Sudarsanan L. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931** **WP(C).No. 30423 of 2007(V)** **--------------------------** ## **PETITIONER(S):** - **---------------** **1. SUDARSANAN L., NON VOCATIONAL TEACHER IN ENGLISH, GOVT. VOCATIONAL HIGHER SECONDARY SCHOOL, VATTIYOORKAVU, THIRUVANANTHAPURAM-13.** ## **2. T.OONNI,** **NON VOCATIONAL TEACHER IN ENGLISH, GOVT. VOCATIONAL HIGHER SECONDARY SCHOOL FOR GIRLS, KOTTARAKKARA.** **BY ADV. MR.ELVIN PETER P.J.** ## **RESPONDENT(S):** **----------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF VOCATIONAL HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM.** ## **3. THE PRINCIPAL,** **GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL, VATTIYOORKAVU, THIRUVANANTHAPURAM-13.** **4. THE PRINCIPAL, GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL FOR GIRLS, KOTTARAKKARA.** **BY GOVERNMENT PLEADER MR. DILIP MOHAN FOR R1 TO 4** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/07/2009 , ALONG WITH WPC NO. 4857 OF 2008 WPC NO. 9780 OF 2008 WPC NO. 30635 OF 2007 AND WPC NO. 4856 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 30423 of 2007(V)** ## **APPENDIX** ## **PETITIONERS'EXHIBITS:** **EXT.P1 - TRUE COPY OF THE M.A. DEGREE CERTIFICATE OF THE 1ST PETITIONER.** **EXT.P1(a) - TRUE COPY OF THE B.ED. DEGREE CERTIFICATE OF THE 1ST PETITIONER.** **EXT.P1(b) - TRUE COPOY OF THE CERTIFICATE DT. 24.9.2007 ISSUED BY THE UNIVERSITY OF KERALA.** **EXT.P1(c) - TRUE COPY OF THE M.A. DEGREE CERTIFICATE OF THE 2ND PETITIONER.** **EXT.P2 - TRUE COPY OF ORDER G.O.(MS) 61/92 G.Edn. DATED 17.3.1992 ISSUED BY THE GOVT.** **EXT.P3 - TRUE COPY OF ORDER NO. E4/378/00 DT. 2-8-2000 ISSUED BY THE 2ND RESPONDENT.** **EXT.P4 - TRUE COPY OF THE ORDER E4/14208/97 DT. 4-6-1999 ISSUED BY THE 2ND RESPONDENT.** **EXT.P5 - TRUE COPY OF ORDER G.O.(MS) NO. 367/01 G.EDN. 17-12-2001 ISSUED BY THE GOVT.** **EXT.P6 - TRUE COPY OF THE ORDER G.O.(MS) 312/04/G/EDN. 11.10.2004 ISSUED BY THE GOVT.** **EXT.P7 - TRUE COPY OF THE SPECIAL RULES FOR THE KERALA VOCATIONAL HIGHER SECONDARY EDUCATION ISSUE AS PER G.O.DATED 12.3.2004 (G.O.(P) 80/04 G.EDN.** **EXT.P8 0 TRUE COPY OF ORDER, G.O. DATED 23.6.2007 ISSUED BY THE GOVT. G.O.(MS) 124/07/G./EDN.** **EXT.P9 - TRUE COPY OF THE DRAFT SPECIAL RULES ISSUED BY THE GOVERNMENT.** **EXT.P10 - TRUE COPY OF THE NEWS REPORT PUBLISHED IN MATHRUBHUMI DAILY DT. 22.9.2007.** **EXT.P11 - TRUE COPY OF THE ORDER DT. 30.10.2004 ISSUED BY THE 2ND RESPONDENT.** **EXT.P12 - TRUE COPYOF THE COMMUNICATION DT. 6.1.2005 ISSUED BY THE 2ND RESPONDENT TO THE GOVT.** **EXT.P13 - TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 27.2.2006.** **EXT.P14 - TRUE COPY OF THE RELIEVINGT ORDER DT. 27.9.2007 ISSUED BY THE 3RD RESPONDENT.** **EXT.P15 - TRUE COPY OF THE RELIEVING ORDER DT. 26.9.2007 ISSUED BY THE 4TH RESPONDENT.** **// TRUE COPY //** **rhs** **PA TO JUDGE** ## **S. SIRI JAGAN, J** **............................................................ W.P.(C)Nos. 30423 & 30635 of 2007, 4856, 4857 & 9780 of 2008** **............................................................. Dated this the 2[nd] day of July, 2009** ## **J U D G M E N T** Since these writ petitions raise common issues they are heard and disposed of by this common judgment. The exhibits referred to in this judgment are as obtaining in W.P(C) No. 9780/2008 which is taken as the leading case. In these 5 cases, the petitioners are ministerial staff of the Vocational Higher Secondary Education Department. They aspire for promotion to the post of Non-Vocational teacher in the 10% quota reserved for qualified ministerial staff, out of the total posts of Non-Vocational teachers in each category in the department. At a time, when Special Rules had not been framed, they were provisionally appointed as NonVocational teachers. At that time, the qualifications for appointment to the post of Non-Vocational teachers in Vocational Higher Secondary Education Department were governed by Government Order on the subject. The petitioners possessed the qualifications so prescribed by Ext.P3 Government Order. Recognizing that qualification, the petitioners were appointed as Non-Vocational teachers (formerly known as non-vocational **W.P.(C)Nos.30423 & 30635/2007, 4856, 4857 & 9780/2008** -2- lecturers) in English under Rule 9(a)(i) of Part II of Kerala State & Subordinate Services Rules, pending finalization of the Special Rules, subject to the condition that such appointments shall be limited to 10% of the cadre strength of each category and that such appointment will not confer on them any preferential claim in the service later. Accordingly, the petitioners continued as nonvocational teachers provisionally. Subsequently, in 2004, Special Rules were framed. The petitioners do not possess the qualifications prescribed by the Special Rules. Therefore, they are sought to be reverted as Ministerial staff. It is under the above circumstances, the petitioners have approached this court challenging the rules prescribing qualifications and also seeking a direction to the respondents for regularization of petitioners in service as Non-Vocational teachers. 2. The contention raised by the petitioners is that at the time when they were provisionally appointed as Non-Vocational lecturers, they had the qualifications prescribed as per Ext.P3 Government Order. The very same Government Order was applicable to aided Vocational Higher Secondary schools also. Non-Vocational lecturers appointed in accordance with that **W.P.(C)Nos.30423 & 30635/2007, 4856, 4857 & 9780/2008** -3- Government Order in aided schools were subsequently regularized. Such benefit has been denied to the petitioners. According to the petitioners, this amounts to discrimination and violation of the fundamental rights of the petitioners under articles 14 and 16 of the Constitution of India. They relied on decisions of the Supreme Court in **Hariyana State v. Adhyapak Sankh State of Hariyana,** AIR 1988 SC 1663, **M.S.K Nair v. Union of India,** AIR 1992 SC 1574, **State of H.P. v. HP State recognised & Aided schools managing committees and others** , 1995 4 SCC 507, as also the decisions of this court in **Parameswaran Nair v. Abdu Rahimkutty,** 1998 1 KLT SN 21 and **Indira.M. v. State of Kerala and others,** ILR 1998 (2) Kerala 771, in support of their contentions. 3. The learned counsel for petitioners also point out that, by Ext.P9 Government order, pending framing of Special Rules for aided schools, the Special Rules prescribed for the Government schools have been made applicable to aided schools also. The contention is that even thereafter the persons appointed as per the Government Order have been allowed to continue whereas the petitioners have been discriminated by taking steps to revert them **W.P.(C)Nos.30423 & 30635/2007, 4856, 4857 & 9780/2008** -4- as ministerial staff. 4. The learned Government Pleader with the help of a counter affidavit filed would oppose the contentions of the petitioner. According to her, there is nothing wrong in the special rules framed. The special rules are framed with reference to the qualifications required for teaching in Vocational Higher Secondary schools which cannot be termed as unconstitutional by any stretch of imagination. The learned Government Pleader would further contended that there is no question of discrimination here in so far as petitioners were aware of what was in store for them when they accepted the provisional appointment. At that time they did not challenge the said provisional appointment. The Special Rules came into force in 2004. Then also they did not do anything to challenge the provisional appointment till 2007. They were perfectly aware at the time of their appointment that they are to be reverted for accommodating regular hands, after finalisation of special rules and subsequently they also became aware that the appointments made in aided schools were regularised if that averment is correct. They did not claim the same benefit within any reasonable time. According to the learned Government **W.P.(C)Nos.30423 & 30635/2007, 4856, 4857 & 9780/2008** -5- Pleader, after having accepted the provisional appointment subject to the condition mentioned in the appointment order, the petitioners cannot later turn around and claim that they are entitled to be regularized in service, even though they do not possess the qualifications prescribed for regular appointment. 5. I have considered the rival contentions in detail. 6. The very object of prescribing specific qualifications for appointment of teachers in schools is to ensure standards of education in the State. There is widespread resentment in the State that the standards of education in the State are coming down day by day. I do not think that this court should contribute to the same by allowing the Government to regularize teachers who do not possess the qualifications prescribed by the Special Rules. Admittedly, the petitioners do not possess the qualifications prescribed as per the Special Rules. They were appointed in the year 2000 provisionally under Rule 9 (a) (i) of the K.S.& S.S.R, pending finalisation of the Special Rules subject to the condition that the appointment will not confer on them any preferential claim in the service later. They accepted that appointment with open eyes. They did not demur against the conditions of such **W.P.(C)Nos.30423 & 30635/2007, 4856, 4857 & 9780/2008** -6- appointment. Special Rules were framed in 2004 and they knew that they do not have the qualifications prescribed therein. Then also they did not raise any objection. The first time they approached this court is only in 2007 with these writ petitions. I do not also think that they can make out a case of discrimination as between themselves and aided school teachers. Even assuming that aided school teachers were so regularised without the prescribed qualification that also would be illegal and the petitioners cannot raise a case of negative discrimination seeking the same illegal benefit which has been given to the aided school teachers, if at all. Further there is no material before me to hold that such aided school teachers were in fact regularized in service subsequent to the Special Rules having been made applicable to aided school service also. Therefore, I do not find any merit in the contentions regarding discrimination raised by the petitioner. 7. Petitioners have raised another contention regarding salary paid to them. They would complain that invoking Rule 9(a) (i)(5)(V), the petitioners have been paid only the minimum in the scale of pay applicable to Non-Vocational teachers ignoring the proviso, which states that if the person appointed under Rule 9(a) **W.P.(C)Nos.30423 & 30635/2007, 4856, 4857 & 9780/2008** -7- (i) is a member of another service, he shall be paid the pay admissible to him in the higher time scale based on the pay in the lower time scale applicable to him under the rules regulating the fixation of pay, if such pay is higher and that he shall be paid increments in the time scale at the time intervals as fixed by the Government from time to time. The petitioners also point out that by Ext.P21, the Government has also clarified the matter in favour of the petitioners. However, by Exts.P20 and P22 that benefit has been denied to them. I am of opinion that the contention of the petitioners in this regard is well founded, in view of the proviso, to the said Rule as well as Ext.P21 Government Order. Accordingly, Exts.P20 and P22 are quashed. It is declared that petitioners are entitled to salary as provided under the proviso to Rule 9(a)(i)(5)(V) as clarified in Ext.P21 order. Arrears in this regard shall be paid to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. These writ petitions are disposed of as above. ## **S. SIRI JAGAN, JUDGE** rhs