IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 WP(C).No. 30205 of 2009(U) -------------------------- PETITIONER(S): --------------- SHERINMAARY D'CUNHA, HIGHER SECONDARY SCHOOL TEACHER IN MATHEMATICS JESUS H..S.SCHOOL, KOTHAD RESIDING AT 16/436, KARUVELIPPADY, COCHIN-5. BY ADV. SRI.K.P.DENDAPANI SRI.MILLU DANDAPANI RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, HIGH EDUCATION DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF COLLEGE EDUCATION, ERNAKULAM. 3. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 4. THE MANAGER, CORPORATE EDUCATIONAL AGENCY, ARCHDIOCESE OF VERAPOLY ST.ALBERT'S HIGH SCHOOLCAMPUS, ERNAKULAM. 5. THE MANAGER, ST. PAUL'S COLLEGE, KALAMASSERY. ADV. SRI.AUGUSTINE JOSEPH FOR R5 SRI.K.S.ROCKEY FOR R5 GOVERNMENT PLEADER SMT. NISHA BOSE FOR R 1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF APPOINTMENT ORDER DT.3.9.1996 ISSUED BY R5 EXT.P2-TRUE COPY OF JUDGMENT DT.16.3.1998 INOP 14974/98 EXT.P3-TRUE COPY OF LETTER ISSUED BY R5 DT.28.8.1998 TO THE PETITIONER EXT.P4-TRUE COPY OF LETTER DT.28.8.1998 ISSUED BY R5 TO R2 EXT.P5-TRUE COPY OF APPOINTMENT ORDER DT.12.11.98 ISSUED BY R4 EXT.P6-TRUE COPY OF REPRESENTATION DT.11.11.98 SUBMITTED BY THE PETITIONER TO R5 EXT.P7-TRUE COPY OF ORDER DT.25.10.99 EXT.P8-TRUE COPY OF JUUDGMENT DT.10.2.2003 IN WPC 17564/98 EXT.P9-TRUE COPY OF PROCEEDINGS DT.4.6.2003 EXT.P10-TRUE COPY OF GO DATED 14.3.2003 EXT.P11-TRUE COPY OF REPRESENTATION DT.7.6.2003 EXT.P12- DO. DO. DATED 5.5.1998 EXT.P13- DO. DO. DATED 5.2.2004 EXT.P14- DO. DATED 5.2.2004 EXT.P15- TRUE COPY OF LETTER DATED 23.7.23004 ISSUED BY R1 EXT.P16-TRUE COPY OF REPRESENTATION DT.7.12.2008 EXT.P17- DO. DATED 28.2.2008 EXT.P18- TRUE COPY OF ORDER DT.17.7.2009 EXT.P19- TRUE COPY OF JUDGMENT IN WPC 16816/2009 DT.2.9.2011 EXT.P20-TRUE COPY OF GO. DATED 1.7.2009 // TRUE COPY // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 30205 of 2009-U - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of November, 2011. JUDGMENT The petitioner was appointed as a Junior Lecturer in Mathematics as per Ext.P1 order. She was rank No.1 in the ranked list. Initially, five appointments were made by the Management and the approval was declined by the University stating that the approval of Pre-degree category is not under them. Later, the Government directed to entrust the second respondent the power to grant approval of Junior Lecturers (Pre-degree category). Therefore, the Management forwarded all the papers of the five teachers, to the second respondent. The second respondent found that as per the workload, only two posts of Junior Lecturers are possible and the petitioner and Smt. Bindu Cleetus were retained and termination notice was issued to three other teachers. Ext.P3 is the letter issued by the fifth respondent. The termination was challenged by the three other teachers before this Court and this Court stayed the termination also. By Ext.P4, approval of petitioner's appointment along with that of Smt. Bindu Cleetus, was sought by the Manager. 2. In the meanwhile, the Government had issued orders deploying wpc 30205/2009 2 teachers in Pre-degree category consequent on the delinking of Pre-degree course from the colleges. The petitioner had requested to deploy her to one of the three Higher Secondary Schools under the Management. Since the approval as Junior Lecturer in the college under the same Management was not obtained, the Management was reluctant to deploy her as requested. The petitioner applied for selection to the post of Higher Secondary School Teacher and she got selected also. As per Ext.P5 order, she was appointed as HSST. 3. O.P.No.17564/1998 was filed by the petitioner praying for disbursement of salary in the post of Junior Lecturer and an interim order was passed as per Ext.P7 and finally the said writ petition and connected matters were disposed of by Ext.P8 judgment. A direction was issued that the third respondent, in consultation with the Management, has to give appropriate position to the five candidates who were appointed as Junior Lecturers in Mathematics and approve their appointments. 4. After joining as Higher Secondary School Teacher, the petitioner had been filing several representations to get approval. Those have been produced as Exts.P11 to P14, P16 and P17. In this writ petition, the petitioner seeks for a direction to the competent among the respondents to wpc 30205/2009 3 approve her appointment from 3.9.1996 to 11.11.1998 and to pay salary. 5. The second respondent has filed a counter affidavit. What is mentioned therein is that the petitioner does not possess the required qualifications prescribed by the U.G.C. to be appointed for Degree and P.G. classes. The proposal for approval of five lecturers in Mathematics including the petitioner, was returned as it was seen made against post sanctioned for M.Sc. Mathematics. The posts created for degree and post graduate after 1.1.1986 come under UGC Scheme and hence the candidates appointed against such posts should have the qualification prescribed by the UGC. It is also mentioned that the petitioner is a Junior Lecturer having P.G. with B.Ed. which is a qualification prescribed by the Government for Junior Lecturer for Pre-degree and P.G. classes. 6. Learned counsel for the petitioner submitted that the above aspects have no relevance here, as the petitioner was appointed only for taking classes in Pre-degree. It is submitted that this Court has already allowed a writ petition filed by Smt. Bindu Cleetus who sought for a similar relief, as per Ext.P19 judgment. Apart from the same, learned counsel submitted that the judgment of the Division Bench, Ext.P8, covers the whole issues and the direction therein is to approve the appointment of five persons including the petitioner, which has become final. Therefore, wpc 30205/2009 4 the respondents cannot take a contrary stand. 7. In Ext.P19 judgment, this Court considered the aspect relating to the Government Order prescribing the qualification and the direction issued by the Division Bench. Para 7 of Ext.P19 judgment is extracted below: “7. A reading of Ext.P9 order will show that the same is dated 12.2.1996. After referring to the UGC Scheme and the appointment of teachers under the 48% category, the order has been passed prescribing the qualification. Such teachers were known as “Junior Lecturer (Pre Degree)”. Evidently, therefore, the UGC qualifications are not applicable in this case and therefore the said objection cannot be sustained. Apart from that, all these questions were considered by a Division Bench of this Court in Ext.P7 judgment and finally there is a direction to approve the appointment. Matters which have become final, cannot be re agitated by taking similar objections in the counter affidavit. The Division Bench has clearly held that the UGC qualifications were not required which was one of the contentions considered therein. In para 15 of the judgment, it was held thus: “It is now certain that the post to which the petitioners were appointed are not the posts which are to be filled up as per UGC norms. The UGC norms are not applicable to these posts.” Regarding the concurrence of the University also, the following observations in the same paragraph will be relevant: wpc 30205/2009 5 “St. Paul's College invited applications for five posts and as per the selection, the five persons were appointed. Subsequently, it came to know that these posts were not in conformity with University Regulations or Statutes, but are to be considered by the Deputy Director. As per the Norms prescribed for the Higher Secondary Schools only two posts were available for Mathematics. It is in these circumstances that the Original Petitions were filed.” Finally, this Court issued the following directions: “Hence, according to us, the Director of Collegiate Education in consultation with the Management has to give appropriate position to the five persons, who were appointed as Lecturers in Mathematics and approve their appointments.” Therefore, none of the objections raised in the counter affidavit can be sustained. The appointment has to be approved, as the petitioner herein was one of the parties before the Division Bench and the said judgment has become final.” The situation herein is similar. 8. In para 15 of the judgment of the Division Bench which is extracted above, the Division Bench held that the UGC norms are not applicable to these posts. The operative portion of the judgment of the Division Bench, Ext.P8 herein, obliges the respondents to approve the wpc 30205/2009 6 appointment and no other objections can be taken. The petitioner is rank No.1 and the petitioner in the writ petition which was disposed of as per Ext.P19 judgment, is rank No.2. Therefore, the writ petition is allowed. There will be a direction to respondents 2 and 3 to approve the appointment of the petitioner as claimed in the writ petition and grant the monetary benefits for the period during which she had served as Junior Lecturer, within a period of three months from the date of receipt of a copy of this judgment. Prayer No.(iii) made by the petitioner is left open. No costs. (T.R. Ramachandran Nair, Judge.) kav/ The words “Prayer No.(iii) occurring in the 5th line of the last paragraph of the judgment dated 30/11/2011 in W.P.(C) NO.30205/2009 are corrected and substituted as “Prayer No. (iv) vide order dated 23.12.2011 in I.A. No.20353/2011. sd/- Registrar (Judicial)