Ancy Baby v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941** ## **WP(C).No.25416 OF 2019(B)** ## **PETITIONER:** **ANCY BABY AGED 46 YEARS W/O. SURESH VARGHESE,** **UPPER PRIMARY SCHOOL ASSISTANT (UPSA) (MATHS) ST.JOHNS HIGHER SECONDARY SCHOOL, RESIDING AT THEKKEDATH HOUSE, KUNNAMANGALAM VILLAGE, CHETTIKULANGARA P O, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT-690106** **BY ADVS. SRI.JACKSON JOHNY SRI.MUHAMMED YASIL** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEX-11, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM-695014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION, KODIVEEDU, ALAPPUZHA-688001** - **4 THE DISTRICT EDUCATIONAL OFFICER, MAVELIKKARA, ALAPPUZHA DISTRICT-690101.** - **5 THE MANAGER, ST. JOHNS HIGHER SECONDARY SCHOOL, MATTAM.P.O, THATTARABALAM, MAVELIKKARA, ALAPPUZHA DISTRICT690103.** - **6 LINCY SUSAN MATHEW, AGED 34 YEARS, W/O. JOJ JOHN, UPPER PRIMARY SCHOOL TEACHER, ST. JOHNS HIGHER SECONDARY SCHOOL, MATTAM.P O, THATTARABALAM, MAVELIKKARA, ALAPPUZHA DISTRICT-690103.** **R1-R4 BY SRI.JESTIN MATHEW, GOVERNMENT PLEADER** WP(C).No.25416 OF 2019(B) 2 **R5 BY ADV. SRI.T.V.VIJAYARAJAN R6 BY ADVS. SRI.V.A.MUHAMMED SRI.V.RAJASEKHARAN NAIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.25416 OF 2019(B) 3 ## **JUDGMENT** This writ petition is filed by the petitioner, who is an Upper Primary School Assistant, seeking to quash Ext.P8 order passed by the State Government, whereby, the reversion of the petitioner as Upper Primary School Assistant from High School Assistant consequent to division fall in the high school is held to be bad, and consequentially directed to approve the appointment of Lincy Susan Mathew, the 6[th] respondent herein as UPSA from 1.6.2016 and for other related and consequential reliefs. Brief material facts for the disposal of the writ petition are as follows; 2. Petitioner entered service of the St.Johns Higher Secondary School, Thattarambalam, Mavelikkara on 5.6.2002 as Upper Primary School Assistant (hereinafter referred as 'UPSA'). Thereafter she was promoted as High School Assistant (Maths)(hereinafter referred as 'HSA')on 1.6.2016 as per the order of the District Educational Officer, Mavelikkara. While so, during the academic year 2018-2019, due to the WP(C).No.25416 OF 2019(B) 4 division fall in the High School, petitioner was directed to be reverted to the post of UPSA as per Ext.P2 staff fixation order. Consequentially petitioner was reverted to her earlier post of UPSA by the District Educational Officer, Mavelikkara holding that, petitioner is not eligible for protection in the post of HSA(Maths) since her promotion was made only on 1.6.2016 and the protection envisaged under Ext.P3 Government Order dated 29.1.2016 is available only for the persons who have been given appointment till the academic year 2014-2015. Case of the petitioner is that, Ext.P3 Government Order enables protection only to the teachers, who were continuing on the basis of approval orders on or before 31.3.2011. Petitioner was promoted as HSA after the academic year 20142015, on 1.6.2016, which takes her out of the ambit of the protection afforded as per Ext.P3. 3. Pursuant to the same, Manager of the school preferred an appeal before the Deputy Director of Education seeking to declare that, petitioner is entitled for protection and deployment in HSA(Maths) WP(C).No.25416 OF 2019(B) 5 in view of G.O.(MS)109/1998/G.Edn dated 6.4.1998 and Ext.P3 G.O.(P)No.29/2016/G.Edn dated 29.1.2016 and sanction the same so as to avoid retrenchment of Lincy Susan Mathew. 4. After hearing the parties the Deputy Director of Education upheld the decision of the District Educational Officer dated 2.7.2018 reverting the petitioner back to the post of UPSA holding that, petitioner is not eligible for protection in the post of HSA (Maths) since her appointment was made only on 1.6.2016 and the protection available as per Ext.P3 Government Order is only for the persons who have been given appointment till the academic year 2014- 2015. Even though the Manager preferred a revision before the Director of Public Instructions, Thiruvananthapuram, it was dismissed upholding the order of the District Educational Officer, affirmed by the Deputy Director of Education. **==> picture [406 x 13] intentionally omitted <==** respondent preferred a revision before the Government and the Government as per Ext.P8 order held that, the reversion of the petitioner to the post of UPSA is WP(C).No.25416 OF 2019(B) 6 against the second proviso to Rule 43 of Chapter XIVA KER and petitioner is entitled for protection to the post of HSA as per Ext.P3 Government Order and Ext.P7 circular dated 19.11.2018. According to the petitioner, the stand adopted by the State Government is totally illegal and against the provisions of Ext.P3 Government Order and the proviso to Rule 43 of Chapter XIVA KER. 6. A detailed counter affidavit is filed by the 6[th] respondent justifying the stand adopted by the Government and also contending that petitioner is not entitled to get the benefit in view of the judgment in **District Educational Officer v. A.V.Sathyabhama and others** [2016(4)KHC 911(DB)] followed by a learned Single Judge in the judgment in W.P.(C)No.2608/2018 dated 12.7.2018. The District Educational Officer has also filed a counter affidavit virtually justifying the stand adopted by the State Government in the revision filed by Lincy Susan Mathew. 7. I have heard learned counsel for petitioner, learned Senior Government Pleader, respective counsel appearing for Manager as well as party respondent and WP(C).No.25416 OF 2019(B) 7 perused the pleadings and documents on record. 8. The question to be considered is whether, any manner of interference is warranted to Ext.P8 order passed by the State Government in the revision filed by the 6[th] respondent ? The discussion of facts made above would make it clear that, the basic issue by and between the parties is based on Ext.P3 Government Order dated 29.1.2016, whereby certain modalities are prescribed in respect of protection to be granted to the teachers as well as non-teaching staff whereby the teachers and non-teaching staff, who were continuing in the regular services on securing approval as on 31.3.2011 are entitled to get protection. Petitioner was UPSA and her service was approved and therefore, going by the said provision, she is entitled for protection as UPSA since her appointment was on 5.6.2002. So also the teachers as well as non-teaching staff, who have secured approval on the basis of teachers' package from 1.6.2011 are also entitled to get protection. That apart as per clause 5 thereunder, those teachers and non-teaching staff who were appointed/promoted/transferred to a WP(C).No.25416 OF 2019(B) 8 regular post on the basis of resignation, death and retirement during the period 2011-2012 to 2014-2015 are also entitled to get protection. However, as per clause 6, it is stipulated that, from the year 20152016, educational protection will not be permitted. Therefore, case of the petitioner is that, on 1.6.2016 alone petitioner was promoted as HSA i.e., during the educational year 2016-2017, which period is not protected under Ext.P3. It was consequent to the division fall during the academic year 2018-2019 petitioner was reverted as UPSA. 9. Therefore, in my considered opinion, petitioner is not entitled to get protection as HSA (Maths) in view of the stipulations contained under Ext.P3 Government Order, however, she is entitled to get protection as UPSA as per the provisions of Ext.P3 since it clearly specifies that those teachers who have secured approval as on 31.3.2011 are entitled to get protection. In fact as per the judgment relied upon by the 6[th] respondent rendered by a learned single Judge, the stand adopted by the State Government in the impugned order may be found WP(C).No.25416 OF 2019(B) 9 to be correct. **==> picture [405 x 12] intentionally omitted <==** overruled by a Division Bench of this Court as per Ext.P9 judgment, in Writ Appeal No.2032/2018 dated 12.3.2019 in **Sunil John Mathew vs.Lency** [2019(2)KLT S.N82 (Case No.99). Paragraph 12 to 17 is relevant in the context, which read thus: “12. On the facts arising herein, as we noticed, the appellant was promoted as an HSA on 01.06.2016 as per Ext.P3 appointment order, which was also approved. The approval relates back to the date of appointment, i.e. 01.06.2016. The continuation of the appellant in the post of HSA was in accordance with the approval with effect from 01.06.2016. We also notice the approval granted to Ext.P3, which is as herein below: “The appointment is approved as HSA [Malayalam] with effect from 01.06.2016 onwards based on the declaration of the Manager and subject to the condition mentioned in the GO(P) No.29/16/G.Edn. dated 29.01.2016 and 951951/J2/16/G.Edn.” The G.O. mentioned therein is Ext.P5. The approval was in accordance with Ext.P5 G.O. also, which enables protection only to teachers, who were continuing on the basis of approval orders on or before 31.03.2011. True, the teachers promoted between 2011-2012 to 2014-2015 also were granted protection. The appellant herein was promoted after the academic year 2014-2015, on 01.06.2016, which WP(C).No.25416 OF 2019(B) 10 takes him out of the ambit of the protection afforded as per Ext.P5. Then we have recourse to the proviso to Rule 43, which speaks of a teacher in a promoted post not being enabled to protection, being enabled for reversion to the original post. Here, the appellant was promoted as HSA from the post of UPSA. He would hence have to be reverted to the post of UPSA as is found in the staff fixation order. 13. The learned Counsel for the 1st respondent relied on Ext.P6 issued by the Director of Public Instructions [DPI] and a Circular issued by the Special Secretary of the Kerala Education Department, later of which was produced across the Bar, bearing No.J2/217/18/G.Edn. dated 19.11.2018. A reading of Ext.P7 would not support the case of the 1st respondent. There the objection noticed was with respect to a HSA regularly appointed being deployed as HSA to another school on protection and a promoted HSA, who is senior being reverted, when the person reverted is also entitled to protection. This situation does not arise here. 14. The Circular, however, takes a totally different stand from the G.O. at Ext.P5. We extract the Circular hereunder: "kqN\ kÀ¡mÀ D¯-chv {]Imcw 2015þ16 apX-epÅ \nb-a-\-§Ä¡v kwc- £Ww A\p-h-Zn-¡n-söv hyà-am-¡n-bn-«p-sI¦nepw t\ct¯ AXm-bXv 2015þ16\p ap¼v Xmgs¯ XkvXn-I-bn \na-\mw-Ko-Imcw t\Snb tijw ]n¶oSv AXm-bXv 2015þ16\p tijw {]tam-j³ e`n-¡p-¶-hÀ¡v ]pXnb XkvXn-Ibn kwc-£-W-an-sÃt¶m DsIt¶m Cu D¯-c-hn ]cm-aÀin-¡p-¶n-Ã. dqÄ 43 {]Im-c-apÅ {]tam-j³ sI.C.-BÀ. {]Im-c-apÅ Ìmäq-«dn Ah-Im-i-am-Wv. B Ah-Imiw kn²n-¡p-¶-XneqsS kwc-£-W-¯n-\pÅ Ah-Imiw \ntj-[n-¡-s¸-Sp-¶Xv icn-b-Ã. AXp-sImIp Xs¶ bp.-]n.-F-kv.-än. XkvXn-I-bn kwc-£-W-¯n-\Àl-X-bp-Im-bn-cp¶ Hc-²ym-]-I³ \nb-am-\p-krXw {]tam-j³ e`n¨v F¨.-F-kv.-än. Bsb-¶-Xp-sImIv (2015þ16\p WP(C).No.25416 OF 2019(B) 11 tij-am-bm-epw) Snbm\v F¨.-F-kv.-än. XkvXn-I-bn kwc-£Ww e`n-¡p-¶XmWv”. 15. A Circular issued by the General Education Department cannot interpret the order issued by the Government invoking its executive powers. The Circular can at best be considered as an understanding of the Officer in the General Education Department and it would not enure to the benefit of the 1st respondent, especially it being contrary to the protection granted in Ext.P5. 16. We, also from the underlined portion in the above extract, notice that the Special Secretary has found that there is nothing in the G.O. indicating whether an approval granted after 2015-2016 would dis-entitle protection. This is specifically against sub-clauses (5) and (6) as we extracted from the G.O. In this context, it has to be emphasised that the proviso introduced under Rule 43, makes it very clear that the eligibility of protection in the retrenched post should be as per the orders issued by the Government from time to time. Ext.P5 is the order now issued, which specifically restricts protection to any appointments approved after 31.03.2011 and also to promotions or transfers approved after 2015-2016. The further finding in the circular that merely because of a promotion, which is a statutory right under Rule 43, the protection cannot be denied is a clear misunderstanding. Even if appointed by promotion, a division fall would entail retrenchment. This is sought to be avoided by the protection granted by the Government. If protection is not enabled there is the 2nd proviso under Rule 43 which provides for reversion and thus continuance in the post from which there was a promotion. WP(C).No.25416 OF 2019(B) 12 17. On the above interpretation given to Ext.P5, we are of the opinion that the judgment of the learned Single Judge cannot be sustained. We hence set aside the judgment and direct the staff fixation order to be complied with scrupulously.” 11. Therefore, going by the proposition of law laid down by the Division Bench and the provisions of law on the point, I am of the considered opinion that, petitioner is entitled to succeed in this writ petition. Learned counsel for petitioner has also produced an order passed by the Apex Court in SLP No.16905/2019 dated 26.7.2019, whereby the petition preferred by the aggrieved person from the judgment of the Division Bench specified above was permitted to be withdrawn with liberty to file review petition in the High Court of Kerala. However, fact remains as the law stands today, petitioner is entitled to get the benefit of the Division Bench judgment. In that view of the matter, the writ petition is allowed and Ext.P8 order of the State Government in the revision filed by Lincy Susan Mathew is herewith quashed and the order of the District Educational Officer as affirmed by the order of the Deputy Director and the Director of Public Instructions are WP(C).No.25416 OF 2019(B) 13 re-stored. Needless to say, the benefits if any, available to the petitioner in accordance with the orders passed by the Educational Authorities, shall be provided to the petitioner without fail. **Sd/-** **SHAJI P.CHALY** Smv **JUDGE** 26.11.2019 WP(C).No.25416 OF 2019(B) 14 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.2016. EXHIBIT P2 TRUE COPY OF THE STAFF FIXATION ORDER NO.D.DIS B4/3854/2018 DATED 02.07.2018 OF THE DISTRICT EDUCATIONAL OFFICER, MAVELIKKARA. EXHIBIT P3 TRUE COPY OF THE GO NO.29/2016/G.EDN DATED 29.01.2016. EXHIBIT P4 TRUE COPY OF THE ORDER NO.B3/14591/2018/A.T/DDE DATED 24.09.2018. EXHIBIT P5 TRUE COPY OF THE ORDER NO.R.A. (1)65936/2018/DPI/DDIS DATED 20.03.2019. EXHIBIT P6 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO.14392 OF 2019 DATED 24.05.2019. EXHIBIT P7 TRUE COPY OF THE CIRCULAR NO.J2/2017/18/GEN.EDN.DEPT DATED 19.11.2018. EXHIBIT P8 TRUE COPY OF THE ORDER NO.3559/2019/GEN/.EDN DATED 04.09.2019. EXHIBIT P9 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 12.03.2019 IN WA 2032 OF 2018. RESPONDENT'S EXHIBITS: EXHIBIT R6(a) TRUE COPY OF THE ORDER NO.L.DIS.NO.B4/4051/18 DATED 28.7.2018 OF THE DEO EXHIBIT R6(b) TRUE COPY OF THE ORDER NO.B4/2081/2019/DEO/D.DIS DATED 8.5.2019 OF THE DEO EXHIBIT R6(c) TRUE COPY OF THE G.O.(Ms) NO.109/98/G.EDN. DATED 6TH APRIL 1998. EXHIBIT R6(d) TRUE COPY OF THE DECISION REPORTED IN 2016(4)KHC 911(DB) DECIDED ON 7TH SEPTEMBER 2016 EXHIBIT R6(e) TRUE COPY OF THE G.O.(Ms) NO.352/2000/G.EDN. DATED 25.10.2000 OF THE GOVERNMENT** WP(C).No.25416 OF 2019(B) 15 **EXHIBIT R6(f) TRUE COPY OF THE LETTER NO.H2/35985/2016/DPI DATED 19.8.2016 OF THE DIRECTOR OF PUBLIC INSTRUCTION. EXHIBIT R6(g) TRUE COPY OF THE G.O.(Rt) NO.5017/2017/G.EDN. DATED 27.12.2017 OF THE GOVERNMENT EXHIBIT R6(h) TRUE COPY OF THE JUDGMENT IN W.P.(C)NO.2608/2018 DATED 12.7.2018.**