Kerala High Court
Binu K.Varghese vs State Of Kerala on 23 March, 2000
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 10TH DAY OF FEBRUARY 2016/21ST MAGHA, 1937
WP(C).No. 12660 of 2005 (F)
PETITIONERS:
1. BINU K.VARGHESE, D/O.K.H.VARGHESE, AGED 33 YEARS
KULANGARAVELIL, SOUTH PAMPADI P.O., KOTTAYAM
NOW WORKING AS HSST (CHEMISTRY), J.M.HSS, VAKATHANAM.
2. BINU ABRAHAM, PADANILATH, AGED 34 YEARS
PULICKAL KAVALA P.O., KOTTAYAM
NOW WORKING AS HSST (CHEMISTRY), M.D.SEMINARY HSS
KOTTAYAM.
3. ROSH V. KURIAKOSE, VAZHACHIRA HOUSE, AGED 41 YEARS
KUZHIMATTAM P.O., KOTTAYAM
NOW WORKING AS HSST (CHEMISTRY), MGM HSS, THIRUVALLA.
BY ADV. SRI.BENOY THOMAS
RESPONDENTS:
1. STATE OF KERALA
REPRESENTED BY SECRETARY TO HIGHER EDUCATION
DEPARTMENT OF HIGHER EDUCATION
SECRETARIAT, THIRUVANANTHAPURAM.
2. SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT
THIRUVANANTHAPURAM.
3. DIRECTOR OF COLLEGIATE EDUCATION,
THIRUVNANTHAPURAM.
4. DIRECTOR OF HIGHER SECONDARY EDUCATION
THIRUVANANTHAPURAM.
5. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOTTAYAM.
6. MANAGER, MALANKARA ORTHODOX CHURCH COLLEGES
DEVALOKAM, KOTTAYAM.
7. CORPORATE MANAGER, CATHOLICATE AND
M.D.SCHOOLS, DEVALOKAM, KOTTAYAM.
BY GOVERNMENT PLEADER SMT. SUNITHA VINOD
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-02-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 12660 of 2005 (F)
APPENDIX
PETITIONER'S EXHIBITS :-
-----------------------------------
EXT.P1 - COPY OF THE MINUTES OF THE MEETING OF THE STAFF
SELECTION COMMITTEE HELD ON 10.08.1996.
EXT.P2 - COPY OF THE APPROVAL ORDER OF THE PETITIONERS AS
HSST [PART-TIME] ISSUED BY THE 5TH RESPONDENT
DATED 23.03.2000.
EXT.P3 - COPY OF THE APPOINTMENT ORDER ISSUED BY THE 6TH
RESPONDENT TO THE 1ST PETITIONER DATED 17.10.1996.
EXT.P3(A) - COPY OF THE APPOINTMENT ORDER ISSUED BY THE 6TH
RESPONDENT TO THE 2ND PETITIONER DATED 17.10.1996.
EXT.P3(B) - COPY OF THE APPOINTMENT ORDER ISSUED BY THE 6TH
RESPONDENT TO THE 3RD PETITIONER DATED 17.10.1996.
EXT.P4 - COPY OF THE RELIEVING ORDER OF THE 2ND PETITIONER
RELIEVING OF THE DUTIES FROM THE COLLEGE
DATED 14.09.1998.
EXT.P4(A) - COPY OF THE RELIEVING ORDER OF THE 3RD PETITIONER
RELIEVING OF THE DUTIES FROM THE COLLEGE
DATED 15.09.1998.
EXT.P5 - COPY OF THE CERTIFICATE ISSUED BY THE CATHOLICATE
COLLEGE TO THE 3RD PETITIONER DATED 09.03.1999.
EXT.P6 - COPY OF THE LETTER ISSUED BY THE 6TH RESPONDENT TO
THE EDUCATIONAL AGENCY DATED 03.06.1998.
EXT.P7 - COPY OF THE LETTER ISSUED BY THE 6TH RESPONDENT TO
ALL PRINCIPALS OF THE COLLEGES UNDER ITS EDUCATIONAL
AGENCY DATED 15.09.1998.
EXT.P8 - COPY OF THE APPOINTMENT ORDER OF THE 1ST PETITIONER
AS HSST (CHEMISTRY) ISSUED BY THE 6TH RESPONDENT
DATED 15.09.1998.
EXT.P8(A) - COPY OF THE DO. TO THE 2ND PETITIONER AS HSST
(CHEMISTRY) ISSUED BY THE 6TH RESPONDENT
DATED 15.09.1998.
EXT.P8(B) - COPY OF THE APPOINTMENT ORDER OF THE 3RD PETITIONER
AS HSST (CHEMISTRY) ISSUED BY THE 6TH RESPONDENT
DATED 15.09.1998.
EXT.P9 - COPY OF THE APPROVAL ORDER ISSUED BY THE 4TH
RESPONDENT AS HSST (PART TIME) IN RESPECT OF THE 1ST
PETITIONER DATED 27.07.1999.
[CONTD....]
WP(C).No. 12660 of 2005 (F) 2
EXT.P9 (A) - COPY OF THE APPROVAL ORDER ISSUED BY THE 4TH
RESPONDENT AS HSST (PART TIME) IN RESPECT OF THE 2ND
PETITIONER DATED 04.08.1999.
EXT.P9(B) - COPY OF THE APPROVAL ORDER ISSUED BY THE 4TH
RESPONDENT AS HSST (PART TIME) IN RESPECT OF THE 3RD
PETITIONER DATED 05.08.1999.
EXT.P10 - COPY OF THE REPRESENTATION SUBMITTED BY THE
PETITIONERS BEFORE THE 1ST RESPONDENT
DATED 01.10.2004.
EXT.P11 - COPY OF THE REPRESENTATION SUBMITTED BY THE 6TH
RESPONDENT BEFORE THE M.G. UNIVERSITY AUTHORITY
DATED 12.11.1999.
EXT.P11(A) - COPY OF THE REPRESENTATION SUBMITTED BY THE
PRINCIPAL, BASELIUS COLLEGE, KOTTAYAM TO THE M.G.
UNIVERSITY DATED 20.09.1999.
EXT.P12 - COPY OF THE REPRESENTATION SUBMITTED BY THE 3RD
PETITIONER TO THE MINISTER FOR EDUCATION
DATED 27.07.1998.
EXT.P13 - COPY OF G.O.(MS) NO.164/04/G.EDN. DATED 14.06.2004.
EXT.P14 - COPY OF G.O.(MS) NO.351/2004/G.EDN. DATED 20.11.2014.
EXT.P15 - COPY OF G.O.(MS) NO.30/96 DATED 12.02.1996.
EXT.P16 - COPY OF G.O.(MS) NO.171/97 DATED 08.12.1997.
EXT.P17 - COPY OF THE CIRCULAR DATED 17.07.1998.
EXT.P18 - COPY OF THE ORDER DATED 29.08.1998.
EXT.P19 - COPY OF THE REVISED APPROVAL ORDER OF THE
3RD PETITIONER.
EXT.P20 - COPY OF G.O.(MS) NO.185/2006 DATED 26.07.2006.
EXT.P21 - COPY OF G.O.(MS) NO.488/98 DATED 19.12.1998.
EXT.P22 - COPY OF JUDGMENT IN SHOUKATH'S CASE.
RESPONDENTS' EXHIBITS:- NIL
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//TRUE COPY//
P.A. TO JUDGE
sp
K. VINOD CHANDRAN, J.
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W.P(C). No.12660 of 2005-F
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Dated this the 10th day of February, 2016.
JUDGMENT
The learned Government Pleader, when the matter was taken up for hearing, sought for time, since the petitioner had filed a Reply Affidavit on 09.02.2016. Considering the fact that only Government Orders were produced in the reply, this Court was of the opinion that there being no necessity of further instructions from the Government time need be granted only to go through the Government Orders produced along with the W.P(C). No.12660 of 2005-F 2 Reply Affidavit. The matter was again taken up for hearing today and the learned counsel for the petitioner and the learned Government Pleader were heard.
2. The petitioners were appointed as Junior Lecturers in the Colleges under the Universities within the State of Kerala, just prior to the de-linking of Pre-Degree Course from the University stream. These persons were appointed as per specific Government Orders and on condition that they would be deployed to Higher Secondary Schools under the same Corporate Management, when such course was sanctioned. The petitioners were all appointed in the academic year 1996-1997 and were deployed to W.P(C). No.12660 of 2005-F 3 the Higher Secondary Schools in the academic year 1998-1999.
3. The issues raised are two-fold, whether on deployment to Higher Secondary Schools, they ought to be treated as Higher Secondary School Teacher (HSST) (Junior) or HSST. The other claim is that, their service as Junior Lecturer from the academic year 1996-1997 ought to be considered as service for all purposes.
4. The learned Government Pleader would submit that the specific condition in the Government Order would indicate that the petitioners could only be appointed as HSST (Junior), since on the first year of sanctioning of the course, there would not W.P(C). No.12660 of 2005-F 4 be sufficient workload for sanctioning a post of HSST.
5. As is pointed out by the learned counsel appearing for the petitioner, the de-linking of Pre-Degree was necessitated, since the University Grants Commission refused to accept the Pre-Degree Course as one coming within the University stream of education. In such circumstance, the Government was faced with the problem of de-linking of Pre-Degree and the same having to be done in a phased manner, so as to not put the students or the Colleges into difficulty. The UGC having refused to approve the Lecturers appointed to the Colleges as faculty of the Pre-Degree W.P(C). No.12660 of 2005-F 5 courses, the Government brought out Ext.P15 order, creating a new category of Teachers called Junior Lecturer (Pre-Degree), in the Collegiate Education Subordinate Service.
6. The method of appointment was also by appointment from qualified High School Assistants under the General Education Department and in the absence of such hands, by direct recruitment. The qualifications too were specifically prescribed as Masters Degree in the concerned subject with at least 50% marks and a B.Ed. Degree. The petitioners were all appointed in pursuance to Ext.P15 Government Order and was qualified to be so appointed.
7. Subsequent to creation of such cadre W.P(C). No.12660 of 2005-F 6 for the academic year 1996-1997, by Ext.P15 the Government brought out Ext.P16 on 08.12.1997, in the very same academic year, authorizing the Deputy Director of Collegiate Education to accord approval for the appointments of the Junior Lecturers made by the Private College Managements, strictly in accordance with Ext.P15. The salaries were also directed to be disbursed by the said authorized Officer and Clause (3) of paragraph 2 of the Government Order provided that such Junior Lecturers would be transferred to Higher Secondary Schools, when Pre-Degree is de-linked.
8. Ext.P17 is an order issued by the Government on 17.07.1998, when the de- W.P(C). No.12660 of 2005-F 7 linking materialized, directing the Managements to make deployment of the lecturers as contemplated in the order creating such posts. Ext.P18 dated 29.08.1998 is also a Government Order, directing the Junior Lecturers in the private colleges to be posted in the Higher Secondary Schools of the same Management. It was clearly directed in Ext.P18 that the direct recruitment of Teachers in Plus Two courses would only be permitted by the Corporate Managements, after eligible Lecturers under the respective Managements are accommodated first. The petitioners were all re-deployed in the academic year 1998-1999 to the Higher Secondary section of the Schools under the 7th respondent.
W.P(C). No.12660 of 2005-F 8
9. On re-deployment, the issue arose as to whether they should be appointed as HSST (Junior) or HSST itself. Evidently, the workload as on the date of re-deployment would not entitle the sanction of an HSST post on the basis of the workload, as provided in the definitions at Clause (d) and (e) of Rule I Chapter XXXII of Kerala Education Rules (KER). However, it is to be noticed that Exts.P16 to P18 specifically directed that the appointment to the High Secondary section on sanction of such courses is not a fresh appointment, but a re-deployment.
10. In this context, Ext.P14 assumes significance. There was a similar issue with respect to those qualified High School Assistants, U.P.S.As and L.P.S.As, who were W.P(C). No.12660 of 2005-F 9 appointed in the Higher Secondary School section on 'by-transfer' appointment. On introduction of the higher secondary stream in the schools, prior to coming into force of statutory rules, the Government made by- transfer appointments from qualified teachers in the schools. Initially they were granted an additional special pay of Rs. 250/- and then they were categorized as part-time and full-time; the latter, those teachers having a work load of 15 periods and above. The Government then by G.O.(MS)No. 162/1998/G.Edn. Dated 13.05.1998 ordered that the teachers appointed from General Education Subordinate Service would be granted full time scale irrespective of the work load. The other teachers too claimed similar treatment, which W.P(C). No.12660 of 2005-F 10 the Government granted by Ext.P14, after prolonged litigation. The Government by Ext.P14 found that the 'by-transfer' appointments would be as HSST and not as HSST (Junior) dehors the availability of sufficient workload.
11. Further Ext.P19 is an order passed in the case of the 3rd petitioner, wherein the 3rd petitioner's appointment from 15.09.1998 was approved as HSST (Chemistry), ie: on the first year itself, the 3rd petitioner was approved as an HSST. Ext.P19 is based on Ext.P20 G.O., wherein paragraph 3 is relevant for consideration and is extracted hereunder:
"3. When Higher Secondary Course were sanctioned to aided sector, as per the Government Order read as 2nd paper above, many Junior Lecturers were given transfer appointment as Higher W.P(C). No.12660 of 2005-F 11 Secondary School Teacher, and based on the lower number of periods of teaching per week, some were accommodated in the posts of Higher Secondary School Teacher (Junior).
Regarding the salary to the deployed Junior Lecturers as Higher Secondary School Teachers, it was ordered in the Government Order read as 3rd paper above to disburse the salary at the rate last drawn by them in the post of Junior Lecturers. The scale of pay later granted to Higher Secondary School Teacher (Senior) is equivalent to that of Junior Lecturer and that granted to Higher Secondary School Teacher (Junior) is the lower one ie. Rs.4500-9075 (Pre-revised)."
The aforesaid consideration made by the Government also advance the case of the petitioners for re-deployment and appointment as HSST.
12. Further, it is to be noticed that the service conditions including the method of appointment to the Higher Secondary section W.P(C). No.12660 of 2005-F 12 was introduced in the KER by Chapter XXXII. Rule 4 provides for the method of appointment and serial No.2 in the table under Rule 4 refers to Higher Secondary School Teacher, who are to be first appointed 'by-transfer' from Junior Lecturer in the subject concerned under the Management/Higher Secondary School Teacher Junior. Serial No.3 of the Table under Rule 4 refers to appointment to the post of HSST (Junior), in which the Junior Lecturer is not included as a category from which such appointment Could be made. The Government hence never contemplated appointment of Junior Lecturers as HSST (Junior), but only provided for their re-deployment as HSST, on the higher secondary course sanction. The Government Orders referred above also would W.P(C). No.12660 of 2005-F 13 indicate that the Managements could make direct appointments only after the Junior Lecturers are accommodated in the Higher Secondary Section.
13. Hence, when deployment is made to the post of HSST from a Junior Lecturer, the appointment has to be as an HSST and not as an HSST (Junior), dehors the available periods. The Government too,in the case of other 'by-transfer' appointments, followed the said procedure and there is no reason why the petitioners, who are also validly appointed as per Government Orders, be treated in a different manner; in the event of which there exists a valid ground of discrimination. The 3rd petitioner as pointed out earlier has also been granted the benefit. In such W.P(C). No.12660 of 2005-F 14 circumstance, the petitioners' appointment in the year 1998-1999 has to be treated as HSST in the Higher Secondary section without reference to the workload available in the Schools.
14. The further contention is with respect to the service as Junior Lecturer being treated as service for all purposes. Ext.P16 speaks of approval given by the Deputy Director of Collegiate Education to be intended for disbursement of salary and other service benefits till the Junior Lecturers are suitably re-deployed to Higher Secondary Schools on Pre-Degree de-linking. There is no reason why the said service should not be considered as eligible service for all purposes. The creation of Junior Lecturer W.P(C). No.12660 of 2005-F 15 posts were made in the Collegiate Education Subordinate Service and the petitioners validly appointed, with the contemplation of re-deployment on de-linking of Pre-degree from the University stream. They were continued uninterruptedly and re-deployed and absorbed. The pay of HSST is also comparable to that of Junior Lecturer (Pre-degree)In such circumstance, the petitioners' claim with respect to treatment of such service as eligible service has also to be allowed.
15. It is declared that the petitioners' re-deployment in the academic year 1998-1999 to the Higher Secondary Schools under the 4th respondent would be as HSST and they would be entitled to the pay and allowances eligible for such post. The period spent as Junior W.P(C). No.12660 of 2005-F 16 Lecturer (Pre-Degree), which appointment was made validly as per Ext.P15 G.O. shall also be treated as service for all purposes.
16. The consequential orders shall be passed and disbursement of arrears made within a period of four months from the date of receipt of the certified copy of this judgment.
The writ petition is allowed. No costs.
K. VINOD CHANDRAN, JUDGE.
sp/11/02/16