K V DAISY Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioners are Higher Secondary School Teachers appointed in various schools in Trichur district during the academic years 1999-2000 and 2000-2001 before the judgment of the Supreme Court in M. M. Dolichan v. State of kerala (AIR 2001 S. C. 216) was rendered. According to them their appointments were either on the basis of Ext. P1 (a) Government Order or on the basis of Ext. P1 (b) interim order passed by the Supreme Court. They claim that the Supreme Court has per its final decree (Ext. P1) has declared that persons appointed under Ext. P1 (a) or Ext. P1 (b) are all persons duly appointed and their services are not liable to be cancelled. All the petitioners claim that they are entitled benefits of Ext. P1 decree of the Supreme Court. The Government has by promulgating Ext. p2 government Order regularized the appointments of all persons entitled for the benefits under Ext. P1 decree. The Director of Higher Secondary Education, the approving authority, has granted approval also to all these appointments. The petitioners claim that the posts against which they were appointed were all sanctioned posts as per the staff fixation orders of the Director during the years 1999-2000 and 2000-2001. The Government under Ext. P3 Government Order has granted retrospective sanction for the posts created and all the posts have retrospective effect from the date of commencement of the concerned academic year. Therefore the petitioners contend that they are eligible for salary as per the scale of pay admissible for Higher Secondary School Teachers for their entire approved service. Their grievance is that under Exts. P8 and P9 orders of the Government the salary due to the petitioners and similar teachers for the period prior to December 2001 on the pay scale applicable to the H. S. S. Ts. is withheld by the Government. Several years have passed since then. According to the petitioners, this court has through orders passed in identical cases held that there is no justification for withholding of admissible salary due to similarly circumstanced teachers. The Government did not file even counter affidavits in those cases. The Director of Higher Secondary Education through his letter Ext. P10 addressed the Government has supported the stand of the petitioners, so claims the petitioners. Exts. P11 and P11 (a) judgments according to them have attained finality. The Government has now issued Ext. P12 order pretending to confer the reliefs directed under Exts. P11 and P11 (a) to all teachers. But the petitioners state that the real objective behind Exts. P11 and P11 (a) is to deny the teachers the full salary which is due to them. On these allegations, the writ petitioners filed this writ petition initially for the following reliefs:

(2.) IT is a detailed counter affidavit which has been filed on behalf of the contesting respondents, namely the Government and the Secretary to the General Education Department. It is contended through this counter affidavit that the Government issued Ext. P8 order, G. O. (P) No. 56/2002/fin. Dated 16. 1. 2002 on account of the acute financial difficulties which the Government was experiencing. The Government Order was issued with the purpose of enforcing the austerity measures necessitated on account of the Government's financial crunch. Thereafter the Government promulgated Ext. P9 Government Order and provided that teachers who were appointed in the posts newly created as per Ext. P3 Government Order will be given salary on the scale of pay admissible to the Higher Secondary School Teachers with effect from 1st December, 2001 by cash and that salary for the period upto that date will be paid at rates admissible to Guest Lecturers. According to the counter affidavit, the petitioners and similarly placed Higher Secondary School Teachers are eligible for salary only at those rates. While fixing scale of pay for Aided School Higher Secondary School Teachers it has been clearly provided that the same will be subject to relevant Government Orders issued in that regard. Apart from that, the grant of approval to the appointments given to Aided Higher Secondary School Teachers including the petitioner was subject to the condition that they will claim salary as per scale of pay only with effect from 1. 12. 2001. If the Government is directed to pay arrears of salary to these teachers for the periods prior to 1st December 2001 on the admissible scale of pay, that will mean that the Government will be fastened with a very heavy financial commitment. This was why G. O. (MS)No. 56/2002/fin. dated 16. 1. 2002 and thereafter G. O. (MS ). No. 56/2002/g. Edn. dated 25. 1. 2002 was issued by the Government. As regards G. O. (MS) No. 56/2002/fin. Dated 16. 1. 2002 it is pointed out that the same is a general order which relates to all the Government employees in Kerala. According to the counter affidavit, the petitioners interpretation of the Supreme Court's order is not correct. The Supreme Court has only stated that the appointments given to the petitioners shall not be annulled and that the Supreme Court has not said anything about the salaries payable to the Teachers. This, according to the counter affidavit, is the reason why in G. O. (Rt ). No. 4528/2003/g. Edn. dated 5. 11. 2003 issued by the Government on the basis of the directions in O. P. No. 23810/02, the Government has provided that salary for the periods prior to 1. 12. 2001 will be at the rates applicable to Guest Lecturers. The financial commitment of the Government, if the request of the petitioners is to be upheld, will be Rs. 75 crores. The present grievance of the petitioners that they are being discriminated against those persons who have been appointed either by transfer or by deployment is without basis. As far as the petitioners are concerned, they are all fresh appointees. But as far as the appointees by transfer or by deployment are concerned, they are persons who were entitled for a definite scale of pay even prior to their appointment/deployment. It is not proper to deprive them of the salary which they were drawing on the ground that the Government has financial difficulties. But fresh appointees like the petitioners stand on a different footing. The petitioners have not questioned the orders of approval given to their appointments and they are not entitled to raise their present claims.

(3.) I have heard the arguments of Mr. Benoy Thomas, learned counsel for the writ petitioners and Mr. M. A. Thomaskutty, learned Government Pleader for respondents 1 and 2.