Kerala High Court
Satheesan.T vs The Dy. Director Of Education on 14 June, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
MONDAY, THE 12TH DAY OF NOVEMBER 2012/21ST KARTHIKA 1934
WP(C).No. 21008 of 2012 (A)
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PETITIONER(S) :
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SATHEESAN.T., AGED 48 YEARS,
S/O.NARAYANAN NAIR, THANDALAT HOUSE, KEEZHPAYUR.P.O.,
MEPPAYUR VIA, KOZHIKODE - 673 524
PRESENTLY WORKING AS UPPER PRIMARY SCHOOL ASSISTANT,
KEEZHPAYUR AIDED UPPER PRIMARY SCHOOL, KOZHIKODE.
BY ADVS.SRI.SIBY MATHEW
SRI.PHILIP J.VETTICKATTU
RESPONDENT(S) :
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1. THE DY. DIRECTOR OF EDUCATION,
KOZHIKODE - 673 001.
2. THE ASSISTANT EDUCATION OFFICER (AEO),
MELADY, KOZHIKODE-673 522.
3. THE HEADMASTER,
A.U.P.SCHOOL, KEEZHPAYUR - 673 524.
4. STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
GENERAL EDUCATION (G) DEPARTMENT, SECRETARIAT,
TRIVANDRUM - 695 001.
R1, R2 & R3 BY SRI.M.A.FAYAZ, SR. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AMV
WP(C).No. 21008 of 2012 (A)
APPENDIX
PETITIONER(S) EXHIBITS :
P1. : COPY OF STAFF FIXATION ORDER FOR THE AUP SCHOOL, FOR
THE YEAR 2011 - 2012.
P2. : COPY OF CERTIFICATE ISSUED BY THE 3RD RESPONDENT TO
THE EFFECT THAT THE PETITIONER HAS COMPLETED 23 YEARS
IN SERVICE ON 20.06.2008.
P3. : COPY OF ORDER ISSUED BY THE 1ST RESPONDENT
NO.B4/16292/10, DT: 09.08.2012.
P4. : COPY OF G.O.(P) NO.226/03/G.EDN DATED 14.06.2003.
P5. : COPY OF REPRESENTATION, DATED 18.08.2012 SUBMITTED BY
THE PETITIONER.
P6. : COPY OF ORDER NO. A4/12335/08 DATED 22.08.2008
TRANSFERRING THE PETITIONER TO HIS PARENT SCHOOL.
RESPONDENTS' EXHIBITS : NIL
/TRUE COPY/
P.A.TO JUDGE
AMV
P.R.RAMACHANDRA MENON, J.
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W.P.(C) NO.21008 of 2012 (S)
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Dated this the 12th day of November, 2012
JUDGMENT
Deployment of the petitioner from the Upper Primary School at Keezhpayur, Kozhikode to the GLPS Kakkanchery as per Ext.P3 order dated 09.08.2012 is under challenge. Case of the petitioner is that, by virtue of Ext.P4 G.O dated 14.06.2003, the petitioner having more than 23 years of service, is entitled to be retained in the parent school.
2. The petitioner joined the UP School Keezhpayur as a UPSA, initially in a leave vacancy on 12.09.1985 and was continuing in the said school ever since then. But in 1997, due to division fall, he came to be designated as a Protected Teacher and was redeployed to GMUPS, Kappad and thereafter to the Government Vocational Higher Secondary School, Payyanackal. Later, in the year 2008, the petitioner was brought back to the parent school where he was continuing as above, till the displacement caused vide Ext.P3.
3. The petitioner became aggrieved on being served with W.P.(C) NO.21008 of 2012 (S) 2 Ext.P3 order dated 09.08.2012, whereby he along with eight other teachers came to be transferred/redeployed. According to the petitioner, all the others enlisted in Ext.P3 were caused to be posted/transferred on the basis of their requests; while there was no such request from the part of the petitioner at any point of time. The petitioner contends that, the Government, as per G.O(P) No.403/2002/G.Edn., dated 04.12.2002, ordered that, teachers having 25 years of service, close relatives of Jawans, handicapped persons with 40% permanent disability etc., should be permitted to continue in the same school under protection.
4. The rigor of the said condition was subsequently modified/reduced from bringing down the length of service from 25 years to '23 years' for availing the said benefits, vide Ext.P4 G.O(P) No.226/03/G.Edn. dated 14.06.2003. Referring to Ext.P2 certificate issued by the Head Master of the School, the petitioner points out that, he has completed much more than 23 years of service and has acquired eligibility to have the benefit of 'selection grade' on completing 23 years on 20.06.2008. The petitioner also contends with reference to Ext.P1 staff fixation W.P.(C) NO.21008 of 2012 (S) 3 order for the year 2011-12 that, even as per the staff fixation order prevalent for the year 2011-12, the petitioner has been retained in the same school/parent school and as such, the petitioner could not have been redeployed now vide Ext.P3. It is also pointed out that, the impugned order virtually has reverted the petitioner from the grade of UPSA to LPSA, the transferred school to which the petitioner has been redeployed being a Government Lower Primary School which falls under the Koyilandy Sub District. Placing reliance on the decision rendered by this Court in Manager, M.M.U.P.School Vs. Deputy Director of Education [2011 (1) KLT 663], it is asserted that a UPSA cannot be sent out to hold the post of LPSA, the two posts being different and distinct and thus seeks to set aside Ext.P3 order.
5. The first respondent has filed a counter affidavit mainly contending that, the petitioner does not have any vested right to continue in the parent school, more so, being a protected hand who was redeployed from the existing school pursuant to a division fall as early as in the year 1996-97. After rendering W.P.(C) NO.21008 of 2012 (S) 4 service in different schools as above, the petitioner was transferred back to the parent school with effect from 01.09.2008 and was continuing there. With regard to the factual position it is pointed out that, in the parent school of the petitioner (Keezhpayur E.U.P School), only three devisions are there i.e., from 5th standard to 7th standard, having one devision each. In fact, the said school is having 'eight' teachers, whereas the required strength is only 'six', including language teachers. The petitioner was allowed to continue in the parent school from 2008 only due to "fortune" and by "oversight" on the part of the department and that salary was being paid to the petitioner without any work. Various GO's have been issued by the Government at different points of time offering a helping hand to see that, the teachers, pursuant to division fall and such other circumstance, do not lose their salary and it was accordingly, that they were being redeployed to other schools. The fact that the petitioner came to be a protected hand in 1996-97 and was deployed to other schools is not disputed. There is also no case for the petitioner that, he was having the requisite extent of 23 W.P.(C) NO.21008 of 2012 (S) 5 years of service as envisaged in Ext.P4 G.O in 1996-97 when he came to be deployed as a protected hand and was deployed to some other school. It is further stated that, the redeployment of the petitioner to the school at Kakkancherry is not as a 'LPSA' but only to assist the Head Master in the said school by virtue of the fact that the Head Master happens to be the implementing officer of the Ulliyery Grama Panchayath. It is further pointed out that, the petitioner does not have any B.Ed, but for 'TTC' and as such, the reliance sought to be placed on the decision rendered in 2011 (1) KLT 663 (cited supra) referring to the distinction between the two posts of UPSA and LPSA based on their respective qualifications required, is quite out of place. It is also pointed out in the counter affidavit that, the school to which the petitioner has been transferred/redeployed is hardly 20 kms away from the present school and that Ext.P4 Government Order is not applicable to the case of the petitioner.
6. The petitioner has filed a reply affidavit and I.A No.13459/2012 producing copy of the order No.A4/12335/08 dated 22.08.2008, whereby the petitioner was brought back to W.P.(C) NO.21008 of 2012 (S) 6 the parent school at that point of time.
7. Heard the learned counsel for the petitioner as well as the learned Government Pleader appearing for the respondents at length.
8. Going by the pleadings and proceedings, this Court finds that, there is no dispute with regard to the fact that the petitioner came to be a protected hand, one and half decades ago in 1996-97 and was continuing in different schools pursuant to redeployment, till he was brought back to the parent school as per Ext.P6 order dated 22.08.2008 issued by the first respondent. Ext.P4 GO was issued on 14.06.2003 i.e., much after the change in status of the petitioner as a protected hand in 1996-1997, presumably as a matter of policy. As per G.O.(P) No.178/2002/G.Edn. dated 28.06.2002, the Government issued guidelines for redeployment of protected teachers of aided school in the State. As per the subsequent G.O dated 04.12.2002, among other things, close relatives of Jawans, teachers having 25 years of service, handicapped persons with 40% disability and the like were permitted to continue in the same school, under W.P.(C) NO.21008 of 2012 (S) 7 protection. Pursuant to several subsequent representations, the enabling provision was widened by reducing the length of service of 25 years to 23 years in the case of teachers who have got selection grade, to be retained in the same school. At the time of issuance of the said G.O., the petitioner was admittedly working in some other redeployed school and hence it was not having any application to the case of the petitioner in hand. The petitioner presses for applying the said GO after coming to the parent school in the year 2008 i.e., about 'ten' years after the redeployment vide Ext.P6. Prima facie the said GO applies to persons who are continuing in the same school with sufficient tenure and selection grade, to be spared in the case of any division fall and redeployment, so as to be retained in the same school. Whether it intends to bring back the teachers who were already redeployed to some other schools on completing 23 years of service is not discernible therefrom. As such, this Court finds it difficult to accept the proposition raised by the petitioner.
9. But the fact remains that, the petitioner was brought back to the parent school in the year 2008. The first respondent W.P.(C) NO.21008 of 2012 (S) 8 contends in Paragraph 5 of the counter affidavit that, it was only due to 'fortune' and by way of 'oversight' on the part of the department, referring to the fact that, only 'three' divisions are there in the parent school with the requirement of just 'six' teachers; whereas a total of eight are continuing as on date. But on going through Ext.P6 order dated 22.08.2008, whereby the petitioner was brought to the parent school, it is seen that, reference is made to G.O.(Ms).No.133/07/G.Edn. dated 03.07.2007. The first respondent has observed in Ext.P6 that, no application to cancel the redeployment/transfer and posting shall be entertained by the Head Masters to be forwarded to the office of the first respondent and that if any protected teacher is already working in the post to which the teachers mentioned in Ext.P6 have been transferred/redeployed, such protected teachers who are already working there shall be sent back to the parent school. It was accordingly that, the petitioner also came back to the parent school, which prima facie is not liable to be reckoned as by virtue of any 'mistake' of the department or the 'fortune' of the petitioner, in the absence of further details. W.P.(C) NO.21008 of 2012 (S) 9
10. It is relevant to note that, the petitioner's name stands included in Ext.P1 staff fixation order for the year 2011-12 and on the last page, it has been clearly mentioned under 'Note 3
(b)', that the petitioner has been retained (until further orders) based on G.O.(P) No.226/03 i.e., Ext.P4. In other words, the petitioner was permitted to continue in the parent school referring to the eligibility norms in Ext.P4. It also remains a fact that, the petitioner who is working as a UPSA (though on the basis of the TTC which was the requisite basic qualification for being appointed to the post in question at that point of time) has been transferred to the LP School at Kakkancherry, where there cannot be any post of UPSA. There is no such case for the respondents as well, who only says that, it is just to assist the Head Master who happens to be the implementing officer of the Ulliyery Grama Panchayath. The learned Government Pleader submits that, the petitioner is not required to teach any student and that no teaching hours are allocated to him and the work is rather administrative, to assist the Head Master. Crux of the law declared by this Court as per decision reported in 2011 (1) KLT W.P.(C) NO.21008 of 2012 (S) 10 663 (cited supra) is that, the post of UPSA and LPSA are distinct and different and on arising a contingency, a UPSA cannot be sent out to accommodate a senior LPSA and that, if the contingency is in the LPSA section, the junior most LPSA himself/herself has to be sent out. If there is no post of UPSA in the transferred school, in what capacity the petitioner has been sought to be accommodated, even if it is to assist the Head Mater, is not discernible.
11. True, there is no dispute with regard to the fact that, there are only 'three' divisions in the parent school of the petitioner and that the required number of teachers is only 'six', including the language teachers; whereas the total existing strength as on date is 'eight'. This virtually reveals that, the petitioner was continuing there right from 2008 obtaining salary virtually without being alloted any work/sufficient work. The amount being paid by way of salary, is naturally part of a public funds and it has to be properly and effectively utilized, by making use of the service of the person concerned in a legally permissible manner. No specific GO has been brought to the notice of this W.P.(C) NO.21008 of 2012 (S) 11 Court from either side, to suggest that, on completion of 23 years of service and on awarding selection grade, a teacher has to be brought back to the parent school in spite of non availability of vacancy to accommodate him/her. If there is no such enabling GO, under what circumstance the petitioner was brought to the parent school in the year 2008 as per Ext.P6, is not known. If there is no such provision, the surplus hands are definitely to be redeployed to prevent drainage of public funds; but to a proper school where the person can be legally accommodated.
12. It is also seen that, to extend the benefit of Ext.P4 GO, the person concerned should be a teacher having 23 years of service "and have obtained" the selection grade. Whether the teachers who are eligible to obtain selection grade is enough, is not clear from the GO. The petitioner's case with reference to Ext.P2 is that, he is eligible to have selection grade and that there is no case that, he has already obtained the selection grade. In such cases whether Ext.P4 GO can be made applicable is a matter which is still to be ascertained.
In the above facts and circumstances, this Court finds that, W.P.(C) NO.21008 of 2012 (S) 12 the matter requires to be considered in detail by the first respondent, in the light of the above observations. Accordingly, the first respondent is directed to consider Ext.P5 and pass appropriate orders, in accordance with law, after giving an opportunity of hearing to the petitioner. Final orders shall be passed in the light of the relevant provisions of law/G.Os/binding precedents, if any, also taking note of the observations made herein before, at the earliest, at any rate, within 'two months' from the date of receipt of a copy of this judgment.
'Status quo' as on date will continue till such time.
sd/-
P.R.RAMACHANDRA MENON, JUDGE AMV