State of Kerala v. Bessy Mathew and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **TUESDAY, THE 06TH DAY OF OCTOBER 2020 / 14TH ASWINA, 1942** **WA.No.971 OF 2020** **AGAINST THE JUDGMENT DATED 27-11-2019 IN WP(C) 8000/2015(Y) OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS:** - **1 STATE OF KERALA, RE.BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **2 THE DIRECTOR OF VOCATIONAL HIGHER SECONDARY EDUCATION, OFFICE OF THE DIRECTOR OF VOCATIONAL HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM-695 001** **BY GOVERNMENT PLEADER** ## **RESPONDENTS/PETITIONERS 1 TO 21:** - **1 BESSY MATHEW, NON VOCATIONAL TEACHER IN GENERAL FOUNDATION COURSE, M.A.V.H.S.S.,SENAPTHY,IDUKKI** - **2 CISSY JOSE, NON VOCATIONAL TEACHER IN GENERAL FOUNDATION COURSE, ST.XAVIERS VHS SCHOOL, KURUPPAMTHARA, KOTTAYAM** - **3 PRADEEPA.P.K., NON VOCATIONAL TEACHER IN GENERAL FOUNDATION COURSE, M.K.H.M.M.O.V.H.H.S.FOR GIRLS, MUKKOM, KOZHIKODE** - **4 PREMA MENON.C., NON VOCATIONAL TEACHER IN GENERAL FOUNDATION COURSE,ISLAMIC VOCATIONAL HIGHER SECONDARY SCHOOL, ORUMANAYOOR, THRISSUR** - **5 MARY CARMEL.C.,** - **NON VOCATIONAL TEACHER IN GENERAL FOUNDATION COURSE, SARVODAYAM VOCATIONAL HIGHER SECONDARY SCHOOL, ARYMPADAM-680 595** W.A No.971/2020 -2- - **6 SHYLU CHERIAN, NON VOCATIONAL TEACHER IN GENERAL FOUNDATION COURSE, MARTHOMA VOCATIONAL HIGHER SECONDARY SCHOOL, KUNNAM, THIRUVALLA** - **7 SAJEEVKUMAR.S. NON VOCATIONAL TEACHER IN GENERAL FOUNDATION COURSE,V.K.N.M.H.S.S., VAYYTTUPUZHA** - **8 SHEEJA.A., NON VOCATIONAL TEACHER IN GENERAL FOUNDATION COURSE,N.S.V. VOCATIONAL HIGHER SECONDARY SCHOOL,VALACKODE, PUNALUR, KOLLAM** - **9 SATHYA.M., NON VOCATIONAL TEACHER IN GENERAL FOUNDATION COURSE, P.M.S.A.P.T.S.VHS SCHOOL, KAIKOTTUKADAVU** - **10 SAJITH.M.A., NON VOCATIONAL TEACHER IN GENERAL FOUNDATION COURSE,P.GM.VHS SCHOOL, PULIAMALA, AMARAVILA, THIRUVANANTHAPURAM** - **11 MINI ANTONY NON VOCATIONAL TEACHER IN GENERAL FOUNDATION COURSE, DEVI VILASAM V.H.S.S.VELIYAMBALAM** - **12 JAYASREE.S., NON VOCATIONAL TEACHER IN GENERAL FOUNDATION COURSE,J.F.K.M. VHSS, AYANIVELIKULANGARA, KARUNAGAPPALLY** - **13 JITHA.P.NAIR NON VOCATIONAL TEACHER IN GENERAL FOUNDATION COURSE, K.P.S.M.M.VHSS, VARODE P.O., OTTAPALAM, PALAKKAD** - **14 RAJIMOLE.V.K., NON VOCATIONAL TEACHER IN GENERAL FOUNDATION COURSE, B.V.H.S.S. KONNI, PATHANAMTHITTA** - **15 SHAREENA.A., NON VOCATIONAL TEACHER IN GENERAL FOUNDATION COURSE,MUSLIM VOCATIONAL HIGHER SECONDARY SCHOOL, PUDUNGARAM** - **16 ALEX.M.S.** - **NON VOCATIONAL TEACHER IN GENERAL FOUNDATION COURSE, VICTORY VOCATIONAL HIGHER SECONDARY SCHOOL,NEMOM, THIRUVANANTHAPURAM** W.A No.971/2020 -3- - **17 SEENA.T.V.,** - **NON VOCATIONAL TEACHER IN GENERAL FOUNDATION COURSE, CALICUT GIRLS VOCATIONAL HIGHER SECONDARY SCHOOL,CALICUT** - **18 ABDUL RASHEED KALANGADAN, NON VOCATIONAL TEACHER IN GENERAL FOUNDATION COURSE, P.M.S.A.V.H.S.S.,CHAPPANANGADI** **19 SHANTY CHACKO NON VOCATIONAL TEACHER IN GENERAL FOUNDATION COURSE, MAR STEPHEN VOCATIONAL HIGHER SECONDARY SCHOOL,** - **20 JOHN.P.D., NON VOCATIONAL TEACHER IN GENERAL FOUNDATION COURSE, C.S.I. VOCATIONAL HIGHER SECONDARY SCHOOL FOR DEAF, THIRUVALLA** - **21 RAMACHANDRAKURUP.V.,** - **NON VOCATIONAL TEACHER IN GENERAL FOUNDATION COURSE, VOCATIONAL HIGHER SECONDARY SCHOOL, CHATHIYARA, THAMARAKULAM.P.O.,** **BY ADV. SRI. P.C. SASIDHARAN** ## **OTHER PRESENT:** **SRI. A.J. VARGHESE- SR. G.P.,** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28-09-2020, THE COURT ON 06-10-2020 DELIVERED THE FOLLOWING:** W.A No.971/2020 -4- ## **J U D G M E N T** Dated this the 6[th] day of October, 2020 ## Gopinath, J: State of Kerala and one of its officers are in appeal against the judgment of a learned Single Judge of this court in W.P (C) No.8000/2015 where it was held that the Writ Petitioners who were initially appointed on consolidated wages in aided vocational higher secondary schools are entitled to the benefit of a Government Order granting to them a scale of pay of Non-Vocational Teachers (Junior) from an earlier date. 2. The short facts are that the petitioners were working as NonVocational Teachers in _‘General Foundation Course’_ in various aided Vocational Higher Secondary Schools. It is the case of the writ petitioners that they were selected following a transparent selection process and further that they are fully qualified to be appointed to the post. The appointment orders pertaining to the petitioners which are produced as Annexure-P1 series show that all the petitioners except the 2[nd] petitioner were appointed on a consolidated pay. It is the case of the petitioners that by Ext.P2 order the Special Rules namely the Kerala Vocational Higher Secondary Education State Service Rules, 2004 and the Kerala Vocational Higher Secondary Education Subordinate Service Ru.es, 2004 were _mutatis-mutandis_ made applicable to the aided vocational Higher W.A No.971/2020 -5- Secondary Schools as well. Initially through Ext.P3 order the Director of Vocational Higher Secondary Education (‘the Director’) issued sanction for re-designation of the post of General Foundation course teachers working in aided Vocational Higher Secondary Schools as Non-Vocational Teachers (Junior) and also directed that the scale of pay of Rs.9190-15510/- which was extended to Non-Vocational Teachers (Junior) in VHSE Department and working below 15 hours per week shall be extended to such teachers in the aided sector as well. This was followed by a circular (Ext.P4) whereby certain clarifications were issued by the Director of VHSE regarding fixation of pay etc. However by Ext.P5 order the Director cancelled the proceedings marked as Ext.P3. It is the case of the petitioners that this was done without any notice to them. 3. They also contend that following the earlier order of the Director they were paid salary in the scale of pay indicated which was withdrawn following the issuance of Ext.P5. Following representations etc., on 29-05-2013 the Government issued Ext.P.6 order sanctioning the scale of pay of the Non-Vocational Teachers (Junior) to persons like the petitioners as well. The Government however directed that this benefit will apply only prospectively. The decision to restrict the benefits by granting them with prospective effect instead of granting it at least from the date on which the Director initially granted the scale of pay through Ext.P.3 was challenged by filing W.P (C) No.8000/2015. The learned Single Judge W.A No.971/2020 -6- considered the matter in detail and found that limiting the benefit of scale of pay to the writ petitioners from the date of Ext.P6 order alone is arbitrary and illegal. 4. Sri. A.J. Vargheese, the learned Senior Government Pleader appearing for the appellants would contend that the writ petitioners had clearly been appointed on a consolidated pay. The benefit of scale of pay extended through Ext.P3 was illegal as the Director of Vocational Higher Secondary Education had no authority to direct payment of salary in the scale of pay as this decision could have been taken only by the Government. Learned Government Pleader would rely that paragraphs 8 & 14 of _**Union of India v. P.N. Menon and others;**_ (1994) 4 SCC 68 to contend that it was well within the right of the Government to fix the date for grant of benefits. The judgment recognizes the fact that due to monetary constraints it may not be possible to extend the same benefit to all. He would refer to _**State of Punjab and others v. Amar Nath Goyal and others**_ ; (2005) 6 SCC 754 to contend that financial and economical implications are very relevant and germane for any policy decision touching the administration of the Government at the centre or State level and that the fixation of a cut-off date for grant of benefit of scale of pay was not at all arbitrary in the facts of the case. He then placed reliance on the judgment in _**State of Bihar and others v. Bihar Pensioners Samaj**_ ; (2006) 5 SCC 65 to contend that fixation of a cut-off date is well within the powers of W.A No.971/2020 -7- the Government as long as the reasons thereof are not arbitrary and are based on same rational consideration. He then placed reliance on the judgment in _**Government of Andhra Pradesh and others v. N. Subbarayudu and others;**_ (2008) 14 SCC 702 to contend that economic conditions, financial constraints and many other administrative and attendant circumstances have to be taken into consideration to determine whether the fixation of a cut-off date is arbitrary or discriminatory in any manner. The learned Government Pleader also placed reliance on _**K. Rajendran and others v. State of Tamil Nadu and others;**_ (1982) 2 SCC 273 to contend that the learned Single Judge was clearly wrong in deciding the matter on the basis of the directive principles of State policy in Part-IV of the Constitution of India. 5. _Per contra_ , Sri. P.C. Sasidharan, learned counsel appearing for the party respondents would contend that all the writ petitioners have the prescribed qualification which is B.Com + National Eligibility Test (NET) + B.Ed. He would also point out that the consolidated pay was so meagre that it was only about Rs.200/- per day at a time when even the labourers engaged on daily wages were being paid Rs.750-800/- per day. He would also point out that even if the number of periods that the party respondents were supposed to teach were less than the prescribed 6 hours (the minimum), they were attending other duties and that they were required to be in school from 10.00 A.M to 4.00 P.M every day. He would contend that W.A No.971/2020 -8- there is a clear case of discrimination as Government teachers with the same qualification were given scale of pay. He would also point out that the Director was the appointing authority and therefore that Ext.P3 order granting the benefit of scale of pay should not have been withdrawn on the basis that the Director had no authority to issue such orders. He would also point out that the decisions relied on by the learned Government Pleader regarding the right of the Government to fix a cut-off date taking into consideration financial burden etc. should not be applied in the facts of the case. He points out from Ext.P6 that the benefit of the scale of pay was restricted to a very small number of teachers who were fully qualified. 6. We have considered the contentions raised by both sides. In order to understand the circumstances that led to issuance of Ext.P.6 we extract paragraphs 4 to 8 of Ext.P.6 which reads as follows: - _"4. As per the GO read as 1[st] paper above, the Non-Vocational Teachers in Vocational Higher Secondary Education Department having work load of 12-20 hours per week were treated as full time teachers and Non-Vocational Teachers having workload of 6 to 11 hours per week were treated as part time teachers and granted scale of pay. As per this order, Non-Vocational Teachers in General Foundation Course having workload of below six hours per week were granted consolidated pay @ Rs.1,000 per month._ _5. The Special Rules for Vocational Higher Secondary Education, stipulating the method of appointment and educational qualification of teachers and other employees were issued as per G.O read as 2[nd] and 3[rd] paper above. The above said Special Rules came into force in suppression of all the then_ W.A No.971/2020 -9- _prevailing rules and orders. As per G.O read as 2[nd] paper above Vocational Teachers and Non-Vocational Teachers having workload of 15 hours or more per week per subject were reckoned as full time teachers and as per G.O read as 3[rd] paper above the teachers having work load of below 15 hours per week per subject were treated as Non-Vocational Teacher (Junior). The above said Special Rules are applicable to Vocational Higher Secondary Schools functioning in Government Sector only. No Special Rules have been formulated till date in respect of Vocational Higher Secondary Schools in the aided sector. Considering the practical difficulties involved, Government have extended the above said Special Rules and the amendments thereto, mutatis mutandis to the Vocational High Secondary Schools functioning in the aided sector also vide G.O read as 4[th] paper above._ _6. The minimum periods required for a full time teacher post in Vocational Higher Secondary Education as well as Higher Secondary Education is 15 (fifteen) and the minimum period required for Junior Teacher Post is 6 (six). But in G.O read as 3[rd] paper above, which includes Non Vocational Teacher (Junior) there was no stipulation about the minimum period required for a Junior Teacher. In the absence of such a stipulation, the Director of Vocational Higher Secondary Education reported 165 Non Vocational Teacher posts in General Foundation Course to the Kerala Public Service Commission, when the actual fact was that these posts were having period only below 6 hours per week and such posts should not have been treated as Non Vocational Teacher (Junior) and appointments given. In lines with the reporting of vacancies to Kerala Public Service Commission, the Director, Vocational Higher Secondary Education had taken steps to allow the scale of pay admissible to Non Vocational Teacher in General Foundation Course to 53 teachers in General Foundation Course continuing in various aided Vocational Higher Secondary Schools in the state also during the year 2008. The above actions of the Director were completely in contravention of the provisions_ W.A No.971/2020 -10- _of the Special Rules mentioned above. Because, in the said Special Rules, the teachers taking classes below 15 hours in a week were treated as junior teachers. It is true that there was no specific mention in the said Special Rules regarding the Minimum period of Non Vocational Teacher (junior). However the fact that the minimum period required for appointing a Non Vocational Teacher (Junior) in General Foundation Course had been made known to the Director, Vocational Higher Secondary Education through Government Order viz G.O read as 5[th] paper above. As such the reporting of vacancies to the Kerala Public Service Commission and granting of scale of pay to the General Foundation Course Teachers in the aided sector were in utter violation of the above Government Orders. To avoid such misinterpretation and irregular appointment of teachers in General Foundation Course in future, Government have amended the Special Rules through an executive order namely G.O read as 6[th] paper above, and then formal amendments were issued vide G.O read as 7[th] paper above. As per the above amendment the teachers having periods below 15 hours and minimum period of 6 hours and above per week are treated as Non Vocational Teachers (Junior)._ _7. However, since Government could not refuse the Scale of pay to the teachers recruited through Kerala Public Service Commission, they were given salary in the scale of pay by reallocating periods in such a way that they should teach minimum six hours in a week and still they are drawing salary accordingly. But in the case of Non Vocational Teachers in GFC who are continuing in the aided Vocational Higher Secondary Schools, they were given salary admissible to Non Vocational Teacher (Junior) in General Foundation Course only for a limited period between MarchSeptember 2008. The fact is that these teachers are still continuing in service on consolidated pay of Rs.6100/- per month. Moreover, majority of these teachers are in possession of_ W.A No.971/2020 -11- _educational qualification as per the Special Rules for Kerala Vocational Higher Secondary Education subordinate service. They have also crossed the upper age limit to find out another job through Kerala Public Service Commission._ _8. The Director, Vocational Higher Secondary Education as per the letter read as 13[th] paper above has reported that out of these 53 teachers, 27 teachers are fully qualified as per the Special Rules. 15 teachers are not having prescribed qualifications as per the Special Rules. Out of the remaining 11 teaching posts, 4 are remaining vacant, 5 teachers resigned from service and 2 posts vacant due to unauthorized absence.”_ ## In the aforesaid scenario it was directed (in Ext.P.6) that: - _“12. In the circumstances, taking a humanitarian view Government are pleased to issue the following orders._ _1. The 27 General Foundation Course Teachers whose names and other details contained in the Appendix A to this order will be given scale of pay admissible to Non-Vocational Teacher (Junior) in General Foundation Course with prospective effect._ _2. The 15 teachers whose names and other details given as Appendix B to this order are not qualified fully as per the Special Rules for Kerala Vocational Higher Secondary Education State/Subordinate Service. However, they will be allowed to continue in service on the existing consolidated pay and given scale of pay admissible to Non-Vocational Teacher (Junior) as and when they acquire prescribed qualification as per the Special Rules for Kerala Vocational Higher Secondary Education State/Subordinate Service._ _13. The above orders will be subject to the following conditions.-_ _i) The teachers mentioned in Appendix (A) & (B) to this Government Order should have been appointed as per the Selection Committee procedure and with the approval of the_ W.A No.971/2020 -12- _Director, Vocational Higher Secondary Education. Teachers appointed otherwise will not be eligible for scale of pay of NonVocational Teachers (Junior)._ _ii) The Director, Vocational Higher Secondary Education will streamline the periods and allot them to the above teachers which will be at least equal to the periods being handled by a Non Vocational Teacher (Junior), as a temporary measure till new curriculum is introduced._ _iii) The teachers who have already been relieved or resigned or unauthorisedly absent from service shall not have any claim to rejoin service and such vacant posts shall not be filled up at any cost._ _iv) The Scale of pay sanction to be sanctioned will be applicable only to the teachers now in Service. The School Managers will not have any right to appoint others or fill up the vacancies otherwise.”_ The decisions relied on by the learned Government Pleader clearly indicate that the fixation of a cut-off date based on relevant considerations was certainly a matter within the authority and jurisdiction of the Government. A reading of Ext.P.6 indicates beyond doubt that the order was issued taking note of all attendant circumstances and that on the principles that could be culled out from the decisions relied on by the learned Government Pleader we would have been justified in upholding Ext.P.6 in its entirety. However, in the facts of the present case, we notice that persons with identical qualifications, when appointed in Government schools, were extended the benefit of a scale of pay as is evident from Ext.P.6 itself. Still, further, we notice that the benefit given by Ext.P.6 is restricted to a W.A No.971/2020 -13- small number of teachers who are fully qualified and therefore the financial implication on account of such benefit may not be so huge. We make it clear that the benefit granted by the judgment of the Learned Single Judge will be restricted to those 27 teachers mentioned in Ext.P.6 who are in service and continuing as on the date of Ext.P.6 and to no other. For all these reasons we are of the opinion that there is no reason to interfere with the judgment of the Learned Single Judge for it is settled law that merely because a different view is possible the Division Bench need not set aside a judgment in an intra court appeal under Section 5 of the Kerala High Court Act. The writ appeal will stand dismissed without making any order as to costs. **Sd/-** ## **A.M.SHAFFIQUE** **JUDGE** **Sd/GOPINATH P. JUDGE** AMG W.A No.971/2020 -14- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE-A COPY OF COMMUNICATION DATED 19.03.2010**