Jijumon M.M. v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE TUESDAY, THE 20TH DAY OF MARCH 2012/30TH PHALGUNA 1933 WP(C).No. 16534 of 2009 (J) --------------------------- PETITIONER: ------------- JIJUMON.M.M., S/O.SRI.A.MOHAMMED ILLIAS, H.S.A. (ENGLISH), A.K.M.HIGH SCHOOL, KUDAVOOR RESIDING AT 'MYMOON' VALIYAKUNNU, AVANAVANCHERY PO ATTINGAL. BY ADVS.SRI. K.SIJU SRI.B.SUGATHAN SRI.PRATHEESH.P SRI.A.MUHAMMED RAFFI RESPONDENTS: -------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM. 4. THE DISTRICT EDUCATIONAL OFFICER, ATTINGAL. 5. THE MANAGER, A.K.M.HIGH SCHOOL, KUDAVOOR, ATTINGAL. 6. SMT.K.K.GEETHA, H.S.A. MATHS (PROTECTED) A.K.M.HIGH SCHOOL, KUDAVOOR, ATTINGAL. 7. THE HEAD MASTER, A.K.M.HIGH SCHOOL, KUDAVOOR, ATTINGAL. BY ADVOCATE SRI.G.SASIDHARAN CHEMPAZHANTHIYIL BY ADVOCATE SRI.S.VISHNU BY GOVERNMENT PLEADER SRI.JAMES MATHEW KADAVAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2003-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX TO W.P.C.NO.16534 OF 2009** ## **PETITIONER'S EXHIBITS:** EXT.P1: TRUE COPY OF THE APPOINTMENT ORDER DATED 2/6/2008. EXT.P2: TRUE COPY OF THE ORDER NO.B/5/4357/08/K.Dis DATED 29/9/2008 OF THE 4TH RESPONDENT. EXT.P3: TRUE COPY OF THE ORDER NO.B4/24938/08/K.Dis DATED 4/2/2009. EXT.P4: TRUE COPY OF THE SAID ORDER NO.B4/13958/08 DATED 18/2/2009 RECALLING THE 6TH RESPONDENT TO THE 5TH RESPONDENT SCHOOL. EXT.P5: TRUE COPY OF THE ORDER NO.B5/5105/08 DATED 5/8/2008. EXT.P6: THE COPY OF JUDGMENT DATED26/5/1999 IN W.A.NO.1218/1991. EXT.P7: THE PHOTOCOPY OF JUDGMENT IN WPC NO.7123/2009 DATED 5/3/2009. EXT.P8: COPY OF ORDER NO.ET(4)/21296/09/DPI.K.Dis DATED 19/5/2009. ## **RESPONDENT'S EXHIBITS:** NIL ## **A.M.SHAFFIQUE, J * * * * * * * * * * * * *** W.P.C.No.16534 of 2009 ---------------------------------------- Dated this the 20[th] day of March 2012 ## **J U D G M E N T** The petitioner who was appointed as H.S.A (English) in the A.K.M.High School, Kudavoor from 02/06/2008 in the vacancy of K.V.Suresh, H.S.A (Maths) who retired from service on 31/03/2008. The appointment of the petitioner was not approved by the 4[th] respondent as per Ext.P2 on the ground that the protected teacher Smt.K.K.Geetha, H.S.A (Maths) belonging to the same school is waiting for absorption and she is to be recalled to her parent school against the retirement vacancy of the aforesaid K.V.Suresh, H.S.A (Maths). 2. The Manager filed an appeal against Ext.P2 and Ext.P3 is the order rejecting the said appeal. The 3[rd] respondent, by Ext.P4 order dated 18/02/2009, directed appointment of Smt.K.K.Geetha in the 5[th] respondent school. The petitioner challenged the proceedings of the Deputy Director by filing W.P.C.No.7123/2009 which was disposed of by this Court on W.P.C.No.16534/09 2 05/03/2009 directing the petitioner to file a revision before the Director of Public Instructions. Ext.P8 is the order passed in the said revision. The 2[nd] respondent, by Ext.P8 order, confirmed the order dated 04/02/2009 passed by the Deputy Director of Education, Thiruvananthapuram appointing K.K.Geetha in the retirement vacancy of K.V.Suresh. The petitioner challenges Exts.P2, P3, P4 and P8 and seeks a declaration that he is entitled to get appointed and that the 6[th] respondent is not legally entitled to be absorbed in the post held by the petitioner in the H.S.A.(English). 3. It is the contention of the petitioner that the 4[th] respondent has fixed the staff strength of the school for the year 2008-2009. There are already two H.S.A (Maths) teachers in the school and the only H.S.A (English) teacher is the petitioner. It is therefore contended that recalling the 6[th] respondent against the post of the petitioner H.S.A (English) is illegal and arbitrary. It is also contended that the appointment of K.K.Geetha is against the provisions of Rule 51A Chapter XIVA of the KER since appointment of teachers under Rule 51A shall only be W.P.C.No.16534/09 3 against the post for which they were qualified. The petitioner also relies upon the judgment of this Court in W.A.No.1218/1991 which is produced as Ext.P6. 4. Second respondent has filed a counter affidavit inter alia contending that K.K.Geetha, the 6[th] respondent is a protected teacher and when there is a retirement vacancy of H.S.A (Maths), she had to be appointed to that post. It is further stated that two H.S.A (Maths) are on the roll of the school in the beginning of the academic year 2008-2009. The excess H.S.A (Maths) K.V.Suresh, was adjusted to the post of English to avoid retrenchment and on his retirement, K.K.Geetha protected H.S.A (Maths) was accommodated against the vacancy to avoid additional financial commitment to Government. It is further stated that even though the 6[th] respondent was retrenched for division fall she was eligible for protection. She has the right to have accommodation against the next vacancy. The 2[nd] respondent, therefore supported the orders passed by way of Exts.P2 and P3. W.P.C.No.16534/09 4 5. The point for determination is whether Exts.P2, P3, P4 and P8 orders require any modification. 6. Going by the aforesaid orders, it is clear that K.K.Geetha was a protected teacher and was entitled to be reappointed in the 5[th] respondent school in the next arising vacancy. The retired teacher K.V.Suresh was also H.S.A (Maths) and K.K.Geetha was also H.S.A (Maths). It seems that on account of staff fixation, K.V.Suresh was given H.S.A.(English) and when that vacancy had arisen on account of retirement of K.V.Suresh, K.K.Geetha was appointed. 7. The main contention urged by the learned counsel for the petitioner is that going by Ext.P6 judgment, a protected teacher is not entitled to get appointment merely because there is a vacancy. The vacancy should be in the subject in which the teacher is qualified to teach. The learned counsel also relied upon the judgment in **Saramma v. D.E.O.Kothamangalam [1991(2) KLT 883]** to contend for the position that Rule 51A requires an identity of posts which apparently means identity in W.P.C.No.16534/09 5 the sense that the nature of the post to which re-appointment is sought is the same as that from which the services of the teacher were terminated earlier and that unless the said condition is satisfied, preference in re-appointment cannot be sought under Rule 51A. He also relied upon **Bhanumathy v. State of Kerala [2000 (2) KLT 470]** to contend that under Rule 51A, the minimum subject requirement would be satisfied only if a teacher is appointed in the same subject. 8. The question for consideration is therefore whether the appointment of the 6[th] respondent, being a protected teacher as H.S.A (Maths) in the school, is valid or not. 9. It is relevant to note that in the counter affidavit filed by the 2[nd] respondent, it is stated that K.V.Suresh, H.S.A (Maths) was working as H.S.A (English) on account of staff re-fixation as only two H.S.A (Maths) were permitted in the school. When he retired, necessarily the vacancy is that of H.S.A (English). But, at the same time, it has to be remembered that K.V.Suresh was H.S.A (Maths) and the said vacancy got filled up by another W.P.C.No.16534/09 6 H.S.A (Maths), especially when a protected teacher is available. Therefore, it cannot be said that the appointment of the 6[th] respondent is in any way bad in law. Whether the 6[th] respondent will be deployed as H.S.A (English) depending on the staff strength, it is purely a matter of discretion by the management of the school. Under these circumstances, it cannot be stated that there is any illegality in the orders passed by the authorities and therefore there is no merit in the above writ petition and the same stands dismissed. ## **(A.M.SHAFFIQUE, JUDGE)** jsr // true coy // PA to Judge W.P.C.No.16534/09 7 W.P.C.No.16534/09 8 ## **THOMAS.P.JOSEPH,J.** Crl.M.C.No. of 200 ORDER 19/01/2011