Muraleedharan Nair and others v State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 9TH DAY OF MARCH 2017/18TH PHALGUNA, 1938 OP(KAT).No. 145 of 2014 (Z) ---------------------------- AGAINST THE ORDER IN T.A.NO.7189/2012 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 04-11-2013 PETITIONERS/APPLICANTS: ------------------------------ 1. MURALEEDHARAN NAIR - SAROVARAM BREEZE GARDENS, PATHIRAPPILLY, KUDAPPANAKUNNU P.O., THIRUVANANTHAPURAM, NOW WORKING AS PRINCIPAL, - GOVERNMENT HIGHER SECONDARY SCHOOL, KAMALESWARAM, THIRUVANANTHAPURAM. 2. SATHI KUMAR K., HIGHER SECONDARY SCHOOL TEACHER, - S.M.V. GOVERNMENT HIGHER SECONDARY SCHOOL, THIRUVANANTHAPURAM, NOW WORKING AS PRINCIPAL, GOVERNMENT HIGHER SECONDARY SCHOOL, THOLICODE, THIRUVANANTHAPURAM. 3. P.KUMARI, PRINCIPAL, GOVERNMENT HIGHER SECONDARY SCHOOL, ANAVOOR, NEYYATTINKARA, VIA THIRUVANANTHAPURAM, NOW WORKING AS PRINCIPAL, GOVERNMENT HIGHER SECONDARY SCHOOL, THIROORANGADI, MALAPPURAM. 4. SARATHCHANDRAN A.K., HIGHER SECONDARY SCHOOL TEACHER, G.B.H.S.S.S. ATTINGAL, THIRUVANANTHAPURAM, NOW WORKING AS PRINCIPAL, GOVERNMENT HIGHER SECONDARY SCHOOL, POOVATHOOR, THIRUVANANTHAPURAM. 5. P.SANAL KUMARAN NAIR, HIGHER SECONDARY SCHOOL TEACHER, CHALA BOYS HSS, THIRUVANANTHAPURAM, NOW WORKING AS PRINCIPAL, GOVERNMENT HIGHER SECONDARY SCHOOL, VAYALA, KOLLAM. 6. VISHNU KUMAR.C.N., VISHUNU NIVAS, POTHI, THALAYALAPARAMBU, KOTTAYAM DISTRICT. NOW WORKING AS PRINCIPAL GOVERNMENT HIGHER SECONDARY SCHOOL, MAMALASSERY, ERNAKULAM. BY ADVS.SRI.T.A.SHAJI (SR.) SRI.K.P.HARISH OP(KAT).No. 145 of 2014 (Z) 2 RESPONDENTS/RESPONDENTS: ---------------------------------- 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695 001. 3. THE DIRECTOR OF HIGHER SECONDARY EDUCATION HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM - 695 001. 4. K.VIJAYAKUMAR, PRINCIPAL, GOVERNMENT G.H.S.S., PIRAPPANKODE P.O., THIRUVANANTHAPURAM, RETIRED PRINCIPAL, VOCATIONAL GOVERNMENT HIGHER SECONDARY SCHOOL, KARAKKULAM, THIRUVANANTHAPURAM - 695 607. 5. JESSY KUTTY JOSEPH, GOVERNMENT HIGHER SECONDARY SCHOOL TEACHER, GOVERNMENT MODEL HSS KOTTAYAM, NOW WORKING AS PRINCIPAL, GOVERNMENT HIGHER SECONDARY SCHOOL, PUTHUPPALLY, KOTTAYAM - 690 527. 6. N.S.SUMAM, PRINCIPAL, G.H.S.S., KARAKULAM P.O., THIRUVANANTHAPURAM, NOW WORKING AS REGIONAL DEPUTY DIRECTOR, KOZHIKODE - 695 564. 7. S.MINI, HIGHER SECONDARY SCHOOL TEACHER, COTTON HILL GIRLS HSS, THIRUVANANTHAPURAM, NOW WORKING AS PRINCIPAL, COTTON HILL GOVERNMENT HIGHER SECONDARY SCHOOL, THIRUVANANTHAPURAM - 695 001. 8. ANNIE MOL KURIAN, HIGHER SECONDARY SCHOOL TEACHER, G.H.S.S. CHTHAMATTOM, KOTHAMANGALAM, NOW WORKING AS PRINCIPAL, GOVERNMENT HIGHER SECONDARY SCHOOL, NERIYAMANGALAM - 686 691. 9. GOKULAKRISHNAN, PRINCIPAL, GHSS MUTHALAMADA, PALAKKAD, NOW WORKING AS PRINCIPAL, GOVERNMENT HIGHER SECONDARY SCHOOL, MUTHALAMADA, PALAKKAD - 678 501. 10. A.SIVAN, PRINCIPAL, THATHAMANGALAM G.H.S.S., PALAKKAD, NOW WORKING AS PRINCIPAL, GOVERNMENT VICTORIYA HIGHER SECONDARY SCHOOL, CHITTOOR, PALAKKAD - 679 309. 11. SAKUNTHALA K., HIGHER SECONDARY SCHOOL TEACHER, G.H.S.S. PATTAMBI, PALAKKAD, NOW WORKING AS PRINCIPAL, GOVERNMENT HIGHER SECONDARY SCHOOL, ELAMAKKARA, ERNAKULAM - 679 303. 12. E.S.NARAYANI, HIGHER SECONDARY SCHOOL TEACHER, GOVERNMENT HIGHER SECONDARY SCHOOL, BALARAMAPURAM P.O., THIRUVANANTHAPURAM, NOW WORKING AS PRINCIPAL, GOVERNMENT TAMIL HIGHER SECONDARY SCHOOL, CHALA, THIRUVANANTHAPURAM - 695 501. OP(KAT).No. 145 of 2014 (Z) 3 13. V.GEETHA, HIGHER SECONDARY SCHOOL TEACHER, GOVERNMENT HIGHER SONDARY SCHOOL, VADANAMKURUSSY, PALAKKAD, NOW WORKING AS PRINCIPAL, GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL, CHITTOOR, PALAKKAD - 679 124. 14. SABU VALERIAN, HIGHER SECONDARY SCHOOL TEACHER, GOVERNMENT HIGHER SECONDARY SCHOOL FOR GIRLS, NEDUMANGAD, THIRUVANANTHAPURAM, NOW WORKING AS PRINCIPAL, GOVERNMENT GIRLS HIGHER SECONDARY SCHOOL, NEDUMANGAD THIRUVANANTHAPURAM - 695 541. 15. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM - 695 001. R1 & R2 BY GOVERNMENT PLEADER SMT.PRINCY XAVIER R4 BY ADV. SRI.THOMAS MATHEW NJARACKAL (KOTTAYAM) R7-R10,R12 BY SR. ADV. SRI.S.P.ARAVINDAKSHAN PILLAY R7-R10,R12 BY ADV. SMT.N.SANTHA R7-R10,R12 BY ADV. SRI.S.A.ANAND R7-R10,R12 BY ADV. SRI.K.A.BALAN R7,R10,R12 BY ADV. SRI.PETER JOSE CHRISTO R5,R6,R11 & 13 BY SR.ADV. SMT.V.P.SEEMANTHINI R5,R6,R11 & 13 BY ADV. SRI.M.R.ANISON R5,R6,R11 & 13 BY ADV. SMT.K.P.GEETHA MANI R5,R6,R11 & 13 BY ADV. SMT.P.A.RINUSA R14 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC THIS O.P.(KAT)HAVING BEEN FINALLY HEARD ON 09-03-2017, ALONG WITH O.P.(KAT)NO.158 OF 2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 145 of 2014 (Z) ---------------------------- ## APPENDIX ## PETITIONERS' EXHIBITS --------------------------- EXHIBIT P1.: TRUE COPY OF THE GOVERNMENT ORDER G.O.(MS)NO.138/90/G. EDN. DATED 27.06.1990. - EXHIBIT P2.: TRUE COPY OF THE GOVERNMENT ORDER G.O.(MS)NO.162/98/G EDN. DATED 13.05.1998. - EXHIBIT P3. TRUE COPY OF THE GOVERNMENT ORDER G.O.(MS)NO.67/2001/G EDN. DATED 05.03.2001. - EXHIBIT P4.: TRUE COPY OF THE GOVERNMENT ORDER G.O.(MS)NO.72/2001/G EDN. DATED 14.03.2001. - EXHIBIT P5.: TRUE COPY OF THE JUDGMENT IN O.P.NO.20042/58 OF THE HON'BLE HIGH COURT OF KERALA DATED 25.09.2000. EXHIBIT P6.: TRUE COPY OF THE GOVT. ORDER DATED 25.11.2000. - ANNEXURE A6: A TRUE COPY OF THE RELEVANT PAGES OF THE SENIORITY LIST OF HIGHER SECONDARY SCHOOL TEACHERS APPOINTED DURING THE PERIOD FROM 20/07/1990 TO 12/06/2001. RESPONDENTS' EXHIBITS: ---------------------------- - EXT.R14(a): TRUE COPY OF THE ORDER NO.Ad.B1/11048/01/HSE DATED 02.12.2004. EXT.R14(b):- TRUE COPY OF G.O,.(MS)NO.138/90/G.Edn. DATED 27.06.1990. EXT.R14(c):- TRUE COPY OF G.O.(MS)No.182/93/G.Edn. DATED 5.11.1993. EXT.R14(d): TRUE COPY OF G.O.(Rt)NO.3240/09/Gen. Edn. DATED 1.8.2009. // TRUE COPY // TKS P.S. TO JUDGE ## **C.T.RAVIKUMAR & ANIL K. NARENDRAN, JJ.** ------------------------------------- O.P.(KAT)Nos.145 & 158 of 2014 -------------------------------------Dated 9[th] March, 2017 ## **JUDGMENT** ## **Ravikumar, J.** The above original petitions are filed against the common order dated 4.11.2013 passed by the Kerala Administrative Tribunal in T.A.Nos.4854 and 7189 of 2012. The petitioners herein were the applicants before the Tribunal. They were appointed as Higher Secondary School Teachers (HSSTs) in different subjects while working as High School Assistants in different subjects under the General Education Subordinate Service. O.P.(KAT)No.158 of 2014 arises from the order in T.A.No.4854 of 2012 and O.P.(KAT)No.145 of 2014 arises from the order in T.A.No.7189 of 2012. In T.A.No.4854 of 2012 the main challenge was against Ext.P7 which is a copy of order No.Ad.B1.1782/05/HSE dated 4.7.2006 whereby it was declared that respondents 3 to 13 therein had satisfactorily completed the period of probation in the cadre of HSST. The petitioners sought for quashment of the same and also a declaration to the effect that Ext.P7 is illegal, unjust and unconstitutional. In T.A.No.7189 of 2012 the same petitioners sought for quashment of Exts.P3 and P4 virtually on the O.P.(KAT)Nos.145 & 158 of 2014 2 ground being illegal, unjust and unconstitutional. The Tribunal as per the common order dismissed the transferred applications. A bare perusal of the impugned common order would reveal the ground for dismissal of the transferred applications as the binding effect of the judgment of a learned Single Judge of this Court in O.P.No.15799 of 2001 that virtually carried challenge against the very same orders which were impugned before the Tribunal. It is aggrieved by the said order of dismissal that the above mentioned original petitions are filed. 2 We have heard the learned Senior Counsel Sri.T.A.Shaji for the petitioners, the learned Senior Counsel Smt.V.P.Seemanthini appearing for respondent Nos.6, 7, 12 and 14 in O.P.(KAT)No.145 of 2014 and respondent Nos.5, 6, 11 and 13 in O.P.(KAT)No.158 of 2014, learned Senior Counsel Sri.S.P.Aravindakshan Pillay appearing for respondent Nos.8 to 11 and 13 in O.P.(KAT)No.145 of 2014 and respondent Nos.7 to 10 and 12 in O.P.(KAT)No.158 of 2014, learned Standing Counsel Sri.P.C.Sasidharan for Kerala Public Service Commission and also the learned Government Pleader. 3. A succinct narration of the circumstances that constrained the petitioners to file O.P.No.12008 of 2010 and W.P.(C) O.P.(KAT)Nos.145 & 158 of 2014 3 No.31622 of 2005 before this Court which were later transferred to the Kerala Administrative Tribunal and re-numbered respectively as T.A.Nos.7189 and 4854, of 2012 requires for a proper disposal of these cases. Evidently, petitioners 1 to 5 in both the original petitions are one and the same persons. The 6[th] petitioner in O.P.(KAT)No.145 of 2014 was the 16[th] respondent in T.A.No.7189 of 2012. They were working in the post of High School Assistant (HSA) in different subjects under the General Education Subordinate Service, on being recruited by the Public Service Commission. While they were working as such, in consistent with the National Education Policy, Higher Secondary Course was started in Kerala from 1991 onwards after de-linking Pre-degree course. In the absence of Special Rules governing the Higher Secondary Service the recruitment of teachers to the said service was being governed by executive orders. Admittedly, the first among such series of Government orders was issued on 27.6.1990. A copy of the same was produced in T.A.No.7189 of 2012 as Ext.P1. Paragraph 4(xiii) of the said order reads thus:- “(xiii) Teachers:- The minimum qualification for the Higher Secondary School Teachers will be a second class Masters Degree in the concerned subject, with B.Ed. for the time being till rules are framed for regular appointment. The selection of teachers will be subject O.P.(KAT)Nos.145 & 158 of 2014 4 to seniority and suitability. If sufficient number of qualified hands are not available for appointment as teachers, candidates may be recruited through the Employment Exchange.” The petitioners who were having second class Masters Degree in the concerned subject, with B.Ed. were appointed as HSSTs in terms of Ext.P1. As provided therein, respondents 3 to 13 were also appointed against the said posts and in fact, they were directly recruited through Employment Exchange on different dates, in the absence of sufficient number of qualified hands for appointment. It is only long later to their appointments and after the decision of the Hon'ble Apex Court in **M.M.Dolichan** v. **State of Kerala (AIR 2001 SC 216)** that Special Rules were framed for Higher Secondary Service namely, Kerala Higher Secondary Education State Service Rules, 2001. Kerala Higher Secondary Education Subordinate Service Rules, 2001 were also then, framed. The post concerned, HSST belongs to the Kerala Higher Secondary Education State Service. The facts mentioned hereinbefore would reveal that the petitioners as also respondents 3 to 13 were appointed as HSST prior to the coming into force of the Special Rules. In fact, in the case of respondents 3 to 13 as per G.O(MS) No.67/2001/G.Edn. dated 5.3.2001 their services were regularised. O.P.(KAT)Nos.145 & 158 of 2014 5 Subsequently, as per G.O.(MS)No.72/2001/G Edn. dated 14.3.2001 the regularisation of their services as Higher Secondary School Teachers were given retrospective effect from the dates of their initial appointment. The said Government orders dated 5.3.2001 and 14.3.2001 are produced respectively as Exts.P3 and P4 in T.A.No.7189 of 2012. Subsequent to the order of regularization with retrospective effect from the dates of their initial appointment in the case of respondents 3 to 13 the Director of Higher Secondary Education, the common first respondent in the original petitions, issued order No. Ad.B1.1782/05/HSE dated 4.7.2006 which was marked as Ext.P7 in T.A.No.4854 of 2012, declaring their probation with effect from the dates specifically mentioned against their names, therein. As noticed hereinbefore, in T.A.No.4854 of 2012 the challenge was made against Ext.P7 whereas in T.A.No.7189 of 2012 the petitioners assailed Exts.P3 and P4. Consequential reliefs were also sought for, in both those cases. The said transferred applications were jointly heard and decided by the Tribunal as per the order dated 4.11.2013. Evidently, the Tribunal on going through the pleadings and the materials on record as also the submissions, arrived at the conclusion that the regularization of respondents 3 to 13 with retrospective effect was challenged in O.P.No.15799 of 2001 before this Court and this Court as per judgment O.P.(KAT)Nos.145 & 158 of 2014 6 dated 3.2.2006 dismissed the said original petition. The Tribunal found that the issue involved in the Transferred Applications were therefore, squarely covered by the judgment in O.P.No.15799 of 2001 and it is bound by the same. Consequently, the Transferred Applications were dismissed. 4. The learned Senior Counsel appearing for the petitioners raised various contentions to mount challenge against the common impugned order passed by the Tribunal. Essentially, the contention is that the petitioners were working as HSAs in different subjects under the General Education Subordinate Service and they were in fact, given promotion to the post of HSST after the creation of the Higher Secondary Service, based on Ext.P1. The contention is that petitioner Nos. 1 to 3 and 6 in O.P.(KAT)No.145 of 2014 were appointed as HSST respectively on 19.9.1990, 29.6.1995, 4.9.1991 and 30.7.1997. In the case of petitioner Nos.4 and 5, they were appointed as HSST respectively on 5.11.1998 and 3.11.1998. Evidently, both of them were appointed subsequent to Ext.P2 Government Order dated 13.5.1998. The petitioners had challenged the regularization of respondents 3 to 13 on the ground that they were appointed only provisionally through Employment Exchange. They were in fact, O.P.(KAT)Nos.145 & 158 of 2014 7 regularised as HSSTs immediately before the rules were brought into force and subsequent to the decision of the Hon'ble Apex Court in **M.M.Dolichan's** case (supra). In such circumstances, it was also contended that the contention that they were regularized based on **M.M.Dolichan's** case (supra) cannot be accepted. It is further contended that in **M.M.Dolichan's** case regularization was ordered only in the case of teachers appointed pursuant to the interim order dated 1.2.1999 passed by the Hon'ble Apex Court in that case and connected matters and/or based on Ext.P2 Government order dated 13.5.1998. Since respondents 3 to 13 were appointed pursuant to their recruitment through Employment Exchange prior to the aforementioned dates it is contended that the respondents are not justified in contending that respondents 3 to 13 were regularized in service based on **M.M.Dolichan's** case. Various other contentions were also raised to challenge the regularization of respondent Nos.3 to 13. 5. The learned Senior Counsel Smt.V.P.Seemanthini and Sri.Aravindakshan Pillay appearing for some of the party respondents in both the original petitions, resisted the contentions and submitted that the Tribunal had rightly arrived at the conclusion that the challenge against the regularization of respondent Nos.3 to 13 was already O.P.(KAT)Nos.145 & 158 of 2014 8 concluded by the judgment in O.P.No.15799 of 2001. In short, the contention is that the petitioners who were regularized prior to the coming into force of the Special Rules and taking into account the fact that their probation was also declared and above all, the regularization ordered was virtually upheld by this Court in the judgment in O.P.No.15799 of 2001 and that it had attained finality, the issue was not available for challenge any further. 6. After hearing the learned counsel on both sides and also the learned Government Pleader we are of the view that the first question to be considered in these cases is whether or not the issue regarding regularization of respondents 3 to 13 are concluded by the judgment in O.P.No.15799 of 2001 and whether the said judgment had attained finality. If the answer is in the affirmative the further contentions raised on behalf of the petitioners by the learned Senior Counsel need not be gone into. In other words, the question of looking into the tenability or otherwise of the other contentions required to be gone into only if the answer to the aforesaid questions are in the negative. Virtually, no volume of argument is required to find out whether the question of regularization of respondents 3 to 13 was covered by the judgment in O.P.No.15799 of 2001. A bare perusal of O.P.(KAT)Nos.145 & 158 of 2014 9 the said judgment itself would reveal that the issue posed for consideration in O.P.No.15799 of 2001 pertains to regularization in service of respondents 3 to 13 therein who are none other than respondents 3 to 13 in the above mentioned original petitions/T.As. The said judgment would further reveal that their regularization was in fact, challenged by a person similarly situated to the petitioners herein. He was also a High School Assistant who was later promoted as HSST. In the contextual situation, it is worthy to extract the opening two sentences in the said judgment which read thus:- “Exts.P2 and P3 orders are under challenge. The issue pertains to regularization in service of respondents 3 to 13 with effect from the date of their initial appointments through Employment Exchange.” As noticed hereinbefore, respondents 3 to 13 therein are the very same respondents who are arrayed as respondents 3 to 13 in the above Transferred Applications. That apart, it is the same impugned orders in T.A.No.7189 of 2012 viz., Exts.P3 and P4 which were under challenge in the said original petition as Exts.P2 and P3 orders respectively. A perusal of the said judgment in O.P.No.15799 of 2001 which is produced as Ext.R4(a) in T.A.No.4854 of 2012 would reveal that relying O.P.(KAT)Nos.145 & 158 of 2014 10 on an earlier decision of this Court in **T.R.John and others** v. **State of Kerala and others (AIR 1970 KERALA 281)** this Court upheld the regularization of respondents 3 to 13 with effect from their dates of original appointments. We have put a pointed question to the learned Senior Counsel appearing for the petitioners as to whether the said judgment which was rendered as back as on 3.2.2006 had attained finality and virtually, the answer would reveal that none had so far, put any challenge against the said judgment dated 3.2.2006 and that it had already attained finality. When it is evident that as per the judgment in O.P.No.15799 of 2001 rendered as back as on 3.2.2006 the orders regularizing the service of respondents 3 to 13 viz., Ext.P3 order dated 15.3.2001 and the order dated 14.3.2001 making such regularisation with effect from the date of their initial appointments through Employment Exchange viz., Ext.P4 in T.A.No.7189 of 2012 were upheld repelling the challenge made against the same by a similarly situated HSST who was promoted as such from the category HSA and that the said judgment upholding Exts.P3 and P4 orders become final, we have no hesitation to hold that the said question is no more available for challenge. It is also to be noted that the petitioners put up only a belated challenge against Ext.P3 order dated 5.3.2001 and Ext.P4 order dated 14.3.2001. In other words, they filed O.P.No.12008 of 2010 O.P.(KAT)Nos.145 & 158 of 2014 11 which was re-numbered as T.A.No.7189 of 2012, only after nine years since the passing of Exts.P3 and P4 orders and after about four years since the passing of judgment in O.P.No.15799 of 2001 viz., Ext.R4(a) in T.A.No.4854 of 2012. It is also relevant to note that even prior to that they have filed W.P.(C)No.31622 of 2005 challenging order No.Ad.B1.1782/05/HSE dated 4.7.2006 viz., Ext.P7 in T.A.No.4854 of 2012 declaring the probation of respondents 3 to 13 and even, at that point of time also the petitioners did not think it necessary to challenge Exts.P3 and P4 orders. Ext.P7 order in T.A.No.4854 of 2012 is nothing but a consequential order declaring the probation of respondents 3 to 13. We have already found that in the light of the judgment in O.P.No.15799 of 2001 the challenge against the order of regularization of the services of respondents 3 to 13 and the subsequent order making the regularisation effective retrospectively from their date of original appointments, is bound to fail in view of the judgment in O.P.No.15799 of 2001 and taking note of the fact that Ext.P7 is only a consequential order. In view of our finding on the aforesaid question the other contentions pale into insignificance. The upshot of the discussion is that O.P.(KAT)Nos.145 of 2014 and 158 of 2014 are liable to fail. We do not find any reason to O.P.(KAT)Nos.145 & 158 of 2014 12 interfere with the common order passed by the Tribunal since it was rendered rightly relying on the judgment in O.P.No.15799 of 2001 which has become final. The belated challenge of the petitioners against Exts.P3 and P4 could not resurrect the question. In such circumstances, these original petitions are dismissed. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **ANIL K. NARENDRAN Judge** TKS