Philip Thomas v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 13TH DAY OF JANUARY 2017/23RD POUSHA, 1938** **WP(C).No. 23442 of 2007 (N) ----------------------------** ## **PETITIONER:** **----------** **PHILIP THOMAS, PALLONNIL HOUSE, KAITHAPPURAM P.O, (VIA) SREEKANDAPURAM,, KANNUR-670 631.** **BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.L.ANNAPOORNA** ## **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM 695001.** **2. SIBY JOSEPH,** - **PHYSICAL EDUCATION TEACHER, ST.THOMAS HIGH SCHOOL,, KALLARA, KOTTAYAM DISTRICT.** **3. A.L.AUGUSTINE, PHYSICAL EDUCATION TEACHER, ST.AUGUSTINE HIGHER** **SECONDARY SCHOOL, KARIMKUNNAM, IDUKKI DISTRICT.** **4. PENNAMMA K.M, PHYSICAL EDUCATION TEACHERS, MARYLAND HIGH SCHOOL, MADAMBAM.** - **ADDL R5 IMPLEADED** **5. JOSSY STEPHEN,** - **PHYSICAL EDUCATION TEACHER, ST.MICHAEL'S HIGHER SECONDARY SCHOOL, KADUTHURUTHY, KOTTAYAM DISTRICT, PIN-686604.** - **ADDL R5 IMPLEADED AS PER ORDER DATED 3/11/2016 IN IA NO 16446/2016.** **R1 BY SENIOR GOVERNMENT PLEADER SMT RAJI T BHASKER R2,R3 & R4 BY ADV. SRI.ELVIN PETER P.J. R5 BY ADVS. SRI.V.A.MUHAMMED** **SRI.M.SAJJAD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 7-12-2016, THE COURT ON 13-01-2017 DELIVERED THE FOLLOWING:** **K.V.** **WPC 23442 OF 2007: -----------------** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **---------------------** - **P1: COPY OF THE ORDER DATED 31.3.1987 OF GENERAL EDUCATION (J) DEPARTMENT.** - **P2: COPY OF THE JUDGMENT DATED 27.5.2005 IN WPC 16770/03 OF THIS COURT.** - **P3: COPY OF THE ORDER DATERD 27.10.2006 OF GENERAL EDUCATION (K) DEPARTMENT.** - **P4: COPY OF JUDGMENT DATED 14/12/2006 IN WA 2352/06 OF THIS HON'BLE COURT.** - **P5: COPY OF NOTIFICATION DATED 12.1.2007 OF GENERAL EDUCATION (J) DEPARTMENT.** - **P6: COPY OF THE COMMON JUDGMENT DATED 26.6.2007 IN WPC NO 31074 OF 2006 OF THIS HON'BLE COURT.** - **P7: COPY OF ORDER DATED 14/11/2007 IN RP NOS 895/2007 AGAINST JUDGMENTS IN WPC NOS 31074,30909 AND 30566 OF 2006 OF THIS HON'BLE COURT.** - **P8: COPY OF THE JUDGMENT DATED 26/7/2007 IN WA no 1378 of 2005 OF THIS HON'BLE COURT.** - **P9: COPY OF THE JUDGMENT DATED 15/2/2008 ION R.P NO 64 OF 2008 OF THIS HON'BLE COURT.** - **P10: COPY OF THE JUDGMENT DATED 21/7/2010 ION RP 1178 OF 2008 OF THIS HON'BLE COURT.** - **P11: COPY OF THE G.O.(RT) NO 4234/2008/GEDN DATED 22/9/2008.** ## **RESPONDENTS EXHIBITS: NIL** **--------------------** **/TRUE COPY/** **P.A.TO JUDGE** **K.V.** ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = =** ## **W.P.(C).No.23442 of 2007 = = = = = = = = = = = = = = = Dated this the 13[th] day of January, 2017** ## **JUDGMENT** - 1.Petitioner was appointed as Physical Education Teacher in an aided school w.e.f. 01.10.1997 and his appointment was approved. By Exhibit P1 Government Order dated 31.03.1987, Government recognised the certificate in Physical Education of Karnataka and Tamil Nadu States as an alternate qualification for appointment as Physical Education Teachers in aided school in the State. These orders would have retrospective effect from 1.6.1984. Relying on Exhibit P1, the additional 5[th] respondent who had worked in the school as Physical Education Teacher for different spells from 18.08.1994 was held to be qualified and to accommodate him, the petitioner was thrown out of service. - 2.The petitioner filed W.P.(C).No.16770 of 2003 which was heard along with two other writ petitions and by Exhibit P2 common judgment, this Court held that Exhibit P1 being an W.P.(C).No.23442/07 2 executive order which seeks to add a qualification to those prescribed by statutory rules cannot be sustained. W.P.(C). No.16770 of 2003 and 19348 of 2003 were allowed and W.P. (C).No.18471 of 2003 filed by the 6[th] respondent was dismissed. Consequential orders were passed by the Government directing the cancellation of approval given to under qualified Physical Education Teachers and further directing that the petitioner be appointed as Physical Education Teacher. Writ appeals were preferred against the said judgment by aggrieved teachers which were dismissed by a Division Bench by Ext P4 judgment dated 14.12.2006. 3.Thereafter, by Ext P5 Government Order dated 12.01.2007, Rule 2(3)(b) of Chapter XXXI KER was amended with retrospective effect from 01.06.1984, adding certificate in Physcial Education of Karnataka and Tamil Nadu States as an alternate qualification for appointment as Physical Education teacher. The 5[th] respondent preferred W.A.No.1378 of 2005 against the judgment in W.P.(C).No.18471 of 2003 in which the petitioner was not made a party. By Ext P8 judgment, a Division Bench of this Court set aside the judgment in W.P.(C). W.P.(C).No.23442/07 3 No.18471 of 2003 and directed respondents 2 to 4 to approve the appointment of the 5[th] respondent in view of the amendment to the KER. Review petitions were filed by the Government as well as the petitioner against the judgment and by Ext P9, paragraph 2 of the judgment under review was deleted and the Government was directed to decide the issues with regard to the entitlement of the 5[th] respondent for protection. Thereafter, by Exhibit P11 order dated 22.09.2008, it was held that the 5[th] respondent was in service on 14.07.1996 and is therefore eligible for protection under the Rules. This order is under challenge. - 4.Heard the learned counsel for the petitioner, learned Government Pleader and the learned counsel for the contesting respondents. - 5.The main ground of challenge raised by the petitioner is to the effect that Exhibit P2 judgment had become final inter partes and in the absence of any interference in appeal in the judgment in W.P.(C).No.16770 of 2003, the question stood W.P.(C).No.23442/07 4 decided in favour of the petitioner. It is, therefore, contended that Exhibit P5 amendment can have no effect whatsoever on the rights of the parties which has become final by Exhibit P2, since retrospective amendment to the Rules can have no effect on the rights of the petitioner for approval of this appointment w.e.f. 01.07.1997. The learned counsel for the petitioner relies on the decision of the Apex Court in **S.R.Bhagwat v. State of Mysore** [(1995) 6 SCC 16] to contend that the provisions of the amendment to the extent they deprive the petitioner of the benefit of a judgment which has become final, as far as he is concerned, would be totally inapplicable to him. It is further contended that a judgment having attained finality cannot be overruled by any legislative measure let alone, an amendment of the statutory Rules. - 6.The learned counsel appearing for the party respondents would, on the other hand, submit that the Government had been directed to take a decision on the question of the entitlement of the 5[th] respondent in terms of amended rules. Since the amended rules had retrospective effect from 1984, W.P.(C).No.23442/07 5 the appointment of the 5[th] respondent is to be deemed as fully qualified. The order passed by the Government is therefore justified, it is contended. - 7.A counter affidavit has been filed on behalf of the 1[st] respondent contending that Exhibit P5 Government Order having amended the Rules w.e.f. 01.06.1984 as empowered by Section 36 of the Kerala Education Act, the 5[th] respondent is to be treated as being qualified as on the date of his initial appointment. In the above view of the matter, he would be entitled to protection. Exhibit P11 is therefore perfectly valid and in order, it is contended. - 8.I have considered the rival contentions. The petitioner specifically challenges Exhibit P5 on the ground that it would be ineffective as against him since his claim for approval of his appointment vis a vis the 5[th] respondent stands concluded by Exhibit P2 judgment in as much as it is rendered in W.P.(C). No.16770 of 2003 filed by him. In pursuance to the declaration of law by this Court in Exhibit P2 judgment, the W.P.(C).No.23442/07 6 Government had issued Exhibit P6 order directing cancellation of approval given to unqualified teachers and the appointment of the petitioner against the vacancies so created. The positive declaration of law was rendered in W.P.(C).No.16770 of 2003. The appeals preferred against the common judgment were dismissed by a Division Bench of this Court. It was only thereafter that amendments were effected in Chapter XXXI of the KER. The amendments brought about, on a later date, therefore cannot effect the settled rights of the parties to the litigation. 9.It appears that thereafter, the 5[th] respondent had preferred a writ appeal only against the dismissal of his writ petition, ie., W.P.(C).No.18471 of 2003. The judgment rendered in that writ appeal was also reviewed and the directions stood confined to the consideration of the claim of the 5[th] respondent for appointment and approval. In view of the fact that the judgment in W.P.(C).No.16770 of 2003 had become final, the consideration by the Government could have been made only in compliance with the declaration of law made therein. In the above view of the matter, I am convinced that the finding W.P.(C).No.23442/07 7 contained in Exhibit P11 to the effect that the 5[th] respondent was qualified in terms of the amended rules at the time of his appointment in 1996 is completely unjustified and unwarranted. In the above view of the matter, Exhibit P11 order is set aside. It is directed that the benefits to which the petitioner is entitled in view of Exhibit P2 judgment as well as Exhibit P3 order of the Government will be protected and will remain unaffected by Exhibit P5 amendment. It is declared that the 5[th] respondent shall have no claim for appointment as Physical education teacher with effect from 1.10.1997, since the petitioner was found to be entitled to appointment and approval with effect from that date by Exhibit P2 judgment. All benefits due to the petitioner shall be calculated and released to him within a period of three months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. sd/- **Anu Sivaraman, Judge** sj