Kerala High Court
Unknown vs By Advs.Sri.M.Sasindran on 15 March, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
THURSDAY, THE 15TH DAY OF FEBRUARY 2018 / 26TH MAGHA, 1939
WP(C).No. 32201 of 2015
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PETITIONER
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DEEPA K.V.,
H.S.A.(ENGLISH) P.M.S.A.P.T.S.V.H.S.S,
KAIKOTTUKADAVU, ELAMBACHI. P.O., PIN-671 311,
KASARAGOD DISTRICT.
BY ADVS.SRI.M.SASINDRAN
SRI.V.VENUGOPAL.
RESPONDENTS:
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1. STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
THIRUVANANTHAPURAM-695 001.
3. THE DISTRICT EDUCATIONAL OFFICER,
KASARAGOD-671 121.
4. THE MANAGER,
POOKOYA THANGAL SMARAKA- VOCATIONAL
HIGHER SECONDARY SCHOOL, KAIKOTTUKADAVU,
ELAMBACHI. P.O., PIN-671 311,
KASARAGOD DISTRICT.
5. VINOD KUMAR. B,
HIGH SCHOOL ASSISTANT(MATHS), KAIKKOTTUKADAVU,
ELAMBACHI. P.O., PIN-671 311, KASARAGOD DISTRICT.
6. SYAMKUMAR. A.V,
H.S.A.(MATHS), POOKOYA THANGAL SMARAKA
VOCATIONAL HIGHER SECONDARY SCHOOL,
KAIKOTTUKADAVU. P.O, ELAMBACHI,
KASARAGOD DISTRICT-671 311.
R1 TO R3 BY SR. GOVT. PLEADER SMT.MARY BEENA JOSEPH.
R4 BY ADV. SRI.P.M.PAREETH.
R5 & R6 BY ADV. SRI.POOVAMULLE PARAMBIL ABDULKAREEM.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 15-02-2018, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
rs.
07/03/2018.
WP(C).No. 32201 of 2015 (A)
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1 A TRUE COPY OF THE ORDER DATED 15-03-2005.
EXT.P2 A TRUE COPY OF THE ORDER NO.K.DIS.7785/08 DATED 18-03-2009.
EXT.P3 A TRUE COPY OF THE ORDER DATED 27-12-2011 ISSUED BY THE DIRECTOR
OF PUBLIC INSTRUCTIONS.
EXT.P4 A TRUE COPY OF THE ORDER DATED 13-02-2012.
EXT.P5 A TRUE COPY OF THE STAFF FIXATION ORDER IN THE YEAR 2009-2010
ISSUED BY THE DISTRICT EDUCATIONAL OFFICER KANHANGAD.
EXT.P6 TRUE COPY OF THE ORDER DATED 18-02-2012 ISSUED BY THE JOINT
DIRECTOR IN THE OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION.
EXT.P7 A TRUE COPY OF THE STAFF FIXATION ORDER OF THE YEAR 2010-2011.
EXT.P8 A TRUE COPY OF THE ORDER DATED 18-02-2012.
EXT.P9 A TRUE COPY OF THE JUDGMENT IN W.P.(C)NO. 20577/2012
DATED 08.08.2014.
EXT.P10 A TRUE COPY OF THE REVISION FILED BY THE PETITION BEFORE
THE 1ST RESPONDENT.
EXT.P11 A TRUE COPY OF THE ORDER DATED 04.06.2015 AS
G.O.(RT)2179/2015/DPI.
EXT.P12 A TRUE COPY OF THE CIRCULAR NO.9679/J2/99/G.EDN.
DATED 24.03.1999.
EXT.P13 TRUE COPY OF THE QUESTIONNAIRE FURNISHED TO THE
DY. DIRECTOR, KASARAGOD.
EXT.P13(A) TRUE COPY OF THE REPLY FURNISHED TO THE QUESTIONNAIRE.
RESPONDENT'S EXHIBITS:
EXT.R5A COPY OF THE NOTICE DATED 29/01/2011 ISSUED BY THE
3RD RESPONDENT.
EXT.R5B COPY OF THE AUIDT OBJECTION DATED 16/05/2015 ISSUED FROM THE
OFFICE OF THE DEPUTY DIRECTOR EDUCATION, KASARAGOD.
EXT.R5C COPY OF THE REPORT SUBMITTED BY THE DEPUTY DIRECTOR OF
EDUCATION, KASARAGOD.
EXT.R5D COPY OF THE PROCEEDINGS DATED 04/12/2015 ISSUED BY THE
4TH RESPONDENT RELIEVING THE PETITIONER FROM THE SCHOOL.
EXT.R5E COPY OF THE APPOINTMENT ORDER DATED 15/07/1996 WITH APPROVAL.
WP(C).No. 32201 of 2015 (A)
EXT.R5F COPY OF THE APPOINTMENT ORDER DATED 06/06/2001.
EXT.R5G COPY OF THE APPOINTMENT ORDER DATED 01/10/2002.
EXT.R5H COPY OF THE CIRCULAR DATED 26/02/2003.
EXT.R5I COPY OF THE GO(P) NO.149/2003/G.EDN. DATED 06/06/2003.
EXT.R5J COPY OF THE GO(MS) NO.132/09 DATED 17/06/2009.
EXT.R5K COPY OF THE JUDGMENT DATED 15/10/2009 IN WA NO.1077/2009.
EXT.R5L COPY OF THE ORDER DATED 16/10/2014 ISSUED BY THE
4TH RESPONDENT.
EXT.R5M COPY OF THE ORDER DATED 16/09/2014 ISSUED BY THE
4TH RESPONDENT.
EXT.R5N COPY OF THE ORDER NO.B5/7829/2014 DATED 28/09/2015.
//TRUE COPY//
P.S. TO JUDGE
rs.
07/03/2018.
P.V.ASHA J.
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W.P.(C).No.32201 of 2015
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Dated this the 15th day of February, 2018
JUDGMENT
The petitioner, who was appointed as H.S.A. (English) in the 4th respondent School, has filed this writ petition challenging the order Ext.P6 by which she was directed to be retrenched, while the excess teachers in Mathematics and Natural Science are ordered to be retained in the post of H.S.A. (English).
2. The petitioner was initially appointed as H.S.A. (English) in the 4th respondent School w.e.f. 02.06.2004 against the vacancy which arose when Sri.P.Hameed, who was an H.S.A in Mathematics but accommodated in the post of H.S.A. (English), had availed Leave Without Allowance.
3. The petitioner's appointment as per Ext.P1 W.P.(C).No.32201 of 2015 2 order for the period from 02.06.2004 to 04.12.2008 against the Leave Without Allowance vacancy of Sri.P.Hameed, which was sanctioned from 05.02.2004 to 04.02.2009 was approved as per endorsement dated 15.03.2005 in Ext.P1 order. Thereafter, he was appointed as per Ext.P2 order for the period from 05.12.2008 to 04.12.2013. That appointment was approved as per endorsement dated 18.03.2009. The 2 nd appointment was originally approved for the period upto 04.12.2013. It is stated that the approval was thereafter objected by the Deputy Director of Education pointing out that Sri.P.Hameed, who was on Leave Without Allowance became excess in the post of H.S.A. (Maths) and was retained in the post of H.S.A. (English) under 1:40 ratio, as he was the juniormost surplus teacher eligible for protection and deployment; and therefore there cannot be any appointment in such a vacancy. Thereafter, Director of Public Instruction (General) issued Ext.P3 order W.P.(C).No.32201 of 2015 3 dated 27.12.2011 cancelling the approval granted to the petitioner for the period from 05.02.2008 to 31.05.2009 and directing the District Educational Officer, Kanhangad to approve her appointment as H.S.A. (English) from 01.06.2009 in case it was otherwise in order.
4. It is pointed out by the learned counsel for the petitioner that the petitioner has been accommodated in the post of HSA (English) with approval from 1.6.2011 onwards. Therefore, the dispute is with respect to the period from 01.06.2009 to 31.05.2011.
5. The District Educational Officer thereafter passed Ext.P4 order, approving the appointment of the petitioner for the period from 01.06.2009 to 04.12.2013 and directing recovery from the pay of the petitioner for the period from 05.12.2008 to 31.05.2009. While continuing so, the staff fixation order for 2009-2010 was issued as per Ext.P5 W.P.(C).No.32201 of 2015 4 proceedings dated 17.12.2010. As per these proceedings 3 posts in Physical Science, 2 posts in Natural Science, 2 posts in Mathematics, 3 posts in Social Science and 2 posts in English, were sanctioned. It was further ordered that the excess hand in Natural Science - Smt. P.Asha sic Usha, who entered regular service as H.S.A. (Natural Science) on 15.06.1993, be retained against 3rd post of H.S.A. (Physical Science). Sri.B.Vinod Kumar appointed on 15.07.1996 as H.S.A. (Maths), was ordered to be retained in the leave vacancy of Smt.A.Latha, who was on Leave Without Allowance upto 13.08.2014. Sri.P.Hameed, H.S.A.(Maths) and Sri.P.Muhammed, H.S.A. (Social Science), who were on Leave Without Allowance, were retained against the posts of H.S.A. (English) on condition that substitute appointment should be only as H.S.A. (English). Ext.P5 order was revised by the Joint Director of Public Instructions on appeal by the W.P.(C).No.32201 of 2015 5 manager. As per Ext.P6 proceedings dated 18.2.2012, an additional post (3rd) was sanctioned in English and 3 posts were sanctioned in Social Science and it was directed that Sri Shyamkumar, who was the juniormost in Mathematics, should be retained in the post of Smt.Latha, HSA(Mathematics) who was on leave without allowance. Smt.P.Usha, who was excess in the post of HSA (Natural Science), was directed to be accommodated in the post of HSA (English) and Sri B.Vinodkumar was directed to be accommodated in the post of HSA (Mathematics) in the leave vacancy of Sri P.Mohammed retaining him in the post of HSA (English). It was further directed that Sri Kunhabdulla, HSA(SS) should be accommodated in the post of HSA (English). It was also directed that Smt.Deepa, who was continuing in the leave without allowance vacancy of Sri P.Hameed, has to be retrenched as he became excess in the post of HSA (Mathematics). It was also directed that as and when the Senior Teachers rejoin duty after the expiry of their leave, they should be accommodated in W.P.(C).No.32201 of 2015 6 accordance with the subject ratio against the vacancy of HSA in Physical Science and in the post of HSA (English). Even though the petitioner took up the matter before the Government, the said petition was rejected as per Ext.P11 order on the ground that the school is a newly sanctioned school and therefore protected teachers have to be appointed in the additional division vacancies. It was found that there were only 14 posts and 14 divisions for the year 2009-2010 applying Pupil Teacher Ratio (PTR) of 1:45. It was also found that one post became excess in English in the year 2010-2011. In the case of Sri Shyamkumar it was found that he got his first appointment on 14.8.1999 and thereafter he rejoined on 13.08.2004 and was continuing since then. As per Ext.P7 staff fixation proceedings, for the year 2010-11, 13 posts were sanctioned with reduction of one post in English.
6. The petitioner got appointment as HSA (English) from 2.6.2004 onwards which was occupied by HSA (Mathematics). The Government found that the W.P.(C).No.32201 of 2015 7 appointment of Shyamkumar as well as that of the petitioner cannot be approved. It was further found that though the post of HSA(English) occupied by Smt.Latha was available, Sri Shyamkumar cannot be granted approval against that vacancy and Deepa cannot be allowed to continue in 2009-2010 or 2010-2011. The petitioner has filed this writ petition challenging Ext.P11 order.
7. On a perusal of the staff fixation orders, it is seen that the DPI has accommodated the teachers after keeping the third post in Physical Science vacant. Originally, the DEO had accommodated Smt.Usha, who was the excess hand in Natural Science in the vacancy of HSA (Physical Science). By that arrangement all the teachers could continue. It was when the Joint Director of Public Instructions issued orders in appeal that the said arrangement was revised leading to retrenchment. By accommodating all the teachers in W.P.(C).No.32201 of 2015 8 Mathematics in the post of HSA (English), the educational authorities did not consider the requirement of at least one HSA in English who is qualified to teach English in the school. On account of the order passed by the Director of Public Instructions which was affirmed in the Government's order, the petitioner who was the only qualified hand was directed to be sent out.
8. Respondents filed a counter affidavit stating that the petitioner's appointment could not be approved beyond 4.12.2008 in the absence of post. It is stated that in the year 2009-2010 there were 14 posts altogether on creation of an additional post of HSA (English). It is admitted that there were 3 posts of HSA (English) in the year 2009-2010. The reason stated for retrenchment of the petitioner is that school being newly upgraded the vacancy of HSA (English) additionally created during 2009-2010 should have been earmarked W.P.(C).No.32201 of 2015 9 for accommodating a protected teacher.
9. But it is to be noted that the post of HSA (English) was created for the first time in the year 2002, with effect from 07.01.2002. As per orders which were in force at the relevant time, i.e, in 2009-2010, when the additional post in English was sanctioned, protection was available only to those teachers who were in service as on 15.7.1997. Therefore, there is no question of any protected teacher being available in the post of HSA (English) in the year 2009-2010. Therefore, the reason stated by the respondents for directing her retrenchment or to approve her retention in the year 2009-10, is absolutely unsustainable and without application of mind. Therefore, the direction to retrench the petitioner in the staff fixation for 2009- 10 is unsustainable.
10. Once the petitioner is found to be eligible to be accommodated in a sanctioned post of HSA English, W.P.(C).No.32201 of 2015 10 in the year 2009-10, the petitioner shall not be retrenched in the staff fixation for the year 2010-2011. Government found that the additional post sanctioned in 2009-10 lapsed in 2010-11 and therefore it cannot be allowed in the subsequent years. The petitioner, being the only qualified hand in English, he is entitled to be retained in the post in preference to any teacher in another subject. Protection from retrenchment was given only to those teachers in core subjects as on 07.01.2002 on account of introduction of English post. Moreover, it is stated that there were 5 posts in Science with internal ratio of 3 posts for Physical Science and 2 posts for Natural Science and the DEO had originally accommodated Smt.Usha in the third post of HSA (Physical Science) without disturbing the minimum subject ratio. But it was revised by the DPI shifting her to the post of HSA English. It is seen that in 2010-2011 also, the third post in HSA (Physical Science) continues. W.P.(C).No.32201 of 2015 11
11. When there is no teacher qualified to teach English in the school in 2010-2011 despite the creation of post of HSA (English) as per G.O.(MS).No. 11/02/G.Edn. dated 7.1.2002 in order to improve the standard of teaching in English and to see that there are qualified teachers to take classes in English observing minimum subject requirement, the staff fixation has to be made on the basis of the hours of work for each subject. Rule 6(I) of Chapter XXIII KER was introduced with effect from 07.01.2002 with the intention to have at least one teacher to teach English in tune with the hours of work, while protecting those teachers who were then in service in core subjects i.e, as on 07.01.2002. Therefore, going by the true spirit and intent behind the aforesaid rules, the educational authorities ought to have issued the staff fixation order accommodating the petitioner who was the only teacher qualified in English and who had every right to continue in a W.P.(C).No.32201 of 2015 12 sanctioned post in English in the previous academic year 2009-10, instead of accommodating teachers in other subjects in the posts sanctioned in the subject English. That was possible if Smt.Usha, who became excess in Natural Science was accommodated in the 3 rd post of HSA (Physical Science), instead of retaining her in the post of HSA (English), teachers in other subjects with lesser service were not accommodated in English subject. The requirement to have teachers in English subject has already been found by this Court in the judgment in Minimole v. State of Kerala:2012(2) KLT 719 and the requirement to have teaches who are qualified for each subject was found by the Apex Court in Deepa Augustine v. Geetha Alex:2008(2) KLT 771.
Therefore, there shall be a direction to the 3 rd respondent to issue orders accommodating the petitioner against the additional post of HSA (English) in the year 2009-2010 and retaining her in 2010-2011 also without W.P.(C).No.32201 of 2015 13 disturbing the other teachers as directed above. This shall be done within a period of one month. The petitioner shall be granted all consequential benefits also, within a further period of 3 months.
This writ petition is allowed accordingly.
Sd/-
P.V.ASHA, JUDGE.
Ww/rtr