Divya C.S. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **WEDNESDAY, THE 29TH DAY OF MAY 2013/8TH JYAISHTA 1935** ## **WP(C).No. 25423 of 2009 (W)** **----------------------------** ## **PETITIONER(S):** ## **----------------------** **DIVYA C.S., AGED 29 YEARS, W/O.HARIKRISHNAN C.P., EX-UPSA, KTMH SCHOOL, MANNARGHAT, PALAKKAD, RESIDING AT KRISHNA VIHAR, MANGALAM KUNNU, KATTUKULAM P.O., PALAKKAD.** ## **BY ADV. SRI.U.BALAGANGADHARAN.** **RESPONDENT(S):** - **----------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.** **3. THE DISTRICT EDUCATION OFFICER, PALAKKAD.** **4. THE MANAGER,** - **K.T.M. HIGH SCHOOL, MANNARGHAT, PALAKKAD.** **5. THE HEADMISTRESS, K.T.M. HIGH SCHOOL, MANNARGHAT, PALAKKAD.** ## *** ADDL. R6 IMPLEADED** ## **6. SHRI MOHANAKRISHNAN,** - **UPSA (ERSTWHILE H.S.A. (SOCIAL STUDIES) ON REVERSION AS UPSA) K.T.M. HIGH SCHOOL, MANNARGHAT, PALAKKAD.** - **ADDL.R6 IS IMPLEADED AS PER ORDER DATED 20.12.2011 IN IA.18310/2011.** **R1 TO R3 BY GOVT. PLEADER SMT.LILLY K.T. R6 BY ADVS. SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI, SRI.T.R.SADEESAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** **WP(C).No. 25423 of 2009 (W)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXT.P1 COPY OF THE APPOINTMENT ORDER DATED 06/08/2001 CARRYING THE ENDORSEMENT OF THE DEO. EXT.P2 COPY OF THE STAFF FIXATION PROCEEDINGS OF THE ACADEMIC YEAR 2006-07. EXT.P3 COPY OF THE G.O. (P) NO.4/2005/G.EDN. DATED 04/01/2005. EXT.P4 COPY OF THE G.O.(P) NO.12/2008/G.EDN. DATED 09/01/2008. EXT.P5 COPY OF THE G.O.(MS) NO.109/1998/G.EDN. DATED 06/04/1998. EXT.P6 COPY OF THE G.O.(MS)NO.352/2000/G.EDN. DATED 25/10/2000. EXT.P7 COPY OF THE G.O.(RT) NO.1701 DATED 17/04/2007. EXT.P8 COPY OF THE ORDER NO.D. DIS./10345/08/RA(3) DPI DATED 01/07/2008. EXT.P9 COPY OF THE G.O.(RT) NO.2716/2009/GH.EDN. DATED 03/07/2009. EXT.P10 COPY OF THE G.O.(P) NO.41/10/G.EDN. DATED 20/03/2010. EXT.P11 COPY OF THE GO(RT) NO.4248/2011/G.EDN. DATED 12/10/2011.** ## **RESPONDENT'S EXHIBITS:-** **EXT.R6A COPY OF THE APPOINTMENT ORDER DATED 01/07/1996 AND APPROVAL ORDER NO.81-6827/96/K.DIS DATED 05/02/1997 ISSUED BY THE 3RD RESPONDENT. EXT.R6B COPY OF THE PROMOTION ORDER AS H.S.A DATED 01/06/1998 AND APPROVAL ORDER NO.81/1309/2000 K.DIS DATED 03/02/2000 ISSUED BY THE 3RD RESPONDENT. EXT.R6C COPY OF THE STAFF FIXATION ORDER NO.D. DIS. 1579/2007/B1 DATED 07/12/2007 ISSUED BY THE 3RD RESPONDENT. EXT.R6D COPY OF THE ORDER NO.81/2967/11 D.DIS. DATED 12/04/2011 ISSUED BY THE 3RD RESPONDENT.** **EXT.R6E COPY OF THE ORDER NO.2184/2012/G.EDN. DATED 14/05/2012 ISSUED BY THE 1ST RESPONDENT. EXT.R6F COPY OF THE RELEVANT EXTRACT OF THE LIST OF RETRENCHED TEACHERS IN PALAKKAD DISTRICT. EXT.R6G COPY OF THE SCHOOL WISE SENIORITY LIST OF CLAIMANTS. //TRUE COPY//** **P.S. TO JUDGE.** **rs.** C.K. ABDUL REHIM, J. -----------------------------------W.P.(C). No. 25423 of 2009 --------------------------------------------------Dated this the 29[th] day of May, 2013 ## JUDGMENT The petitioner joined as UPSA in the 4[th] respondent's school on 06.08.2001. The additional 6[th] respondent was originally working as UPSA in the said school and he was promoted as HSA under Rule 43 of Chapter XIVA of KER. By virtue of the staff fixation in the year 2006-07, 4 posts of HSA in the High School Section were found to be excess. Out of the 4 HSAs, 3 were reverted as UPSA applying provisions of Rule 43. Consequently, the petitioner and 2 others were retrenched as excess. The petitioner was the junior most UPSA. Challenging the retrenchment, one of the UPSAs had approached the 2[nd] respondent, which had resulted in Exhibit P8 order. The 2[nd] respondent found that, the reversion ordered due to reduction in the posts in the High School Section was in order and therefore the petition does not deserve merit. Aggrieved by Exhibit P8, the petitioner preferred revision petition before the Government, which was disposed of through Exhibit P9. The Government, WP(C). 25423 /2009 2 after referring to Exhibit P3 and other subsequent orders issued on the subject matter, found that teachers who were promoted from lower cadre if subsequently found excess due to division fall should be reverted. The teacher-student ratio of 1:40 can be applied only for accommodating teachers facing retrenchment and cannot be made applicable in the case of teachers facing reversion to lower posts. Since the teachers reverted are promotees to the post of HSA, application of 1:40 ratio will be against the spirit of the Government orders. Hence it was held that retrenchment of 3 UPSAs ordered by the educational authority is regular and justified. It is aggrieved by Exhibit P9 order of the Government, this writ petition is filed. 2. Contention of the petitioner is that, consequent to division fall in the High School Section, the 6[th] respondent ought to have been retained as protected teacher, instead of reverting him to the post of UPSA. He relies on Government order, G.O (P) No.175/99/G.Edn. dt. 26.7.1999. The said G.O was issued with a view to retain service of all aided school teachers rendered surplus consequent on division fall and on reduction of posts WP(C). 25423 /2009 3 during the year 1996-97. The Government directed to apply 1:40 teacher-student ratio in the schools affected with the problem of division fall during staff fixation for the academic year 1997-98 for accommodating teachers rendered surplus, without creating any new post. Government ordered that all aided school teachers who were in service as on 14.7.1996 will be given protection by retaining them in the respective schools, subject to various conditions, including absorption in the future vacancies arising under the respective management. It was made clear that protection will not be granted to teachers appointed during 1997-98 and thereafter . The Government further clarified that 1:40 ratio should be applied in the schools affected by such problem of division fall for the limited purpose of teachers rendered surplus on condition that no post will be created on this account. Learned counsel for the petitioner had pointed out that application of the above Said Government order was extended for the subsequent years and teachers who were in service as on 14.7.1997 were also given the same benefit. The order of protection was made applicable with respect to staff fixation of WP(C). 25423 /2009 4 subsequent years through various Government orders. The petitioner relies on Ext.P3 Government order in which it is clarified that 1:40 teachers-student ratio can be applied only in the case of teachers facing retrenchment and will not be applicable in case of teachers facing reversion to lower post by virtue of operation of Rule 43. But subsequently Ext.P3 was modified through Ext.P4 wherein the Government ordered that reversion or retrenchment of promotees under Rule 43 shall be resorted only if the scope for retention by applying 1:40 teacherstudent ratio is exhausted. Only in such cases the teacher in the higher grade shall be reverted to lower post and the junior most teacher in the lower post shall be retrenched, if occasion demands. Learned counsel for the petitioner had drawn my attention to a Government order issued further, during the year 2010, copy of which is produced as Ext.P10(GO(P) No.41/10/G.Edn. dt. 20.3.2010). In the said order Government noticed that the prospective operation specified in Ext.P4 to the effect that the same will be applicable only from the academic year 2007-08 is causing difficulties. Hence it is ordered that WP(C). 25423 /2009 5 Ext.P4 will be applicable with respect to the years 2004-05, 2005-06 and 2006-07 also. The educational authorities were directed to revise staff fixation with respect to those years wherever found necessary by applying Ext.P4. 3. Learned counsel for the petitioner contended that the findings in Ext.P9 is based on Ext.P3 Government order and the scope of application of 1:40 teacher-student ratio on the basis of Ext.P4, benefit of which was extended to the subsequent years through Ext.P10, were omitted notice. In other words, contention is that before ordering reversion of the 6[th] respondent, 1:40 teacher-student ratio ought to have been applied in the high school section, with respect to the relevant academic years. 4. While considering such contention it is noticed that Ext.P4 Government order specifically clarified that the said order will take effect only from the academic year 2007-08 onwards. The staff fixation in the case at hand pertains to the year 2006- 07. Hence Ext.P4 is not applicable in the case . Ext.P10 order extending the benefit for the previous years was introduced only in the year 2010 whereas the impugned decision of the WP(C). 25423 /2009 6 Government was taken as early as in July 2009. But learned counsel contended that since the benefit was made available with respect to the previous years also, a review of the staff fixation is warranted . It is evident from Ext.P11 that the Government have considered the issue in detail while disposing a revision petition filed by yet another reverted H.S.A, V. Suma. It is clearly mentioned in Ext.P11 that even on applying 1:40 teacher-student ratio with respect to the year 2006-2007, the 6[th] respondent cannot be accommodated since there is no post available. Hence it is clearly stated that he has to be reverted as UPSA on applying Rule 43. The situation is not different with respect to the year 2007-08 also, as mentioned in Ext.P11. Under the above mentioned circumstances, it is evident that even if 1:40 teacher/student ratio is applied with respect to staff fixation of the High School section for the years 2006-07 or 2007-08, the 6[th] respondent cannot be permitted to continue as H.S.A. 5. Next contention raised is that the 6[th] respondent ought to have been treated as a protected teacher by virtue of the relevant Government Orders and he should not have been WP(C). 25423 /2009 7 reverted to the post of UPSA. Going by the 2[nd] proviso of Rule 43 of Chapter XIV KER reversion for want of vacancy to the post from which the teachers have been promoted shall be made only if they are not eligible for protection in the retrenched posts as per the orders issued by the Government from time to time. In the case at hand the 6[th] respondent was promoted from the post of UPSA. If he faces retrenchment for want of vacancy, he should be reverted to the post of UPSA provided he should be eligible for protection for the post of HSA. Therefore the question to be examined is as to whether he is eligible for protection in the High School section. Going by GO(P) No. 175/99 G.Edn. dt. 26.7.1999 and the subsequent Government orders on the subject matter it is evident that the benefit of protection is made eligible only to school teachers who were in service as on 14.7.1997. Admittedly the 6[th] respondent was not in service as HSA as on 14.7.1997. Therefore the benefit of Government orders on the subject of protection is not available to the 6[th] respondent in the High School section. Learned counsel for the petitioner had drawn my attention to Ext.P5, Government order, WP(C). 25423 /2009 8 GO(MS).109/98 /G.Edn. dt. 6.4.2998. It is clarified therein that the Primary and High School services put in by the aided school teachers will be reckoned for assessing eligibility for protection. Obviously what is meant by the clarification contained in Ext.P5 is that for reckoning the period of minimum eligibility of 7 years prescribed in all Government orders on the subject matter of protection, service put in by the teacher in the Primary and High School sections can be considered together. But that does not enable a person who was not in service in the particular category as on 14.7.1997 to get protection. Therefore I am of the view that the 6[th] respondent is not a person entitled for protection in the category of HSA and hence application of Rule 43 effected by the educational authority is perfectly justified in order and justified and in order. 6. A further contention raised by learned counsel for the petitioner is that on reversion of the 6[th] respondent to UP section he should have been considered as a protected teacher in the UP section, because the staff fixation in UP section also reveals division fall and consequently the existing UPSAs has become WP(C). 25423 /2009 9 surplus. Contention is that on reversion, the 6[th] respondent ought to have been deployed as protected teacher to any other school and the petitioner should have been accommodated in the available vacancy. In this regard learned counsel for the petitioner placed reliance on a decision of this court in **Rema K. vs. State of Kerala and others (2012(3) ILR (Ker) 275.** But it is to be noticed that, the facts and circumstances dealt with in the said decision is totally different and the dictum laid has no application on the facts of the case at hand. It was a case where both the teachers were working in the LP section of a school when the senior teacher was given protection and deployed due to division fall, he made a claim that the junior teacher retained on applying 1:40 ratio should have been deployed instead of senior teacher. Claim was that senior teacher ought to have been permitted to continue and the deployment should have been effected with respect to the teacher who was retained on application of 1:40 ratio. This court observed that the teacher retained on application of 1:40 ratio cannot be treated as a protected teacher. However as observed above, on the facts of WP(C). 25423 /2009 10 the case dictum has no application. 7. Counsel for the petitioner had raised yet another contention that while ordering fixation of staff strength in UP section application of 1:40 teacher-student ratio has not been taken note of. According to him, if the application of 1:40 ratio was adopted in view of the relevant Government orders, the petitioner need not have been retrenched, even after accommodating the reverted HSAs, The above contention has been opposed by counsel appearing for the 6[th] respondent as well as the Government Pleader contending that the staff fixation order with respect to relevant year has not been challenged by the petitioner. It was also pointed out that there are other retrenched UPSAs senior to the petitioner and even if such ratio is applied there is no chance for accommodating the petitioner as UPSA. However this is not an issue germane for consideration in this writ petition, because the challenge is against the reversion of the 6[th] respondent and against the consequent retrenchment of the petitioner. Hence I am not expressing any opinion on the merits of such contention. WP(C). 25423 /2009 11 8. Under the above mentioned circumstances, this court is of the considered opinion that the writ petition deserves no merit and accordingly the same is hereby dismissed. C.K.ABDUL REHIM, JUDGE pmn/ WP(C). 25423 /2009 12 WP(C). 25423 /2009 13 WP(C). 25423 /2009 14