Kerala High Court
Katherine vs Secretary To Government on 7 March, 2002
Author: K. Balakrishnan Nair
Bench: K. Balakrishnan Nair
JUDGMENT K. Balakrishnan Nair, J.
O.P. No. 36781/2001 D
1. The point that arises for decision in this Original Petition is whether for satisfying the subject requirement in a High School, a HSA working since 1982 should be retrenched to accommodate a fresh hand appointed in the academic year 2000-2001 or whether the concept of minimum subject requirement can be invoked to retain the teacher with 18 years service. The brief facts necessary for the case are the following:
2. The first petitioner was appointed as UPSA on 5.1.1987 in the fourth respondent's school and her appointed has been approved. She was having B.A. and B.Ed. and therefore was qualified to be promoted as HSA (Social Studies). She was promoted as HSA (Social Studies) in a short term leave vacancy which arose on 6.6.1995. The said appointment was approved and on termination of the said vacancy, she was reverted. Again she was appointed in similar short spells as HSA (Social Studies), but the details of those appointments may not be relevant for this case. While so, a retirement vacancy arose and the first petitioner was appointed to that vacancy as per Ext. P2 order dated 5.6.2000. The said vacancy was created due to the retirement of a Social Studies hand. The second petitioner was appointed to the vacancy of UPSA whenever the first petitioner was being promoted as HSA in short term vacancies earlier. Finally, she was also appointed as UPSA in the regular vacancy created by the promotion of the first petitioner.
3. The petitioners submit that during the academic years 1997-98, 1998-99 and 1999-2000, as per the teacher - student of 1:45, there were only 15 posts of HSAs. But, applying the teacher - student ratio of 1:40 for retaining the existing hands, 17 posts were sanctioned during these years and in those posts, the fifth respondent and one Smt. K.J. Katherine were retained.
4. But, during the academic year 2000-2001, the District Educational Officer did not apply the ratio 1:40, but applied only the ratio of 1:45 and 15 vacancies alone were sanctioned. During that academic year, one vacancy of HSA and one vacancy of UPSA arose as a result of retirement. The staff fixation for the year 2000-2001 is Ext. P14. As per the DPI's Circular governing subject requirement, when 15 posts of HSAs are sanctioned, it should be allotted to various Subjects in the following manner:
HSA (General Science) - 5 (Physical Science-3, Natural Science-2) HSA (Maths) - 5, HSA (Social Studies) - 5.
But the actual strength available at the beginning of the academic year was:
HSA (Social Studies) - 3 HSA (Maths) - 5 HSA (Science) - 8.
Among the four Social Studies hands, who worked during the previous year, one retired from service on 31.3.2000 and as a result the strength of Social Studies hands was reduced to 3 during 2000-2001.
5. Pursuant to Ext. P14 staff fixation order, the District Educational Officer issued Ext. P15 order directing the Manager to accommodate the fifth respondent (HSA Natural Science) against the retirement vacancy of the Social Studies hand and it was also ordered that Smt. Katherine shall be accommodated in the retirement vacancy of the UPSA. As a result of this order, there was no vacancy to accommodate the first petitioner as HSA and also no vacancy to accommodate the second petitioner as UPSA. The Manager filed an appeal against Ext. P14 order of staff fixation of the District Educational Officer, which was allowed in part by the Deputy Director of Education by Ext. P17 order dated 30.12.2000. The Deputy Director affirmed the order of the District Educational Officer directing the retention of the fifth respondent in the vacancy of HSA available as a result of retirement of a Social Studies hand. Since Smt. Katherine was facing retrenchment, she was ordered to be retained in the High School by applying the teacher-student ratio of 1:40. Against Ext. P17, the Manager filed Ext. P18 revision before the Director of Public Instruction which was disposed of by the Joint Director of Public Instruction by Ext. P19 order. The Joint Director affirmed the Deputy Director's order as far as it concerned the fifth respondent. But, without notice to anyone, he reversed the order of the Deputy Director to the extent it ordered to retain Smt. Katherine as HSA. Challenging this order, Smt. Katherine has filed O.P. No. 15944/2001 and obtained stay of Ext. P19 to the extent it affected her. Against Ext. P19, the petitioners field Ext.P20 revision before the Government. The Government as per the direction of this Court, heard the case and issued Ext.P22 order dated 18.10.2001 affirming the order of the Joint Director. The Government held that since three Social Studies hands were available in the School, three teachers will be sufficient to handle the Social Studies classes. The maximum periods of Social Studies in a week will be only 75 and each teacher can take 25 periods and therefore the subject requirement is satisfied. The Government also found that the teachers retained in the school applying the ratio of 1:40 should be absorbed in future vacancies. It need not be in the vacancies of identical posts and therefore the government upheld the direction to absorb Smt. Katherine as UPSA. The petitioners challenge Exts. P19 and P22.
6. The impugned orders are attacked mainly on two grounds. The first ground is the Ext.P22 has not been passed by the Officer who heard the case. In other words, the principle of natural justice that he who heard must decide, has been violated. The decision of the Government in Ext. P22 is an institutional decision and not of one individual. Further, the principles of natural justice have been evolved to secure justice and not to thwart it. The decision rendered as per Ext. P22 is a statutory order passed in a statutory revision petition objectively on the basis of the facts and law applicable to the case. In other words, it is not an order passed in the discretion of the Government. It is a fairly settled position in law that if the decision impugned is one of a statutory Tribunal which must decide according to law, the violation of natural justice can be ignored, if the petitioner does not have a case on merit. But, where the decision is rendered in the discretion of the decision maker, the personal hearing may change his heart. Therefore, lack of hearing would cause serious prejudice. In the case at hand, the decision being an objective decision in accordance with law, violation of the principles of natural justice can be ignored. H.W.R. Wade and C.F. Forsyth in their "Administrative Law" (8th Edition) deal with this aspect in the following manner:
"A distinction might perhaps be made according to the nature of the decision. In the case of a Tribunal which must decide according to law, it may be justifiable to disregard a breach of natural justice where the demerits of the claim are such that it would in any case be hopeless. But in the case of a discretionary administrative decision, such as, the dismissed of a teacher or the expulsion of a student, hearing his case will often soften the heart of the authority and alter their decision, even though it is clear from the outset that punitive action would be justified."
7. Having regard to the nature of the decision involved in this case, I hold that for satisfying the requirement of the principles of natural justice, this case need not be remanded. The second point urged by the petitioners is that having regard to the subject requirement, the fifth respondent and Smt. Katherine (HSA Natural Science) are liable to be retrenched and the appointment of the first petitioner as HSA (Social Studies) is liable to approved. The teachers for the core subjects are to teach their concerned subject as well as English. The periods for the concerned subject will be divided among the existing hands in the concerned subject and the balance periods available for the teacher will be allotted to teach English. In the case at hand, the periods of Social Studies will not exceed 75. Therefore, the existing three Social Studies hands can teach upto 75 periods. So, the English periods which they would have taken can be allotted to the excess Science Teachers. In view of the existence of three Social Studies hands in the school during the academic year 2000-2001, the minimum subject requirement is satisfied. Therefore, the fifth respondent and Smt. Katherine can be retained in the school. The fifth respondent can be adjusted in the High School with the teacher-student ratio of 1:45 Smt. Katherine can be adjusted by lowering the teacher-student ratio to 1:40. But, the learned counsel for the petitioners submits that this concept of minimum subject requirement will apply only in the case of promotions, but will not apply to retrenchment. I find it difficult to uphold this view. If the said contention is accepted, a UPSA can be promoted on the first of June of an academic year applying the concept of minimum subject requirement. But, when the staff fixation order comes on July 15th of that academic year, the very same teacher will have to be retrenched applying the concept of subject requirement, as the concept of minimum subject requirement cannot be invoked to retain him. I find that such an interpretation cannot be accepted. Further, the fifth respondent has continuous service as HSA from 1982 onwards. The DPI issued the first circular enforcing the ratio of 1:1:1 in the matter of subject requirement of 13.5.1985. In paragraph 10 of that circular it has been specifically provided that the existing staff should not be retrenched for satisfying the subject ratio. In subsequent circular issued in 1995 also, this principle of protection of existing hands has been reiterated. Therefore, in any view of the matter, the fifth respondent is entitled to be retained in service in preference to a promotee appointed in the year 2000. Therefore, the Original Petition is disposed of with the following directions.
8. The fifth respondent shall be retained as HSA in he retirement vacancy of Social Studies hand. Smt. Katherine, the petitioner in O.P. No. 15944/2001 will be retained as HSA applying the teacher - student ratio of 1:40. The order in her favour issued by the Deputy Director has been reversed by the Joint Director without notice or hearing. Even otherwise, the absorption in future vacancies must normally be in the identical post. Only in the absence of existence of an identical post. absorption in other post need be considered. IN the case at hand, in view of Ext. P11 G.O., Smt. Katherine is entitled to be retained as HSA. The first petitioner herein will be retained as UPSA and the second petitioner will be thrown out from service for the academic year 200-2001. Exts. P19 and P22 will stand modified to the above extent.
O.P. Nos. 21169 & 15944/2001
9. The directions issued in the above case will govern these cases also.