N. Thulasi v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 9TH DECEMBER 2011 / 18TH AGRAHAYANA 1933 WP(C).No. 36197 of 2004(H) -------------------------------- PETITIONER: -------------- N.THULASI, HSA (MATHS), PARIPPU HIGH SCHOOL, PARIPPU P.O., KOTTAYAM (SIVADHA, PARIPPU P.O., KOTTAYAM). BY ADV. SRI.K.GOPALAKRISHNA KURUP. RESPONDENTS: - ------------------ 1. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM. 3. THE DISTRICT EDUCATIONAL OFFICER, KOTTAYAM. 4. THE MANAGER, PARIPPU HIGH SCHOOL, P.O.PARIPPU, KOTTAYAM-686 024. 5. SMT. SINDU B. NAIR, UPSA WORKING AS HIGH SCHOOL- ASSISTANT (SOCIAL STUDIES), PARIPPU HIGH SCHOOL, P.O.PARIPPU, KOTTAYAM-686 024. 6. THE HEADMISTRESS, PARIPPU HIGH SCHOOL, P.O.PRIPPU, KOTTAYAM-686 024. BY ADVS. SRI.MATHEW JOHN (K) FOR R4 SRI.SUJESH MENON V.B. FOR R4 SRI.M.NARENDRA KUMAR FOR R5 SMT.LEENA KRISHNAN FOR R5 SMT. NISHA BOSE, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/12/2011, ALONG WITH WPC Nos.22570/2005 & 18882/09, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.36197/2004 ## A P P E N D I X ## PETITIONER'S EXHIBITS: EXT. P1 : COPY OF APPOINTMNENT ORDER DTD. 16.8.93. EXT. P2 : COPY OF APPOINTMENT ORDER DTD. 15.7.98. EXT. P3 : COPY OF GOVT. ORDER DTD. 7.1.02. EXT. P4 : COPY OF PROCEEDINGS DTD. 12.11.03. EXT. P5 : COPY OF LETTER DTD. 7.12.04. EXT. P6 : COPY OF LETTER SENT BY R3 TO R6 DTD. 8.12.04. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp ## **T.R. RAMACHANDRAN NAIR, J.** **---------------------------------------** ## **W.P.(C) Nos.36197 OF 2004, 22570 OF 2005 & 18882 OF 2009 --------------------------------------Dated this the 9[th] day of December, 2011.** ## **J U D G M E N T** W.P.(C) Nos.36197/2004 and 22570/2005 are filed by the same petitioner. As far as W.P.(C) No.36197/2004 is concerned it can be seen that the petitioner was promoted as H.S.A (Maths) by order dated 15.07.1998 and the said appointment was approved by Ext.P2 order. The said writ petition was filed by the petitioner in the light of Exts.P5 and P6 communications issued by the District Educational Officer to the Manager and the Headmaster respectively. It appears that the apprehension of the petitioner was that the petitioner will be retrenched. The 5[th] respondent therein who was working as U.P.S.A was promoted as High School Assistant (Social Studies) and the petitioner contends that the said promotion cannot be justified. 2. It is submitted by the learned Senior Counsel for the petitioner in W.P.(C) No.36197/2004 that in the light of the **W.P.(C) Nos.36197/04 & conn. cases** **2** subsequent order passed by the Deputy Director of Education which is produced as Ext.R6(b) in W.P.(C) No.18882/2009, no further orders are called for in the writ petition. For completeness, I will refer to Ext.R6(b) order dated 16.06.2005 passed by the Deputy Director of Education. The said order was passed in an appeal filed by the Manager against the order rejecting approval of appointment of Smt.Sindhu B.Nair, H.S.A (Social Science), who is the 5[th] respondent in W.P.(C) No.36197/ 2004. Therein, the view taken is that no sanctioned post is available to accommodate Smt.Sindhu B.Nair as H.S.A (Social Science) with effect from 01.10.2003 in the school and the excess Maths hand is retained in the 3[rd] H.S.A (Social Science) post by the introduction of new H.S.A (English) cadre as per G.O.(MS) No.11/2002 dated 07.01.2002. It is also submitted that Ext.R6(b) has become final. In that view of the matter, W.P.(C) No.36197/2004 is closed. 3. As far as the case of the petitioner in W.P.(C) No.22570/ 2005 is concerned, it is pointed out that during the academic year 2004-2005, there were 13 sanctioned posts of H.S.A and the petitioner is 10[th] in the order of seniority. It is the contention **W.P.(C) Nos.36197/04 & conn. cases** **3** of the petitioner that since 13 posts of H.S.As are liable to be sanctioned, going by the position of the petitioner in the seniority list Ext.P8, there cannot be any retrenchment as there are four teachers junior to her. 4. The contention raised by the respondents in W.P.(C) No.22570/2005 is that staff fixation for the academic year 20052006 resulted in abolition of one post of H.S.A (Social Science) and as far as Mathematics is concerned, there are only three sanctioned posts. Therefore, the petitioner, being the juniormost from among the H.S.A (Maths) Teachers, will have to face reversion. 5. Learned Senior Counsel for the petitioner in W.P.(C) No. 22570/2005 submitted that in the light of Rule 51 of Chapter XIV-A of Kerala Education Rules and by recognising the seniority of the petitioner, among the teachers in the core subjects, the petitioner will have to be retained. This contention is strongly opposed by the learned counsel for the respondents by pointing out that the minimum subject ratio has to be satisfied and the distribution of periods and sanctioning of posts as per the staff fixation order alone can be gone into. Rule 51 of Chapter XIV-A **W.P.(C) Nos.36197/04 & conn. cases** **4** ## K.E.R reads as follows: “51. When a vacancy in any category of post terminates necessitating the relief of a teacher, senior hands shall ordinarily be retained in preference to junior hands with due regard to the requirement of subjects determined by the Director under sub-rule (1) of rule 1 and to the instructions issued by him under sub-rule (4) of the Rule”. 6. The question whether as argued by the learned Senior Counsel for the petitioner, the subject requirement also has to be gone into is not one considered by any of the statutory authorities. Learned Senior Counsel has relied upon the Full Bench decision of this Court in _**Philomina** vs._ _**Babu Varghese**_ (2001 (2) KLT 519(F.B)) and the learned counsel appearing for the contesting respondents Sri.K.E.Hamza and Sri.N.Unnikrishnan have relied upon the decision of the Apex Court in _**Deepa Augustine** vs._ _**Geetha Alex**_ (2008(2) KLT 771(SC)). 7. Therefore, the crucial question is whether the subject requirement will have a bearing on the subject ratio based on which staff fixation order has been issued. The argument advanced by the learned Senior Counsel Sri.K.Gopalakrishna Kurup is that as far as Mathematics is concerned, 68 periods are **W.P.(C) Nos.36197/04 & conn. cases** **5** available and in respect of Physical Science, according to him, only 48 periods are there and as far as Social Studies, 56 periods are there. Therefore, once minimum subject requirement is satisfied, as far as core subjects in Physical Science and Social Science are concerned, the petitioner will have to be accommodated against one of the posts therein which have been sanctioned by the staff fixation orders. This argument is opposed by Sri.K.E.Hamza and Sri.N.Unnikrishnan by pointing out that as far as distribution of periods are concerned, minimum number of posts have been sanctioned and teachers in the respective core subjects have been accommodated. 8. There is a subsequent development also. The Manager has issued an order appointing the petitioner in W.P.(C) No. 22570/2005 (Smt.N.Thulasi) in a retirement vacancy which arose in the year 2009 which is produced as Ext.R6(e) in W.P.(C) No.18882/2009 (Ext.P21 therein). It is submitted on both sides that the said appointment has not been approved so far in the light of the pendency of the writ petition. 9. Learned counsel for the petitioners in W.P.(C) No.18882/2009 Sri.N.Unnikrishnan submitted that the petitioners **W.P.(C) Nos.36197/04 & conn. cases** **6** therein are senior to Smt.N.Thulasi in the category of U.P.S.As and if she was liable to be reverted from 2005-06, when vacancy arose consequent on the retirement of Sri.Govindan Namboothiri, H.S.A (Maths), the petitioners became qualified for promotion and the 1[st] petitioner therein ought to have been promoted in that vacancy. It is also submitted that the 1[st] petitioner has been promoted in a later vacancy. The Learned counsel is relying upon the decision in _**Babu** vs._ _**Manager, S.N.V.H. School, Paravur and others**_ (1978 (2) ILR 40) in support of the above contention. 10. During the course of arguments, it is pointed out by the learned Senior Counsel for the petitioner Sri.K.Gopalakrishna Kurup that even though in the Head Note in _**Deepa Augustine** vs._ _**Geetha Alex**_ (2008(2) KLT 771(SC)), it is noted that the decision in _**Philomina** vs._ _**Babu Varghese**_ (2001 (2) KLT 519 (F.B)) is overruled, the same is not correct which will be clear from a reading of paragraph 4 of the judgment of the Apex Court. It is clear from a reading of the said paragraph that the Apex Court has not overruled the Full Bench decision in _Philomina's case_ (supra) and their Lordships have re-stated the principle with **W.P.(C) Nos.36197/04 & conn. cases** **7** regard to the filling up of vacancies in a particular core subject. 11. In W.P.(C)No.22570/2005, the additional 9[th] respondent is a H.S.A (Physical Science) who was appointed in a fresh vacancy. It is submitted by learned Senior Counsel for the petitioner that if the petitioner's contention is accepted, then the said appointment could not have been approved. It is submitted that the said appointment has already been approved by the District Educational Officer by a separate proceedings. Therefore, it will not be proper for this Court to consider the matter in this writ petition. The petitioner will have to resort to appropriate statutory remedies in that regard. Therefore, W.P.(C) Nos.22570/2005 and 18882/2009 are disposed of in the following manner: The various questions will be considered by the District Educational Officer with specific reference to the contention raised by the petitioner Smt.N.Thulasi that the minimum subject requirement will justify her continuance in the school from the academic year 2005-06 onwards by accommodating her against the post of H.S.A (Social Science) or H.S.A (Physical Science) as the case may be. This issue will be considered after considering **W.P.(C) Nos.36197/04 & conn. cases** **8** the contention of the respective respondents also that the minimum subject ratio will have to be satisfied. All these aspects will be considered in accordance with law and after analysing the principles stated in the decisions of this Court relied upon by both sides and also in terms of Rule 51A of Chapter XIV-A K.E.R . Appropriate decision will be taken within a period of three months from the date of receipt of a copy of this judgment. By Ext.P21 produced in W.P.(C) No.18882/2009, Smt.N.Thulasi has been accommodated in a fresh vacancy as H.S.A (Maths) which arose due to the retirement of Sri.K.Govidan Namboothiri. The petitioners therein are claiming promotion to the said vacancy. Therefore, the respective rights of the parties will also be determined by the District Educational Officer after assessing all the respective contentions of the parties. The status quo as on today will continue till orders are passed. No costs. ## **T.R. RAMACHANDRAN NAIR JUDGE** smp