Anu John A v. State of Kerala & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 13[TH] DAY OF JULY 2021 / 22ND ASHADHA, 1943** **WP(C) NO. 8747 OF 2015** ## **PETITIONER:** **ANU JOHN A, W/O.THOMAS, ALUNKAL HOUSE, NEAR INDIA SEA FOODS, KANNAMALY, KOCHI-682008.** **BY ADVS. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY SECRETARY TO GOVERNMENT,**| ||**GOVERNMENT OF KERALA, SECRETARIAT ANNEXE,**| ||**THIRUVANANTHAPURAM – 695001.**| |**2**|**THE DEPUTY DIRECTOR OF EDUCATION,**| ||**ERNAKULAM – 682 025.**| |**3**|**THE DISTRICT EDUCATIONAL OFFICER,**| ||**ERNAKULAM – 682025.**| |**4**|**THE MANAGER,**| ||**ST. MARY'S HIGH SCHOOL, KANNAMALY,**| ||**KOCHI – 682 008.**| ||**BY ADVS. SRI. P.M.MANOJ - SR.GP**| ||**SRI.RAJESH VIJAYENDRAN**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **13.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO. 8747 OF 2015** **-2-** ## **JUDGMENT** At the time when this writ petition was filed, petitioner had been thrown out from the services of “St.Mary's High School”, Kannamaly, after being appointed as a High School Teacher (HST) in Physical Science. 2. The petitioner says that, she was appointed to one of the available vacancies of HST in Physical Science with effect from 16.07.2012; but that her approval was granted, through Ext.P3, by the Deputy Director of Education (DDE), Ernakulam only on daily wage basis, saying that in the next academic year, namely 2013-14, there was a reduction in the number of posts of High School Teachers and consequently that she had to be retrenched from service. 3. The petitioner says that Ext.P3 proceedings of the DDE is based on fallacious reasoning because, as is evident from the Staff ## **WP(C) NO. 8747 OF 2015** **-3-** Fixation Order of the School, there were two posts of Physical Science Teacher for the academic year 2012-13; and that she was accommodated to one such vacancy, validly. 4. She says that, however, when it came to the academic year 2013-14, there was a reduction in the posts of HST in Social Science and that obviously, therefore, one of such teachers ought to have been retrenched. She says that contrary to this, merely citing the reason that since she was the junior most HST at that time, she has to be retrenched, though she was admittedly working as an HST in Physical Science. The petitioner contends that the stand of the Manager of the School, as approved by the DDE through Ext.P3, is contrary to law and is in violation of the declarations made by the Hon'ble Supreme Court in **Deepa Augustine v. Geetha Alex** [2008 (2) KLT 771 (SC)] **WP(C) NO. 8747 OF 2015** **==> picture [22 x 9] intentionally omitted <==** 5. I have heard Sri.K.T.Thomas - learned counsel for the petitioner; Sri.Rajesh Vijayendran – learned counsel appearing for the 4[th] respondent - Manager and the learned Senior Government Pleader – Sri.P.M.Manoj appearing for the official respondents. 6. Sri.P.M.Manoj submitted that Ext.P3 order has been issued by the DDE noticing that in the academic year 2013-14 there was a reduction of posts of High School Teacher in core subjects; and consequently, that the junior most among them, namely the petitioner, was liable to be retrenched. He then pointed out that, admittedly, the petitioner was appointed only on 16.07.2012 and therefore, that when the vacancy did not exist in the next academic year, her approval could have been granted only on daily wage basis, leading to her retrenchment, when the post itself became nonavailable. **WP(C) NO. 8747 OF 2015** **==> picture [22 x 9] intentionally omitted <==** 7. The learned Senior Government Pleader then added to his submissions by relying on the averments in the counter affidavit filed by the 3[rd] respondent, that the petitioner does not have any case as at present, because she left the service on 12.08.2014 due to reduction of posts of HST in Physical Science in the academic year 2014-15. He thus prayed that Ext.P3 order be not interdicted and that this writ petition be dismissed. 8. Sri.Rajesh Vijayendran - learned counsel appearing for the 4[th] respondent - Manager, supported the learned Senior Government Pleader, but submitted that when there was reduction of posts in HST (core subject), the junior most among the teachers ought to have been retrenched; and that this has been rightly done in the case of the petitioner. He pointed out that, since the petitioner admittedly joined the service only on 16.07.2012 and that since the vacancy available to ## **WP(C) NO. 8747 OF 2015** **-6-** her became nonexistent in the academic year 2013- 14, she could not make a claim for being approved substantively, since the period during which she worked was less than a year; and further that, for the same reason, she cannot plead that she should have been allowed to continue, with another teacher being retrenched. He thus prayed that this writ petition be dismissed. 9. I must say upfront that the submissions of the respondents, as recorded above, do not appeal to me immediately because petitioner is alleged to have left the service only on 12.08.2014, when the number of posts in HST (Physical Science) was reduced during the academic year 2014-15. Then the argument in favour of the petitioner's retrenchment in the academic year 2013-14 cannot be convincing, because as is clear from the counter affidavit of the 3[rd] respondent itself, there were two posts of HST in Physical Science ## **WP(C) NO. 8747 OF 2015** **-7-** available for the academic years 2012-13 and 2013- 14. In the latter academic year, the reduction was to the post of Social Science and, therefore, the petitioner was justified in asserting that she could not have been retrenched, relying on the judgment of the Hon'ble Supreme Court in **Deepa** **Augustine** (supra). 10. However, this aspect has not been considered in Ext.P3 order of the DDE, but he has proceeded to deny approval to the petitioner substantively with effect from 16.07.2012, saying that her period of service can only be seen to be less than one year, because the post in which she was accommodated became not available in the academic year 2013-14. 11. This finding in Ext.P3 certainly has been entered into without adverting to the judgment of the Hon'ble Supreme Court in **Deepa Augustine** (supra) and am thus certain that said Authority ## **WP(C) NO. 8747 OF 2015** **-8-** must reconsider the whole matter, after hearing the petitioner and the Manager of the School. In the afore circumstances, I order this writ petition and set aside Ext.P3; with a consequential direction to the DDE to hear the petitioner, as also the Manager of the School – either physically or through video conferencing – thus leading to an appropriate order on the appeal preferred before the DDE by the petitioner on 07.10.2014, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. It is needless to say that, while completing the afore exercise, the DDE will specifically keep in mind the contention of the petitioner that in the academic year 2013-14, there was a post to accommodate her as per the Staff Fixation Order; and that she was thrown out from service only in the next academic year, when the vacancy in the **WP(C) NO. 8747 OF 2015** **==> picture [22 x 9] intentionally omitted <==** post of HST (Physical Science) was reduced. **Sd/DEVAN RAMACHANDRAN JUDGE** akv **WP(C) NO. 8747 OF 2015** **-10-** ## **APPENDIX OF WP(C) 8747/2015** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 22.09.2014 PASSED BY THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM** **EXHIBIT P2 TRUE COPY OF THE APPEAL PETITION FILED BY THE PETITIONER** **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 18.02.2015 PASSED BY THE SECOND RESPONDENT** **RESPONDENT'S/S EXHIBITS : NIL.** //TRUE COPY// P.A. TO JUDGE