IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 WA.No. 589 of 2008() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.29154/2003 Dated 18/02/2008 .................... APPELLANT: PETITIONER: ---------------------------------------- P.N. JAYASREE, PART TIME LECTURER, DEPARTMENT OF BOTANY, MARTHOMA COLLEGE FOR WOMEN, PERUMBAVOOR, NOW ON DEPLOYMENT AS HIGHER SECONDARY SCHOOL TEACHER, GOVERNMENT H.S.S., PULIYANAM, ANGAMALY, ERNAKULAM DISTRICT. BY ADV. SRI.P.C.SASIDHARAN RESPONDENTS: RESPONDENTS: --------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, THIRUVANANTHAPURAM. 3. THE REGISTRAR, MAHATHMA GANDHI UNIVERSITY, KOTTAYAM. 4. THE MANAGER, MAR THOMA COLLEGE FOR WOMEN, PERUMBAVOOR -683 542. 5. THE PRINCIPAL, GOVERNMENT HIGHER SECONDARY SCHOOL, MULANTHURUTHY, ERNAKULAM DISTRICT. 6. THE PRINCIPAL, MAR THOMA COLLEGE FOR WOMEN, PERUMBAVOOR -683 542. BY GOVERNMENT PLEADER SRI. BENNY GERVACIS BY ADV. SRI. BABU VARGHESE – R4 & R6 SRI. T.A. SHAJI, SC, M.G.UNIVERSITY - R3 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------- W.A.Nos.589 & 590 OF 2008 ------------------------------------- Dated 16th June, 2008 JUDGMENT Koshy,J . Petitioner in these cases was appointed as part-time Lecturer in Botany in Mar Thoma College for Women with effect from 3.1.1996, which appointment was approved by the University. It is not disputed that she had all the qualifications prescribed by the UGC for appointment as a lecturer. After de-linking of Pre-degree course, she was deployed as a Higher Secondary School Teacher. She was included in the list dated 15.10.2001 of college teachers to be deployed as Higher Secondary School teachers and based on the same she was deployed as Higher Secondary School Teacher in Government High Secondary School, Mulanthuruthy by order dated 4.6.2003, pursuant to which she joined duty on 27.6.2003. While working in the Higher Secondary School, as per the arrangement made by the Government, salary was being drawn and paid by the Principal of the college from which she was deployed. While she was so working, the Principal of Mar Thoma College for Women sent a communication to the Principal of Higher Secondary School, Mulanthuruthy, stating that Smt.Jayasrree did not have regular service in the college and, therefore, the college cannot claim salary for W.A.589 & 590/2008 2 her. Thereafter, the Principal of the school did not allow the petitioner to mark attendance. The whole question is whether she can be treated as a regular teacher and her deployment to Higher Secondary School was correct. It is submitted that she was also replaced by the Public Service Commission hand thereafter and PSC hand joined. She was continuing in the supernumerary post along with some others. Petitioner's claim is that her salary was illegally denied. First question to be considered is whether she was a regular teacher so as to get the benefit of Government Orders. Fixation of staff strength in Botany can be seen from Annexure A2. There was one full time teacher and one part-time teacher. Even though her appointment was as part-time teacher, she was holding a regular post of part-time teacher. It is a regular appointment. University also took the stand in the counter affidavit that she was a part-time teacher and that is a regular post as there was a part-time regular post for appointment. University also states that she was a claimant and she was working. University has conceded in the counter affidavit that petitioner is a claimant under section 62(2) of the Mahathma Gandhi University Act. Of course, part-time teachers are entitled to salary half of the full-time teacher. Clause 10(1) of the Government Order implementing UGC Scheme is as follows: W.A.589 & 590/2008 3 “10.1. The minimum qualifications for appointment of part-time teachers should be the same as that of regular teachers and selected by regularly constituted Selection Committees. The part-time teachers should be appointed only in exceptional circumstances when it is appropriate to the requirements of the institution in terms of subjects to be taught or workload. They can be appointed on a contract appointment if only for a short period or as permanent half- time/proportionate time employees against half/proportionate salary of the scale (and should include proportionate increments, dearness allowance and any other permissible benefits). Such permanent Part-time teaches will also be entitled to the scheme of Career Advancement from Lecturer to Senior Scale Lecturer, Selection Grade Lecturer/Reacher, and Professor. However, they will be entitled to half/proportionate amount of the basic of the scale and proportionate increments, dearness allowance and any other permissible benefits.” The main prayers in the writ petition are as follows: “i) issue a writ of mandamus or any other appropriate writ, direction or order declaring that on the basis of Ext.P1 order of appointment which was approved by the University by Ext.P2 petitioner was holding a regular post of Part-time Lecturer in Botany in Marthoma College for Women, Perumbavoor from 3.1.1996 till she was relieved by Ext.P8 order dated 14.6.2001. ii) issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents to disburse the salary to the petitioner under the U.G.C.Scheme by the revision of pay effected with effect from 1.1.1996 by G.O.(P)No.171/99/H.Edn. Dated 21.12.1999 as provided in Clause 10.1 “ W.A.589 & 590/2008 4 Regular teachers who were excess and working on 24.4.1997 were deployed to teach in Higher Secondary Schools by order dated 3/7/97. That was further relaxed and Clause 3 of the above order reads as follows: “3. However where teachers, who have been retrenched for want of vacancies and who have already acquired a right on future appointment as on 24.4.97 are available, they may be appointed in such vacancies on a regular basis.” By letter dated 9.7.1999, it was directed to approve the appointments of Junior Lecturers reappointed after 24.4.1997 on the basis of their service prior to 24.4.97 (claim holders). Thereafter, Ext.P7 was issued. Relevant portion of Ext.P7 is as follows: “The excess teaching staff are categorised as follows: (i) The Junior lecturers with M.Sc., B.Ed. Qualification who were appointed as per G.O. Dated, 12.2.96. (ii) Those teachers under 48% category (Pre- degree teachers) not included in the U.G.C. Scheme (iii) The teachers under 52% category included in the U.G.C. Scheme. W.A.589 & 590/2008 5 (iv) Those claim-holders and others who also were appointed after 24.4.97.” It is the case of the petitioner that she was a claim holder as on 24.4.97 and she was correctly appointed in the school. Clause 6 and 7 of the above order read as follows: (6) Protection will be restricted only to those who were in service as on 24.4.1997. (7) All those appointed after 24.4.1997 and continuing as excess staff would be retrenched with immediate effect.” The above order required clarification as to whether persons who got valid claims before 24.4.1997 are entitled to get the benefit. That was also clarified by Annexure A4 order of the Government dated 21.3.2001. The relevant portion is as follows: “Clause 3 of the proceedings of the Empowered Committee reads as second paper stipulates that the teachers who have been retrenched for want of vacancies and who have already acquired a right on future appointment as on 24.4.97 are available they may be appointed in such vacancies on a regular basis.” W.A.589 & 590/2008 6 That shows that benefits of deployment is applicable to all claim holders who acquired right of future appointment as on 24.4.97 and they can be appointed in the vacancies on a regular basis. In fact, the petitioner was appointed in Higher Secondary School and she was working. She is admittedly a claim holder and entitled for deployment when declared excess due to de-linking of Pre-degree. We are of the opinion that since she was a valid claim holder at the time when pre-degree course was de-linked and deployed to Higher Secondary School correctly, she is entitled to salary and writ petition ought to have been allowed by the learned Single Judge. We make it clear that it is for the Government to post or transfer her as per rules in appropriate vacancies, if there is no vacancy in the school now she is working. We are not disturbing the PSC hand appointed in the HSS, Mulanthuruthy. Both appeals are allowed. J.B.KOSHY JUDGE P.N.RAVINDRAN JUDGE tks