of their appointment. In this context, we have to examine as to the basis of classification adopted by the Government for giving better benefits to the promoted teachers, while denying it to the direct recruits. We have already stated that those promoted as part-time Higher Secondary School teachers, prior to their promotions, were full-time permanent High School or lower school teachers with long period of service and they qualify for promotion by virtue of their seniority in service and educational qualification to get appointment in the Higher Secondary schools. Therefore what the Government sought to achieve is to ensure that there was no erosion in the status of long time serving permanent W.A. Nos. 816, 1351,1352, 1353, 1635 & 2001 of 2010 7 teachers when they are promoted as part-time teachers in the Higher Secondary schools. Therefore the benefit given under the above notifications that is full-time pay and allowances to part-time teachers appointed in the Higher Secondary Schools on promotion from High Schools and other lower Schools is essentially retention of the status as full-time teachers, which they were enjoying before their promotion. Since teachers who go on promotion have rendered long period of service in the High schools or lower Schools, it would be thorough injustice if such permanent teachers on promotion are made part-time teachers in the Higher Secondary Schools with part-time pay and allowances. We therefore feel that the object of the notifications is to protect and retain the benefits and status the promoted teachers were enjoying in the lower schools where from they were promoted. It is essentially a recognition for the service rendered by them and the status they were enjoying as full-time teachers prior to promotion which justify the Government Orders authorising payment of full pay and allowances. Respondents on the other hand are a category of youngsters seeking employment as freshers in the Higher Secondary Schools. If the posts to which they were appointed are part-time Higher Secondary school teachers, then certainly they are entitled to W.A. Nos. 816, 1351,1352, 1353, 1635 & 2001 of 2010 8 pay allowances applicable to part-time teachers only. Respondents have no case that part-time teachers (Junior) are entitled to the same pay and allowances of full-time teachers in the Higher Secondary Schools. However, they are claiming the benefit only because promoted part-time teachers from High Schools and other Schools are given pay and allowances applicable to full-time teachers of Higher Secondary Schools, reasonableness of which is already explained by us above. None of the decisions cited by respondents applies to the facts of this case as such. As already stated, part-time teachers and full-time teachers constitute different class and therefore part-time teachers cannot claim the benefit of pay and allowances given to full-time teachers. We do not think the additional benefit given under the above notifications to promoted teachers in recognition of their status as full- time teachers in the High schools and other Schools prior to promotion can be claimed by respondents who are direct recruits as part-time Higher Secondary School teachers. Article 14 applies only among equals and going by the facts stated above, promotees who are appointed as part-time teachers in the Higher Secondary Schools cannot be equated to freshers appointed as part-time teachers in the Higher Secondary Schools merely because the period of work is the W.A. Nos. 816, 1351,1352, 1353, 1635 & 2001 of 2010 9 same for both the categories. In any case, there is lot of difference between two constituents of part-time Higher Secondary School teachers, that is between promotees from High Schools and other Schools, and the direct recruits, and the difference has a direct relation to the additional benefit given to promoted teachers. We are therefore unable to uphold the judgment of the learned single Judge and we therefore allow the Writ Appeals by vacating the impugned judgments and by upholding the above notifications as devoid of any infirmity warranting interference by this Court. (C.N.RAMACHANDRAN NAIR) Judge. (BHABANI PRASAD RAY) Judge. kk