Jyothy T.V. W/o. Rijo Rinna C. v. State of Kerala and Others

**WP(C) NO. 6696 OF 2014** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 12[TH] DAY OF NOVEMBER 2021 / 21ST KARTHIKA, 1943** ## **WP(C) NO. 6696 OF 2014** ## **PETITIONER:** JYOTHY T.V. W/O. RIJO RINNA C., H.S.A (ENGLISH), PARLI HIGH SCHOOL, PARLI, PALAKKAD - 678 001, RESIDING AT REREES, AKSHARA NAGAR, MELAMURI, PALLIPURAM P.O., PALAKKAD - 6. BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTD BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (E) DEPARTMENT, THIRUVANANTHAPURAM-695 001. 2 THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM-695 001. 3 DEPUTY DIRECTOR OF EDUCATION PALAKKAD-678 001. 4 THE DISTRICT EDUCATIONAL OFFICER PALAKKAD-678 001. 5 THE MANAGER PARLI HIGH SCHOOL, PARLI, PALAKKAD -678 001. BY ADVS. GOVERNMENT PLEADER DR.V.N.SANKARJEE DR.V.N.SANKARJEE SMT NISHA BOSE SR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 6696 OF 2014** **2** ## **JUDGMENT** This writ petition is filed seeking to quash Exts.P7 to P9 by which the approval of the appointment of the petitioner was granted only from 5.6.2006, and for a declaration that the petitioner is entitled to have her appointment approved as HSA (English) in terms of Ext.P1 order, and for consequential direction to the respondents to provide all service benefits including pay and other allowances to the petitioner with effect from 1.6.2005. 2. The petitioner contends that as per Ext.P1 order, she was appointed on 1.6.2005 as HSA (English) in Parli High School, an aided school under the management of the 5th respondent against the promotion vacancy of Smt. C.V.Saleena, HSA (Maths), who stood promoted as Headmistress of the said school. The appointment was approved with effect from 5.6.2006 onwards. Ext.P2 is the category wise staff list as of 1.6.2005 which would reveal that as on the said date, there were a total number of 29 High School teachers working in the said school. Ext.P3 is the copy of the staff fixation order for the period 2005-2006 and the same reveals that the total strength of teaching staff in the school is 29. The petitioner states that Ext.P3 staff fixation was carried out in tune with G.O.(M.S.) No.11/2002/G.Edn. dated 7.1.2002 which provides for the creation of a separate cadre of HSA (English) in High Schools. According to the petitioner, the strength of the HSA (English) **WP(C) NO. 6696 OF 2014** **3** in the school was fixed as seven, but the number of teachers occupying the said post is only one. On the other hand, though as per Ext.P3, the number of sanctioned posts in HSA (PS) is five, six HSA (PS) teachers were working in the said school. The petitioner would refer to Ext.P4 and it is contended that it was with a view to implementing the said order, that a temporary ban on the promotion of claimants as per Rule 43 of Chapter XIVA of the KER was imposed. Ignoring all these aspects, approval was granted only with effect from 5.6.2006. This was challenged before the 3rd respondent who passed Ext.P6 order allowing the appeal filed by the Manager and the DEO, Palakkad was directed to approve the appointment of the petitioner as HSA (English) with effect from 1.6.2005 if the same is otherwise in order. While passing Ext.P6, the 3rd respondent had ordered that Sri. R. Mohandas, HSA (PS), a protected teacher who has been appointed against the vacancy which had arisen be recalled to accommodate the petitioner. 3. While so, the Accountant General, Thiruvananthapuram (Audit & Accounts) in their inspection report pointed out that the case had to be reexamined in consultation with the Government. The matter was later taken up by the 2nd respondent, who after considering the facts and circumstances came to the conclusion that 30 HSAs were working in the school including the petitioner and that there was no vacancy to accommodate the petitioner during the year 2005-2006. The next vacancy had arisen only on 30.4.2006 due to the retirement of Smt.M.Geetha, HSA (PS) and hence, the petitioner **WP(C) NO. 6696 OF 2014** **4** can be accommodated only from 5.6.2006. Though the order passed by the 2nd respondent was challenged before the Government, the same was not interfered with. It is in the above background that the petitioner is before this Court seeking the following reliefs: - (i) Call for records relating to Exts. P1 to P9; - (ii) issue a writ of certiorari or other appropriate writ or order or direction, quashing Exts.P7, P8 and P9; - (iii) issue a writ of mandamus or other appropriate writ or order or direction, declaring that the petitioner is entitled to have approved her appointment as HSA(English) in terms of Ext.P1 viz. W.e.f. 01.06.2005 in High School at Parli, Palakkad and consequently direct the respondents to provide all service benefits including pay and other allowances to the petitioner, w.e.f. 01.06.2005, being a High School Assistant forthwith. 4. A counter affidavit has been filed by the 1st respondent wherein it is contended that during the staff fixation for the academic year 2005-2006, the HSA Core Subject post was created in the school based on the student strength. To the 29th newly created post of HSA, a protected teacher had to be appointed. Sri. R. Mohandas, who got approval as HSA with effect from 6.6.2001, was deployed to BRC due to the division fall in the school. Since he was senior to the petitioner, he had to be recalled as per the rules in force. It is contended that there was no sanctioned post to accommodate the petitioner, as per the staff fixation during the year 2005-2006 as she is the juniormost teacher, her claim cannot be allowed. **WP(C) NO. 6696 OF 2014** **5** 5. Sri. Sajan Varghese, the learned counsel appearing for the petitioner submitted that Ext.P4 order was issued by the Government taking note of the fact that the English language was being taught by teachers of core subjects who possess qualifications in the concerned subjects and B.Ed/B.T./L.T and it was to remedy the consequent deteriorating standard of English teaching that the Government took measures for creation of a separate cadre of HSA (English). Referring to clause (3) (a) of Exhibit P4, it is contended by the learned counsel that a new cadre was ordered to be created by reallocating the periods of English in a phased manner without causing retrenchment of existing HSAs (core subjects). According to the learned counsel, the order also says that a cadre had to be created observing the minimum subject ratio of requirement. The Government had also ordered a temporary ban on the promotion of claimants as per Rule 43. The learned counsel points out that there was only one English Teacher out of a sanctioned strength of 7 whereas, in the case of HSA (PS), out of a sanctioned strength of 5, there were six teachers. The learned counsel would rely on the law laid down by this Court in Minimole C. v. State of Kerala and Ors. [2012 (4) KLT 719] to substantiate his point. 6. I have heard Smt. Nisha Bose, the learned senior Government Pleader who did not challenge the veracity of Ext.P2 category wise staff list and Ext.P3 staff fixation dated 26.7.2005. 7. I have considered the submissions. Exhibit P4 order was issued **WP(C) NO. 6696 OF 2014** **6** by the Government with the intent to remedy the deteriorating standard of English teaching/learning. Exhibit P4 reveals that the DPI had informed the Government that the present method of Teaching English followed in High Schools is ineffective in the absence of qualified HSA’s in English leading to low percentage of pass in the subject. The Government after considering all aspects decided to create a new cadre of HSA (English) in the Aided and Government Schools by re-allocating the periods of English now allocated to the Core subjects/Maths, Social Science and Social Studies) in a phased manner, without causing retrenchment of existing HSA’s (Core subjects). The new cadre was to 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, Social Science and Social Studies with a view to achieve the object of distribution of posts envisaged in the table given in the appendix. Rule 6.I to Chapter XXIII was added by G.O.(P) 149/03/G.Edn dated 6th June 2003. R.6.I of Chap.XXIII of the KER 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. 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 **WP(C) NO. 6696 OF 2014** **7** subjects) as on 7th January 2002, and observing the minimum subject requirement.' 8. Rule 6.I provides that post of HSA (English) has to be sanctioned observing minimum subject requirement and that the rule shall be implemented in a phased manner without causing retrenchment of existing High School Assistant. 9. Ext.P6 is the proceeding of the DDE detailing the name of the post, the number of sanctioned posts and the number of teachers working against them. |against them.||| |---|---|---| |Name of Post|No.of sanctioned posts|No. of teachers working against<br>them| |H.S.A(Physical Science)|5|7| |H.S.A(Natural Science)|4|4| |H.S.A(Maths)|7|8| |H.S.A(Social Studies)|6|8| |H.S.A(English)|7|1| |Total|29|28| 10. Thus, it can be seen that seven physical science teachers were working against five sanctioned posts of HSA Physical science whereas only one English teacher was posted against 7 sanctioned posts of HSA (English). The vacancy had in fact arisen consequent to the promotion of C.V.Saleena as Headmistress. In Ext.P4 Government order, it is stated that the new cadre **WP(C) NO. 6696 OF 2014** **8** of HSA (English) is to be created by reallocating the periods of English now allocated to the core subjects in a phased manner. What had to be ensured under the said process was create a new cadre by appointing/promoting qualified hands against the vacancies caused by retirement/additional division/resignation/leave observing the minimum subject ratio requirement. Rule 6.I of Chapter XXIII also provides for the creation of the post of HSA (English) by observing the minimum subject requirements. It is apparent that to ensure the minimum subject ratio requirement, a qualified HSA (English) alone could have been appointed in terms of Rule 6.I. It is evident from Ext.P8 and P9 that the mandate of Ext.P4 Government order and Rule 6.I was sought to be diluted by recalling a protected teacher. 11. In Minimole (supra) 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 **WP(C) NO. 6696 OF 2014** **9** promotion of Smt.T.L.Gracykutty, H.S.A. as Headmistress. In the 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. 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, **WP(C) NO. 6696 OF 2014** **10** their redeployment depends upon sanction of posts or arising of vacancies in H.S.A. (Maths) and H.S.A. (S.S.). 12. As held above, teachers in HSA (core subjects) cannot claim redeployment in parent school as their redeployment depends upon 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. Resultantly, the petitioner is entitled to succeed in this writ petition. Exts P7 to P9 will stand quashed. There will be a direction to the respondents to approve the appointment of the petitioner as HSA (English) in terms of Ext.P1 with effect from 1.6.2005 in the High School at Parli. There will be a further direction to the respondents to provide all service benefits including pay and allowance with effect from 1.6.2005. ## **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** ps **WP(C) NO. 6696 OF 2014** **11** ## **APPENDIX OF WP(C) 6696/2014** PETITIONER EXHIBITS EXHIBIT-P1-TRUE COPY OF THE APPOINTMENT ORDER DATED 01/06/2005 ISSUED BY RESPONDENT NO.5 EXHIBIT-P2-TRUE COPY OF THE CATEGORY WISE STAFF LIST AS ON 01/06/2005 OF PARLI HIGH SCHOOL, PARLI, PALAKKAD. EXHIBIT-P3-TRUE COPY OF THE STAFF FIXATION DATED 26/07/2005 IN RESPECT OF HIGH SCHOOL, PARLI. EXHIBIT-P4-TRUE COPY OF THE G.O(MS) 11/2002/G.EDN. DATED 07/01/2002. EXHIBIT-P5-TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 17/05/2005 SUBMITTED BY THE RESPONDENT NO.5 BEFORE RESPONDENT NO.3 EXHIBIT-P6-TRUE COPY OF THE PROCEEDINGS OF THE RESPONDENT NO.3 DATED 06/03/2006. EXHIBIT-P7-TRUE COPY OF THE PROCEEDINGS DATED 12/09/2011 OF THE RESPONDENT NO.2 EXHIBIT-P8-TRUE COPY OF THE COMMUNICATION MADE BY THE RESPONDENT NO.1 TO THE PETITIONER. EXHIBIT-P9-TRUE COPY OF THE G.O(RT) 2885/2013/G.EDN. DATED 12/07/2013