W.P.(C). No. 24185 of 2011 (W)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 4TH DAY OF APRIL 2013/14TH CHAITHRA 1935** ## **WP(C).No. 24185 of 2011 (W)** **---------------------------------------** ## **PETITIONER(S):** - **--------------------------** **1. A.K.NARAYANAN NAMBOODIRI PHYSICAL EDUCATION TEACHER, EDAMANA U.P.SCHOOL MATHAMANGALAM, KANNUR DIST.** **2. A.KARUNAKARAN PHYSICAL EDUCATION TEACHER, PERALAM U.P.SCHOOL' KOZHUMMAL PO, KARIVELLUR, KANNUR DIST.** **3. T.K.DAMODARAN NAMBOODIRI DRAWING TEACHER, EDAMANA U.P.SCHOOL, MATHAMANGALAM KANNUR DIST.** **4. PRAMOD P.V., DRAWING TEACHER, KOVVAL A.U.P.SCHOOL, CHERUVATHUR PO, KASARAGOD DIST.** **5. T.V.BALAKRISHNAN PHYSICAL EDUCATION TEACHER , A .U.P.SCHOOL ALANTHATTA , KASARAGODE DIST.** ## **6. K.LOHITHAKSHAN** - **PHYSICAL EDUCATION TEACHER , PODAVOOR A .U.P.SCHOOL PODAVOOR KASARAGODE DIST.** **7. K.S.HARIMOHAN PHYSICAL EDUCATION TEACHER , PATHY AMMA A.U.P., SCHOOL KARIVELLUR, KANNUR DIST.** **8. C.CHANDRAN, PHYSICAL EDUCATION TEACHER , S.N.T.T.I, NILESHWAR KASARAGODE DIST.** **9. K.P.BABU DRAWING TEACHER, C.C.U.P.SCHOOL, IYYAD BALUSSERY, KOZHIKODE DIST.** **DCS** ## **WP(C).No. 24185 of 2011 (W)** ## **10. C.GOPALAKRISHNAN,** **DRAWING TEACHER, VARKKILASSERI U.P.SCHOOL, CHOMBALA KOZHIKODE DIST.** ## **11. P.RADHAKRISHNAN** **DRAWING TEACHER, A.U.P.SCHOOL, BALUSSERY BALUSSERY PO, KOZHIKODE DISTRICT.** **12. T.K.BABURAJAN, CRAFT TEACHER, ICHANNUR A.U.P.SCHOOL, KANNAMKARA CHELANNUR, CHERVAYOOR, KOZHIKODE DIST.** **BY ADVS.SRI.C.P.SUDHAKARA PRASAD (SR.) SRI.S.RAMESH** **SRI.NAVEEN.T SMT.POOJA SURENDRAN** ## **RESPONDENT(S):** - **----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION, DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 685 001** **2. THE DEPUTY DIRECTOR OF EDUCATION KANNUR - 670 0071** **3. THE DEPUTY DIRECTOR OF EDUCATION KASARAGODE - 687 081** **4. THE DEPUTY DIRECTOR OF EDUCATION KOZHIKODE - 673 001** **BY GOVERNMENT PLEADER SRI. NOUSHAD THOTTATHIL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DCS** **WP(C).No. 24185 of 2011 (W)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXT.P1 COPY OF THE ORDER,G.O.DT.6.4.2000 ISSUED BY THE GOVERNMENT. EXT.P2 COPY OF THE ORDER,G.O.DT.4.10.2004 ISSUED BY THE GOVERNMENT. EXT.P3 COPY OF THE ORDER,G.O.DT.30.11.200 ISSUED BY THE GOVERNMENT. EXT.P4 COPY OF THE ORDER,G.O.DT.30.3.2001 ISSUED BY THE GOVERNMENT. EXT.P5 COPY OF THE ORDER,G.O.DT.1.7.2005 ISSUED BY THE GOVERNMENT. EXT.P6 COPY OF THE ORDER,G.O.DT.12.12.2000 ISSUED BY THE GOVERNMENT. EXT.P7 COPY OF THE ORDER,G.O.DT.5.1.2005 ISSUED BY THE GOVERNMENT.** - **EXT.P8 COPY OF THE JUDGMENT DT.10.11.2008 IN WPC.34181/06 OF THIS HON'BLE COURT.** - **EXT.P9 COPY OF THE ORDER,G.O.DT.29.5.2009 ISSUED BY THE GOVERNMENT. EXT.P10 COPY OF THE ORDER,G.O.DT.31.12.2009 ISSUED BY THE GOVERNMENT. EXT.P11 COPY OF THE REPRESENTATION DT.8.7.2010 FILED BY THE PETITIONERS AND OTHERS BEFORE THE IST RESPONDENT.** - **EXT.P12 COPY OF THE ORDER DT.9.6.2011 ISSUED BY THE 1ST RESPONDENT** - **EXT.P13 COPY OF THE JUDGMENT DATED 13.07.2009 IN W.P.(C). NO. 2315/2006 AND 20652/2007 OF THIS HON'BLE COURT** - **EXT.P14 COPY OF THE JUDGMENT DATED 13.01.2012 IN W.A. NO. 275/2010 AND CONNECTED CASE OF THIS HON'BLE COURT** - **EXT.P15 COPY OF THE ORDER, G.O. DATED 11.07.2012 ISSUED BY THE GOVERNMENT** ## **RESPONDENT'S EXHIBITS:- NIL** ## **/TRUE COPY/** ## **P.A. TO JUDGE** **DCS** ## **A.M. SHAFFIQUE, J** ## **---------------------------------------** ## **W.P.(C). NO. 24185 OF 2011** ## **----------------------------------------** Dated this the 4[TH ] day of April, 2013 ## **JUDGMENT** Petitioners are part-time Physical Education teachers, drawing teachers etc., who were appointed in various schools over looking the provisions of Rule 6B(2) of Chapter XXIII of KER. The reference is made to Ext. P1 to P6 to contend that several such persons were given appointments on permanent basis by the Government with effect from the date of their appointment. 2. Petitioners who were not given such a benefit had approached this Court by filing W.P.(C). No. 34181/2006 and by judgment dated 10.11.2008 this Court directed the State Government to extend the similar treatment to the petitioners as has been done in Ext. P1, P3, P5, P6, P7 and P8 which are Exts. P1 to P6 in the present case. Pursuant to Ext. P8 judgment Government issued Ext. P9 order. Thereafter Ext. P10 came to be issued on 31.12.2009 as a special order with reference to 112 part-time specialist W.P.(C). NO. 24185 OF 2011 **2** teachers who have a service of more than 15 years. As per Ext. P10 order they were all made full-time teachers with effect from the date of Ext. P10 order i.e. 31.12.2009. Petitioners however challenge Ext. P9 and P10 to the extend that it denies full-time benefit from the date of part-time appointment. The petitioners submitted a representation and Ext. P12 is the reply of the Government indicating that retrospective effect cannot be given to their appointment on full-time basis. Hence Ext. P12 is also under challenge. 3. The 4[th] respondent has filed counter affidavit supporting the stand taken in the impugned orders. According to them these orders are passed only as a special case and therefore the petitioners have no legal right to obtain the said benefit. 4. The learned Senior Counsel appearing for the petitioners relied upon the judgment of the Supreme Court in **Maharaj Krishan Bhatt And Another v. State of Jammu And Kashmir and Others [(2008) 9 SCC 24]** . Paragraphs 18, 21, 22 and 23 which reads as under:- W.P.(C). NO. 24185 OF 2011 **3** “18. Having heard the learned counsel for the parties and having gone through the facts and circumstances of the case, in our opinion, the appeals deserve to be allowed. Firstly, representations were made by several Constables requesting the authority to appoint them to the post of PSI. The office of the Hon'ble Chief Minister sent all the applications to the Director General of Police who recommended only one name of Hamidullah Dar. It was stated that the said Constable was having postgraduate qualification and the Director General thought it proper to recommend his name for appointment as PSI in relaxation of Regulations. Even if it is assumed that educational qualification was a relevant consideration, at the most it would go to show that appointment of Hamidullah Dar was proper. Nothing more than that. xxx 21. It was no doubt contended by the learned counsel for the respondent State that Article 14 or 16 of the Constitution cannot be invoked and pressed into service to perpetuate illegality. It was submitted that if one illegal action is taken, a person whose case is similar, cannot invoke Article 14 or 16 and demand similar relief illegally or against a statute. 22. There can be no two opinions about the legal proposition as submitted by the learned counsel for the State. But in the case on hand, in our opinion, there was no illegality on the part of the learned Single Judge in allowing Writ Petition No. 519 of 1987 instituted by Abdul Rashid Rather and in issuing necessary directions. Since the action was legal and in consonance with law, the Division Bench confirmed it and this Court did not think it proper to interfere with the said order and dismissed special leave petition. To us, in the circumstances, the learned Single Judge was wholly right and fully justified in following the judgment and order in Writ Petition No. 519 of 1987 in the case of the present writ petitioners also. W.P.(C). NO. 24185 OF 2011 **4** 23. In fairness and in view of the fact that the decision in Abdul Rashid Rather had attained finality, the State authorities ought to have gracefully accepted the decision by granting similar benefits to the present writ petitioners. It, however, challenged the order passed by the Single Judge. The Division Bench of the High Court ought to have dismissed the letters patent appeal by affirming the order of the Single Judge. The letters patent appeal, however, was allowed by the Division Bench and the judgment and order of the learned Single Judge was set aside. In our considered view, the order passed by the learned Single Judge was legal, proper and in furtherance of justice, equity and fairness in action. The said order, therefore, deserves to be restored.” 5. The learned Government Pleader however submits that there will be several persons claiming the said benefit and when petitioners does not have a legal right, the benefits having been granted only by way of concession, the petitioners are bound by the orders passed by the Government. 6. Having regard to the aforesaid contentions, the point to be considered is whether the petitioners are entitled for appointment on full-time basis with effect from the their date of appointment. It is not in dispute that as per Ext. P1 to P6 orders the benefits were extended to such part-time W.P.(C). NO. 24185 OF 2011 **5** employees retrospectively i.e., from the date of their appointment itself. This Court by Ext. P8 judgment also directed that similar benefit should be extended to petitioners and as a result the Government had passed Ext. P9 and P10 orders. In Ext. P10 a general order is seen issued not confining to the petitioners in Ext. P8 alone but in respect of various other persons who had already completed 15 years of service on part-time basis, which includes some of the petitioners in Ext. P8 as well. 7. The factual circumstances available in the case will disclose that though the petitioners does not have a legal right, the Government as a policy matter as is evident from Ext. P1 to P6 have given such appointments to various persons from the date of their initial appointment, which was approved by this Court in terms of Ext. P8 judgment as well. Therefore when the Government has relaxed the conditions and having regard to the fact that several persons were appointed for consecutively long period if the full-time appointment were effective only from the date of W.P.(C). NO. 24185 OF 2011 **6** order, their service rendered would apparently become useless and they would not be getting any service benefits on account of the same. 8. Having regard to the judgment of Supreme Court in **Maharaj Krishan Bhatt's** case (supra) and this Court's judgment in Ext. P8, having taken a view that similar benefits as evident from Ext. P1 to P6 have to be extended, I am of the view that the petitioners are also entitled for similar benefits. In that view of the matter, the writ petition is allowed. It is declared that the petitioners are also entitled to similar benefits as given to the parties in Ext. P1 to P6 and as per Ext. P8 judgment. There will be a direction to the 1[st] respondent to pass appropriate orders in the light of the directions issued in Ext. P1 to P6 in favour of the petitioners also. This shall be done within a period of two months from the date of receipt of a copy of this judgment. SD/- **A.M. SHAFFIQUE JUDGE** DCS