IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP No. 411 of 2006(R)
1. STATE OF KERALA, REP. BY THE
... Petitioner
2. DIRECTOR OF HIGHER SECONDARY EDUCATION,
Vs
1. DEEPA KOSHY, H.S.S.T.(MATHEMATICS),
... Respondent
2. JANCY JOSE, H.S.S.T.(PHYSICS),
3. NAVINKUMAR G.,
4. SHEEJA C.D., H.S.S.T.(MATHEMATICS),
5. BINU B.S., H.S.S.T.(ENGLISH),
6. PREETHA P.C., H.S.S.T.(CHEMISTRY),
7. JILS P. JOSE, H.S.S.T.(CHEMISTRY),
8. K.M.GOVINDAN NAMBOOTHIRI,
9. LIJESH C., H.S.S.T.(PHYSICS),
10. P.T.AJITHKUMAR, H.S.S.T.(ECONOMICS),
11. JOLLY VARGHESE, H.S.S.T.(JR.CHEMISTRY),
12. SEEMA M.M., H.S.S.T.(JR.PHYSICS),
For Petitioner :GOVERNMENT PLEADER
For Respondent :]RI.BENOY THOMAS
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :23/01/2007
O R D E R
PIUS C. KURIAKOSE, J.
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R.P.Nos.411, 710, 705, 708, 730 and 709 OF 2006
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Dated this the 2nd day of February, 2007
O R D E R
The petitioners in the writ petitions are approved Higher
Secondary School Teachers working in respective schools shown
against their addresses in the Writ Petition. All of them were appointed
between 13.2.01 and 12.11.01. The Supreme Court by its judgment in
Dollichan’s case [2001(1) SCC 151] imposed a specific ban of three
months for making appointments in Aided Higher Secondary School and
directed the Government to frame recruitment rules within that period.
13.2.01 is the date on which the period of three months ban expired.
The Government did not frame recruitment rules within the time frame
set by the Supreme Court and came out with rules only on 12.11.01. All
the writ petitioners were having the educational qualifications prescribed
by the rules but they did not have SET. They were all appointed on the
basis of GO(MS) No.238/2000/G.Edn dt.25.8.2000 which permitted such
appointments in the absence of the SET qualified hands. A Division
Bench of this Court in WA No.2245/2002 by judgment dt.22.1.03 and
connected matters(produced as Ext.P2 in the Writ Petitions) directed the
approving authority to clear the appointments made during the above
period and further directed that the persons appointed without SET
R.P. No.411/06 & others
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qualification and in the absence of SET qualified hands will not be
denied approval provided, those persons are having the other
qualifications at the time of their appointments. It was also held in
Ext.P2 that GO(MS) No.298/2000/G.Edn dt.25.8.2000 was in force at
the time of appointment. The Government went in appeal against
Ext.P2 judgment but when the Special Leave Petition [SLP (C)
No.7224/2003] came up for consideration, the same was allowed to be
withdrawn by the Government on recording the statement of the
Government’s counsel that no review will be filed. Ext.P3 produced in
the Writ Petition is copy of the order of the Supreme Court in that
regard. The petitioners pointed out in the Writ Petitions that Ext.P2
judgment has thus attained finality. Thereafter in compliance of Ext.P2
judgment the Government issued GO(MS)199/2003/G.Edn dt.24.7.03
(Ext.P4 GO). But while issuing Ext.P4 GO the absence clause provided
in Ext.P2 judgment regarding SET was ignored by the Government and
Clause 6(c) of Ext.P4 GO provided that teachers who do not possess
SET till the date of the GO will be terminated. Thereafter persons who
were appointed without SET in the absence of SET qualified hands but
possessing the other qualifications prescribed but were yet to pass SET
approached this Court challenging Clause 6(c) of Ext.P4 on the ground
that the same is contrary to Ext.P2 judgment. A learned Single Judge of
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this Court in Writ Petition No.26588/2003 by judgment dt.13.7.04 set-
aside Clause 6(c) of Ext.P3 GO and directed approval of the
appointments given to the petitioners therein in accordance with Ext.P2
judgment which is to the effect that persons without SET but appointed
in the absence of SET qualified hands will not be denied approval.
Ext.P4 is that judgment. The Government preferred Writ Appeal against
Ext.P4 judgment. The Division Bench considered the above WA
No.1927 of 2004 and confirmed Ext.P4 judgment. Ext.P5 is copy of the
judgment of the Division Bench. The Division Bench through Ext.P5
judgment has clarified that in Ext.P2 judgment in WA No.2242 of 2002
it was not stipulated that the authorities will be entitled to approve the
appointments only after they passed the SET. The petitioners point out
that the parties to WA Nos.2242 of 2002 and 1927 of 2004 who were
not having SET qualifications at all were all granted approval with effect
from the dates of their respective appointments in compliance with the
judgment in those two Writ Appeals. The claim of the petitioners in the
writ petitions is that they were appointed without SET in the absence of
SET qualified hands but possessing all other qualifications at the time of
their appointment are similarly situated as the parties in WA No.2245/02
and WA No.1927/04. In fact, their claim is that they are on stronger
footings than the parties in those Writ Appeals since all of them had
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subsequently passed SET unlike the parties in WA No.2245/02 and
1927/04. Voicing the grievance that the approving authority has ignored
the judgments in WA No.2245/03 and WA No.1927/04 and granted
them approval only with effect from the date of passing the SET by
wrongly invoking Clause 6(b) of GO(MS) 199/2003, they filed the Writ
Petitions seeking the following reliefs:
i. Direct the 2nd respondent-Director of Higher Secondary
Education to approve the appointment of the petitioners as
HSST-HSST(Jr.) as the case may be in their respective
schools as per the directions contained in the judgment in WA
No. 2245/03 in terms of which identical Writ Petitions were
disposed of untrammeled by GO(MS) No.199/2003 with effect
from their original date of appointment if the appointment is in
the absence of SET qualified hands;
ii. Issue a writ of certiorari quashing Clause 6(b) of Ext.P4 GO. In
case this Court finds that relief cannot be granted as prayed for
by the petitioners under prayer No.1 without quashing Clause
(b);
2. By a common judgment I disposed of all the Writ Petitions
directing the Director of Higher Secondary Education to consider and
pass orders upon representations permitted to be filed in the light of the
judgment in WA No.2245/02 and WA No.1927/2004. Later by order
dt.18.04.06 in IA No.5481/06, a clarification petition filed by the Writ
Petitioners, I clarified that in view of the terms in judgment in WA
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No.2245/02 and the judgment in WA No.1927/04, the petitioners will be
eligible for approval with effect from the date of their appointment
provided they were actually appointed in the absence of SET qualified
hands and they actually possessed other required educational
qualifications at the time of their appointments notwithstanding their
passing of SET subsequent to their appointments.
3. R.P. No.411/2006 is filed by the State and the Director who are
respondents in the Writ Petition seeking a review of the order of
clarification passed in IA No.5481/06. The other review petitions have
all been filed by the Writ Petitioners themselves. In the light of R.P. filed
by the Government, this Court is obliged to pronounce finally on the
issue.
4. I have heard the submissions of Sri.Binoy Thomas, counsel for
the Writ Petitioners and also those of Sri.K.K.Ravindranath, Senior
Government Pleader and Liaison Officer on behalf of the Government
and the Director of Higher Secondary Education. The learned counsel
and the learned Senior Government Pleader would re-argue the writ
petitions thoroughly inviting my attention to the various Government
Orders and judgments placed on record in the cases. I shall deal with
the review petitions filed by the Writ Petitioners first.
5. My attention was drawn specifically by Mr.Binoy Thomas to
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annexures A2, A3 and A4, fresh documents produced along with the
review petitions filed by him. Annexures A2, A3 and A4 are documents
which will show that petitioners 1 to 5 in WP(C) No.31300/2004, one
Abdul Rahiman K., Rasheed P.V., Faizal K., Abdul Majeed T.K. and
Abdul Rahiman Mannithody, HSST(Jrs)/HSST of E.M.E.A HSS,
Kondotty who were earlier granted approval only with effect from the
date of passing of SET invoking Clause 6(b) of GO(MS) No.199/2003
were subsequently granted approval with effect from their date of
appointment itself. In fact, by Annexure A2, Director of Higher
Secondary Education directed the manager of the school to report
whether those teachers were appointed in the absence of SET qualified
hands. On getting Annexure A3 report from the Manager, the Director
under Annexure A4 granted approval to them with effect from their dates
of appointment noticing that those teachers were appointed in the
absence of SET qualified hands. These annexures,A2 to A4, will show
that five writ petitioners in WP(C) No.31300/2004 in respect of which
RP No.709/06 has been filed were similarly circumstanced as the other
four Writ Petitioners in that case (who are the petitioners in RP
No.709/06) have been given the relief which was sought for in the Writ
Petition. In the teeth of annexures A2 to A4 considerations of fairness
and justice will demand that the review petitioners in RP 709/06 and for
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that matter the writ petitioners in other cases also, all of them being
similarly circumstanced as the beneficiaries of annexures A2 to A4 be
given the same relief. But then Sri.K.K. Ravindranath, the learned
Liaison Officer would remind me of the limits of this Court’s jurisdiction
for review and submit that production of fresh evidence which could
have been produced earlier cannot be a ground for review. Sri.Binoy
Thomas would submit that though the beneficiaries of annexures A2 to
A4 were the petitioners in WP(C) No.31300/04 and annexures A2 to A4
were issued much before the date of disposal of the Writ Petition, that
vital aspect of the matter was not brought to his notice by the present
review petitioners who were persons actually instructing him and that is
the reason for the non-production of those annexures earlier. I am
convinced that the persons who were instructing the learned counsel
had not brought to his notice, annexures A2 to A4 at the time when the
writ petition came up for consideration since, had it been so the learned
counsel would have certainly highlighted annexures A2 to A4 which are
materials strongly supporting the grounds raised in the Writ Petition. A
Constitution Bench of the Supreme Court has held in Sivadi Singh v.
State of Punjab (AIR 1993 SC 1909) after referring to Article 226 of the
Constitution, Order 47 Rule (1) of the CPC and the powers which are
inherent in the High Court, that there is nothing in Article 226 which
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precludes the High Court on exercising the powers of review which
inheres in every Court of pleanary jurisdiction to prevent miscarriage of
justice or to correct grave and palpable errors committed by it. The
Supreme Court held in that case that the High Court was justified in
entertaining the review petition on principles of natural justice also. The
petitioners in RP NO.709/06 and for that matter all the writ petitioners in
other cases being similarly circumstanced as the beneficiaries of
annexures A2 to A4 deserves to be treated similarly, lest there should
be violation of the principles of equality underlying Article 14 of the
Constitution. Denying relief to the writ petitioners in the face of
annexures A2 to A4 according to me will be sheer in justice which this
Court must always endeavor to avoid.
6. I have indicated in the judgment sought to be reviewed that the
submissions advanced on behalf of the writ petitioners that in the light of
the finality attained by the judgments in WA No.2245/02 and WA
No.1927/04, prayer No.1 in the Writ Petition seeking a direction to
approve the appointment of the petitioners with effect from the original
dates of their appointment ought to be granted were very pursuasive. I
however, opined that so long as Clause 6(b) of GO(MS) No.199/03
stands, relief No.1 cannot be granted straight away. I also observed
that on the submissions then made I am not inclined to quash Clause 6
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(b) either. But then I do find force in the present submissions of
Mr.Binoy Thomas that relief No.1 can be granted by this Court even
without quashing Clause 6(b) since many of these writ petitioners in the
writ petition are parties in WA No.2245 of 2002 and judgment in WA
No.2245 of 2002 and WA No.1927 of 2004 having attained finality are
binding on the respondents in the Writ Petition. In fact at the time when
the writ petitions were argued, the grantability of relief No.1 even without
quashing Clause 6(b) was not given the required thrust by the learned
counsel which tempted me to conclude that so long as Clause 6(b)
stands, grantability of relief No.1 in the light of the judgments in Writ
Appeals should receive the attention of the respondents first. But I
notice that relief No.2 for quashing Clause 6(b) had been made only as
an alternative prayer. In fact it was noticing this aspect of the matter
also that I allowed the clarification petition by the order which is now
sought to be reviewed by filing RP No.411 of2006. The crux question is
whether the writ petitioners are entitled for the primary relief that they
have sought for. Even the respondents have conceded by issuing
annexures A2 to A4 that the petitioners are entitled for the same. If that
be so, it is necessary on considerations of justice that the matter is not
delayed further and specific directions are issued to the respondents.
Sri.K.K. Ravindranath, learned Liaison Officer would depict what he
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described as the grim financial position of the Government now.
According to him directing release of the monetary benefits which will
follow if writ petitions are allowed will impose a very heavy burden on the
Government. The above argument of the learned Liaison Officer will not
go unnoticed.
7. The grounds raised in RP No.411/2006 are technically strong
but having considered the merits of the matter, this Court cannot allow
the interests of the technicalities to have a march over those of
substantial justice. The result is that all the review petitions filed by the
writ petitioners(R.P. Nos. 710, 705, 708, 709 and 730 of 2006) will stand
allowed and R.P. No.411 of 2006 will stand dismissed.
The common judgment dt.10.2.06 in the writ petitions will stand
reviewed. All the writ petitions will stand allowed directing the 2nd
respondent-Director of Higher Secondary Education to grant approval to
the appointments given to the petitioners with effect from their date of
appointment, once it is seen that they are appointed without SET in the
absence of SET qualified hands and they possessed all other required
qualifications at the time of their appointment. The petitioners who are
eligible for approval as directed above will be entitled for release of
consequential monetary benefits. But actual cash payment of the
monetary benefits need be made only prospectively with effect from
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01.01.2007. The arrears due can be paid either by giving credit to the
Provident Fund account or in form of interest fetching Government
Securities. Orders as directed above will be issued by the respondents
within two months of receiving copy of this order.
PIUS C. KURIAKOSE, JUDGE
btt
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