Viji Viswan v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941** ## **WP(C).No.28008 OF 2015(A)** ## **PETITIONER/S:** **VIJI VISWAN, AGED 42 YEARS, W/O. SUNIL P., PRINCIPAL (IN-CHARGE), NAVAMUKUNDA HIGHER SECONDARY SCHOOL, THIRUNAVAYA-676 301. RESIDING AT PAZHAYAPADIKKAL HOUSE, P.O. KANJIRAMUKKU, AYIMICHIRA-679 584, MALAPPURAM DISTRICT. BY ADV. SRI.P.NANDAKUMAR** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY SECRETARY TO GOVERNMENT,**| ||**GENERAL EDUCATION DEPARTMENT,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695 001.**| |**2**|**THE REGIONAL DEPUTY DIRECTOR,**| ||**DIRECTORATE OF REGIONAL DEPUTY DIRECTOR,**| ||**HIGHER SECONDARY EDUCATION,**| ||**CIVIL STATION, MALAPPURAM-676 505.**| |**3**|**THE MANAGER,**| ||**NAVAMUKUNDA HIGHER SECONDARY SCHOOL,**| ||**THIRUNAVAYA-676 301.**| |***ADDL.**|**SREENATHAN.O., AGED 52 YEARS,**| |**R4**|**S/O. N.P.MANI NAIR, RESIDING AT OTTOOR HOUSE,**| ||**KANNANUR, NHANGATTIRI P.O., PALAKKAD 679 311.**| ||***ADDL.R4 IS IMPLEADED AS PER ORDER DATED 16.10.2015**| ||**IN IA NO.14929/2015.**| **W.P.(C)No.28008 of 2015** **2** **BY ADVS. R1 & R2 - SRI. JESTIN MATHEW, GOVERNMENT PLEADER R3 - SRI.S.ANEESH ADDL.R4 - SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-11-2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C)No.28008 of 2015** **3** ## **JUDGMENT** This writ petition is filed by the petitioner, working as Principal in charge of Navamukunda Higher Secondary School, Thirunavaya, Malappuram District, seeking to quash Ext.P4 order dated 10.02.2015 passed by the Regional Deputy Director, declining approval to the appointment of the petitioner as Principal and also to quash Ext.P8 order dated 01.09.2015 passed by the State Government in the revision filed by the petitioner by which Ext.P4 was affirmed. Brief material facts for the disposal of the writ petition are as follows: 2. Petitioner was appointed as Higher Secondary School Teacher (HSST) on 29.08.1998. At the time of appointment of the petitioner, there was no Special Rules existing in respect of the method of appointment of Higher Secondary School Teachers in the State. Therefore, appointments by transfer were given to qualified teachers as HSST Full time, where periods to be taught are more than 15 periods in a week, and HSST Part Time, when the periods are to be taught are less than 15 periods in a week. But the said stipulation was taken away by the Government in respect of teachers **W.P.(C)No.28008 of 2015** ## **4** appointed from General Education Subordinate Service as per G.O.(MS)No.162/98/G.Edn. dated 13.05.1998. Those Part Time Higher Secondary School Teachers working in Aided Higher Secondary Schools sought similar benefits by approaching this Court and the benefits given to the teachers in Government Higher Secondary Schools were extended to those Part Time Higher Secondary School Teachers working in Aided Higher Secondary Schools. Though the Government filed Writ Appeals against the said judgment, the same were dismissed. Further appeal to the Supreme Court was also rejected. Consequently, the Government by G.O.(MS)No.351/2004/G.Edn. dated 20.11.2004, produced as Ext.P1 herein, extended the benefit of Full Time scale of pay to all Aided Higher Secondary School Teachers, irrespective of the periods of teaching as in the case of Government Higher Secondary School Teachers. These benefits were given to those Aided Higher Secondary School Teachers who are appointed up to 12.11.2001, when the Special Rules came into force. 3. Petitioner was appointed as HSST (Part-time) prior to 12.11.2001, and therefore, she was granted all the benefits of a Full-time Higher Secondary School Teacher with effect from the date of her initial ## **W.P.(C)No.28008 of 2015** ## **5** appointment on 29.08.1998. The said benefits granted to her on the basis of the declaration of law made by this Court and confirmed by the apex court and implemented by the Government, cannot be taken away on the basis of a clarification given by the Director of Higher Secondary Education, is the case advanced. Anyhow, as per Ext.P4 order passed by the Regional Deputy Director, the approval was declined to the petitioner to the post of Principal. Being aggrieved, petitioner has preferred a revision before the State Government, which was dismissed as per Ext.P8 order dated 01.09.2015, holding that the first feeder category of Principal is HSST, and the seniority in the post of HSST is reckoned on the date of appointment to the post. It is also held that, Ext.P1 Government Order does not confer any service seniority to the Part Time HSS Teacher, but it only granted full time scale of pay to them. Therefore, such teachers cannot be regarded as Full Time HSSTs. 4. It is also pointed out thereunder that, as per the Government Order dated 27.03.2009 bearing No. (P)93/09/G.Edn., Government amended the Special Rules and as per the amendment, in Rule 6 for the appointment of Principal by promotion method, the qualification **W.P.(C)No.28008 of 2015** **6** prescribed is the minimum approved teaching experience of 12 years at Higher Secondary level at the same educational agency. The Note under the said rule states that, in the absence of persons having qualification as specified above, approved teaching experience at High School/Upper Primary/Lower Primary Schools under the same educational agency shall be considered, and such experience shall be reckoned only for qualifying service and shall not be reckoned for seniority, and such persons must possess a minimum service of six years as Higher Secondary School Teacher (Senior/Junior). It is also stated thereunder that, as per the Special Rules, HSST and HSST Junior or HSST (Part-time) are two different cadres. Principal post is the promotion post of HSST, and hence, the seniority in HSST cadre has to be considered than that of HSST (Junior) cadre while considering the appointment by promotion to the post of Principal. Therefore, the order passed by the Regional Deputy Director of Higher Secondary Education rejecting the appointment of the petitioner as Principal is in order and it was accordingly that the revision was dismissed. 5. The 4[th] respondent has filed a detailed counter affidavit, refuting the claims and demands **W.P.(C)No.28008 of 2015 7** raised by the petitioner and supporting the orders passed by the educational authorities. Among other contentions, it is stated that, the 4[th] respondent was appointed in the school on 01.09.1998 and the petitioner was appointed by transfer as HSST (Parttime) on 29.08.1998. The post of Higher Secondary School Teacher (Part-time) has been re-designated as HSST (Junior), and the petitioner became HSST (Fulltime) only on 15.07.1999. Therefore, in the cadre of HSST, the 4[th] respondent is senior to the petitioner. 6. That apart, it is pointed out that, the post of HSST and HSST (Junior) are two different posts. Chapter XXXII of Kerala Education Rules deals with the method of appointment, qualification of teachers and non-teaching staff in Aided Higher Secondary Schools. Rule 3 therein specifies the category of posts under the Higher Secondary Wing. Category I is Principal, category 2 is Higher Secondary School Teacher and Category 3 is the Higher Secondary School Teacher (Junior). The method of appointment to the post of Principal is by promotion from Category 2 under the respective Educational Agency or by transfer from qualified Headmasters of Aided High Schools under the respective Educational Agency. The post of Higher **W.P.(C)No.28008 of 2015** **8** Secondary School Teacher is to be filled up by transfer from Junior Lecturer in the subject concerned under the Management/Higher Secondary School Teacher (Junior) and by transfer from High School Assistants who possess the requisite qualification under the Educational Agency. Therefore, the sum and substance of the contention put forth by the 4[th] respondent is that, for promotion to the post of Principal, only Higher Secondary School Teachers can be considered and Higher Secondary School Teacher (Junior) cannot be considered. To put it otherwise, the seniority is to be reckoned in the cadre of Higher Secondary School Teacher and the service rendered as Higher Secondary School Teacher (Junior) cannot be counted for the purpose of seniority for appointment as Principal. This being the position, petitioner cannot claim seniority over the 4[th] respondent. 7. A reply affidavit is filed by the petitioner, reiterating the stand adopted in the writ petition. It is also pointed out that, even if the contention of the petitioner is accepted, the 4[th] respondent is not entitled to be appointed as the Principal of the school, and he is not a person directly affected by the appointment of the petitioner as Principal of the **W.P.(C)No.28008 of 2015** **9** school. 8. I have considered the rival submissions made across the Bar and perused the pleadings and the documents on record. 9. The paramount contention advanced by learned counsel for the petitioner is that, petitioner is entitled to count her seniority with effect from 29.08.1998 in view of Ext.P1 Government Order dated 20.11.2004. On an analysis of Ext.P1 Government Order, it is clear that during the beginning stage of starting Higher Secondary Education in the State, in the absence of established rules or procedures, teachers were appointed in the Higher Secondary Schools by transfer from among the qualified Departmental teachers. Since a separate scale of pay was not in existence for Higher Secondary School Teachers, they were paid a special pay of Rs.250/- per month in addition to the emoluments they were drawing in the respective posts. Later, the teachers were grouped into two categories as Higher Secondary School Teacher (Full-time) and Higher Secondary School Teacher (Part-time), based on the workload in terms of the periods of teaching per week. Those who had workload of fifteen periods or more (up to 25) per week were designated as Higher Secondary **W.P.(C)No.28008 of 2015** **10** School Teacher (Full-time) and were assigned the scale of pay of Rs.2060-3200 (pre-revised). Those who had less than fifteen periods of teaching per week were designated as Higher Secondary School Teachers (Parttime) and were assigned a lower scale of pay. On revision of scale of pay, the HSST (Full-time) was placed on Rs.6675-10550 and the HSST (Part-time) was placed on 5500-9075. 10. However, in G.O.(MS)No.162/98/G.Edn. dated 13.05.1998, it was _inter alia_ ordered that the teachers appointed from General Education Subordinate Service would be treated as appointed on promotion and that they would be full time teachers irrespective of the periods of teaching they had to handle. Thereupon, many aided Higher Secondary School Teachers who are categorized as Part-time Higher Secondary School Teachers moved this Court and this Court, in such cases, ordered to grant full-time scale to these teachers. Though the Government filed W.A.No.460 and 469/2000 against the judgments of the learned Single Judge, as per a common judgment dated 28.11.2002, dismissed the writ appeals, accepting the contention of the petitioners that they could not be treated as Part-time HSSTs. Even though aggrieved by the judgment, **W.P.(C)No.28008 of 2015** **11** Government preferred S.L.P (C) No.9421-22/2003 before the Supreme Court, it was also dismissed. 11. In that circumstances, the Government ordered to grant the benefit of full time scale of pay to all the Aided Higher Secondary School Teachers appointed by transfer from among qualified H.S.As/U.P.S.As/L.P.S.As irrespective of the periods of teaching as in the case of Government Higher Secondary School Teachers as ordered in G.O.(MS)No.162/98/G. Edn. dated 13.05.1998. It was further clarified that the order will not be applicable to those who were appointed under the provisions of the Special Rules since 12.11.2001, and the arrears payable on account of the order was directed to be credited to the PF accounts of the concerned teachers and withdrawal of the amount will not be permitted till 30.11.2009 or till retirement, whichever is earlier. Other consequential directions were issued for fixing the staff strength in the schools. 12. On an appreciation of the facts and circumstances put forth by the petitioner and the 4[th] respondent, it is clear that, there is no dispute with the fact that petitioner was appointed as a Higher Secondary School Teacher (Part-time) on 29.08.1998, and ## **W.P.(C)No.28008 of 2015** **12** it was on the basis of the said Government Order, petitioner was made as a Full-time teacher. However, in Ext.P1 order, it is stated that, petitioner is entitled to get Full-time scale of pay. The issue with respect to the appointment of the Principal in the Higher Secondary Schools is guided by Chapter 32 of the Kerala Education Rules. 13. Sl.No.(1) of Rule 4 of Chapter 32 deals with the appointment of Principal, and the method of appointment is: (1) by promotion from category 2 under the respective educational agency; or (2) By transfer from qualified Headmasters of Aided High Schools under the respective educational agency, and the post shall be filled up by the methods specified above, in the ratio of 2:1. However, if qualified candidates are not available for appointment to a vacancy by any one of the methods specified above, such vacancies shall be filled up by the other method. But fact remains, the Special Rules was brought into force as per G.O. (P)No.331/2001/G.Edn. dated 09.11.2001. It is an admitted fact that, petitioner was appointed as HSST (Part-time) on 29.08.1998, and consequent to Ext.P1 order specified above, petitioner and other similarly situated persons were provided with Full Time scale of **W.P.(C)No.28008 of 2015** ## **13** pay of the HSST (Full-time). 14. Learned counsel for the petitioner has invited my attention to the judgment of a learned Single Judge of this Court in O.P.No.2138/2000 dated 25.06.2003, whereby similarly situated Higher Secondary School Teachers were directed to be treated as Full-time HSSTs with effect from the date of their approved appointment as HSST, and directed to provide all the benefits flowing out of the judgment to the petitioners therein. Therefore, it is submitted that, the approval granted by the Director of Higher Secondary Education to the petitioner as Full Time Higher Secondary School Teacher on and with effect from 29.08.1998 is in accordance with law, and therefore, Ext.P4 order passed by the Regional Deputy Director on the basis of the direction issued by the Director of Higher Secondary Education and the consequential order in revision cannot be sustained under law. 15. Even though learned counsel for the 4[th] respondent has invited my attention to a Division Bench judgment of this Court in ' _**Manager, Nanminda Higher Secondary School, Kozhikode v. Director of Higher Secondary Education, Thiruvananthapuram and Others**_ ' [2015 KHC 513 : 2015 (3) KLT 307], the same was **W.P.(C)No.28008 of 2015** **14** concerning the seniority of teachers in the feeder category of Higher Secondary School Teachers and whether the services rendered by a teacher as HSST (Junior) also is entitled to be reckoned. However, the issue therein has no bearing to the issue to be decided by this Court in this writ petition. 16. In my considered view, having provided the benefits of Ext.P1 Government Order dated 20.11.2004, to the petitioner treating the service rendered by the petitioner as HSST (Full-time), and extending the benefit of Full Time scale of pay, it can only be found that the petitioner is entitled to get all other attendant benefits flowing out of the said Government order. The said aspect was not taken into consideration by the Regional Deputy Director in Ext.P4 order and the State Government in Ext.P8 order. 17. In that view of the matter, I am of the considered opinion that, Exts.P4 and P8 orders passed by the said authorities are illegal and arbitrary, liable to be interfered with by this Court by exercising the discretionary power conferred under Article 226 of the Constitution of India. Accordingly, Exts.P4 and P8 orders are quashed, and there will be a direction to the Regional Deputy Director or the **W.P.(C)No.28008 of 2015 15** competent authority to re-consider the matter and grant approval to the petitioner as the Principal of the school concerned. Needless to say, if any other benefits are due to the petitioner on account of the same, the same shall also be paid to the petitioner at the earliest possible, and at any rate, within one month from the date of receipt of a copy of this judgment. The writ petition is allowed accordingly. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** **St/-19.11.2019** **W.P.(C)No.28008 of 2015** **16** ## **APPENDIX OF WP(C) 28008/2015** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF G.O. DATED 20.11.2004. EXHIBIT P2 TRUE COPY OF APPOINTMENT ORDER DATED 12.08.2006. EXHIBIT P3 TRUE COPY OF THE SENIORITY LIST AS ON 01.01.2014. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 10.02.2015 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P5 TRUE COPY OF REVISION PETITION DATED 28.02.2015. EXHIBIT P6 TRUE COPY OF JUDGMENT IN W.P.(C) NO.9343/2015 DATED 24.03.2015. EXHIBIT P7 TRUE COPY OF JUDGMENT IN W.P.(C) NO.16529/2013 DATED 21.05.2015. EXHIBIT P8 TRUE COPY OF G.O. DATED 01.09.2015. TRUE COPY OF G.O. DATED 13.05.1998.** ## **RESPONDENTS' EXHIBITS: NIL** **W.P.(C)No.28008 of 2015** **17**