IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 WP(C).No. 12425 of 2008(D) ------------------------------------ PETITIONER(S): ----------------------- P.V.LEENA, HIGHER SECONDARY SCHOOL TEACHER, VIVEKACHANDRIKA HIGHER SECONDARY SCHOOL, PUTHENVELIKKARA. BY ADVS. MR.N.D.PREMACHANDRAN MR.D.AJITHKUMAR RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, THIRUVANANTHAPURAM. 3. THE MANAGER, VIVEKACHANDRIKA SABHA HIGHER SECONDARY SCHOOL, PUTHENVELIKKARA. 4. V.C.DEEPAMOL, HIGHER SECONDARY SCHOOL TEACHER(MATHS), VIVEKACHANDRIKA HIGHER SECONDARY SCHOOL, PUTHENVELIKKARA. 5. C.A.SABU, HIGHER SECONDARY SCHOOL TEACHER(MATHS), VEVEKACHANDRIKA HIGHER SECONDARY SCHOOL, PUTHENVELIKKARA. R3 BY ADVS. MR.B.GOPAKUMAR, SMT.CHINCY GOPAKUMAR. R4 BY MR. K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI , MR.T.R.SADEESAN. R5 BY MR.PAULSON THOMAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/11/2009, ALONG WITH WPC NO. 13559 OF 2008 THE COURT ON 08/12/2009 THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.12425/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DTD. 2.2.2000. P2:- COPY OF THE ABOVE PROCEEDINGS DTD. 17.8.02 OF THE 2ND RESPONDENT. P3:- COPY OF THE COMMON JUDGMENT DTD. 2.7.03 IN OP. 443/03 AND CONNECTED CASES. P4:- COPY OF THE APPOINTMENT ORDER DTD. 1.8.03. P5:- COPY OF THE ORDER DTD. 15.3.04 OF THE IST RESPONDENT. P6:- COPY OF THE ORDER DTD. 26.6.04. P7:- COPY OF THE ORDER DTD. 26.6.04./ P8:- COPY OF THE JUDGMENT DTD. 3.8.07 IN WPC. 12345/04. P9:- COPY OF THE JUDGMENT IN WA. 2799/07 DTD. 4.12.07. P10:- COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DTD. 16.2.08. P11:- COPY OF THE COMMUNICATION. P12:- COPY OF THE INTERIM ORDER IN WPC. 13559/08. P13:- COPY OF THE G.O.(MS) BNO.162/1998/G. EDN. DTD. 13.5.98. P14:- COPY OF THE G.O.(MS) 351/04/GEN. EDN. DTD. 20.11.04. RESPONDENT'S EXHIBITS R2(a):- COPY OF THE INTERIM ORDER DTD. 19.11.08. R2(b):- COPY OF THE INTERIM ORDER DT. 31.3.09. R2(c):- COPY OF THE REPRESENTATION FORWARDED BY THE PRINCIPAL. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 12425/2008-D & 13559/2008-L - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of December, 2009. JUDGMENT These two writ petitions concern a common question, i.e regarding pay scale applicable to Higher Secondary School Teacher (Junior). 2. The major issue regarding the entitlement of the petitioner in W.P. (C) No.12425/2008 for appointment as HSST under 25% quota by transfer of H.S.A., is now concluded by Ext.P8 judgment which is confirmed by the Division Bench in Ext.P9 judgment. The petitioner in W.P.(C) No.13559/2008 was pitted against the petitioner in W.P.(C) No.12425/2008 in the said matter. Therefore, it is not necessary to trace out the entire history of the dispute. The bare details which are essential for the purpose of the disposal of the cases are the following: 2. The petitioner in W.P.(C) No.12425/2008 entered service as a U.P.S.A. from 5.6.1995 and she was promoted as H.S.A. with effect from 1.8.2000. The Higher Secondary Course was sanctioned in the school in the year 1998-99. In terms of the qualifications and eligibility, the petitioner was entitled to get appointment as HSST under 25% quota for in- wpc 12425/08 & 13559/08 2 service candidates. But the fourth respondent who was working in a leave vacancy at that point of time, was granted the appointment. She is the petitioner in W.P.(C) No.13559/2008. This was challenged by the petitioner in W.P.(C) No.12425/2008 and later by Ext.P1, her claim was accepted. There were various writ petitions before this Court in the matter. Suffice it to say that ultimately as directed by this Court, the second respondent again passed Ext.P2 order recognising her right. The said order was under challenge in various writ petitions and ultimately, by Ext.P3 judgment, the petitioner was ordered to be appointed as Full Time HSST. Accordingly, by Ext.P4, the third respondent appointed the petitioner on 1.8.2003 as HSST. Ext.P5 is the order passed by the first respondent in a revision petition filed by the contesting respondents again in the light of the direction issued by this Court in Ext.P3. Therein also, the entitlement of the petitioner for appointment in the vacancy which arose during 1998-99 (first post) was confirmed. As regards the 4th respondent, it was ordered that she is entitled for the third vacancy which arose during 2001-2002 and the fifth respondent was found eligible for the second vacancy which arose during 1999-2000. This order was challenged in W.P.(C) No.12345/2004 by the 4th respondent and in terms of the interim order to maintain status- wpc 12425/08 & 13559/08 3 quo, the second respondent granted provisional approval to the petitioner to draw salary in the junior post as per Exts.P6 and P7 which was subject to the final outcome of the writ petition. As already noticed, Ext.P8 is the judgment in her favour passed by the learned Single Judge and Ext.P9 is the judgment in the Writ Appeal filed by the 4th respondent against Ext.P8. The petitioner is presently aggrieved by Ext.P10 order which was passed by the second respondent in terms of the directions issued in Exts.P8 and P9 judgments. As per Ext.P10, the petitioner's appointment has been approved from 1.8.2003 to 2.8.2007 as HSST (Junior) and from 3.8.2007 as HSST till the post exists. She is granted notional seniority with effect from 22.9.1998 as HSST. The dispute is regarding the direction in Ext.P10 whereby it is specified that the petitioner is eligible for the scale of pay and other monetary benefits attached to the full time post only with effect from 3.8.2007 ( the date of Ext.P8 judgment). 3. As regards the 4th respondent who is the petitioner in W.P.(C) No.13559/2008, the period of service with effect from 22.9.1998 to 15.7.2001 is treated as provisional appointment without any claim for the regular post of HSST. The approval is granted from 16.7.2001 as HSST (Junior) till the post exists. Emoluments drawn by her have been protected wpc 12425/08 & 13559/08 4 in terms of Ext.P8 judgment. She is aggrieved by the further direction that excess salary drawn for the period from 3.8.2007 till the date of order, shall be recovered in lump sum. 4. In W.P.(C) N.12425/2008, the petitioner mainly contends for the position that denial of Full Time salary attached to the post of HSST with effect from 1.8.2003 is not correct and accordingly a consequential direction has been sought. In W.P.(C) No.13559/2008, Ext.P3 order is challenged to the extent it makes a reduction and recovery from salary of the petitioner. 5. Learned counsel for the petitioners relied upon the two Government Orders, Exts.P13 and P14 produced along with I.A. No.14583/2008 in W.P.(C) No.12425/2008 and a judgment of a learned Single Judge of this Court in W.P.(C) No.27077/2005, produced as Ext.P6 in W.P.(C) No.13559/2008. It is submitted that in the light of these relevant order and judgment, the issue is covered in favour of the petitioners. 6. Ext.P13 is the copy of G.O.(MS) No.162/98/G.Edn. dated 13.5.1998 wherein the method of filling up the post of HSST in Government and aided Higher Secondary School was specified. Para 3 of the same alone is relevant for the purpose of this case. It is specified in para 3 that “only Part - time teachers are appointed when the periods to be taught are wpc 12425/08 & 13559/08 5 less than 15 in a week. This procedure will be followed in Government schools also when direct recruitment is resorted to through Employment Exchange. Bu the teachers appointed from General Education Subordinate Service will be treated as appointment by promotion and they will be full- time teachers irrespective of the periods to be taught.” 7. After the appointment of various Higher Secondary School Teachers as HSST (Junior) as they were allowed only a different scale of pay, the matter was challenged before this Court in various writ petitions. This Court directed the respondents to grant Full Time scale of HSST to those teachers. Even though W.A. No.460/2000 and connected cases were filed against the judgments in the writ petitions, they were dismissed. S.L.P. (C) No.9421 -22/2003 filed before the Apex Court also was dismissed. Ultimately, the Government passed Ext.P14 order No.GO (Ms) 351/2004/G.Edn. dated 20.11.2004. The Government ordered to grant 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 Govt. Higher Secondary School Teachers as ordered in G.O.(MS) No.162/98/G.Edn. dated 13.5.1998 (Ext.P13). It is further clarified that this order will not be wpc 12425/08 & 13559/08 6 applicable to those who were appointed under the provisions of the Special Rules since 12.11.2001. 8. Therefore, the issue that is raised by the petitioners has reached a quietus in the light of Ext.P14 Govt. Order, i.e. the petitioners are entitled to claim the said benefit. Learned counsel for the petitioners brought to my notice judgment in O.P. No.33223/2002 filed by High School Assistants who were appointed as HSST by transfer seeking for same benefits. Their appointment was approved only as Part Time HSST. They also relied upon the judgment of a Division Bench of this Court in W.A. No.469/2000 for claiming scale of pay as Full Time teachers. This Court directed the second respondent therein to treat the petitioners also as Full Time Teachers and to grant them all consequential benefits within three months from the date of receipt of a copy of the judgment. In that view of the matter, the petitioners are entitled to succeed in this writ petition, 9. Ext.P6 judgment produced in W.P.(C) No.13559/2008 is also relevant. Therein, the direct recruits under 75% quota who were appointed as HSST sought for a similar relief on the ground that they cannot be discriminated in the matter of granting the scale of pay. This Court upheld their claim stating that “ there cannot be any dispute that the qualifications wpc 12425/08 & 13559/08 7 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 th 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.” 10. The above principle also relied upon by the learned counsel for the petitioners for the advantage of the petitioners. 11. In the counter affidavit filed in W.P.(C) No.12425/2008, justification is sought for denying the benefit of full time scale of pay with effect from 1.8.2003. It is pointed out that while appointing the petitioner, the Manager ought to have reverted Smt. Deepamol (4th respondent) to the junior post which was not done. When the petitioner was appointed on 1.8.2003 there was already two full time and one junior post in Mathematics and Smt.V.C. Deepamol and Shri C.A. Sabu were already working in the school. It is also pointed out that in Ext.P8 judgment, the emoluments paid to Smt. Deepamol has been protected. True, that in Ext.P8 judgment, the emoluments drawn by Smt. Deepamol (4th respondent) has been protected wpc 12425/08 & 13559/08 8 with a direction that the same shall not be recovered. But that will not have the effect of denying the benefits to the petitioner in W.P.(C) No.12425/2008 as Ext.P5 has been upheld in Exts.P8 and P9 judgments and further, especially in the light of Ext.P14 order. 12. In the counter affidavit filed in W.P.(C) No.13559/2008, justification is sought for the recovery. It is explained that the recovery is effected only from the date of Ext.P8 judgment, but in the light of Ext.P14, as referred to earlier, both the petitioners are entitled for the benefit of scale of pay as applicable to HSST (Full Time) and the same is declared. 13. Therefore, the impugned orders are quashed to the extent of denying the benefit of scale of pay to the petitioners. W.P.(C) No.12425/2008 is thus allowed and Ext.P10 to the extent it denies the petitioner the Full Time salary of HSST with effect from 1.8.2003 is quashed. There will be a direction to respondents 1 and 2 to sanction Full Time salary of HSST to the petitioner with effect from 1.8.2003 and appropriate orders in that regard should be passed and consequential benefits shall be disbursed within a period of three months from the date of receipt of a copy of this judgment. W.P.(C) No.13559/2008 is also allowed. Ext.P3 to the extent it wpc 12425/08 & 13559/08 9 directs reduction and recovery from the salary of the petitioner is quashed. Appropriate orders shall be passed fixing the scale of pay of the petitioner and any arrears to that extent, shall be disbursed within a period of three months from the date of receipt of a copy of this judgment. The writ petitions are allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/