IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 W.A.No. 2603 of 2007 --------------------------------- (AGAINST JUDGMENT DATED 28.9.2007 IN WPC No.8754/2006) APPELLANT(S): PETITIONER IN WPC ----------------------- M.J.SAJEEV, HIGHER SECONDARY SCHOOL TEACHER, ST.JOHN'S MODEL HIGHER SECONDARY SCHOOL, NALANCHIRA, THIRUVANANTHAPURAM. BY ADV. SRI.M.C.CHERIAN RESPONDENT(S)//RESPONDENTS IN WPC ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM. 3. THE CORPORATE MANAGER, MALANKARA SYRIAN CATHOLIC SCHOOLS, PATTOM, THIRUVANANTHAPURAM. R1 & R2 BY GOVT. PLEADER SMT. R. BINDU. R3 BY ADV. SRI.V.M.KURIAN & ADV. SRI. MATHEW B. KURIAN. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 068/2009, THE COURT ON THE SAME DAY DEVELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. ------------------------------ W.A. No.2603 of 2007 ------------------------------ Dated this, the 6th day of August, 2009 JUDGMENT Balakrishnan Nair, J. The appellant was the writ petitioner. Though several reliefs were sought in the writ petition, the main relief pressed were relief Nos.2 and 3. They read as follows: “ii) Declare that the petitioner is entitled to the salary attached to the Full Time Post of HSST on the basis of Ext.P11 read with Exts.P10 and P4. iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to suitably modify the date of appointment of the petitioner so as to enable him to enjoy the benefits conferred by Ext.P11 on the strength of Exts.P4 and P11 from the date of occurrence of vacancy.” 2. The brief facts of the case are the following: The appellant was a High School Assistant (Malayalam) working W.A. No.2603 of 2009 - 2 - in one of the High Schools managed by the third respondent. When the Higher Secondary Courses were sanctioned in various schools of the third respondent, three vacancies in the cadre of H.S.S.T.(Malayalam) also arose. The management conducted selection of the candidates to be appointed by transfer under the 25% quota reserved for High School Assistants. The appellant was included as Rank No.4 in the list. Going by the seniority, it is contended that, he should have found a place among the first three. Feeling aggrieved by his inclusion as rank No.4, he moved the Director of Higher Secondary Education. The said motion was dismissed by Ext.P4 order dated 25.10.2000. But, in the said order, it was observed that he shall be accommodated in the next arising vacancy during the life of rank list, which would expire on 31.8.2001. The said order has become final. For the academic year 2001-02, the Director of Higher Secondary Education issued the the Staff Fixation Order, Ext.P10 dated 27.11.2002, for St.Johns H.S.S., Nalanchira, which was managed by the third respondent. As per that order, in that school, there was one post of H.S.S.T.Junior W.A. No.2603 of 2009 - 3 - (Malayalam) for the year 2001-02, which was vacant. Instead of appointing the appellant, who was rank No.4 in the list, having regard to the directions of the Director in Ext.P4, the Manager has gone for appointment of a Guest Lecturer. Instead of appointing the Guest Lecturer, if the appellant was appointed, he would have got the benefit of Ext.P11 Government Order, it is submitted. The relevant portion of the Ext.P11 order reads as follows: “In the circumstances Government order to grant the benefit of full time scale of pay to all the Aided Higher Secondary 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 GO (MS) No.162/98/G.Edn. Dated 13.5.1998. Government further clarify that this order will not be applicable to those who were appointed under the provisions of the Special Rules since 12.11.2001. The arrears payable on account of this order will be credited to the PF accounts of the concerned teachers and withdrawal of this amount will not be permitted till 30th November, 2009 or till retirement which ever is earlier.”. W.A. No.2603 of 2009 - 4 - In fact, the appellant was appointed during the academic year 2002-03, by Ext.P5 order dated 13.11.2002. By that time, the rules in Chapter XXXII of Kerala Education Rules were promulgated by the Government. Therefore, his appointment being made after the commencement of the Rules, he was not entitled to get the benefit of Ext.P11. In the above factual background, the writ petition was filed seeking the reliefs, which we have already quoted above. The learned Single Judge dismissed the writ petition. Hence, this appeal. 3. We heard learned counsel on both sides. We notice that the appellant could not have been appointed in the post of H.S.S.T. Junior (Malayalam) sanctioned as per Ext.P10 staff fixation order, as at the relevant time, there was a stay against fresh appointment, issued by the Apex Court in M.M.Dolichan v. State of Kerala, (2001) 1 SCC 151. The relevant portion of the directions issued therein, reads as follows: W.A. No.2603 of 2009 - 5 - “(4). There will be no further appointment from any source either in the private schools or in the government schools from today for a period of three months. (5) The State Government is directed to bring into force the Statutory Recruitment Rules within the aforesaid period of 3 months whereafter recruitment to the vacancies in the higher secondary grade could be dealt with in accordance with the statutory rules. (6) If for any unforeseen circumstances the statutory rules cannot be notified and brought into force within the aforesaid period of 3 months and on such event there exists any necessity for immediate recruitment of teachers then it would be open for the parties to move this Court for appropriate direction.”. In view of the above directions, the appointment could not have been made from 14.11.2000 to 13.2.2001 and also thereafter without the permission of the Apex Court till 12.11.2001, the date on which the Special Rules were notified. Since the petitioner was appointed after 12.11.2001, he will not be a beneficiary of Ext.P11 order. In view of the above position, we find no merit in the case of the appellant, and no relief could be W.A. No.2603 of 2009 - 6 - granted to him. The learned Single Judge rightly dismissed the writ petition. We affirm the said judgment and dismiss the Writ Appeal. Sd/- K. Balakrishnan Nair, Judge. Sd/- C.T. Ravikumar, Judge. DK. (True copy)