AI Structured Summary
Not yet generated for this judgment
Judgment
Antony Dominic, J.—Petitioner is a Post Graduate in Physics with B.Ed. She was appointed under Rule 9(a)(1) of the Rules as a Non Vocational Lecturer. From the pleadings, it would appear that she rendered almost 10 years of service and the last order extending her the period of appointment is Ext.P1.
She claimed regularization by filing OP No. 11968/02 and during its pendency, her services were dispensed with from 31/3/2003. In the meanwhile, Government issued Ext.P2 order dated 26/8/02 directing continuance of persons like the petitioner in deserving and exceptional cases. Ext.P2 to the extent it is relevant, reads as under:
Government have examined the matter in detail and are pleased to order that the services of the provisional employees continuing in service asper the Circular No. 9516/Adv.Cl/02/P&ARD dated 9.3.95 and Government letter No. 9516/Adv.Cl/92/P&ARD dt 17.3.98 will not be regularised. It is also ordered that each case of the provisional employees continuing in service as per the Circular No. 9516/Adv.Cl/92/P&ARD dt 9.3.95 will be examined and those deserving exceptional consideration on humanitarian grounds may be permitted to continue in service purely on a provisional basis, invoking Rule 39 of the Kerala State and Subordinate Service Rules without regularising their services. The concerned Administrative Departments will take necessary further action in the matter accordingly.
Taking note of Ext.P2, OP No. 11968/02 filed by the petitioner was disposed of by Ext.P3 judgment directing consideration of her representations in the light of Ext.P2. Accordingly, her claim was considered and Ext.P4 order was issued by the 1st respondent on 23/9/03 declining her claims for regularization, but however, ordering that the petitioner be engaged as a Guest Lecturer. The relevant portion of the order reads as under:
Government examined the case in detail in consultation with P&ARD and are pleased to order as follows in compliance with the direction of the Hon''ble High Court in its judgment read above.
(i) Since the petitioners'' appointment in Vocational Higher Secondary Education Department is purely on temporary basis under Rule 9(a)(i) of General Rules, she has no right to claim regularization in service. Therefore, the request is rejected. The incumbent will be terminated with immediate effect.
(ii) Taking a lenient view, Smt. Asha K.S. may be engaged as Guest Lecturer after termination of her provisional service, following the present practice in engaging Guest Lecturer in the Vocational Higher Secondary Education Department.
Asserting the petitioner''s claim for continuance on the strength of Ext.P2, she again filed WP(C) No. 35978/03. That writ petition was disposed of by Ext.P5 judgment rendered on 11th of December, 2003. In Ext.P5, taking note of the fact that several persons similar to the petitioner were continuing in service, this Court held that she is entitled to continue in service on the strength of Ext.P2 order. On that basis, the contention of the learned Government Pleader that there was no vacancy to accommodate the petitioner in the school concerned was rejected. Finally, taking note of the realities, this Court held that the petitioner will be considered for engagement in the next arising vacancy.
Immediately after Ext.P5 judgment was rendered, petitioner submitted Ext.P6 representation to the 3rd respondent. The 2nd respondent also issued Ext.P7 directing the 3rd respondent to implement Ext.P5 judgment. There was no progress in the matter. Therefore, the writ petition was filed praying essentially for appointment of the petitioner as a Non Vocational Lecturer in Physics in terms of Ext.P2 Government Order.
Counter affidavit has been filed by the respondents, in which, the main contention is that by GO(P) 81/04/G.Edn. dated 12/3/04, the qualification for Non Vocational Teachers in Vocational Higher Secondary Schools have been prescribed by the Government as per the Kerala Vocational Higher Secondary Education Subordinate Services Rules 2004. It is stated that among the qualifications prescribed, pass in the State Eligibility Test is one of the qualifications and that the petitioner does not possess the said qualification. It is stated that therefore, the petitioner is ineligible for continued engagement.
Thus, the question that arises for consideration is whether absence of pass in the State Eligibility Test (SET) is a disqualification for the petitioner to be engaged as Non Vocational Teacher. In my considered view, this cannot be. As can be seen from Ext.P2, this order was issued by the Government as early as on 26/8/02 directing continued engagement of the Non Vocational teachers. The claim of the petitioner for continuance on the strength of Ext.P2 was upheld by this Court in Ext.P5 judgment rendered on 11/12/03. It is accepting this claim of the petitioner that this Court directed that the petitioner be considered against the next arising vacancy. It was subsequent to Ext.P5 judgment that Special Rules were framed. Therefore, the right of the petitioner for continued engagement, (not for regularization) was upheld by this Court in Ext.P5 judgment. If that be so, the continued engagement could not have been denied to her on the ground that she did not possess the SET qualification as prescribed in the Special Rules framed in 2004. In addition to this, according to the petitioner, several other teachers are continuing in service on the strength of Ext.P2 and they have not passed SET. If that be so, irrespective of the fact that the petitioner has not passed SET, petitioner is entitled to be engaged on the strength of Ext.P2.
In view of this, the writ petition is disposed of directing the 3rd respondent to engage the petitioner as Non Vocational Teacher in terms of Ext.P2 Government Order as directed in Ext.P5.
Petitioner shall produce a copy of this judgment before the 3rd respondent for compliance.