State of Kerala represented by Secretary, General Education Department, Government Secretariat, Thiruvananthapuram; Director of General Education; Regional Director of Higher Secondary Education, Thiruvananthapuram v. P. Radhamani and Manager, Higher Secondary School, Thiruvampady

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** ## **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **THURSDAY, THE 14[TH] DAY OF JULY 2022 / 23RD ASHADHA, 1944** **WA NO. 403 OF 2022** **AGAINST THE JUDGMENT DTD 5.7.2021 IN WP(C) 31554/2019 OF HIGH COURT** ## **OF KERALA** ## **APPELLANTS/RESPONDENTS 1 TO 3 IN WPC:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY,GENERAL EDUCATION DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** - **2 THE DIRECTOR OF GENERAL EDUCATION DEPARTMENT JAGATHY,THIRUVANANTHAPURAM, PIN - 695001** - **3 REGIONAL DIRECTOR OF HIGHER SECONDARY EDUCATION THIRUVANANTHAPURAM, PIN - 695001** **BY ADV.A.J.VARGHESE, GOVERNMENT PLEADER** ## **RESPONDENTS/PETITIONER AND 4TH RESPONDENT IN WPC:** - **1 P RADHAMANI AGED 53 YEARS HSST(JR),H.S.S.THIRUVAMPADY,PAZHAVEEDU P.O, ALAPPUZHA DISTRICT, PIN - 688009** - **2 MANAGER H.S.S THIRUVAMPADY,PAZHAVEEDU P.O. ALAPPUZHA DISTRICT, PIN - 688009** **BY ADVS.PAULSON THOMAS E.S.ASHRAF** **THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON 14.07.2022,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **W.A.No.403 of 2022** ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **--------------------------------------------------------** ## **W.A.No.403 of 2022** **------------------------------------------------------Dated this the 14[th] day of July, 2022** ## **J U D G M E N T** ## **C.S.Sudha, J.** This is an appeal against the judgment dated 05/07/2021 in W.P. (C)No.31554/2019. The appellants are respondents 1 to 3 and the respondents herein, the petitioner and the 4[th] respondent respectively in the writ petition. The parties in this appeal will be referred to as described in the writ petition. 2. The petitioner, a HSA (Maths) of the 4[th] respondent school was transferred as HSST (Jr.) (Maths) w.e.f. 25/07/2001 in the HSS, which was approved vide Exts.P1 and P1(a) order dated 25/08/2003 and 10/03/2008 respectively. In Ext.P1 order it is stated that the appointment of the petitioner has been by transfer from the post of HSA. The Government as per Ext.P3 G.O. dated 20/11/2004, has ordered that aided Higher Secondary School Teachers appointed by transfer as part-time/junior from among qualified HSAs/UPSAs, LPSAs between 13/05/1998 and 12/11/2011 shall be entitled 3 ## **W.A.No.403 of 2022** to the benefit of full time scale of pay irrespective of the periods of teaching as in the case of Government School transferees as HSSTs (Juniors). The petitioner is entitled to the benefit of Ext.P3 order, a transferee from High School w.e.f. 25/07/2001, that is, before the coming into force of the Special Rules, that is, chapter XXXII of the Kerala Educational Rules (KER) on 12/11/2001. However the 2[nd] respondent Director as per Ext.P4 proceedings dated 29/06/2009 rejected the claim of the petitioner. Aggrieved, the petitioner preferred Ext.P5 revision petition before the Government. This Court by Ext.P6 judgment dated 24/08/2009, directed the Government to consider and dispose of Ext.P5 revision. Pursuant to the same, the Government by Ext.P7 order dated 26/07/2010, rejected the claim of the petitioner. Ext.P7 was challenged by the petitioner in W.P. (C)No.30518/2010. The said writ petition was disposed of by Ext.P8 judgment dated 07/04/2017, whereby this Court quashed Exts.P4 and P7 orders and directed the Director of Higher Secondary Education to reconsider the claim of the petitioner, taking into account the observations made in the judgment and in conformity with Ext.P3 G.O. However the Director, issued Ext.P9 order dated 26/09/2017 in total violation of the directions in Ext.P8 judgment and arrived at the same decision as contained in Exts.P4 and P7, 4 ## **W.A.No.403 of 2022** which had been set aside by this Court. Hence the petitioner filed Con.Case(C)No.1539/f 2018. However, the learned Single Judge by Ext.P10 judgment dated 13/11/2018, closed the Contempt Case by holding that the petitioner was at liberty to challenge Ext.P9 order. Aggrieved by Ext.P9 order, rejecting the claim of the petitioner for grant of HSST benefits, the writ petition was filed seeking a writ of certiorari to quash Ext.P9 order; to declare that the petitioner, an approved HSST (Jr.), appointed by transfer during the period between 13/05/1998 and 12/11/2001, is entitled to the benefit of full time HSST as per Ext.P3 G.O. and also to issue a writ of mandamus directing the 3[rd] respondent to grant within a time frame fixed by the court, the benefit of Ext.P3 G.O. to the petitioner. 3. The learned Single Judge by the impugned judgment, allowed the writ petition and set aside Ext.P9 order with a consequential direction to the 2[nd] respondent to consider the matter in accordance with the observations in the judgment as well as in Ext.P8 judgment. Aggrieved, respondents 1 to 3 have come up in appeal. In the appeal memorandum, it is alleged that the appointment of the petitioner has been made against the directions of the Hon'ble Supreme Court in **M.M.Dolichan vs. State of Kerala, (2001)1 SCC** **151** . The impugned judgment has been passed on an incorrect/wrong 5 ## **W.A.No.403 of 2022** comprehension of the directions in **Dolichan** 's case ( _Supra_ ), that the petitioner is not entitled to the benefit of Ext.P3 and hence requires to be reversed, contends the learned Senior Government Pleader. 4. Heard Adv.A.J.Varghese, the learned Government Pleader for the appellants and Adv.Paulson Thomas, the learned counsel for the respondents. 5. Our attention has been drawn to the operative part of **Dolichan** 's case ( _Supra_ ) which reads:- “ _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 7 12-1999 would be held to be duly appointed to the post and their services will not be annulled._ _(2) All the teachers 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 13-5-1998 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 months whereafter_ 6 **W.A.No.403 of 2022** _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 rules 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. According to the learned Government Pleader, the petitioner was appointed violating direction no.(6) in Dolichan's case _(Supra)._ It was also submitted that the period of 3 months' ban for appointment had been extended till Chapter XXXII of the KER had been brought into the Statute book, which was on 12/11/2001. _Per contra_ , it was submitted by the learned counsel for the respondents that much water had flown after **Dolichan** 's case ( _Supra_ ) and the appeal and arguments advanced on behalf of the State, are made concealing the said facts. 7. We will briefly refer to the sequence of events that took place till the petitioner's appointment in this case. In accordance with the National Educational Policy, a system of 10+ 2+3 years' course was adopted in the State of Kerala in the year 1992 and since then till Ext.P12 G.O. dated 13/05/1998 came into force, the prescribed mode of appointment of teachers to teach in the higher secondary grade was the same as the mode of 7 ## **W.A.No.403 of 2022** appointment of teachers provided under Rule 43 of the KER. Accordingly existing qualified teachers were being appointed on the basis of seniority and qualifications. Direct recruitment was being resorted to only when sufficient qualified teachers were not available in the Schools concerned. Ext.P12 order, however, changed the mode of recruitment inasmuch as it provided for 25% of the vacancies to be reserved for appointment from qualified High School (HSAs) and primary school teachers, whereas remaining 75% of posts in Government schools would be filled up by direct recruitment through the Public Service Commission. In private schools also, 75% of the vacancies were required to be filled by direct recruitment to be done by the Management. 7.1 Ext.P12 G.O. was challenged before this Court. This Court upheld the validity of the ratio in the G.O. in the decision reported in **Krishnankutty** **v. State of Kerala, 1998(2) KLJ 301.** The matter was taken up before the Hon'ble Supreme Court. It is the decision in this case that is reported in **(2001) 1 SCC 151** , that is, **Dolichan** 's case ( _Supra_ ). The Hon'ble Supreme Court held that the State Government has the power to issue administrative orders governing the service conditions of its employees in the absence of any statutory provisions governing the field. It is in exercise of such powers 8 ## **W.A.No.403 of 2022** Ext.P12 G.O. has been issued as in the opinion of the Government, the provisions of the Kerala Education Act and the KER will have no application to the institution imparting education to Standards XI and XII which is a concept subsequent to the enactment of KER on account of the National Educational Policy. During the course of arguments, it was submitted before the Apex Court that statutory Rules were in the offing and therefore the Apex Court held that once the statutory Rules are notified, the administrative orders, would have no force in in relation to the matters provided under the Statutory Rules. 7.2. According to the petitioner, as per Ext.P11 interim order dated 07/12/1999 in Dolichan's case _(Supra),_ the ratio of 25 : 75 stipulated in Ext.P12 G.O. was taken way and 100% appointments were permitted to be made from the lower level teachers, that is, by transfer. **Dolichan** 's case was disposed of on 14/11/2000. In terms of the said judgment, all appointments pursuant to Ext.P12 G.O. and Ext.P11 interim order were upheld. Further directions were also given to frame recruitment rules and for that purpose three months' time had been given, during which period, a ban on appointment had also been imposed. This ban imposed expired on 13/02/2001. From 14/02/2001 several appointments were made by the 9 ## **W.A.No.403 of 2022** Management. However, the Government declined to approve the appointments contending that they were contrary to the directions in **Dolichan** 's case ( _Supra_ ) and made during the ban period. The rejection of the approvals was challenged before this Court resulting in Annexure R1(a) judgment dated 22/01/2003, by which the competent authority was directed to consider the claim of each teacher in accordance with the Government orders which were in force at the time of the appointments. It was also held that if the requirement of passing the State Eligibility Test (SET) existed and despite the availability of qualified persons, persons who did not fulfill the qualifications had been appointed, the competent authority was entitled to reject their claim. However, in case the person had qualified the test or in case qualified persons were not available and the appellants in the said appeal and others possessed other qualifications, it was held that the authority concerned cannot decline approval. It has also been clarified that in case the competent authority entertained doubt(s) about the eligibility of any teacher, the said teacher should be given an opportunity to be heard, before rejecting the teacher's claim. 7.3. Annexure R1(a) judgment was challenged before the Hon'ble Supreme Court, which appeal was dismissed by Annexure R1(b) judgment. 10 ## **W.A.No.403 of 2022** Pursuant to Annexure R1(b) judgment, the Government issued Annexure R1(c) order dated 24/07/2003 by which it complied with the directions in Annexure R1(a) judgment. On the strength of Annexure R1(c) general order, about 1,000 teachers including the petitioner's appointment was approved. However, as per Ext.P1, the approval was granted w.e.f. 30/12/2002 only and not from the date of appointment. The question of granting approval with effect from the date of appointment was considered in another batch of cases. The writ petitions were allowed and in compliance with the directions in the judgment, the Government issued Ext.P13 G.O., dated 07/05/2007. In the light of the directions in Ext.P13, the petitioner was also granted approval from 25/07/2001, i.e., from the date of her appointment as per Ext.P1(a) approval order. Thus Exts.P1 and P1(a) approval orders have been issued on the basis of the directions of this court, which have been duly complied with by the respondents by issuing R1(c) and Ext.P13. According to the petitioner, it is without noticing these developments, the respondents have come up in appeal relying on the directions in **Dolichan** 's case ( _Supra_ ). 7.4. Further, the contention of the respondent that the petitioner's appointment is not within the 25% quota is also denied by her. According to her, the fact that her appointment is within the 25% quota provided under 11 ## **W.A.No.403 of 2022** Ext.P12 G.O, is clear from Annexure R1(d) staff fixation order and Annexure R1(e) list of teachers available in the Higher Secondary Section of the School till the year 2006. It is evident from the said Annexures that the cadre of HSST (Jr.) in the year 2001-02, ie., the year of appointment of the petitioner, there was nobody other than the petitioner available in the in-service quota of 25%. It is settled law that HSST (Jr.) and HSST are two different posts and only the post of HSST (Jr.) need be considered for completing the 25% quota in that cadre. Even assuming that the stipulation relating to quota was in force at the time the petitioner's appointment, the said limit has not been exceeded. 7.5. It is also submitted on behalf of the petitioner that she has been appointed about 21 years' back which has rightly been approved also. Therefore, at this point of time, there is no meaning in now contending that the appointment has been in excess of the quota. The benefit of Ext.P3 G.O. has been given to all the transferees and therefore the petitioner is also entitled to the same. Reference was also made to the decision in **Manager,** **Moothedath Higher Secondary School vs. State of Kerala, 2015(3) KLT** **587** in support of the argument that while applying the ratio of 25:75% for recruitment to the post of HSST (Jr.), the post of HSST and HSST (Jr.) cannot 12 ## **W.A.No.403 of 2022** be clubbed together and that Educational Authority is only to look at the cadre strength of HSST (Jr.) and apply the prescribed ratio to the said cadre strength of HSST (Jr.) 8. The sequence of events referred to hereinabove is not disputed by the learned Senior Government Pleader. This Court by Ext.P8 judgment had directed the authorities concerned to consider the claim of the petitioner that she is entitled to the benefit under Ext.P3 G.O. However, the claim was rejected by the respondents. In the second round also, her claim has not been favourably considered. In the impugned judgment, the learned Single Judge has not gone into the merits of the claim, but has only set aside Ext.P9 order with a consequential direction to the 2[nd] respondent to reconsider the matter strictly adverting to the observations made in the judgment and also in Ext.P8 judgment, within two months from the date of receipt of a copy of the judgment. It was submitted by both sides during the course of arguments that there are some factual mistakes in Ext.P8 as well as in the impugned judgment, which requires correction. Our attention was drawn to paragraph 3 of Ext.P8 judgment wherein the learned Single Judge has observed that the approval of appointment of the petitioner was granted by virtue of the directions in the judgment in **Dolichan** 's case ( _Supra_ ) and that Ext.P3 G.O. 13 ## **W.A.No.403 of 2022** does not in any manner say that the benefits thereunder would be applicable only to those teachers who are appointed within the 25% category. Both sides submit that this observation is factually incorrect. Further, reference was also made to paragraph 9 of the impugned judgment, wherein also it is stated that the petitioner has been appointed as per the directions in **Dolichan** 's case ( _Supra_ ). 9. Neither this Court nor the Hon'ble Supreme Court, in the judgments referred to herein above, has set aside Ext.P12 G.O. by which the quota of 25:75% has been fixed. The Apex Court in **Dolichan** 's case ( _Supra_ ) has only held that once the statutory rules are notified, the Government orders issued will have no force in relation to the matters provided under the Statutory Rules. Ext.P12 G.O does not contain any thing inconsistent to what is stated in the Special Rules, that is, Chapter XXXII of the KER. Hence, Ext.P12 G.O. still subsists. In these circumstances, we dispose of the writ appeal as follows:- (i) The authority concerned while reconsidering the claim of the petitioner seeking the benefits under Ext.P3 G.O, shall consider the same untrammelled by any of the observations contained either in Ext.P8 or in the impugned judgment. 14 ## **W.A.No.403 of 2022** (ii)When the claim of the petitioner for benefit under Ext.P3 G.O. is considered, let the authorities also take a call as to whether the quota referred to in Ext.P12 G.O. was applicable. (iii) While considering the question whether quota is applicable, the authority concerned shall keep in mind the dictum laid down by this Court in **Manager, Moothedath Higher Secondary School** 's case ( _Supra_ ) and decide the same strictly in accordance with the same. The writ appeal is disposed of accordingly. Interlocutory applications, pending if any, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/ 15 ## **W.A.No.403 of 2022** ## **APPENDIX** ## **APPELLANTS' ANNEXURES :** **- ANNEXURE R1(a) : TRUE COPY OF THE JUDGMENT IN WRIT APPEAL NO.2245/2002 DATED 22/1/2003.** **- ANNEXURE R1(b) : TRUE COPY OF THE ORDER IN SLP NO.7224/2003 DATED 7/5/2003.** **- ANNEXURE R1(c) : TRUE COPY OF THE G.O.(MS)NO.199/2003/ G.Edn. DATED 24/07/2003** **- ANNEXURE R1(d) : TRUE COPY OF THE STAFF FIXATION ORDER OF THE YEAR 2001-2002 WITH NO.C3/18597/HSE/2001 DATED 04/04/2002.** **ANNEXURE-R1(e) : TRUE COPY OF THE LIST OF TEACHERS AVAILABLE IN THE HIGHER SECONDARY SECTION OF THE SCHOOL UP TO THE YEAR 2006.**