Rekha Melayil HSST (Zoology) v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **WEDNESDAY, THE 17TH DAY OF OCTOBER 2012/25TH ASWINA 1934** ## **WP(C).No. 21715 of 2009 (H)** **-------------------------------------** ## **PETITIONER(S):** **-------------------------** **REKHA MELAYIL HSST (ZOOLOGY), MSP HIGHER SECONDARY SCHOOL MALAPPURAM.** **BY ADVS.SRI.K.T.SHYAMKUMAR SRI.HARISH R. MENON** ## **RESPONDENT(S):** **--------------------------** **1. STATE OF KERALA REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS THIRUVANANTHAPURAM.** **3. THE COMMANDANT, MSP & MANAGER, MSP HIGHER SECONDARY SCHOOL MALAPPURAM.** **R1-R2 BY GOVERNMENT PLEADER SMT. K.A. LOWSY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DCS** **WP(C).No. 21715 of 2009 (H)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :-** **EXT.P1 COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 29.08.2000 APPOINTING THE PETITIONER AS HSST EXT.P2 COPY OF G.O. (MS) NO. 162/98/G.EDN DATED 13.05.1998 EXT.P3 COPY OF G.O. (MS) NO. 389/2000/G.EDN DATED 25.11.2000 EXT.P4 COPY OF G.O. (MS) NO. 351/2004/G.EDN DATED 20.11.2004 EXT.P5 COPY OF G.O. (MS) NO. 353/2004/G.EDN DATED 25.11.2004 EXT.P6 COPY OF LETTER DATED 03.4.2007 ISSUED BY THE 2ND RESPONDENT TO THE IST RESPONDENT EXT.P7 COPY OF THE REPRESENTATION DATED 5.12.2007 SUBMITTED BY THE 3RD RESPONDENT TO THE IST RESPONDENT EXT.P8 COPY OF THE SAID LETTER DATED 19.11.2008 ISSUED BY THE 2ND RESPONDENT ALONG WITH THE COVERING LETER.** **RESPONDENTS' EXHIBITS :- NIL** **/TRUE COPY/** ## **P.A. TO JUDGE** ## **DCS** ## **P.R.RAMACHANDRA MENON, J. ---------------------------------------** ## **W.P.(C) NO. 21715 of 2009 (H)** ## **----------------------------------------** Dated this the 17[th] day of October, 2012 ## **JUDGMENT** The petitioner is challenging Ext. P8 order dated 19.11.2008 whereby the benefit sought for by the petitioner as flowing from Ext. P4 G.O.(MS) No. 351/2004/G.Edn dated 20.11.2004 has been turned down, stating that the petitioner does not come under the purview of the prescribed extent of quota earmarked for 'by-transfer appointment' i.e., an extent of 25% of the existing teachers, while filling of post of HSS teachers. 2. The petitioner contends that the Government had issued G.O(MS) No. 162/98/G.Edn dated 13.05.1998 as to the manner of appointment of teachers in the newly sanctioned Higher Secondary Schools. As per the said G.O., a copy of which has been produced as Ext.P2, 25 % of the vacancies stand earmarked to be appointed from the qualified High School Assistants and Primary School Teachers and the remaining 75% shall be alloted for direct recruitment. The said G.O. was the subject matter of the challenge before the Supreme Court in SLP No. 18236/1998 and after considering the case projected therein, **2** ## **W.P.(C) NO. 21715 of 2009 (H)** ## the following interim order was passed on 07.12.1999 “In the case of Private Aided Schools, by way of an interim order we direct that if suitable qualified candidates among the existing teachers already working are available in those schools, they may be appointed purely on 'Adhoc Basis' as a stop gap arrangement subject to further orders. These persons shall be appointed on the recommendation of a Selection Committee constituted by the Manager or his representative of the school, Principal of the school and a Government nominee from the panel of officers consisting of Deputy Director of Education, District Educational Officer of the area and DIET Principal of the District. If such suitable candidates are not available, then the teachers may be appointed from the open market also on Adhoc Basis as stop gap arrangement at the recommendation of the aforesaid Selection Committee. All the candidate will be informed that their appointment is purely on Adhoc basis and subject to the final outcome of these appeals.” 3. The case of the petitioner is that, pursuant to the above interim order, the State Government also issued a Circular no: Acd A1/2179/HSE/90 dated 23.12.1999, whereby the managers of all the aided Higher Secondary Schools were directed to strictly comply with the direction given therein, making the benefit available pursuant to the direction given by the Apex Court. It was accordingly, that the petitioner came to be appointed to the post in question as per Ext. P1 order dated 29.08.2000 and he joined the post on 01.09.2000. 4. In response to the challenge raised against Ext. P8, the second respondent has filed a counter affidavit referring to the quota earmarked for appointment under 'by-transfer **W.P.(C) NO. 21715 of 2009 (H)** **3** category'. According to the departmental authorities, only 12 posts were sanctioned for the academic year 2000-01 and going by the quota, only '3' posts could have been filled up as per 'bytransfer' appointment. The petitioner came to be appointed beyond the limits of the quota and it could only be treated as direct recruitment and hence the petitioner was not eligible to be considered for the benefit. It is also pointed out in paragraph 2 that, as per the letter dated 15.12.2007 of the Manager, a revised proposal was submitted in respect of the petitioner for granting the benefit of Ext P4 G.O. But, in the certificate produced by the Manager dated 20.06.2002, the Manager had stated that all the qualified teachers in the High School section have been promoted to Higher Secondary section and that the petitioner was not included in the said list, thus treating the appointment of the petitioner as direct recruitment from 01.09.2000. The factual position narrated by the 2[nd] respondent therein however does not reconcile with the undisputed facts and figures especially with regard to the passing of the interim order of the Supreme Court as extracted herein before. **W.P.(C) NO. 21715 of 2009 (H)** **4** 5. Obviously, the Apex Court directed all concerned, to give appointment to all the qualified candidates. It was accordingly, that the Circular no: Acd A1/2179/HSE/90 dated 23.12.1999 came to be issued by the Government as well, so as to give effect to the said order. The matter which was pending consideration before the Apex Court came to be finalised as per judgment reported in **M.M. Dolichan and Others v. State of Kerala and Others [AIR 2001 SC 216]** wherein, the following directions have been given as contained in paragraph 4. - “4. In the aforesaid premises, and keeping in view the fact that the statutory rules are in the process of being notified we would dispose of these batch of cases with the following directions: - (1) All the teachers in the private schools who have been appointed during the pendency of these cases pursuant to the interim order dated 07.12.1999 would be held to be duly appointed to the post and their services will not be annulled. - (2) All the teachers in the private schools who have been appointed also in the government schools pursuant to the order dated 1.2.1999 shall also be held to be duly appointed and those appointments will not be annulled. - (3) If there has been any appointment made pursuant to the Government Order of 13.05.1998 as on today those appointments also would continue and will not be annulled. - (4) There will be no further appointment from any source either in the private school or in the government schools from today for a period of 3 months. - (5) The State Government is directed to bring into force the Statutory Recruitment Rules within the aforesaid period of 3 **5** ## **W.P.(C) NO. 21715 of 2009 (H)** months whereafter recruitment to the vacancies in the higher secondary grade could be dealt with in accordance with the said statutory rules. - (6) If for any unforeseen circumstances the statutory rule cannot be notified and brought in force within the aforesaid period of 3 months and on such event there exists any necessity for immediate recruitment of teachers then it would be open for the parties to move this Court for appropriate direction.” 6. There is no case for the respondents that the petitioner was not a qualified hand to be extended the benefit as ordered by the Supreme Court, as aforesaid. But, when it comes to the counter affidavit filed by the 2[nd] respondent, it is suggested with reference to the letter sent by the Manager as referred to paragraph 2, that all the qualified hands had been promoted to Higher Secondary School section and that the petitioner was not included in the said list; as a result of which, the petitioner was considered under as 'direct recruitment' with effect from 01.09.2000. Since the eligibility or qualification of the petitioner is not under challenge and since the petitioner was given the benefit of the verdict passed by the Supreme Court and also the Circular referred to herein before, the logic and reasoning given by the respondents for denying the benefit flowing from Ext. P4 is found difficult to be accepted by this Court. **6** ## **W.P.(C) NO. 21715 of 2009 (H)** 7. In the said circumstances, the impugned order is set aside and the respondents are directed to compute the benefits and disburse the same as flowing from Ext. P4 to the petitioner as well, which exercise shall be finalised, at the earliest, at any rate, within 'three' months, from the date of receipt of a copy of the judgment. The writ petition is disposed of. SD/- **P.R.RAMACHANDRA MENON, JUDGE** DCS