IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 WP(C).No. 28086 of 2006(R) ------------------------------------ PETITIONER(S): ----------------------- JAHFAR P., VOCATIONAL INSTRUCTOR IN MLT, CALICUT GIRLS VOCATIONAL HIGHER SECONDARY SCHOOL, CALICUT-3. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ASSISTANT DIRECTOR, VOCATIONAL HIGHER SECONDARY EDUCATION, REGIONAL OFFICE, MINI CIVIL STATION, VADAKARA, KOZHIKODE DISTRICT. 3. THE DIRECTOR, VOCATIONAL HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM. 4. THE MANAGER, CALICUT GIRLS VOCATIONAL HIGHER SECONDARY SCHOOL, CALICUT-3. R1 TO R3 BY GOVERNMENT PLEADER SRI.NOBLE MATHEW. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/11/2011, THE COURT ON 15/11/2011 DELIVERED THE FOLLOWING: STU WP(C).No. 28086 of 2006(R) APPENDIX PETITIONER'S EXHIBITS: P1 : COPY OF THE LETTER NO.B1-1491/92 DTD 14/09/1992 OF THE 3RD RESPONDENT. P2 : COPY OF THE NUMBER AND DETAILS OF POST ALLOTTED TO CALICUT GIRLS HIGH SCHOOL DTD 09/12/1993. P3 : COPY OF THE APPOINTMENT ORDER APPROVING THE APPOINTMENT OF THE PETITIONER AS PART TIME INSTRUCTOR FOR THE ACADEMIC YEAR 1993/94 DTD 09/03/1994. P4 : COPY OF THE APPOINTMENT ORDER APPROVING THE APPOINTMENT OF THE PETITIONER AS PART TIME INSTRUCTOR FOR THE ACADEMIC YEAR 1994-95 DTD 19/01/1995. P5 : COPY OF THE APPOINTMENT ORDER APPROVING THE APPOINTMENT OF THE PETITIONER AS PART TIME INSTRUCTOR FOR THE ACADEMIC YEAR 1995-96 DTD 02/07/1996. P6 : COPY OF THE APPOINTMENT ORDER APPROVING THE APPOINTMENT OF THE PETITIONER AS PART TIME INSTRUCTOR FOR THE ACADEMIC YEAR 1996-97 DTD 15/07/1996. P7 : COPY OF THE GO(MS) 13/97/G.EDN. DTD 13/01/1997. P8 : COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT DTD 21/02/1997. P9 : COPY OF THE APPOINTMENTORDER OF THE PETITIONER DTD 13/01/1997. P10 : COPY OF THE LETTER ISSUED BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT DTD 22/03/1997. P11 : COPY OF THE LETTER NO.A/531/97 DTD 15/07/1997 OF THE 2ND RESPONDENT TO THE PRINCIPAL. P12 : COPY OF THE LETTER NO.E3/10464/96 DTD 17/01/1998. P13: COPY OF THE ORDER NO.E3/1370/98 DTD 18/04/1998 OF THE 3RD RESPONDENT. P14 : COPY OF THE JUDGMENT IN O.P.6037/1998 DTD 13/07/2005. P15 : COPY OF THE GO (MS) NO.408/2002/G.EDN. DTD 13/12/2002. P16 : COPY OF THE LETTER NO.38/05 DTD 01/12/2005 OF THE 4TH RESPONDENT TO THE 3RD RESPONDENT. STU ..2 -2- P17 : COPY OF THE ORDER NO. E5/2959/2005 DTD 26/08/2006 OF THE 3RD RESPONDENT. P18 : COPY OF GO(MS)NO.53/91 DTD 30/03/1991. P19 : COPY OF ORDER NO.L1-12/03 OF THE ASSISTANT DIRECTOR, VHSE REGIONAL OFFICE, KOLLAM DTD 23/09/2004. P20 : COPY OF ORDER NO.A/1452/2006 DTD 24/03/2006 OF ASSISTANT DIRECTOR, VHSE, REGIONAL OFFICE, ERNAKULAM. P21 : COPY OF THE PROCEEDINGS OF THE ASSISTANT DIRECTOR, VHSE, REGIONAL OFFICE, THRISSUR DTD 05/08/2005. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.A TO JUDGE. STU S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 28086 of 2006 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 15th day of November, 2011. J U D G M E N T By Ext.P1 order, the Director of Vocational Higher Secondary School Education permitted all managers/headmasters of Vocational Higher Secondary Schools to select and appoint qualified hands in the appropriate branch to handle the General Foundation Subject Theory (Entrepreneurship and Management) for one hour per week each for the first and second year vocational higher secondary course concerned on a remuneration of Rs. 30/- per hour. The 4th respondent-Manager of an aided Vocational Higher Secondary School appointed the petitioner as a part-time guest instructor pursuant to which only the petitioner was appointed. By Ext.P2, the Assistant Director actually directed the Principal of the school to contact the petitioner and another person for such appointment in accordance with Ext.P1. By Ext.P3, the Director ratified the appointment of the petitioner as part time guest instructor in Medical Laboratory Technician course with effect from 8.1.1994. By Ext.P4 dated 19.1.1995, the petitioner's appointment for the year 1994-95 was ratified by the Director. By Ext.P5, the appointment of the petitioner and another as guest instructor was ratified for the year 1995-96. By Ext.P6 dated 15.6.1996, the appointment of the petitioner and another was ratified for the year 1996-97. While so, by Ext.P7 dated 13.1.1997, the Government ordered re-designation of part time instructors in Vocational Higher Secondary Institutions as Vocational Instructors in a scale of pay against the second full W.P(C) No. 28086 of 2006 -: 2 :- time post available under the Government of India Scheme. Consequently, part time post so vacated was directed to be abolished. By Ext.P8, the Director of Vocational Higher Secondary Education clarified that it is not necessary for the creation of new posts for accommodating the vocational instructors and that the Government Order will be applicable to the existing part time posts. By that order, the Director directed the Assistant Director to implement the Government Order immediately. Pursuant to these orders, by Ext.P9, the Manager re-designated the petitioner as Vocational Instructor as per Ext.P7 Government Order with effect from 13.1.1997. By Ext.P10, the Manager requested the Assistant Director to sanction scale of pay for the petitioner and another similarly appointed part time instructor in the post of Vocational Instructor. By Ext.P11, the Assistant Director directed the Principal of the petitioner's school to arrange a selection committee meeting for considering whether the petitioner is fit for the job and eligible to get the benefit of Ext.P7 Government Order. By Ext.P12, the Director held that in the interview conducted on 4.8.1997, the petitioner has been selected for implementation of of Ext.P7 Government Order. Pursuant thereto, by Ext.P13, the Director ordered re-designation of the petitioner as Vocational Instructor with effect from 5.8.1997. Subsequently, by Ext.P15 order, the Government directed that the part time service from 1992 to 20.1.1997 of the Vocational Instructors, who were later appointed in W.P(C) No. 28086 of 2006 -: 3 :- full time post with effect from 13.1.1997, would be treated as full time service on a regular time scale of pay from the commencement of their part time appointment on a notional basis and that the period of service so treated on a regular basis on notional effect will be counted for all service benefits except for salary. Pursuant thereto, the Manager, by Ext.P16, forwarded the proposal for approval of the petitioner's appointment as Vocational Instructor in accordance with Ext.P7 Government Order with effect from 13.1.1997. But, by Ext.P17 order, the same was rejected on the ground that the petitioner was selected to the post only on 5.8.1997 and therefore the petitioner cannot be considered for approval with effect from 13.1.1997. The petitioner is challenging Ext.P17 order seeking the following reliefs: “a. Call for the entire records, which leads to Ext.P17 and issue a writ of certiorari quashing the same. b. Call for the entire records, which leads to Ext.P13 and issue a writ of certiorari quashing that part or the order by which the petitioner was re-designated as Vocational Instructor only with effect from 5.8.97. c. Issue a writ, order or direction directing the respondents to re-designate the petitioner as Vocational Instructor with effect from 13.1.97. d. Issue a writ, order or direction directing the respondents to grant the benefit of Ext.P15 Government Order to the petitioner.” 2. The contention of the petitioner is that in all vocational higher secondary schools, pursuant to Ext.P1 W.P(C) No. 28086 of 2006 -: 4 :- vocational higher secondary instructors were appointed on hourly basis designating them as guest lecturers. Such guest lecturers only were re-designated as vocational instructors for a scale of pay as per Ext.P7 order in all such schools with effect from 13.1.1997. Therefore, according to the petitioner, there is no reason to discriminate the petitioner in the matter of re-designation as per Ext.P7 Government Order. In support of his contention, he has produced Exts.P19 and P20 orders, whereby part time guest instructors similarly appointed like the petitioner were given the benefit of Ext.P7 Government Order with effect from 13.1.1997. 3. A counter affidavit has been filed by the 1st respondent. In the same, the contention is that the petitioner was not selected after undergoing any selection process and he underwent the selection process for the purpose of Ext.P7 Government Order only on 5.8.1997 and therefore the petitioner can be given the benefit of Ext.P7 Government Order only with effect from 5.8.1997 and not with effect from 13.1.1997. 4. I have considered the rival contentions in detail. 5. In the counter affidavit, it is not disputed that the petitioner was appointed in accordance with Ext.P1 order. The petitioner would submit that all such persons who were appointed pursuant to Ext.P1 order were appointed similarly like the petitioner. Although the learned Government Pleader would strenuously contend that the W.P(C) No. 28086 of 2006 -: 5 :- petitioner was not appointed after undergoing a selection process, the learned Government Pleader could not give me any satisfactory answer as to why the petitioner's appointment was ratified by Exts. P3 to P6 orders, if the petitioner was not appointed in accordance with Ext.P1 order. Exts. P19 and P20 would show that other part time guest instructors have been given the benefit of re- designation as vocational instructor with effect from 13.1.1997. They were also given the benefit of Ext.P15 Government Order by treating part time service also as regular service on notional basis without salary. In the above circumstances, I am not inclined to accept the contention of the respondents that the petitioner was regularly appointed only on 5.8.1997. If the petitioner was not regularly appointed, the Director could not have validly ratified the appointment of the petitioner from year to year as done in Exts. P3 to P6. Therefore, I am inclined to hold that the petitioner was regularly appointed in accordance with Ext.P1 order and therefore is eligible for all benefits granted by Ext.P7. Since the petitioner was given the benefit of Ext.P7, it cannot be disputed that the petitioner was re-designated as Vocational Instructor in the post, which he was holding after abolishing the part time post vacated by the petitioner. Therefore, on every count, the petitioner is entitled to the benefits of Exts. P7 and P15. The petitioner would be entitled to all consequential monetary and other benefits also. Orders in this regard W.P(C) No. 28086 of 2006 -: 6 :- shall be passed and arrears of benefits paid to the petitioner as expeditiously as possible at any rate within 2 months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/