{"id":180953,"date":"2007-01-23T00:00:00","date_gmt":"2007-01-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-kerala-vs-deepa-koshy-on-23-january-2007-2"},"modified":"2018-10-26T21:09:14","modified_gmt":"2018-10-26T15:39:14","slug":"state-of-kerala-vs-deepa-koshy-on-23-january-2007-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-kerala-vs-deepa-koshy-on-23-january-2007-2","title":{"rendered":"State Of Kerala vs Deepa Koshy on 23 January, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
State Of Kerala vs Deepa Koshy on 23 January, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nRP No. 411 of 2006(R)\n\n\n1. STATE OF KERALA, REP. BY THE\n                      ...  Petitioner\n2. DIRECTOR OF HIGHER SECONDARY EDUCATION,\n\n                        Vs\n\n\n\n1. DEEPA KOSHY, H.S.S.T.(MATHEMATICS),\n                       ...       Respondent\n\n2. JANCY JOSE, H.S.S.T.(PHYSICS),\n\n3. NAVINKUMAR G.,\n\n4. SHEEJA C.D.,  H.S.S.T.(MATHEMATICS),\n\n5. BINU B.S., H.S.S.T.(ENGLISH),\n\n6. PREETHA P.C., H.S.S.T.(CHEMISTRY),\n\n7. JILS  P. JOSE, H.S.S.T.(CHEMISTRY),\n\n8. K.M.GOVINDAN NAMBOOTHIRI,\n\n9. LIJESH C., H.S.S.T.(PHYSICS),\n\n10. P.T.AJITHKUMAR, H.S.S.T.(ECONOMICS),\n\n11. JOLLY VARGHESE, H.S.S.T.(JR.CHEMISTRY),\n\n12. SEEMA M.M., H.S.S.T.(JR.PHYSICS),\n\n                For Petitioner  :GOVERNMENT PLEADER\n\n                For Respondent  :]RI.BENOY THOMAS\n\nThe Hon'ble MR. Justice PIUS C.KURIAKOSE\n\n Dated :23\/01\/2007\n\n O R D E R\n                            PIUS C. KURIAKOSE, J.\n\n                              -------------------------------\n\n             R.P.Nos.411, 710, 705, 708, 730 and 709 OF 2006\n\n                            -----------------------------------\n\n                   Dated this the 2nd day of February, 2007\n\n\n                                      O R D E R\n<\/pre>\n
               The   petitioners   in   the   writ   petitions   are   approved   Higher<\/p>\n
Secondary   School   Teachers   working   in   respective   schools   shown<\/p>\n
against their addresses in the Writ Petition.  All of them were appointed<\/p>\n
between 13.2.01 and 12.11.01.  The Supreme Court by its judgment in<\/p>\n
Dollichan’s   case   [2001(1)   SCC   151]   imposed   a   specific   ban   of   three<\/p>\n
months for making appointments in Aided Higher Secondary School and<\/p>\n
directed the  Government  to   frame  recruitment  rules  within that  period.<\/p>\n
13.2.01   is   the   date   on  which  the   period   of   three   months  ban   expired.<\/p>\n
The Government did not frame recruitment rules within the time frame<\/p>\n
set by the Supreme Court and came out with rules only on 12.11.01.  All<\/p>\n
the writ petitioners were having the educational qualifications prescribed<\/p>\n
by the rules but they did not have SET.  They were all appointed on the<\/p>\n
basis of GO(MS) No.238\/2000\/G.Edn dt.25.8.2000 which permitted such<\/p>\n
appointments   in   the   absence   of   the   SET   qualified   hands.     A   Division<\/p>\n
Bench   of   this   Court   in   WA   No.2245\/2002   by   judgment   dt.22.1.03   and<\/p>\n
connected matters(produced as Ext.P2 in the Writ Petitions) directed the<\/p>\n
approving  authority   to   clear   the   appointments   made   during   the   above<\/p>\n
period   and   further   directed   that   the   persons   appointed   without     SET<\/p>\n
R.P. No.411\/06 & others<\/p>\n
                                             2<\/span><\/p>\n
qualification   and   in   the   absence   of   SET   qualified   hands   will   not   be<\/p>\n
denied   approval   provided,   those   persons   are   having   the   other<\/p>\n
qualifications   at   the   time   of   their   appointments.     It   was   also   held   in<\/p>\n
Ext.P2   that   GO(MS)   No.298\/2000\/G.Edn   dt.25.8.2000   was   in   force   at<\/p>\n
the   time   of   appointment.     The   Government   went   in   appeal   against<\/p>\n
Ext.P2   judgment   but   when   the   Special   Leave   Petition   [SLP   (C)<\/p>\n
No.7224\/2003] came up for consideration, the same was allowed to be<\/p>\n
withdrawn   by   the   Government   on   recording   the   statement   of   the<\/p>\n
Government’s counsel that no review will be filed.   Ext.P3 produced in<\/p>\n
the   Writ   Petition   is   copy   of   the   order   of   the   Supreme   Court   in   that<\/p>\n
regard.     The   petitioners   pointed   out   in   the   Writ   Petitions   that   Ext.P2<\/p>\n
judgment has thus attained finality.   Thereafter in compliance of Ext.P2<\/p>\n
judgment   the   Government   issued   GO(MS)199\/2003\/G.Edn   dt.24.7.03<\/p>\n
(Ext.P4 GO).  But while issuing Ext.P4 GO the absence clause provided<\/p>\n
in Ext.P2 judgment regarding SET was ignored by the Government and<\/p>\n
Clause 6(c) of Ext.P4 GO provided that teachers who do not possess<\/p>\n
SET till the date of the GO will be terminated.  Thereafter persons who<\/p>\n
were appointed without SET in the absence of SET qualified hands but<\/p>\n
possessing the other qualifications prescribed but were yet to pass SET<\/p>\n
approached this Court challenging Clause 6(c) of Ext.P4 on the ground<\/p>\n
that the same is contrary to Ext.P2 judgment.  A learned Single Judge of<\/p>\n
R.P. No.411\/06 & others<\/p>\n
                                              3<\/span><\/p>\n
this   Court   in   Writ   Petition   No.26588\/2003   by   judgment   dt.13.7.04   set-<\/p>\n
aside   Clause   6(c)   of   Ext.P3   GO   and   directed   approval   of   the<\/p>\n
appointments given to the petitioners therein in accordance with Ext.P2<\/p>\n
judgment which is to the effect that persons without SET but appointed<\/p>\n
in   the   absence   of   SET   qualified   hands   will   not   be   denied   approval.<\/p>\n
Ext.P4 is that judgment.  The Government preferred Writ Appeal against<\/p>\n
Ext.P4   judgment.     The   Division   Bench   considered   the   above   WA<\/p>\n
No.1927 of 2004 and confirmed Ext.P4 judgment.  Ext.P5 is copy of the<\/p>\n
judgment   of   the   Division   Bench.     The   Division   Bench   through   Ext.P5<\/p>\n
judgment has clarified  that  in Ext.P2 judgment in WA No.2242 of 2002<\/p>\n
it was not stipulated that the authorities will be entitled to approve the<\/p>\n
appointments only after they passed the SET.  The petitioners point out<\/p>\n
that the parties to WA  Nos.2242 of 2002 and 1927 of 2004 who were<\/p>\n
not having SET qualifications at all were all granted approval with effect<\/p>\n
from the dates of their respective appointments in compliance with the<\/p>\n
judgment in those two Writ Appeals.  The claim of the petitioners in the<\/p>\n
writ petitions is that they were appointed without SET in the absence of<\/p>\n
SET qualified hands but possessing all other qualifications at the time of<\/p>\n
their appointment are similarly situated as the parties in WA No.2245\/02<\/p>\n
and   WA   No.1927\/04.     In   fact,   their   claim   is   that   they   are   on   stronger<\/p>\n
footings   than   the   parties   in   those   Writ   Appeals   since   all   of   them   had<\/p>\n
R.P. No.411\/06 & others<\/p>\n
                                              4<\/span><\/p>\n
subsequently   passed   SET   unlike   the   parties   in   WA   No.2245\/02   and<\/p>\n
1927\/04.  Voicing the grievance that the approving authority has ignored<\/p>\n
the   judgments   in   WA   No.2245\/03   and   WA   No.1927\/04   and   granted<\/p>\n
them   approval   only   with   effect   from   the   date   of   passing   the   SET   by<\/p>\n
wrongly invoking Clause 6(b) of GO(MS) 199\/2003, they filed  the  Writ<\/p>\n
Petitions seeking the following reliefs:\n<\/p>\n<\/p>\n
       i.       Direct   the   2nd  respondent-Director   of   Higher   Secondary<\/p>\n
           Education   to   approve   the   appointment   of   the   petitioners   as<\/p>\n
           HSST-HSST(Jr.)   as   the   case   may   be   in   their   respective<\/p>\n
           schools as per the directions contained in the judgment in WA<\/p>\n
           No.   2245\/03   in   terms   of   which   identical   Writ   Petitions   were<\/p>\n
           disposed of untrammeled by GO(MS) No.199\/2003 with effect<\/p>\n
           from their original date of appointment if the appointment is in<\/p>\n
           the absence of SET qualified hands;\n<\/p><\/blockquote>\n
       ii.   Issue a writ of certiorari quashing Clause 6(b) of Ext.P4 GO.  In<\/p>\n
           case this Court finds that relief cannot be granted as prayed for<\/p>\n
           by the petitioners under prayer No.1 without quashing Clause<\/p>\n<\/blockquote>\n
           (b);<\/p><\/blockquote>\n
        2.   By   a   common   judgment   I   disposed   of   all   the   Writ   Petitions<\/p>\n
directing   the   Director   of   Higher   Secondary   Education   to   consider   and<\/p>\n
pass orders upon representations permitted to be filed in the light of the<\/p>\n
judgment   in   WA   No.2245\/02   and   WA   No.1927\/2004.     Later   by   order<\/p>\n
dt.18.04.06   in   IA   No.5481\/06,   a   clarification   petition   filed   by   the   Writ<\/p>\n
Petitioners,     I   clarified   that   in   view   of   the   terms   in   judgment   in   WA<\/p>\n
R.P. No.411\/06 & others<\/p>\n
                                            5<\/span><\/p>\n
No.2245\/02 and the judgment in WA No.1927\/04, the petitioners will be<\/p>\n
eligible   for   approval   with   effect   from   the   date   of   their   appointment<\/p>\n
provided they were actually appointed in the absence of SET qualified<\/p>\n
hands   and   they   actually   possessed   other   required   educational<\/p>\n
qualifications   at   the   time   of   their   appointments   notwithstanding   their<\/p>\n
passing of SET subsequent to their appointments.\n<\/p>\n<\/p>\n
          3. R.P. No.411\/2006 is filed by the State and the Director who are<\/p>\n
respondents   in   the   Writ   Petition   seeking   a   review   of   the   order   of<\/p>\n
clarification passed in IA No.5481\/06.   The other review petitions have<\/p>\n
all been filed by the Writ Petitioners themselves.  In the light of R.P. filed<\/p>\n
by   the   Government,   this   Court   is   obliged   to   pronounce   finally   on   the<\/p>\n
issue.\n<\/p>\n<\/p>\n
          4. I have heard the submissions of Sri.Binoy Thomas, counsel for<\/p>\n
the   Writ   Petitioners   and   also   those   of   Sri.K.K.Ravindranath,   Senior<\/p>\n
Government  Pleader  and  Liaison   Officer  on  behalf of  the  Government<\/p>\n
and the Director of Higher Secondary Education.   The learned counsel<\/p>\n
and   the   learned   Senior   Government   Pleader   would   re-argue   the   writ<\/p>\n
petitions   thoroughly   inviting   my   attention   to   the   various   Government<\/p>\n
Orders and judgments placed on record in the cases.   I shall deal with<\/p>\n
the review petitions filed by the Writ Petitioners first.<\/p>\n
          5.   My   attention   was   drawn   specifically   by   Mr.Binoy   Thomas   to<\/p>\n
R.P. No.411\/06 & others<\/p>\n
                                           6<\/span><\/p>\n
annexures   A2,   A3   and   A4,   fresh   documents   produced   along   with   the<\/p>\n
review petitions filed by him.  Annexures A2, A3 and A4 are documents<\/p>\n
which   will   show   that   petitioners   1   to   5   in   WP(C)   No.31300\/2004,   one<\/p>\n
Abdul   Rahiman   K.,   Rasheed   P.V.,   Faizal   K.,   Abdul   Majeed   T.K.   and<\/p>\n
Abdul   Rahiman   Mannithody,   HSST(Jrs)\/HSST   of   E.M.E.A   HSS,<\/p>\n
Kondotty   who   were   earlier   granted   approval   only   with   effect   from   the<\/p>\n
date  of  passing  of  SET   invoking Clause 6(b)  of GO(MS)  No.199\/2003<\/p>\n
were   subsequently   granted   approval   with   effect   from   their   date   of<\/p>\n
appointment   itself.     In   fact,   by   Annexure   A2,   Director   of   Higher<\/p>\n
Secondary   Education   directed   the   manager   of   the   school   to   report<\/p>\n
whether those teachers were appointed in the absence of SET qualified<\/p>\n
hands.   On getting Annexure A3 report from the Manager, the Director<\/p>\n
under Annexure A4 granted approval to them with effect from their dates<\/p>\n
of   appointment   noticing   that   those   teachers   were   appointed   in   the<\/p>\n
absence of SET qualified hands.  These annexures,A2 to A4, will show<\/p>\n
that   five writ petitioners in WP(C) No.31300\/2004 in   respect of which<\/p>\n
RP No.709\/06 has been filed were similarly circumstanced as the other<\/p>\n
four   Writ   Petitioners   in   that   case   (who   are   the   petitioners   in   RP<\/p>\n
No.709\/06) have been given the relief which was sought for in the Writ<\/p>\n
Petition.   In the teeth of annexures A2 to A4 considerations of fairness<\/p>\n
and justice will demand that the review petitioners in RP 709\/06 and for<\/p>\n
R.P. No.411\/06 & others<\/p>\n
                                              7<\/span><\/p>\n
that   matter   the   writ   petitioners   in   other   cases   also,   all   of   them   being<\/p>\n
similarly circumstanced as the beneficiaries of annexures A2 to A4 be<\/p>\n
given   the   same   relief.     But   then   Sri.K.K.   Ravindranath,   the   learned<\/p>\n
Liaison Officer would remind me of the limits of this Court’s jurisdiction<\/p>\n
for   review   and   submit   that   production   of   fresh   evidence   which   could<\/p>\n
have  been  produced earlier  cannot be a  ground  for  review.    Sri.Binoy<\/p>\n
Thomas would submit that though the beneficiaries of annexures A2 to<\/p>\n
A4 were the petitioners in WP(C) No.31300\/04 and annexures A2 to A4<\/p>\n
were issued much before the date of disposal of the Writ Petition,  that<\/p>\n
vital aspect of the matter was not brought to his notice by the present<\/p>\n
review petitioners who were persons actually instructing him and that is<\/p>\n
the   reason   for   the   non-production   of   those   annexures   earlier.     I   am<\/p>\n
convinced   that   the   persons   who   were   instructing   the   learned   counsel<\/p>\n
had not brought to his notice, annexures A2 to A4 at the time when the<\/p>\n
writ petition came up for consideration since, had it been so  the learned<\/p>\n
counsel would have certainly highlighted annexures A2 to A4 which are<\/p>\n
materials strongly supporting the grounds raised in the Writ Petition.  A<\/p>\n
Constitution Bench of the Supreme Court has held   in  Sivadi Singh v.<\/p>\n
State of Punjab (AIR 1993 SC 1909) after referring to Article 226 of the<\/p>\n
Constitution, Order 47 Rule (1) of the CPC and the powers which are<\/p>\n
inherent   in   the   High   Court,   that   there   is   nothing   in   Article   226   which<\/p>\n
R.P. No.411\/06 & others<\/p>\n
                                             8<\/span><\/p>\n
precludes   the   High   Court     on   exercising   the   powers   of   review   which<\/p>\n
inheres in every Court of pleanary  jurisdiction to prevent miscarriage of<\/p>\n
justice   or   to   correct   grave   and   palpable   errors   committed   by   it.     The<\/p>\n
Supreme   Court   held   in   that   case   that   the   High   Court   was   justified   in<\/p>\n
entertaining the review petition on principles of natural justice also.  The<\/p>\n
petitioners in RP NO.709\/06 and for that matter all the writ petitioners in<\/p>\n
other   cases   being   similarly   circumstanced   as   the   beneficiaries   of<\/p>\n
annexures A2 to A4 deserves to be treated similarly,   lest there should<\/p>\n
be   violation   of   the   principles   of   equality   underlying   Article   14   of   the<\/p>\n
Constitution.     Denying   relief   to   the   writ   petitioners   in   the   face   of<\/p>\n
annexures A2 to A4 according to me will be sheer in justice which this<\/p>\n
Court must always endeavor to avoid.\n<\/p>\n<\/p>\n
       6.  I have indicated in the judgment sought to be reviewed that the<\/p>\n
submissions advanced on behalf of the writ petitioners that in the light of<\/p>\n
the   finality   attained   by   the   judgments   in   WA   No.2245\/02   and   WA<\/p>\n
No.1927\/04,   prayer   No.1   in   the   Writ   Petition   seeking   a   direction   to<\/p>\n
approve the appointment of the petitioners with effect from the original<\/p>\n
dates of their appointment ought to be granted were very pursuasive.  I<\/p>\n
however,   opined   that   so   long   as   Clause   6(b)   of   GO(MS)   No.199\/03<\/p>\n
stands,   relief   No.1   cannot   be   granted   straight   away.     I   also   observed<\/p>\n
that on the submissions then made I am not inclined to quash Clause 6<\/p>\n
R.P. No.411\/06 & others<\/p>\n
                                               9<\/span><\/p>\n
(b)   either.     But   then   I   do   find   force   in   the   present   submissions   of<\/p>\n
Mr.Binoy   Thomas   that   relief   No.1   can   be   granted   by   this   Court   even<\/p>\n
without quashing Clause 6(b) since many of these writ petitioners in the<\/p>\n
writ   petition   are   parties   in   WA   No.2245   of   2002   and   judgment   in   WA<\/p>\n
No.2245 of 2002 and WA  No.1927 of 2004 having attained finality are<\/p>\n
binding on the respondents in the Writ Petition.  In fact at the time when<\/p>\n
the writ petitions were argued, the grantability of relief No.1 even without<\/p>\n
quashing Clause 6(b) was not given the required thrust by the learned<\/p>\n
counsel   which   tempted   me   to   conclude   that   so   long   as   Clause   6(b)<\/p>\n
stands,   grantability   of   relief   No.1   in   the   light   of   the   judgments   in   Writ<\/p>\n
Appeals   should   receive   the   attention   of   the   respondents   first.     But   I<\/p>\n
notice that relief No.2 for quashing Clause 6(b)  had been made only as<\/p>\n
an  alternative  prayer.   In   fact  it   was  noticing  this  aspect  of  the  matter<\/p>\n
also   that   I   allowed   the   clarification   petition   by   the   order   which   is   now<\/p>\n
sought to be reviewed by filing RP No.411 of2006.  The crux question is<\/p>\n
whether  the  writ  petitioners  are   entitled  for   the  primary relief  that  they<\/p>\n
have   sought   for.     Even   the   respondents   have   conceded   by   issuing<\/p>\n
annexures A2 to A4 that the petitioners are entitled for the same.  If that<\/p>\n
be so, it is necessary on considerations of justice that the matter is not<\/p>\n
delayed   further   and   specific   directions   are   issued   to   the   respondents.<\/p>\n
Sri.K.K.   Ravindranath,   learned   Liaison   Officer   would   depict   what   he<\/p>\n
R.P. No.411\/06 & others<\/p>\n
                                             10<\/span><\/p>\n
described   as   the   grim   financial   position   of   the   Government   now.<\/p>\n
According   to   him  directing  release  of   the  monetary  benefits  which  will<\/p>\n
follow if writ petitions are allowed will impose a very heavy burden on the<\/p>\n
Government.  The above argument of the learned Liaison Officer will not<\/p>\n
go unnoticed.\n<\/p>\n<\/p>\n
       7. The grounds raised in RP No.411\/2006 are technically strong<\/p>\n
but having considered the merits of the matter, this Court cannot allow<\/p>\n
the   interests   of   the   technicalities   to   have   a   march   over   those   of<\/p>\n
substantial justice.  The result is that all the review petitions filed by the<\/p>\n
writ petitioners(R.P. Nos. 710, 705, 708, 709 and 730 of 2006) will stand<\/p>\n
allowed and R.P. No.411 of 2006 will stand dismissed.<\/p>\n
       The   common  judgment   dt.10.2.06   in   the   writ  petitions   will   stand<\/p>\n
reviewed.     All   the   writ   petitions   will   stand   allowed   directing   the   2nd<\/p>\n
respondent-Director of Higher Secondary Education to grant approval to<\/p>\n
the appointments given to the petitioners with effect from their date of<\/p>\n
appointment,  once it is seen that they are appointed without SET in the<\/p>\n
absence of SET qualified hands and they possessed all other required<\/p>\n
qualifications at the time of their appointment.   The petitioners who are<\/p>\n
eligible   for   approval   as   directed   above   will   be   entitled   for   release   of<\/p>\n
consequential   monetary   benefits.   But   actual   cash   payment   of   the<\/p>\n
monetary   benefits   need   be   made   only   prospectively   with   effect   from<\/p>\n
R.P. No.411\/06 & others<\/p>\n
                                        11<\/span><\/p>\n
01.01.2007.   The arrears due can be paid either by giving credit to the<\/p>\n
Provident   Fund   account   or   in   form   of   interest   fetching   Government<\/p>\n
Securities.  Orders as directed above will be issued by the respondents<\/p>\n
within two months of receiving copy of this order.\n<\/p>\n<\/p>\n
                                          PIUS C. KURIAKOSE, JUDGE<\/p>\n
btt<\/p>\n
R.P. No.411\/06 & others<\/p>\n
                           12<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court State Of Kerala vs Deepa Koshy on 23 January, 2007 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., […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-180953","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nState Of Kerala vs Deepa Koshy on 23 January, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-kerala-vs-deepa-koshy-on-23-january-2007-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Kerala vs Deepa Koshy on 23 January, 2007 - 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