IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 WP(C).No. 2715 of 2010(L) ------------------------- PETITIONER(S): --------------------- MADHU K.JAMES, KAMUKUMATTATHIL HOUSE, BETHEL P.O., PERINCHANKUTTY, UDUMBANCHOLA TALUK, IDUKKI DISTRICT-685 509. BY ADV. SRI.P.C.CHACKO(PARATHANAM) SMT.ASHA CHACKO RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, DIRECTORATE OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. THE REGIONAL DIRECTOR OF HIGHER SECONDARY EDUCATION, D.H.S.E., REGIONAL OFFICE, EDAPPALLY P.O., ERNAKULAM. 4. THE DISTRICT EDUCATIONAL OFFICE, KATTAPPANA P.O., IDUKKI. 5. THE SECRETARY, CORPORATE EDUCATIONAL AGENCY, DIOCESE OF IDUKKI, BISHOPS HOUSE, IDUKKI P.O., PIN-685 602. 6. THE MANAGER, ST.XAVIERS H.S.S., CHEMMANNUR P.O., UDUMBANCHOLA TALUK, IDUKKI DISTRICT. ADV. SRI.V.M.KURIAN FOR R5 SR.GOVT. PLEADER SMT. C.K.SHERIN FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C) No.2715 of 2010 ------------------------------------------- Dated this the 10th day of November, 2011 J U D G M E N T ---------------------- The petitioner is seeking relief to quash Ext.P8 and also for a direction to pay salary for the period during which he worked in the 6th respondent's school, at the pay scale of Rs.11070- 18450/-, for the period from 2.6.2008 to 19.10.2008. Inter alia the petitioner is seeking a declaration to the effect that Ext.P5 circular is applicable to the petitioner and to similarly situated persons. 2. Brief facts of the case is that, the petitioner had worked as a Higher Secondary School Teacher in Sociology at the 6th respondent's school on 3 distinct spell on appointment against leave vacancies, from 11.6.2004 to 31.3.2005, from 2.6.2008 to 19.10.2008 and from 18.6.2010 to 14.12.2010. Regarding the first spell of appointment made by virtue of Ext.P1, approval was granted as per Ext.P2. Appointment during the second spell was by virtue of Ext.P3. The dispute in this writ petition mainly pertains to salary paid to the petitioner for the period of her second spell of appointment. It is evident from Ext.P3 that the appointment was as Guest Teacher on W.P.(C).2715/10-L -2- remuneration of Rs.100/- per hour of teaching. Petitioner conceded that as per Ext.P4 circular the remuneration fixed for appointment of Higher Secondary Teachers in short term vacancies is Rs.100/- per hour subject to a maximum of Rs.6,000/- in a month. 3. Petitioner points out that, by virtue of Ext.P5 it was clarified that Government Order, G.O.No.169/04/GE dt.15.6.2004, through which it was decided to limit the claim for reappointment under Rule 51A of Chapter XIVA KER, is applicable only with respect to appointments against regular/leave vacancies having duration of less than one year, and is not applicable to the appointments made under Rule 43 of Chapter XIVA or for reappointment of those persons who already acquired claim under Rule 51A of Chapter XIVA KER, if such reappointment is for more than two months. According to the petitioners the clarification given under Ext.P5 as stated above would have been made applicable to similarly situated persons in the Higher Secondary Schools also. Therefore he submitted Ext.P6 representation before the 2nd respondent requesting to approve his second spell of appointment as an appointment made on the basis of Rule 51A claim and to declare that the Government Order permitting filling up of vacancies in the W.P.(C).2715/10-L -3- Higher Secondary Schools as 'guest teachers' will not be applicable with respect to persons who got reappointment on the basis of claim under Rule 51A. 4. It is evident that Ext.P6 representation was forwarded by the 2nd respondent to the 1st respondent seeking clarification. But in Ext.P8 the 1st respondent made it clear that the exemption given to claimants under Rule 43 or Rule 51A of Chapter XIVA KER is applicable only upto High School Level and the procedure therein could not be made applicable in the case of the petitioner who is appointed in the Higher Secondary Schools. 5. Learned counsel Sri.P.C.Chacko appearing for petitioner pointed out that Ext.P8 reply is given without considering the real grievance expressed through Ext.P6. The request made under Ext.P6 for extending the benefit of Ext.P5 to Higher Secondary School section, was also not considered. It is further contended that the impugned decision has resulted in discriminating similarly situated persons. He points out Ext.P8 judgment of a Division Bench of this court in W.A.No.140/2007 dt.84/2009, wherein this court held that Rule 51A of Chapter XIVA KER is applicable to Higher Secondary Schools. Further, in view of a recent decision it was held that the amendment W.P.(C).2715/10-L -4- brought into Rule 51A will not affect the claims acquired under the unamended rules stood before the date of amendment, 25.6.2005. 6. In the counter affidavit filed on behalf of 1st respondent it is specifically contended that the appointment of the petitioner for the period from 2.6.2008 to 19.10.2008 was against a maternity leave vacancy of another teacher and that the above said appointment was made as 'guest teacher' in accordance with GO(Rt).2971/05/G.Edn. dated 10.6.2005. It is contended that, in the said Government Order it was specifically mentioned that appointment against leave vacancies, duration of which is less than one academic year, shall be made by engagement as 'guest teachers' and therefore he is entitled only for a remuneration fixed for the 'guest teachers'. It is further contended that the clarification issued in Ext.P5 is applicable only upto high school level and the benefit of Ext.P5 could not be extended to appointments in Higher Secondary Schools. It is also contended that the appointment of the petitioner made under the provisions of GO(Rt.).2971/05/G.Edn dt.10.6.2005 cannot be approved as appointment of the petitioner under any scale of pay and hence the request of the petitioner in Ext.P6 cannot be considered. W.P.(C).2715/10-L -5- 7. While considering merits of the rival contentions, I notice that the appointment of the petitioner during the second spell from 2.6.2008 to 19.10.2008 was made specifically on the basis of Ext.P3 and P4. Therefore it is evident that the appointment was as 'guest teacher' on a remuneration as prescribed under Ext.P4. Therefore it is evident that the said appointment was not conferring any claim on the petitioner under Rule 51A, even assuming that the benefit of Rule 51A was available to the petitioner at that time. However, in view of the decision of this court in Ext.P9, question remains to be decided as to whether the petitioner was eligible for re-appointment considering his claim under Rule 51A. Further question also remains that even if such a claim was available to the petitioner at the time of the appointment made on 20.6.2008, whether the petitioner can claim benefit granted under Ext.P5 Government Order, even if it is made available in the case of Higher Secondary School teachers. But as pointed out by the petitioner the grievance expressed in Ext.P6 representation for recognizing the petitioner as having claim under Rule 51A as well as for extending benefits conferred under Ext.P5 Government Order to the teachers appointed as Higher Secondary School Teachers against leave vacancy, was not seen considered by the 1st W.P.(C).2715/10-L -6- respondent. Therefore, I am of the view that the Government can be directed to take an appropriate decision on such grievances voiced through Ext.P6 representation. 8. It is alleged that, with respect to the third spell of appointment the salary due to the petitioner had not been paid due to pendency of this writ petition. Needless to say that the undisputed salary of the petitioner as per the terms of his appointment for that particular period shall be disbursed without any further delay. It is clarified that further claim if any with respect to the salary due for such period will depend upon outcome of the decision to be taken by the Government as directed above. 9. In the result the writ petition is disposed of quashing Ext.P8 and directing the 1st respondent to re-consider Ext.P6 representation which was forwarded by the 2nd respondent through Ext.P7, after affording an opportunity of personal hearing to the petitioner and to take an appropriate decision thereof at the earliest possible, at any rate, within a period of 3 months from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE. okb