Kerala High Court
The District Educational Officer vs Liji Devassy on 10 March, 2020
Bench: A.M.Shaffique, P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
TUESDAY, THE 10TH DAY OF MARCH 2020 / 20TH PHALGUNA, 1941
WA.No.1922 OF 2018
AGAINST THE JUDGMENT DATED 16.01.2018 IN WP(C) 12141/2017(P) OF
HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 2 TO 4 IN WP(C):
1 THE DISTRICT EDUCATIONAL OFFICER,
ALUVA, ERNAKULAM DISTRICT.
2 THE DEPUTY DIRECTOR OF EDUCATION,
ERNAKULAM DISTRICT-11.
3 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
BY SMT. RAJI. T. BHASKAR-G.P.
RESPONDENTS/PETITIONER & 1ST RESPONDENT IN WP(C):
1 LIJI DEVASSY,
H.S.A.(MALAYALAM),
ST.JOSEPH'S HIGH SCHOOL, KIZHAKKAMBALAM,
RESIDING AT KURUNGAMPILLI HOUSE,
ERUMATHALA, CHUNANGAMVELI 683 105.
2 THE MANAGER,
ST. JOSEPH'S HIGH SCHOOL,
KIZHAKKAMBALAM, ERNAKULAM-683 562.
R1 BY ADV. SRI.S.MUHAMMED HANEEF
R2 BY ADV. SMT.SHAIMA VAHAB
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10.03.2020,
ALONG WITH WA.2006/2018, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WA.No.1922 OF 2018 & Con.case 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
TUESDAY, THE 10TH DAY OF MARCH 2020 / 20TH PHALGUNA, 1941
WA.No.2006 OF 2018
AGAINST THE JUDGMENT DATED 16.01.2018 IN WP(C) 1213/2017(B) OF
HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 2 TO 5 IN WP(C):
1 THE DISTRICT EDUCATIONAL OFFICER
ALUVA, ERNAKULAM DISTRICT.
2 THE DEPUTY DIRECTOR OF EDUCATION,
ERNAKULAM DISTRICT- 11
3 DIRECTOR OF PUBLIC INSTRUCTIONS,
THIRUVANANTHAPURAM.
4 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
GENERAL EDUCATION DEPARTMENT ,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM- 695001.
BY SMT. RAJI. T. BHASKAR-G.P.
RESPONDENTS/PETITIONER & 1ST RESPONDENT IN WP(C):
1 LIJI DEVASSY,
H.S.A (MALAYALAM)
ST.JOSEPH'S HIGH SCHOOL, KIZHAKKAMBALAM,
RESIDING AT KURUNGAMPILLI HOUSE,
ERUMATHALA, CHUNANGAMVELI 683 105.
2 THE MANAGER,
ST.ANTONY'S CHURCH CORPORATE EDUCATIONAL AGENCY,
ST.JOSEPH'S CENTRE KIZHAKKAMBALAM,
ALUVA, ERNAKULAM - 683 562
R1 BY ADV. SRI.S.MUHAMMED HANEEF
R2 BY ADV. SMT.SHAIMA VAHAB
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10.03.2020,
ALONG WITH WA.1922/2018, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WA.No.1922 OF 2018 & Con.case 3
JUDGMENT
[ WA.1922/2018, WA.2006/2018 ] Dated this the 10th day of March 2020 Shaffique,J.
These Writ Appeals have been filed by the State and its officers challenging judgment dated 16.01.2018 in WP(C)Nos.12141 and 1213 of 2017 of the learned Single Judge.
2. The short facts of the case would disclose that the writ petitioner was appointed as HSA (Malayalam) in a retirement vacancy on 3.6.2013. She continued to work in St.Joseph's High School, Kizhakkambalam. However, her appointment was not approved by the Educational Authorities on the ground that there was a division fall of one post during the academic year 2013 - 2014 and yet another division fall during the academic year 2014-2016. She being the junior most among the teachers, her appointment cannot be approved is the stand taken by the Educational Authorities. The petitioner filed WP(C)No.1213 of 2017 WA.No.1922 OF 2018 & Con.case 4 challenging the denial of approval inter alia placing reliance on Ext.P12, by which the Government had fixed the teacher-student ratio at 1:35. The learned Single Judge having placed reliance on Ext.P12, observed that the said order is relied upon and if the ratio mentioned in 1:35 is to be considered, petitioner stands a chance for getting approval for appointment. Accordingly, a direction had been issued to the 2nd respondent/District Educational Officer to take up the issue of approval of petitioner's appointment with effect from 3.6.2013 and to consider the admissibility in the light of Ext.P12 order especially Clause 1(f).
3. In the meantime, petitioner had also filed WP(C)No.12141 of 2017 seeking a claim in respect of an anticipated vacancy during the academic year 2016-2017 that had arisen in the school as per the staff fixation order. It was inter alia contended that on account of increase in the student strength, additional vacancy was possible and therefore the WA.No.1922 OF 2018 & Con.case 5 petitioner sought for a direction to the 2nd respondent/District Educational Officer to sanction the post of HSA (Malayalam) based on the student strength of the said academic year. The learned Single Judge observed that the petitioner's appointment against subsequently arising vacancies by way of retirement or creation of new posts will also be considered by the 2nd respondent, if found necessary.
4. During the pendency of the above Writ Appeal, learned counsel for the writ petitioner produced Annexure R1(a) along with IA No. 1 of 2020 in WA No.1922 of 2018 inter alia stating that, though the petitioner was appointed in an anticipated additional vacancy for the academic year 2016-2017 on 1.6.2016 by the Manager of the School, the same was not approved as per Annexure R1(b) order dated 14.11.2017. It is stated that since a protected teacher is not appointed in the ratio 1:1, the petitioner's appointment cannot be approved. Apparently, Annexure R1(b) dated 14.11.2017 was not brought WA.No.1922 OF 2018 & Con.case 6 to the notice of this Court while the Writ Petition was being heard. In respect of the claim of the petitioner for approval of the anticipated additional vacancies, it shall be open for the petitioner to challenge Annexure R1(b) order in appropriate proceedings. It is also submitted that during the academic year 2017-2018, petitioner had already been accommodated in a retirement vacancy with effect from 24.1.2018, which has already been approved.
5. Presently we are only concerned about the judgment in WP(C)No.1213 of 2017 against which WA No.2006 of 2018 has been filed. The contention urged by the learned Government Pleader is that Ext.P12 order had been quashed by this Court in WP(C)No.30107 of 2013 and therefore no reliance is to be placed on Ext.P12. Ext.P12 apparently came to be issued on 23.12.2014. Petitioner was appointed on 3.6.2013. Of course, a contention had been urged by the learned counsel for the writ WA.No.1922 OF 2018 & Con.case 7 petitioner that during the relevant time, no fresh staff fixation orders had been issued and Government had directed the Schools to follow the staff fixation orders during the academic year 2010-2011 onwards. The learned Government Pleader submits that Ext.P11 Government Order (in WP(C)No.12141 of 2017) has been issued on 1.10.2011, wherein it was stated that, for the academic year 2011-2012, the staff fixation orders of 2010-2011 will be applicable and will be fixed as the sanctioned post in each school. It was further indicated that no filling up of additional division shall be allowed after 31.3.2011 except for posts which have not been filled up, though allowed in the staff fixation order during the year 2010-11. Still further, it was mentioned that only those appointments made after 31.3.2011 in regular vacancies due to promotion, resignation, death or retirement of the teachers in the schools sanctioned as per staff fixation order in 2010-2011 will be approved during the academic year 2011-2012. WA.No.1922 OF 2018 & Con.case 8 Clause (v) of paragraph 6 in Ext.P11 order further indicated that appointments made against additional division vacancies during the academic year will be treated only as daily wages and their approval will be considered only during the academic year 2013-2014. Clause
(vi) further provided that additional divisions/posts will be worked out by the respective Assistant Educational Officers/District Educational Officers on the basis of actual verified strength already determined for 2011-2012 or on the basis of revised strength to be submitted as in Clause(iv) whichever is lower. Learned Government Pleader further submits that as per the staff fixation order of 2013-2014, one post in HSA (Malayalam) has been reduced (Ext.P8). The contention urged by the learned counsel for the petitioner is that the staff fixation order had been issued only in the year 2016 and therefore when there was a retirement vacancy, it was proper on the part of the Manager to WA.No.1922 OF 2018 & Con.case 9 have appointed the petitioner during the academic year 2013-2014.
6. On a perusal of the counter affidavit and the materials placed on record would indicate that the student strength was computed during the relevant academic year itself and it was well within the knowledge of the Manager that one post would be reduced during the said academic year. Under such circumstances, when there was a reduction in the student strength, the Manager was well aware of the fact that there would be a division fall and therefore the Manager could not have given appointment to the petitioner during the academic year 2013- 2014. Same is the situation during the academic year 2014-2015 where there was a division fall of yet another post and therefore as on 2014- 2015, out of the five posts, only three posts existed.
7. As already stated, the learned Single Judge had placed reliance on Ext.P12 order where the Government had indented to have the WA.No.1922 OF 2018 & Con.case 10 teacher-student ratio to be fixed as 1:35. By judgment dated 15.1.2015 in WP(C)No.30107 of 2013 while considering a batch of writ petitions, this Court declared that G.O. (P)No.199/2011 dated 1.10.2011, G.O. (P)No.313/2013 dated 29.11.2013 and G.O. (P)No.3905/2013 G.Edn dated 24.9.2013 are nonest in the eye of law and the consequential executive orders issued in continuation of the said G.O.s were quashed. Apparently, Ext.P11 as well as Ext.P12 referred above had been quashed as nonest. Therefore, when declaration had been issued by this Court stating that Exts.P11 and P12 orders are nonest in the eye of law, no reliance can be placed on the said orders by any person to claim any benefit, under the said Government orders. Therefore, we have to proceed on the basis that 1:35 teacher-student ratio mentioned in Ext.P12 had not come into existence, when the Government order is declared to be nonest.
WA.No.1922 OF 2018 & Con.case 11
In the result, we are of the view that there is justification on the part of the State to contend that the direction issued by the learned Single Judge is liable to be set aside. The petitioner cannot aspire to get approval of appointment during the academic year 2013-2014.
In the result, these appeals are allowed. We set aside the judgment of the learned Single Judge, leaving open the right of the petitioner to challenge the Government Order Ext.R1(b) produced along with IA No.1 of 2020 in WA.No.1922 of 2018 in appropriate proceedings.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
GOPINATH P. JUDGE Sn WA.No.1922 OF 2018 & Con.case 12 APPENDIX OF WA.No.1922 OF 2018 RESPONDENT'S EXHIBITS Annexure R1(a) A TRUE COPY OF THE APPOINTMENT LETTER DATED 01.06.2016 ISSUED BY THE 2ND RESPONDENT Annexure R1 (B) A TRUE COPY OF THE ORDER BEARING NO.B3/3245/16 DATED 14.11.2017 ISSUED BY THE 1ST APPELLANT.
sn // TRUE COPY// PA TO JUDGE