IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM THURSDAY, THE 17TH DAY OF NOVEMBER 2011/26TH KARTHIKA 1933 WP(C).No. 5720 of 2010 (L) -------------------------- PETITIONER ---------- RAJI JOSEPH, AGED 37 YEARS, W/O.SAJU JOSEPH, UPPER PRIMARY SCHOOL ASSISTANT, M.H.M.A.U.P.SCHOOL, P.O.CHEEKKODE, MALAPPURAM DISTRICT. BY ADV. SRI.A.A.ABUL HASSAN RESPONDENTS ----------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. THE DEPUTY DIRECTOR OF EDUCATION, P.O.MALAPPURAM, MALAPPURAM DISTRICT. 4. THE ASSISTANT EDUCATIONAL OFFICER, KIZHISSERY, MALAPPURAM DISTRICT. 5. THE MANAGER, M.H.M.A.U.P.SCHOOL, P.O.CHEEKKODE (VIA) CHERUVAYOOR MALAPPURAM DISTRICT. 6. THE HEADMASTER, M.H.M.A.U.P.SCHOOL, P.O.CHEEKKODE, (VIA) CHERUVAYOOR MALAPPURAM DISTRICT. R5-6 BY SRI.P.VENUGOPAL (1086/92) R1 BY GOVERNMENT PLEADER SMT.ROSE MICHAEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-11-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MG WP(C).No. 5720 of 2010 (L) -------------------------- APPENDIX PETITIONER'S EXHIBIS:- EXT.P1:- COPY OF THE APPOINTMENT ORDER DATED 04.10.1995 BY THE 5TH RESPONDENT. EXT.P2:- COPY OF APPOINTMENT ORDER DATED 29.09.2000 ISSUED BY THE 5TH RESPONDENT. EXT.P3:- COPY OF THE ORDER NO.B3/38125/05/K. DIS.DATED 21.01.2006 ISSUED BY TH 3RD RESPONDENT. EXT.P4:- COPY OF THE ORDER NO.D.DIS10549/06/RA(3)/DPI OF THE 2ND RESPONDENT DATED 03.08.2006. EXT.P5:- COPY OF THE ORDER IN G.O.(RT.) N.5084/07/G.EDN.DATED 06.11.2007 ISSUED BY THE 1ST RESPONDENT. EXT.P6:- COPY OF THE G.O.(MS)NO.104/69/EDN.DATED 06.03.1969 ISSUED BY THE 1ST RESPONDENT. EXT.P7:- COPY OF THE G.O(MS)NO.60/96/G.EDN.DATED 15.02.1996 ISSUED BY THE 1ST RESPONDENT. EXT.P8:- COPY OF THE G.O (P)NO.112/2001/G.EDN.DATED 26.03.2001 ISSUED BY THE IST RESPONDENT. EXT.P9:- COPY OF THE G.O(MS.)NO.113/2000/G.EDN DATED 06.04.2000 ISSUED BY THE 1ST RESPONDENT. EXT.P10:- COPY OF TE G.O(MS.)NO.307/2004/G.EDN. DATED 04.10.2004 ISSUED BY THE IST RESPONDENT. EXT.P11:- COPY OF THE G.O.(MS.)NO.302/2002/G.EDN.DATED 10.10.2002 ISSUED BY THE IST RESPONDENT. EXT.P12:- COPY OF THE G.O.((MS.) NO.379/2004/G.EDN. DATED 16.02.2004 ISSUED BY THE 1S RESPONDENT. EXT.P13:- COPY OF THE G.O(RT.) NO.1701/2007/G.EDN DATED 17.04.2007 ISSUED BY THE 1ST RESPONDENT. EXT.P14:- COPY OF THE G.O(MS.)NO.347/1998/G.EDN.DATED 01.09.1998 ISSUED BY THE 1ST RESPONDENT. EXT.P15:- COPY OF THE G.O(RT)NO.2673/2002/G.EDN DATED 13.08.2002 ISSUED BY THE 1ST RESPONDENT. EXT.P16:- COPY OF THE JUDGEMENT IN W.P(C)NO.678/2008 DATED 07.09.2009 PASSED BY THIS HON'BLE COURT. MG WP(C).No. 5720 of 2010 (L) -------------------------- EXT.P17:- COPY OF THE WRITTEN ARGUMENT NOTES SUBMITTED BY THE PETITIONER BEFORE THE DEPUTY SECRETARY TO GOVT. GENERAL EDUCATION DEPARTMENT AT THE TIME OF HEARING SCHEDULED ON 17.11.2009. EXT.P18:- COPY OF THE GOVERNMENT ORDER IN G.O(RNO.426/2010/G.EDN. DATED 27.01.2010 ISSUED BY THE 1ST RESPONDENT. EXT.P19:- COPY OF THE ORDER DATED NIL ISSUED BY 5TH RESPONDENT MANAGER. RESPONDENT'S EXHIBITS:-NIL //TRUE COPY// PA TO JUDGE MG C.K. ABDUL REHIM,J. ------------------------------------------------- W.P.(c) No. 5720 OF 2010 ------------------------------------------------- DATED THIS THE 17th DAY OF NOVEMBER, 2011 J U D G M E N T Even though the fact of the case reveals a chequered history of litigations fought out on the subject matter, I am of the view that the issue involved herein can be cut short, because the challenge is against Ext.P18 order passed by the Government, mainly on the ground that the directions contained in Ext.P16 judgment of this Court has not be properly adverted to and there there is no consideration of the issue based on such directions. 2. In Ext.P16 judgment this court observed that, the claim for protection based on the approved service rendered by the petitioner in the 5th respondent school during different spells, shall be decided based on various orders governing the issue especially G.O (P) No.175/1999/Gl.Edn dated 26-07-1999 and G.O (P) No.240/1999/Gl.Edn dated 29-09-1999. Referring to the first among the Government orders, this court observed that, “it W.P.(c) No.5720/2010 -2- is pertinent to note that the Government have been ordered that all aided school teachers who were in service as on 14-07-1996 will be given protection”. Therefore it is observed that there is no categorisation of appointees of regular posts and leave substitutes in terms of the Government order, in order to consider the benefit of protection. Referring to the 2nd Govt. order cited above, this Court observed that, the specification contained therein that the teachers should be appointed against regular vacancies will apply only with respect to those who were appointed as aided school teachers against regular vacancies during 1996-1997 upto 14-07-1997. Claim of the petitioner is that since she was appointed prior to 1996- 1997 the said stipulation is not applicable. 3. From Ext.P16 judgment it is also evident that this court had issued specific directions to look into Ext.P15 order passed by the Government affording protection to a similarly situated person, who had worked as leave substitute. Yet another direction issued in Ext.P16 is to W.P.(c) No.5720/2010 -3- consider the claim of the petitioner in the light of Rule 3 of Chapter I of K.E.R as he was continuing for a period of more than 10 years. But in Ext.P18 the 1st respondent had considered the matter in a highly cryptic manner and observed that the teachers who are working in regular vacancies alone are eligible for protection as per the Government orders. While disposing the matter the Government had failed to take note of the specific directions contained in Ext.P16, with respect to the claim based on Ext.P15 order as well as the claim under Rule 3 of chapter I of K.E.R. 4. Sri. A.A. Abul Hassan, learned counsel appearing for the petitioner, raised specific contentions to the effect that Clause 2 (ii) of G.O (P) No.240/1999/Gl.Edn dated 29-09-1999 cannot be considered as one taking away the benefits granted through G.O (P) No.175/1999/Gl.Edn dated 26-07-1999, and it will apply only with respect to categories mentioned in clause 2 (i) of G.O (P) No.175/1999/Gl.Edn dated 26-07-1999. Per contra, learned Government Pleader W.P.(c) No.5720/2010 -4- contended that G.O (P) No.240/1999/Gl.Edn dated 29-09- 1999 is introduced as a clarification to G.O (P) No.175/1999/Gl.Edn dated 26-07-1999 and hence the wordings in clause 2 (ii) that “teachers who are working in regular vacancy alone will be eligible for promotion” will apply for teachers who are appointed to leave vacancies even prior to 1996-1997. However, I notice that the above controversy has not been gone into in Ext.P18. Further, I notice of the claim of the petitioner for protection based on Rule 3 of chapter I K.E.R. It is also not adverted. Question as to whether identical benefits granted in Ext.P15 can be extended in the case of the petitioner, also need be looked into. 5. Yet another aspect pointed out by Sri. A.A. Abul Hassan is that through a recent order issued by the Government G.O (P) No.119/2009/G.Edn dated 01-10-2011, the Government have taken decision to grant protection to all the teachers, irrespective of whether they were appointed against regular vacancies or against leave W.P.(c) No.5720/2010 -5- vacancies. Under such circumstances he seeks to quash Ext.P18 and to direct re-consideration. 6. Considering the facts and circumstances as discussed above, I am of the view that interest of justice will be served if a re-consideration of Ext.P18 is ordered. Hence I dispose of this writ petition quashing Ext.P18. The respondent is directed to re-consider the matter in view of the specific directions contained in Ext.P16 judgment and also taking note of the present policy of the Government with respect to affording protection to all teachers working in aided schools irrespective of their appointments against regular vacancies or leave vacancies. A fresh decision in this regard shall be taken after affording opportunity of personal hearing to the petitioner, as early as possible, at any rate within a period of 2 months from the date of receipt of a copy of this judgment. Sd/- C.K. ABDUL REHIM, JUDGE. AMG True copy P.A to Judge