Shammy Paul and others v. State of Kerala and Others

``` WP(C) NO. 33992 OF 2019 ``` ``` 1 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 27[TH] DAY OF MARCH 2023 / 6TH CHAITHRA, 1945 WP(C) NO. 33992 OF 2019 ``` ## **`PETITIONERS:`** ``` 1SHAMMY PAUL, AGED 46 YEARS HIGHER SECONDARY SCHOOL TEACHER, (ENGLISH) (SENIOR),ST. AUGUSTINE HIGHER SECONDARY SCHOOL, (AAHS) KUTTANELLUR, TRICHUR DISTRICT 2SUJAMOL GEORGE, HIGHER SECONDARY SCHOOL TEACHER, (ENGLISH) (SENIOR), ST.MARY’S HIGHER SECONDARY SCHOOL, VALLAKAM, KOTTAYAM 3VEENA.M.D., HIGHER SECONDARY SCHOOL TEACHER, (ENGLISH) (SENIOR),PHMKM V & HSS,PANAVOOR, NEDUMANGAD, THIRUVANANTHAPURAM 4BEENA.M.S., HIGHER SECONDARY SCHOOL TEACHER, (ENGLISH) (SENIOR),MUSLIM HIGHER SECONDARY SCHOOL, PUTHUNAGARAM,,PALAKKAD 5SARATH.S.R., HIGHER SECONDARY SCHOOL TEACHER, (ENGLISH) (SENIOR), SCS HSS,VALAMANGLAM, ALAPPUZHA BY ADV P.C.SASIDHARAN ``` ``` WP(C) NO. 33992 OF 2019 ``` ``` 2 ``` ## **`RESPONDENTS:`** |`1`|`STATE OF KERALA`| |---|---| ||`REPRESENTED BY THE SECRETARY TO GOVERNMENT , GENERAL`| ||`EDUCATION DEPARTMENT, SECRETARIAT,`| ||`THIRUVANANTHAPURAM-695 001`| |`2`|`THE DIRECTOR ,`| ||`HIGHER SECONDARY EDUCATION, O/O THE DIRECTOR OF`| ||`HIGHER SECONDARY EDUCATION,`| ||`THIRUVANANTHAPURAM-695 001`| |`3`|`REGIONAL DEPUTY DIRECTOR,`| ||`HIGHER SECONDARY EDUCATION, ,O/O. DEPUTY DIRECTOR OF`| ||`EDUCATION,ERNAKULAM-682 030`| |`4`|`REGIONAL DEPUTY DIRECTOR`| ||`HIGHER SECONDARY EDUCATION, O/O. DEPUTY DIRECTOR OF`| ||`EDUCATION, KOTTAYAM-686 001`| |`5`|`REGIONAL DEPUTY DIRECTOR,`| ||`HIGHER SECONDARY EDUCATION, ,O/O. DEPUTY DIRECTOR OF`| ||`EDUCATION, THIRUVANANTHAPURAM-695 001`| |`6`|`REGIONAL DEPUTY DIRECTOR,`| ||`HIGHER SECONDARY EDUCATION, ,O/O. DEPUTY DIRECTOR OF`| ||`EDUCATION, MALAPPURAM-676 505`| |`7`|`THE REGIONAL DEPUTY DIRECTOR,`| ||`HIGHER SECONDARY EDUCATION, ,O/O. DEPUTY DIRECTOR OF`| ||`EDUCATION, CHENGANNUR, ALAPPUZHA-689 121`| |`8`|`THE MANAGER,`| ||`ST.AUGUSTINE HIGHER SECONDARY SCHOOL, (AAHS)`| ||`KUTTANELLUR, TRICHUR DISTRICT-680 006`| |`9`|`THE MANAGER,`| ||`ST. MARY’S HIGHER SECONDARY SCHOOL, VALLAKAM,`| ||`KOTTAYAM-686 001`| ``` WP(C) NO. 33992 OF 2019 ``` ``` 3 ``` ``` 10THE MANAGER, PHMKM V & HSS ,PANAVOOR, NEDUMANGADU,THIRUVANANTHAPURAM-695 541 11THE MANAGER, MUSLIM HIGHER SECONDARY SCHOOL, PUTHUNAGARAM, PALAKKAD-678 102 12THE MANAGER, SCS HSS, VALAMAGALAM, ALAPPUZHA-683 532 BY ADVS. SMT.P.F.ROSY SRI.V.M.SYAM KUMAR SRI.PHILIP.N.JOSEPH SMT.SNEHA RAJIV SMT.NISHA BOSE, SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 33992 OF 2019 ``` ``` 4 ``` **P.V.KUNHIKRISHNAN, J --------------------------------------W.P.(C) No. 33992 of 2019 -------------------------------------Dated this the 27[th] day of March, 2023** ## **JUDGMENT** The petitioners were appointed as Higher Secondary School Teachers (HSST) in the subject of English. The petitioners in this case shares a common grievance. The common grievance being that, though they were appointed as Higher Secondary School teachers in the subject of English where the workload exceeds 15 hours or more, solely for the reason that the executive orders are issued only creating the post of Higher Secondary School Teacher (Jr.), they were denied their right of appointment as HSST (Sr.) at the first instance. So also that, though subsequently the post was upgraded, it was upgraded only with effect from the date of upgradation and not from the date on which the vacancy ``` WP(C) NO. 33992 OF 2019 ``` ``` 5 ``` actually arose in terms of the Rules. It is submitted that during the academic year 2014-15, a Higher Secondary School with one batch of Bio Maths was sanctioned and that in the academic year 2015-16, the 2[nd] batch was sanctioned in the same subject. During the academic year 2014-15 there were only 7 periods of workloads in the school in the subject of English and during the academic year 2015-16 due to the sanctioning of additional batch and for the first batch, the second year classes had also commenced the total period of workload was raised to 21 period and for the academic year 2016-17 it was further raised to 28 periods. The Regional Deputy Director, Ernakulam sanctioned Guest Lecturer posts for the academic year for engaging classes. It is the case of the petitioners that though the course has commenced and there is sufficient workload, the Government created posts in the newly sanctioned schools only in the year 2018 by GO (MS) No. 106/2017 dated 21.08.2017. It is the case of the petitioners that the 8[th] respondent is included as item No.68 and that the post sanctioned is only the post of HSST (Jr.) though there are ``` WP(C) NO. 33992 OF 2019 ``` ``` 6 ``` sufficient workload in the school to sanction the post of HSST Senior and that the classes even then were engaged by a Guest Lecturer Senior. It is the case of the petitioners that though the post was created by the Government was ordered to be upgraded taking into the workload of the schools concerned by the Government order, there was a rider that the upgradation will be effective from 2019-20. It is the case of the petitioner that on creating the post of HSST (Jr.) and on the appointment of the petitioners to the post, the petitioners were taking classes in the subject of English in all the classes and that the workload was 28 periods admittedly. Hence, the petitioners approached the Government to grant the benefit of salary and other benefits by upgradation of posts from the academic year in which the workload has enhanced to more than 15 periods. The Government rejected the same as per Ext.P13. Aggrieved by the same, this writ petition is filed. 2. Heard the learned counsel for the petitioners and the learned Government Pleader. 3. The counsel for the petitioners submitted that in the ``` WP(C) NO. 33992 OF 2019 ``` ``` 7 ``` light of the judgment in **State of Kerala and others** v. **K.V.Sreejith and others** [2019 (2) KHC 686] and also in the light of the judgment of the learned Single Judge in **Fr.Somi Mathew and others** v. **State of Kerala and others** [2021 (5) KHC 551], the point is found in favour of the petitioners. 4. The counsel also submitted that in the light of Exts.P14, P15 and P16, Ext.P13 is to be quashed. The Government Pleader relied on the judgment of the Division Bench dated 11.10.2022 in WA No.7 of 2019. 5. This Court considered the contentions of the petitioner and the Government Pleader. **K.V.Sreejith’s** case (supra) was rendered by a Division Bench of this Court. It will be beneficial to extract paragraph 8 of the above judgment here: 8. What is necessary to be noticed from the above provision is that, the service of every aided Higher Secondary School is directed to consist of all or any of the categories of posts mentioned therein "as the Director may sanction". Therefore, the authority to sanction posts, going by Rule 3 above is the Director of Higher Secondary Education. In the above context, the definitions in Rule 1(d) and (e) being relevant are ``` WP(C) NO. 33992 OF 2019 ``` ``` 8 ``` ## extracted herein below:- (d) 'Higher Secondary School Teacher' means a Higher Secondary School Teacher of an aided school whose work load is 15 or more periods per week per subject. (e) 'Higher Secondary School Teacher (Junior)' means a Higher Secondary School Teacher of an aided school whose work load is less than 15 periods per week per subject. The above Rules stipulate that a Higher Secondary School Teacher (Junior) means a Higher Secondary School Teacher whose workload is less than 15 periods per week. The above Rules stipulate that a Higher Secondary School Teacher (Junior) means a Higher Secondary School Teacher whose workload is less than 15 periods per week. A Higher Secondary School Teacher means a Higher School Teacher whose workload is 15 or more periods per week per subject. It therefore follows that, a Higher Secondary School Teacher (Junior) has to be upgraded to the post of Higher Secondary School Teacher, once the workload exceeds 15 periods per week. The above exercise has to be done by the Director of Higher Secondary Education, going by Rule 3 of Chapter XXXII. It is only in the matter of creation of posts that the State has power. As per Exhibit P2, posts of H.S.S.T. (Junior) were sanctioned by the Government with effect from 06.08.2011 onwards. The question as to whether the said posts were to be upgraded to H.S.S.T. would depend on whether the workload had exceeded 15 hours per week. The authority to assess the said situation and to sanction such upgradation is the Director of Higher Secondary Education. In the present case, the Director of Higher Secondary Education had recommended for such sanction to the Government. The Government accepted the said recommendation and has issued Exhibit P3 Government Order upgrading the posts but subject to the condition that such upgradation shall take effect only prospectively from the date of the order. Though we have tried to ascertain the basis for fixing the date of the Government Order as the date from which such upgradation has been directed to take effect, the ``` WP(C) NO. 33992 OF 2019 ``` ``` 9 ``` only explanation is that since the matter involved financial commitments, it was part of the policy of the Government to do so. We find no other explanation. Since going by the Rules, the upgradation has to depend on increase in the workload of a teacher beyond 15 periods, it cannot be said that upgradation is a matter of policy of the Government. The policy of the Government would end when posts are sanctioned by it. Thereafter, upgradation would have to depend on the parameters contained in Chapter XXXII K.E.R., referred to above. In these cases, as the Higher Secondary Schools were sanctioned during the year 2010, it is not in dispute that the courses had continued to be conducted thereafter, without any break. Therefore, the students who were admitted in the year 2010-11, would certainly have come to the second year of the course during 2011-12. The teachers who were appointed initially as guest lecturers have been accommodated in the newly sanctioned posts of H.S.S.T. (Junior), with effect from 06.08.2011 onwards. The question as to whether they were entitled to be upgraded as H.S.S.T.would depend on the workload of each one of them, as indicated above. It is taking into account the said aspect that the learned Single Judge has found the stipulation in exhibit P3 limiting the operation thereof to the period from the date of the said order to be unjustified. We do not find any infirmity in the said finding.” ## **6.** After considering **K.V.Sreejith’s** case (supra), the learned Single Judge of this Court in **Fr. Somi Mathew’s** case (supra) observed like this: “15. As held by this Court, a Higher Secondary School Teacher (Junior) has to be upgraded to the post of Higher Secondary School Teacher once the workload exceeds 15 periods per week and the said exercise has to be done by the Director of Higher Secondary Education as per the mandate ``` WP(C) NO. 33992 OF 2019 ``` ``` 10 ``` under Rule 3 of Chapter XXXII. It can only be in the matter of the creation of posts that the State has power. The question as to whether the said posts are to be upgraded to H.S.S.T. would depend on the solitary question as to whether the workload had exceeded 15 hours per week. Upgradation cannot be regarded as a matter of policy of the Government as the policy of the Government would end when posts are sanctioned by it. Furthermore, the spectre of the Government incurring additional financial commitment if upgradation is carried out cannot be a reason if the conditions as mandated in the statute are satisfied. Insofar as the case of the petitioners are concerned, the incurring of additional financial commitment has no relevance as the DGE has reported that the scale of pay for HSST (Jr.) Selection Grade is above the scale of pay for an HSST in Higher Secondary and there will be no financial burden to the Government if the posts are upgraded. 16. In that view of the matter, the petitioners are entitled to succeed. There will be a direction to the 2nd respondent to upgrade the post of Higher Secondary School teacher (Jr. Syriac) to Higher Secondary School Teacher in the St. Mary's Higher Secondary School, Bharananganam, and Holy Cross Higher Secondary School, Cherupungal with effect from academic Years 2012- 2013 and pass orders to that effect within a period of one month from the date of production of a copy of this Judgment.” 7. Moreover, Exts.P14 to P16 are Government Orders on this issue itself. I am of the considered opinion that the Government has to reconsider the matter in the light of the principle laid down by this Court in **K.V.Sreejith’s** case (supra) and also in **Fr. Somi Mathew’s** case (supra). ``` WP(C) NO. 33992 OF 2019 ``` ``` 11 ``` Therefore, this writ petition is disposed of in the following manner: ## 1. Ext.P13 is quashed. 2. The 1[st] respondent is directed to reconsider the matter in the light of the principle laid down in **K.V.Sreejith’s** case (supra) and also in **Fr. Somi Mathew’s** case (supra), as expeditiously as possible, at any rate before 30.04.2023. 3. While considering the matter, the applicability of Exts.P14 to P16 will also be considered by the 1[st] respondent. 4. The petitioner will produce a certified copy of this judgment together with a copy of this writ petition before the 1[st] respondent for compliance. Sd/- ## **P.V.KUNHIKRISHNAN JUDGE** SKS das ``` WP(C) NO. 33992 OF 2019 ``` ``` 12 ``` ## **`APPENDIX OF WP(C) 33992/2019`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1TRUE COPY OF THE GOVERNMENT ORDER BY G.O(MS) NO 106/2017 DATED 21.8.2017 ``` - `EXHIBIT P2 TRUE COPY OF ORDER DATED 10.10.2018 ISSUED BY THE 3RD RESPONDENT IN FAVOUR OF THE 1ST PETITIONER` - `EXHIBIT P3 TRUE COPY OF THE ORDER O(P) NO.14/2019 DATED 6/2/2019` ``` EXHIBIT P4TRUE COPY OF THE APPOINTMENT ORDER DATED 06.06.2019 ``` - `EXHIBIT P5 TRUE COPY OF THE ORDER DATED 10.08.2018 ISSUED BY THE 4TH RESPONDENT IN FAVOUR OF THE 2ND PETITIONER` - `EXHIBIT P6 TRUE COPY OF THE APPOINTMENT ORDER DATED 28/9/2019` ``` EXHIBIT P7TRUE COPY OF THE ORDER ISSUED BY THE 5TH RESPONDENT IN FAVOUR OF THE 3RD PETITIONER EXHIBIT P8TRUE COPY OF THE ORDER ISSUED BY THE 6TH RESPONDENT IN FAVOUR OF THE 4TH PETITIONER EXHIBIT P9TRUE COPY OF THE APPOINTMENT ORDER DATED 06.06.2019 EXHIBIT P10TRUE COPY OF THE ORDER ISSUED BY THE 7TH RESPONDENT IN FAVOUR OF TE 5TH RESPONDENT EXHIBIT P11TRUE COPY OF THE APPOINTMENT ORDER DATED 06.06.2019 ``` ``` WP(C) NO. 33992 OF 2019 ``` ``` 13 ``` ``` EXHIBIT P12TRUE COPY OF THE REPRESENTATION DATED 21.2.2019 EXHIBIT P13TRUE COPY OF THE LETTER DATED 16.10.2019 EXHIBIT P14TRUE COPY OF THE GOVERNMENT ORDER DATED 20.11.2004 EXHIBIT P15TRUE COPY OF THE ORDER DATED 5.10.2019 EXHIBIT P16TRUE COPY OF THE ORDER DATED 11/6/2005 ```