IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 WP(C).No. 27077 of 2005(W) ----------------------------------- PETITIONERS: ----------------- 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. 5. DR.P.N.SUDARSANAN, HIGHER SECONDARY SCHOOL TEACHER (SANSKRIT), JAYAKERALAM HIGHER SECONDARY SCHOOL, PULLUVAZHY, ERNAKULAM DISTRICT. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI RESPONDENTS: ------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT. SECRETARIAT, TRIVANDRUM. WP(C).No. 27077/2005 ...2... 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI. M.R. SABU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.27077/2005 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF THE APPOINTMENT ORDER No.C2/1643/HSE/98 DATED 7.2.1998 ISSUED BY THE 2ND RESPONDENT. EXT. P2 : COPY OF THE ORDER No.C2/3056/HSE/99 DT. 8.7.99 ISSUED BY THE 2ND RESPONDENT. EXT. P3 : COPY OF THE GOVERNMENT ORDER No.G.O.(MS) No.351/2004/G.Edn. DT. 20.11.2004 ISSUED BY THE 1ST RESPONDENT. EXT. P4 : COPY OF THE REPRESENTATION DT. 31.8.05 SUBMITTED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT. EXT. P5 : COPY OF THE GOVERNMENT ORDER DT. 25/11/04 VIDE G.O.(MS) No.353/2004/G.Edn ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT. P6 : COPY OF THE GOVERNMENT ORDER DT.12/3/07 IN VIDE No.G.O(MS) No.60/2007/G.Edn ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.27077 OF 2005 ---------------------------------------- Dated this the 5th day of December, 2008 JUDGMENT The petitioners are Higher Secondary School Teachers appointed in an aided school namely, Jayakeralam Higher Secondary School prior to the introduction of Chapter XXXII of the Kerala Education Rules containing the special rules relating to appointment of Higher Secondary School Teachers. Higher Secondary Section was started in the school in 1991- 1992. At that time also, as in the special rules, as per the Government Orders applicable, the posts of HSST in the Higher Secondary Schools were to be filled up in the ratio of 75% - 25% between direct recruits and teachers working in the School. The petitioners were appointed in the 75% quota prescribed for direct recruits. Initially, they were appointed as Part- Time Higher Secondary School Teachers, which post is now re-designated in Chapter XXXII as Junior Higher Secondary School Teachers. The petitioners were later appointed as Full Time Higher Secondary School Teachers by Exts.P1 and P2 on various dates between W.P.(C)No.27077/05 2 15.7.1992 and 24.8.1998. By Ext.P3, the Government has granted approval for the proposal to grant benefit of full time scale of pay to all aided school teachers appointed by transfer from among qualified HSAs/UPSAs/LPSAs, irrespective of the periods of teaching as in the case of Government Higher Secondary School Teachers as ordered in G.O.(MS) No.162/98/G.Edn. Dated 13.5.1998. The Government also clarified that, that order is not applicable to those who were appointed under the special rules since 12.11.2001. However, the Government did not extend the benefit of the said Government Order to those Higher Secondary School Teachers, who have been appointed in aided Higher Secondary Schools by way of direct recruitment. 2. In the above circumstances, the petitioners filed Ext.P4 representation before the 1st respondent seeking the very same benefit extended to the teachers appointed as Higher Secondary School Teachers by transfer in the 25% quota. Since they did not receive any response from the 1st respondent, they have filed this writ petition seeking the following reliefs: W.P.(C)No.27077/05 3 “(i) Declare that the denial of benefits under Ext.P3 to directly appointed Higher Secondary School Teacher (Part Time) like the petitioners is discriminatory, illegal and unconstitutional. (ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to extend the benefit of Ext. P3 to the petitioners from their initial appointment as Higher Secondary School Teacher (Part Time) with effect from 2.9.1991, 3.9.1991, 3.9.1991, 30.11.1991 and 1.8.1994, respectively, with all consequential benefits; (iii) Direct the respondents to dispose of Ext.P4 and extend the benefit of Ext.P3 to the petitioner also”. 2. The contention of the petitioners is that the refusal to grant the benefit given to HSSTs appointed by transfer to, direct recruits is patently discriminatory and illegal. They would contend that irrespective of the source of appointment, both are discharging the very same duties and functions and therefore, in the matter of granting full time scale of pay, there is no intelligible differentia between the two and therefore if the two categories of teachers are treated separately, that would amount to discrimination and violation of the constitutional protections under Articles 14 and 16 of the Constitution of India. The petitioners particularly point out that if this disparity continues, even appointees by transfer W.P.(C)No.27077/05 4 who entered service subsequent to the petitioners and are juniors to the petitioners would also get the full time scale of pay from the date of their appointment, whereas the same would be denied to direct recruits who are seniors. The petitioners point out that in the decision of State of Kerala and others V. Daisy K.V. and others [ILR 2006(4) Kerala 772] a Division Bench of this Court had occasion to consider whether such a classification is permissible in the matter of disbursal of arrears of salary between appointees by transfer and appointees by direct recruitment and held that such a discrimination is not permissible. 3. Although the 2nd respondent has filed a counter affidavit, in spite of repeated directions from this Court, the 1st respondent has not chosen to file any counter affidavit. The 2nd respondent in his counter affidavit merely relies on the Government Order to deny the releif to the petitioner. Nothing is sated in the counter affidavit as to how such a classification can be justified as reasonable classification to sustain the difference in treatment between the two sets of persons working in the same post with identical qualifications, duties and functions simply on the basis of source of recruitment. W.P.(C)No.27077/05 5 4. As pointed out by the learned counsel for the petitioner, in Daisy's case(supra), the Division Bench of this court had occasion to consider the justifiability somewhat similar differentiation between the teachers appointed by transfer and those appointed by direct recruitment in the matter of payment of arrears of salary. In paragraph 17 of the judgment the Division Bench held thus: “17. Also, it is seen from Ext.P-16 dated 25-11- 2004 that Higher Secondary School Teachers appointed against the 25% quota reserved for promotion had been paid the full rate of salary even towards arrears, during the same period though their posts also had been sanctioned along with the posts sanctioned in respect of the petitioners. The duty to be performed by the Higher Secondary School Teachers whether they are appointed on promotion against the 25% quota or appointed on direct recruitment against the 75% quota is one and the same. Scale of pay entitled to them is also one and the same. It cannot be said that promotees are entitled for arrears at full rate in the scale of pay of the higher posts, while direct recruits will be entitled only lesser pay, during the same span of time when both the groups were performing the same duty during the same period. This is nothing but naked discrimination offending Article 14 of the Constitution of India. If the financial constraints is the reason for denial of arrears of salary at the full rate, necessarily that shall be applicable to the promotees from lower scale as well”. W.P.(C)No.27077/05 6 5. I am of opinion that the ratio of the said decision is squarely applicable to the grant of full time scale of pay also. There cannot be any dispute that the qualifications required for appointment, duties and functions of the two sets of teachers are the same. Apart from the source of appointment there is absolutely no difference between the two sets of teachers. As such as Higher Secondary School Teachers, they cannot be discriminated in the scale of pay as there is no justifiable classification as to exclude the same from the vice of arbitrariness and discrimination from which Articles 14 and 16 of the Constitution of India guarantees protection to identically situated persons. That being so, the 1st respondent is liable to consider Ext.P4 representation filed by the petitioners in this regard in the light of the Division Bench decision quoted above and my findings herein contained. Accordingly, the writ petition is disposed of with a direction to the 1st respondent to consider and pass orders on Ext.P4 representation filed by the petitioners in the light of the judgment in Daisy's case referred to above and my above findings after affording an opportunity of being heard to a representative of the petitioners, as expeditiously as possible W.P.(C)No.27077/05 7 at any rate, within a period of two months from the date of receipt of a copy of this judgment. The 1st respondent shall also communicate the orders passed on Ext.P4 to the petitioners. S. SIRI JAGAN, JUDGE Acd