IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930 WP(C).No. 33724 of 2007(M) -------------------------- PETITIONER: ------------ V.V.SANGEETHA, SUMA SADANAM, PAZHAYACHANTHA, KALLARA, TRIVANDRUM - 695 608. BY ADV. SRI.S.MOHANDAS RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, SCHEDULED CASTES/TRIBES DEVELOPMENT (B) DEPARTMENT GOVT.SECRETARIAT, TRIVANDRUM 695 001. 2. DIRECTOR, SCHEDULED TRIBE DEVELOPMENT DEPARTMENT, VIKAS BHAVAN, TRIVANDRUM 695 003. 3. SRI.E.AYYAPPAN, DIRECTOR, SCHEDULED TRIBE DEVELOPMENT DEPARTMENT, VIKAS BHAVAN, TRIVANDRUM 695 003. 4. PRINCIPAL, DR.AMBEDKAR VIDYA NIKETHAN (CBSE), MODEL RESIDENTIAL SCHOOL, ELANCHIYAM P.O. NJARANEELI, TRIVANDRUM 5. SRI.SREEKUMAR, GRADUATE TEACHER, HINDI (DAILY WAGE), DR.AMBEDKAR VIDYA NIKETHAN (CBSE) MODEL RESIDENTIAL SCHOOL, ELANCHIYAM P.O NJARANEELI, TRIVANDRUM 695 R1 TO R4 BY GOVERNMENT PLEADER ADV. SHRI SANTHOSHKUMAR R5 BY ADV. SRI.P.VIJAYAKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO. 4781 OF 2008 IN W.P.(C)NO.33724 OF 2007 DISMISSED. 06.06.2008 SD/- K.T. SANKARAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : A COPY OF ORDER NO. D3/8291/03 DT. 14.06.2005 ISSUED BY THE 2ND RESPONDENT. EXT.P2 : A COPY OF ORDER NO.D3/1557/2006 DT. 26.05.2006 ISSUED BY 2ND RESPONDENT. EXT.P3 : A COPY OF LETTER NO. AVN/23/2007 DT.25.05.2007 ISSUED BY SCHOOL AUTHORITY. EXT.P4 : AN EXTRACT FROM THE BYE-LAWS OF AFFILIATION OF CBSE. EXT.P5 : A COPY OF ADVERTISEMENT ISSUED BY KERALA PSC UNDER CATEGORY NO.297/2007. EXT.P6 : A COPY OF G.O(MS)NO.78/2002/SCSTDD DATED 18.12.2002. EXT.P7 : A COPY OF CONTRACT AGREEMENT DT. 01.06.2007 EXT.P8 : A COPY OF B.A. CERTIFICATE ISSUED TO THE PETITIONER BY KERALA UNIVERSITY. EXT.P9 : A COPY OF SAHITHYACHARYA CERTIFICATE ISSUED BY KERALA HINDI PRACHAR SABHA. EXT.P10 : A COPY OF ACHARYA CERTIFICATE. EXT.P11 : A COPY OF HALL TICKET FOR M.A. (H) EXT.P12 : A COPY OF REPRESENTATION DATED 27.10.2007 EXT.P13 : A COPY OF LETTER DTD. 01.11.2007. /TRUE COPY/ P.A. TO JUDGE. K.T. SANKARAN, J. ............................................................................ W.P.(C) No. 33724 OF 2007 ............................................................................ Dated this the 6th June, 2008 J U D G M E N T The petitioner was appointed as Hindi Graduate Teacher in Dr. Ambedkar Vidya Niketan C.B.S.E. Model Residential School, Elanchiyam, Njaraneeli. as per Ext. P1 order of appointment dated 14.06.2005. The appointment was on contract basis. In Ext. P1, it is stated that appointment is purely provisional and that it would come to an end on 31.03.2006. The petitioner was again appointed for the period from 01.06.2006 to 31.03.2007 as per Ext.P2 order dated 26.05.2006 on contract basis. The contract was renewed for the academic year 2007-08 as per Ext.P3 order issued by the Manager of Dr. Ambedkar Vidya Niketan, C.B.S.E. Model Residential School. Ext. P7 is the agreement dated 01.06.2007 executed between the petitioner on the one part and the Government on the other part. Termination of service is also provided in the agreement. As per the agreement, the contract can be terminated at any time on two calendar months notice in writing . Provision for termination of service even without notice is also made in the agreement. While the petitioner was continuing in service as per Ext. P7 agreement of employment, she availed maternity leave for the period from 03.07.2007 to 31.10.2007. However, she joined duty on 19.09.2007. Therefore, the actual period availed as maternity leave was from 03.07.2007 to 18.09.2007. On 01.11.2007, Ext.P13 order was issued by the second respondent-Director terminating the service of the petitioner on the ground that the petitioner does not have the required W.P.(C) No. 33724 OF 2007 2 qualification as provided in the C.B.S.E. bye-law. The qualification prescribed for Modern Indian Languages and Classical Languages is as follows: “ii) Modern Indian Languages and Classical Languages (either of the two) i) a) Graduate in/with subject concerned or its equivalent b) A recognised Degree/Diploma in education. ii) B.A.B.Ed. with language concerned of the Regional College of Education. 2. According to the petitioner, she has passed B.A. Degree, evidenced by Ext.P8 certificate and therefore she satisfies the requirement of requisite qualification. On a perusal of Ext.P8, it is seen that the course of study in respect of which Ext.P8 is issued, is B.A. English Main and Hindi was only an additional language. Therefore, Ext.P8 cannot be treated as a certificate for requisite qualification. The petitioner contends that she has obtained Ext.P9 Sahithyacharya Certificate and that it is equivalent to B.A. Hindi. In support of the same, she has produced Ext.P5 notification inviting applications to the post of Hindi (HSA) by the Kerala Public Service Commission. I am of the view that production of Ext. P5 notification is of no use in treating the qualification possessed by the petitioner as equivalent to the qualification prescribed by C.B.S.E. bye-laws. On a perusal of the documents produced by the petitioner, it cannot be said that the reasons stated in Ext.P13 in arriving at the conclusion that the petitioner does not have the required educational qualification for the post is incorrect. 3. The relief prayed for in the Writ Petition is for issuing a writ of certiorari to W.P.(C) No. 33724 OF 2007 3 quash Ext. P13 and to declare that the petitioner is eligible to continue in service up to 31.03.2008 in terms of Exts. P3 and P7. There is also a prayer in the Writ Petition for issuing a writ of mandamus directing the respondent Nos.2 and 4 to permit the petitioner to resume duty in the school. Further prayer is to direct the second respondent to grant the petitioner maternity leave for the period from 03.07.2007 to 18.09.2007. 4. For the reasons stated above, I am of the view that the petitioner is not entitled to relief Nos. 1 to 3 as prayed for in the Writ Petition. In so far as relief No.4, for the grant of maternity leave is concerned, the petitioner relies on clause 7 in Ext. P7 agreement, which reads as follows: “7. The party of the first part shall be eligible, subject to the exigencies of public service, for leave salary under the rules contained in Appendix VIII to Kerala Service Rules, as amended from time to time.”. Note to clause 2 of Appendix VIII of the Kerala Service Rules states that maternity leave under rules 100 and 101 will be admissible to female officers appointed on contract basis continuing in service beyond one year provided they would continue in service but for proceeding on such leave. The petitioner could have continued in service till 31.03.2008, but for termination of her employment as per Ext.P13 dated 01.11.2007. She had taken maternity leave before Ext.P13 notice was issued and therefore, she satisfies the requirement for getting the maternity leave. The second respondent shall issue appropriate directions for payment of admissible maternity leave benefits to the petitioner for the period from 03.07.2007 to 18.09.2007 within a period W.P.(C) No. 33724 OF 2007 4 of two months from today. 5. Learned counsel for the petitioner contended that the petitioner is entitled to two months' notice pay. I am of the view that the petitioner would not be entitled to the same since her service was terminated on account of lack of requisite qualification. The Writ Petition is allowed only to the extent as regards the maternity leave and it is dismissed for the rest. K.T. SANKARAN, JUDGE. lk