Deepak K. Nandakumar v. State of Kerala & Others

**WP(C) NO. 26747 OF 2017** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 14[TH] DAY OF JULY 2022 / 23RD ASHADHA, 1944 WP(C) NO. 26747 OF 2017** ## **PETITIONER/S:** DEEPAK K. NANDAKUMAR AGED 30 YEARS S/O.NANDAKUMAR K.K., HSA (ENGLISH), H.S.S.PANANGAD, PANANGAD P.O., THRISSUR-680665. BY ADVS. SRI.T.T.MUHAMOOD SRI.V.E.ABDUL GAFOOR SRI.A.MOHAMMED SAVAD SRI.C.Y.VINOD KUMAR ## **RESPONDENT/S:** 1 THE STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE DIRECTOR OF PUBLIC INSTRUCTION JAGATHY, THIRUVANANTHAPURAM-695014. 3 THE DEPUTY DIRECTOR OF EDUCATION OFFICE OF DDE, THRISSUR, THRISSUR-680665. 4 THE DISTRICT EDUCATIONAL OFFICER IRINJALAKKUDA. **WP(C) NO. 26747 OF 2017** **2** 5 THE MANAGER HIGHER SECONDARY SCHOOL,PANANGAD, PANANGAD P.O.,THRISSUR-680665. BY SR. GP. NISHA BOSE JAYENDRAN KOCHOTH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 26747 OF 2017** **3** ## **JUDGMENT** Challenge in this writ petition is directed against Ext.P10 order, by which the approval of the appointment of the petitioner as HSA (English) with effect from 01.06.2011 was rejected on the ground of failure on the part of the Manager to appoint a protected teacher. The petitioner has sought for issuance of directions to respondents 1 to 4 to approve the appointment of the petitioner as HSA (English) with effect from 01.06.2011 and for consequential benefits. 2. The summary of facts as is born out from the pleadings are as under: The petitioner asserts that he was appointed as HSA (English) in the HSS Panangad on the cover of Ext.P1 order with effect from 01.06.2011. Referring to Ext.P2 staff fixation order, it is contended that during the academic year 2010-2011 and 2011-2012, four posts of HSA (English) were sanctioned in the school. However, as there was no qualified English teacher in the School till the academic year 2010-2011, teaching was carried out by HSA (Social Science) teachers against HSA (English) cadre. Though the **WP(C) NO. 26747 OF 2017** **4** proposal for appointment of the petitioner was submitted before the 4th respondent, the same was rejected by Ext.P3 order, on the ground that one V. K. Dharmarajan, who was a protected HSA (Social Science), was deployed to MESHS P. Vemballur and that he has to be appointed in the said vacancy. Though the matter was taken up in appeal, the same was rejected by the 3rd respondent by Ext.P4 order. The revision petition filed challenging the said order was also dismissed by Ext.P5. 3. The petitioner asserts that while so, a retirement vacancy arose in the school with effect from 03.06.2013, and he was appointed as HSA (English) with effect from 03.06.2013 by Ext.P6 order. The appointment was approved with effect from the date of the appointment. 4. Being aggrieved by Ext.P5 order passed by the 2nd respondent, the manager preferred a revision petition before the 1st respondent. By Ext.P8 order, the 1st respondent confirmed the grant of approval. The grievance of the petitioner is that despite Ext.P8 order, the grant of approval with effect from 01.06.2011 was declined by the 2nd respondent by Ext.P10 order. This has led the petitioner to approach this Court with this Writ Petition. 5. I have heard Sri. T.T. Muhamood, the learned counsel appearing **WP(C) NO. 26747 OF 2017** **5** for the petitioner and the learned Government Pleader. 6. I find that Ext.P2 is the staff fixation order which shows the posts sanctioned in HSS Panangad for the academic year 2011-2012 to 20152016. Ext.P2 would reveal that out of 17 posts sanctioned in the year, 4 posts were that of HSA (English). The same continued till the academic year 2015-2016. It was when Smt. A. B. Meena, HSA (Mathematics), was promoted as HM, that the petitioner was appointed as HSA (English), considering the subject requirement. I find that the proposal submitted by the Manager was rejected on the ground that a certain Sri. V.K.Dharmarajan, who is HSA (Social Science), is a protected teacher who was deployed to MESHS P, Vemballur, and the said protected teacher has to be appointed in the promotion vacancy. 7. The staff fixation order clearly provides for 4 posts of HSA (English) for the academic year 2011-2012. It was as per GO (MS) No. 11/02 / G.Edn. dated 07/01/2002 that the post of HSA (English) was introduced to uplift the standard of teaching in English. A perusal of the order would show that the Director of Public Instruction informed the Government that the present method of teaching English followed in High Schools is ineffective in the absence of qualified H.S.As in English language, **WP(C) NO. 26747 OF 2017** **6** leading to low percentage of pass in the subject. The proposal forwarded by the DPI was accepted and the above referred order was passed. The portion of the Government Order relevant for our purpose is extracted below for easy reference. ## Xxxxx xxxxxx a) A new cadre of HSA(English) will be created in the Aided and Government Schools by re-allocating the periods of English now allocated to the core subjects (Maths, Science and Social Studies) in a phased manner, without causing retrenchment of existing H.S.As (core subjects). The new cadre will be created by appointing/promoting qualified hands against the vacancies caused by retirement/additional division/Resignation/leave observing the minimum subject ratio requirement between Maths, Science and Social Studies with a view to achieve the object of distribution of posts envisaged in the table given in the appendix. 8. Later, R.6.I was introduced in Chapter XXIII of the KER, which provision reads as follows: ## **'6.I. Sanctioning of posts of High School Assistant** **(English).--** Notwithstanding anything contained in any other rule in this Chapter the post of High School Assistant (English) shall be sanctioned on the basis of the periods allocated to English, observing minimum subject requirement. **WP(C) NO. 26747 OF 2017** **7** Note.-- Subject to any general order that may be issued by the Government, the above rule shall be implemented in a phased manner without causing retrenchment of existing High School Assistants (core subjects) as on 7th January 2002, and observing the minimum subject requirement.' What Rule 6.I contemplate is that the post of HSA (English) has to be sanctioned by observing the minimum subject requirements. The Note therein seeks implementation of the Rule in a phased manner. The rider provided therein is that the creation of the post shall not cause retrenchment of existing HSAs in core subjects as on 07/01/2002 as well as observance of minimum subject requirement. The Educational authorities had to ensure that retrenchment of existing HSA (core subject) teachers is avoided and a new cadre is to be created by appointing qualified hands against vacancies caused by retirement/promotion / resignation etc. In the case on hand, there is no case for the respondents that by the creation of the post of HSA (English), teachers in any core subjects such as HSA (Maths) or HSA (Social Science) became protected. The only case is that Sri. Dharmarajan, who got retrenched during the earlier years due to reduction of posts in the subject HSA (Social Science) has become a protected teacher and he has to be appointed in the vacancy which arose **WP(C) NO. 26747 OF 2017** **8** due to promotion. In view of Rule 6.I, the minimum subject requirement ought to have been observed and therefore, only a HSA (English) could have been appointed to the post. The objection raised by the DEO that the vacancy has to be filled by recalling a protected teacher in HSA (Social Science) cannot, therefore, be accepted. 9. In **Minimole C. v. State of Kerala and Ors.** [2012 (4) KLT 719], in almost identical circumstances, a learned Single Judge of this Court had occasion to hold as follows: 8. Rule 6(1) of Chapter XXIII K.E.R reads as follows: xxxx xxxx “A reading of the same will show that post of H.S.A. (English) has to be sanctioned observing minimum subject requirement. The note therein seeks implementation of the Rule in a phased manner. The rider provided therein is that the creation of the post shall not cause retrenchment of existing H.S.As in Core Subjects as on 07.01.2002 as well as observance of minimum subject requirement. 9. Herein, the staff fixation order clearly provides for one post of H.S.A. (English) for the year 2007-08. The vacancy arose due to promotion of Smt.T.L.Gracykutty, H.S.A. as Headmistress. In the **WP(C) NO. 26747 OF 2017** **9** Government Order dated 7.1.2002 it was provided that the new cadre of H.S.A. (English) will be created by allocating periods of English as it was being allocated to core subjects like Mathematics, Science and Social Studies. Actually, what has to be ensured under the said process is the avoidance of retrenchment of existing H.S.A. (Core Subjects) teachers. The new cadre has to be created by appointing qualified hands against vacancies caused by retirement/promotion/resignation etc. 10. Thus in this case the post of H.S.A. (English) has been created in the staff fixation order. There is no plea that the H.S.A. (Maths) and H.S.A. (S.S.) teachers became protected as a result of creation of the post of H.S.A. (English). Only in such cases alone it can be seen that the retrenchment can be avoided. The two teachers mentioned in the orders, became protected teachers in earlier years due to reduction of posts in those subjects. 11. When R.6(1) of Chapter XXIII K.E.R. clearly provides for creation of the post of H.S.A. (English), that also by observing minimum subject requirement, there cannot be any quarrel that a H.S.A. (English) can be appointed in the post. Therefore, it is obvious that a qualified hand alone can be appointed in terms of R.6(1) of Chapter XXIII K.E.R. **WP(C) NO. 26747 OF 2017** **10** 12. The objection raised by the District Educational Officer in Ext.P4 is that it has to be filled up by recalling a protected teacher in H. S. A. (Core Subjects) . Merely because the two teachers mentioned were teaching English classes that cannot clothe any right on them to be called back to the school for appointment as H.S.A. (English). 13. Thus as a matter of right such teachers in H.S.A. (Core Subjects) cannot claim redeployment to parent school as evidently, their redeployment depends upon sanction of posts or arising of vacancies in H.S.A. (Maths) and H.S.A. (S.S.). 10. As held above, teachers in HSA (core subjects) cannot claim redeployment in parent schools as their redeployment depends upon the sanction of posts or arising of vacancies in core subjects. The minimum subject requirement had to be satisfied when appointments are considered against the post of HSAs. Furthermore, by appointment of the petitioner as HSA (English), no teacher was required to be retrenched. In view of the law laid down in **Minimole** (Supra) and also the materials made available, I am of the view that there is no justification on the part of the 2nd respondent in issuing Ext.P10. In the result, this writ petition will stand allowed. There will be a **WP(C) NO. 26747 OF 2017** **11** direction to the respondents to approve the appointment of the petitioner as HSA (English) in terms of Ext.P1 with effect from 01.06.2011 in the HSS Panangad. There will be a further direction to the respondents to provide all service benefits, including pay and allowance, for the period from 1.6.2011 to 2.6.2013. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** NS **WP(C) NO. 26747 OF 2017** **12** ## **APPENDIX OF WP(C) 26747/2017** PETITIONER(S) EXHIBITS : |EXHIBIT P1|TRUE COPY OF THE APPOINTMENT ORDER DATED| |---|---| ||1.6.2011 ISSUED BY THE MANAGER.| |EXHIBIT P2|TRUE COPY OF THE STAFF-FIXATION ORDER IN| ||RESPECT OF HSS, PANANGAD FOR THE ACADEMIC| ||YEAR 2011-12.| |EXHIBIT P3|TRUE COPY OF THE ORDER NO.B6-4365/11/LDIS| ||DATED 28.3.2012.| |EXHIBIT P4|TRUE COPY OF THE ORDER NO.B2/6515/12 KDIS| ||DATED 20.6.2012 ISSUED BY THE DEPUTY| ||DIRECTOR OF EDUCATION.| |EXHIBIT P5|TRUE COPY OF THE ORDER| ||NO.EC(5)/58997/2012/DPI DATED 21.2.2014| ||ISSUED BY THE DIRECTOR OF PUBLIC| ||INSTRUCTION.| |EXHIBIT P6|TRUE COPY OF THE APPOINTMENT ORDER ISSUED| ||BY THE MANAGER AS HSA (ENGLISH) W.E.F.| ||3.6.2013 AGAINST THE RETIREMENT VACANCY.| |EXHIBIT P7|TRUE COPY OF THE REVISION PETITION DATED| ||28.4.2014 SUBMITTED BY THE PETITIONER| ||BEFORE THE STATE OF KERALA.| |EXHIBIT P8|TRUE COPY OF THE GOVERNMENT LR| ||NO.24404/E2/2017/G.EDN. DATED 28.3.2017.| |EXHIBIT P9|TRUE COPY OF THE G.O.(P)29/16/G.EDN.| ||DATED 29.1.2016.| |EXHIBIT P10|TRUE COPY OF THE LR. NO.EC(5)/41418/17| ||DPI DATED 21.6.2017 ISSUED BY THE| ||DIRECTOR OF PUBLIC INSTRUCTION.| RESPONDENT(S) EXHIBITS : NIL