P.K. Sreedharan v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 OP.No. 25843 of 2001(B) ----------------------PETITIONER: -----------P.K.SREEDHARAN, PATHIYATTIL ILLOM, KOLLAMCODE P.O., PALAKKAD. BY ADV. SRI.ASOK M.CHERIAN RESPONDENTS: ------------1. STATE OF KERALA, REP. BY THE SERCRETARY, GENERAL EDUCATION DEPT., SECRETARIAT, TRIVANDRUM. 2. D.P.I., TRIVANDRUM. 3. DY. DIRECTOR OF EDUCATION, PALAKKAD. 4. D.E.O., PALAKKAD. 5. THE MANAGER, K.H.S. MOOTHANTHARA, PALAKKAD. BY GOVERNMENT PLEADER SHRI.T.T.MUHAMOOD THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.25843/01. ## APPENDIX ## PETITIONER'S EXHIBITS: P1. COPY OF THE APPOINTMENT ORDER DTD.20.7.98. P2. COPY OF THE APPEAL PREFERRED BY R5 DTD.11.10.00. P3. COPY OF THE ORDER OF R3 DTD.16.3.2001. P4. COPY OF THE GOVT. ORDER DTD.28.10.95. Sdk+ ///True copy/// P.A. to Judge ## S.SIRI JAGAN, J. ================== ## O.P.No.25843 of 2001. ================== Dated this the 5[th] day of February, 2008 **==> picture [106 x 12] intentionally omitted <==** The petitioner was appointed as a Drawing teacher in the 5[th] respondent's school, by Ext.P1 order dated 20.7.1998, which appointment was approved by order dated 23.12.1998 with effect from 20.7.1998 onwards. Later on, in the staff fixation order for the year 2000-01 the post of Drawing Teacher was abolished relying on Ext.P4 order of the Government, whereby it was stipulated that when there is already one specialist teacher, another post of specialist teacher would be sanctioned only when the periods under each group becomes 26 periods and above and a music teacher was already working in the school. The request for restoration of the post, filed by the manager, was also rejected by Ext.P3 order of the Deputy Director of Education. The petitioner is challenging Ext.P4 Government order as also Ext.P3 order of the Deputy Director, by which the request of the manager to restore the post of Drawing Teacher in the school was rejected. 2 o.p.25843/01 2. The contention of the petitioner is that in O.P.No.30259/2001 Ext.P4 Government order had been quashed and writ appeal (W.A.No.276/2004) filed against that judgment also was dismissed. Therefore, according to the petitioner, the petitioner's claim to continue in the post has to be decided sans Ext.P4 Government order, in which case there would be an additional post of Drawing Teacher as per the rules prevailing at the time when staff fixation order was made. 3. Learned Government Pleader contends that although Ext.P4 Government order was quashed by this court, Rule 6(4) of Chapter XXIII of the KER was subsequently amended in tune with Ext.P4 G.O., adding a third proviso retrospectively with effect from 28.10.1995 and therefore, the petitioner's contention is not sustainable, notwithstanding quashing of Ext.P4 Government order. 4. In answer to the above contention the learned counsel for the petitioner would submit that since it is settled law that a vested right cannot be taken away by retrospective amendment, the amendment cannot affect the petitioner's right to continue. He also relies on the decision in _**Thomas v. State of Kerala**_ o.p.25843/01 3 ## [2006 (3) KLT 60]. 5. I have considered the rival contentions in detail. 6. Admittedly Ext.P4 Government order has been quashed by this court. Therefore, that order cannot govern the rights of the petitioner for continuance in accordance with Ext.P1 order of approval. The next question is whether retrospective amendment to the Rule on 6.8.2004 with effect from 28.10.2995 can take away the right of the petitioner to continue in service in accordance with Ext.P1 approval. Although the learned Government Pleader would contend that in view of Ext.P4 order which was existing at that time which declared the policy of the Government, notwithstanding the fact that it was later quashed by this court, the petitioner cannot claim any vested right to continue in that post. I am unable to accept that contention. Admittedly, the appointment of the petitioner has been approved with effect from 20.7.1998 onwards and therefore, the petitioner has already acquired a vested right to that post. In so far as at the time of staff fixation the petitioner already had a vested right to continue, the amendment, which has been brought in only on 6.8.2004 with effect from 4 o.p.25843/01 28.10.1995, can be applied only prospectively as far as the petitioner is concerned as the petitioner has already acquired a vested right. In fact a Full Bench of this court had occasion to consider the question as to whether in similar circumstances a teacher can be said to have acquired vested right in _**Philomina v. Babu Varghese**_ [2001 (2) KLT 519]. In the same, the Full Bench has held as follows: “Learned counsel or the contesting respondents contended that on the day on which his client was promoted, there was no Rule. There was only an executive order. It was submitted that his client was appointed as H.S.A. (Maths) on 2.6.1986. At that time, there was only Ext.P6 order dated 4.3.1986 stating that subject requirement can be resorted to in effecting promotions. That Order, according to the counsel for the contesting respondent, cannot go against his client since it was only an executive order and there was no amendment to the Rule. Hence, counsel submits that since at the time of initial appointment there was no Rule, his appointment should be approved. But it is now clear that the Proviso to the Rule has been retrospective with effect from 22.4.1986. If that be so, the petitioner's appointment was rightly not approved. That the rule can be retrospective is clear from S.36 of the Act. Learned counsel then contended that when once he was promoted, there was a vested right and that vested right cannot be taken away by way of retrospective operation. According to us, this argument cannot be accepted. Merely by appointment, no right is vested in the teacher so long as his appointment has not been approved. If the appointment had been approved, the respondent's contention would have been very substantial and this Court could have very well said that the retrospective action of the Government cannot take away a vested right. Hence, this argument cannot be approved. Accordingly, the judgment of the learned Single Judge is set aside and the Original Petition is dismissed.” (underlining supplied) In the above circumstances, it is declared that the o.p.25843/01 5 petitioner's approval by Ext.P1 would continue till 6.8.2004. Further continuance of the petitioner would be in accordance with the staff fixation order thereafter and the amended Rule 6(4), if applicable. The petitioner would be entitled to all monetary benefits, provided the petitioner has worked during the said period. Orders in this regard shall be passed by the 4[th] respondent within a period of one month from the date of receipt of a copy of this judgment. The original petition is disposed of as above. sdk+ Sd/S.SIRI JAGAN, JUDGE 6 o.p.25843/01 S.SIRI JAGAN, J. =============== O.P.No.25843 of 2001-B =============== J U D G M E N T 5[th] February, 2008