Naicymol C.S v. State of Kerala & Others (W.P.(C).Nos. 5791 of 2016 (Y) & 7510 of 2016)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **MONDAY, THE 14TH DAY OF NOVEMBER 2016/23RD KARTHIKA, 1938** ## **WP(C).No. 5791 of 2016 (Y)** **---------------------------** ## **PETITIONER(S):** **-------------** **NAICYMOL.C.S HIGH SCHOOL ASSISTANT (SOCIAL SCIENCE), T.T.V.HIGHER SECONDARY SCHOOL, MUVATTUPUZHA, ERNAKULAM-686673.** **BY ADVS.SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. THE DEPUTY DIRECTOR OF EDUCATION ERNAKULAM, CIVIL STATION, KAKKANAD, ERNAKULAM, KOCHI-682030.** **3. THE DISTRICT EDUCATIONAL OFFICER MUVATTUPUZHA, ERNAKULAM-686673.** **4. THE MANAGER T.T.V.HIGHER SECONDARY SCHOOL, MUVATTUPUZHA, ERNAKULAM-686673.** **5. SMT.SMITHA A.R. W/O.VINOD, NJARALATH HOUSE, MARKET P.O., NSS ROAD, VALLOORKUNNAM, MUVATTUPUZHA-686673.** **R5 BY ADV. SRI.P.C.SASIDHARAN R5 BY ADV. SRI.E.S.ASHRAF** **R1-R3 BY ADV. GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-11-2016, ALONG WITH WPC. 7510/2016,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 5791 of 2016 (Y) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **P1 : COPY OF THE ORDER NO.B4/6402/10/K.DIS DT.21-12-2010 ISSUED BY THE 3RD RESPONDENT.** **P2 : COPY OF THE ORDER NO.RA(2) 13305/11/DPI/K.DIS, DT.8-4-2011 ISSUED BY THE JOINT DIRECTOR OF PUBLIC INSTRUCTIONS.** **P3 : COPY OF THE GOVERNMENT ORDER GO(RT) NO.5474/2011/G.EDN DT.7-12-2011.** ## **P4 : COPY OF THE REPRESENTATION SUBMITTED BY 5TH RESPONDENT BEFORE THE 1ST RESPONDENT.** **P5 : COPY OF THE JUDGMENT OF THIS HON'BLE COURT DT.18-9-2015 IN WPC 32336/14 OF THIS HON'BLE COURT.** **P6 :COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER DT.11-11-15 TO THE 1ST RESPONDENT.** **P7 : COPY OF THE COMMUNICATION NO.9739/A1/2015/G.EDN. DT.30-12-15 ISSUED BY THE ADDL.CHIEF SECRETARY TO GOVERNMENT TO THE 3RD RESPIONDENT** **P8 :COPY OF THE GOVERNMENT ORDER NO.GO(RT) NO.381/2016/G.EDN. DT.291-2016.** ## **P9 : COPY OF THE CIRCULAR NO.68832/99/G.EDN.DT.19-1-2010.** ## **RESPONDENT(S)' EXHIBITS:NIL** **-----------------------** **//TRUE COPY//** **P.A TO JUDGE** **A.K.JAYASANKARAN NAMBIAR, J. ............................................................. W.P.(C).No.5791 of 2016 & W.P.(C).No.7510 of 2016 ............................................................. Dated this the 14[th] day of November, 2016** ## **J U D G M E N T** As both these writ petitions involve the same issue, they are taken up together for consideration and disposed by this common judgment. 2. The petitioner in W.P.(C).No.5791 of 2016 - Smt.Naicymol C.S, joined as a UPSA in a school under the management of the 4[th] respondent. She was promoted as an H.S.A (Social Science) with effect from 04.06.1999. The 5[th] respondent in the said writ petition Smt.Smitha A.R., who is the petitioner in W.P.(C).No.7510 of 2016 also joined the school as an H.S.A (Mathematics) with effect from 26.08.1998. Pursuant to the staff fixation order for the academic year 2010-2011, it was noticed that as against six sanctioned posts of H.S.A (Mathematics) in the school there where 11 teachers working. Similarly, as against five sanctioned posts of H.S.A. (Social Science) there were seven teachers working, and as against -2- ## **W.P.(C).No.5791 of 2016 & W.P.(C).No.7510 of 2016** five sanctioned posts of H.S.A (English) there was only one teacher working. In the staff fixation order, the petitioner was retained as a teacher whereas the 5[th] respondent was retrenched. The 5[th] respondent together with another H.S.A., who was retrenched, challenged the staff fixation order before the Director of Public Instruction. By Ext.P2 order, the Joint Director of Public Instruction dismissed the said revision petition holding that Smt.Naicymol.C.S could be retained as H.S.A (Social Science) on application of the 1:40 ratio but Smt.Smitha A.R., H.S.A (Mathematics) had to be retrenched with effect from 15.07.2010. The said Smitha A.R., therefore, filed a further revision petition before the Government challenging the retrenchment that was ordered in Ext.P2 order. By Ext.P3 order dated 07.12.2011, the retrenchment of Smt.Smitha A.R was upheld by the Government. In the said order, it was only clarified that Smt.Smitha A.R could be included in the list of teachers without salary and her appointment could be approved with effect from 01.06.2011. Thereafter, Smt.Smitha A.R filed Ext.P4 representation before the Government. In the said representation, it was her case that her retrenchment pursuant to the staff fixation for 2010-2011 was -3- ## **W.P.(C).No.5791 of 2016 & W.P.(C).No.7510 of 2016** occasioned because, of the two H.S.A (Social Science) that were found to be excess namely, Smt.Shiny Yohannan and Smt.Naicymol C.S, Smt.Shyni Yohannan was accommodated against an existing vacancy of H.S.A (English), and thereafter, Smt.Naicymol.C.S was accommodated against an existing vacancy of H.S.A (Social Science) by application of the 1:40 ratio intended for protection of teachers facing retrenchment. It was her case before the Government that, had the 1:40 ratio in the post of H.S.A (Social Science) been applied to retain Smt.Shyni Yohannan, who was the Senior H.S.A (Social Science) in the school, then there would have been no occasion to retrench her, since smt.Naicymol C.S, who had been given the benefit of retention in service as H.S.A (Social Science) by applying the 1:40 ratio, was junior to her in service, and therefore, would have to be retrenched in preference to her pursuant to the staff fixation order. As no orders were forthcoming from the Government pursuant to Ext.P4 representation, Smt.Smitha A.R filed W.P.(C).No.32336 of 2014 before this Court challenging Exts.P2 and P3 orders and seeking a declaration that she was entitled to be retained in the school against one of the vacancies of H.S.A (English). The said writ petition was later -4- ## **W.P.(C).No.5791 of 2016 & W.P.(C).No.7510 of 2016** disposed by Ext.P5 judgment, wherein this Court directed the State Government to consider and pass orders on Ext.P4 representation preferred by Smt.Smitha A.R, after notice to the Manager of the school and Smt.Naicymol C.S. The judgment also permitted Smt.Naicymol C.S to raise all contentions before the Government at the time of hearing of Ext.P4 representation. Thereafter, at the time of hearing before the Government, Smt.Naicymol.C.S preferred Ext.P6 argument note, wherein the attention of the Government was drawn to the Full Bench decision of this Court in **Anil Kumar v. State of Kerala (2009 (3) KLT 650),** which held that, the Government could not review an order passed by it in revision, and the only orders which could be the subject matter of review where the original orders passed by the Government under Rule 92 of Chapter XIV A of the Kerala Education Rules. The argument note also indicated that Smt.Naicymol C.S did not have any objection to the entitlement of Smt.Smitha A.R being considered to either the post of H.S.A (English) or H.S.A (Natural Science) during any of the academic years, and the only objection of Smt.Naicymol C.S was to the consideration for accommodation of Smt.Smitha A.R to the -5- ## **W.P.(C).No.5791 of 2016 & W.P.(C).No.7510 of 2016** vacancy in H.S.A (Social Science) to which she was accommodated. The Government, thereafter, passed Ext.P8 order dated 29.01.2016. Therein, after taking note of the contention of Smt.Smitha A.R with regard to the erroneous accommodation of Smt.Shyni Yohannan as H.S.A (English), and the consequent accommodation of Smt.Naicymol C.S as H.S.A (Social Science) by application of 1:40 ratio, the Government found that, the accommodation of Smt.Naicymol C.S as H.S.A (Social Science) by application of 1:40 ratio, after accommodating Smt.Shyni Yohannan as H.S.A (English), was erroneous and, on a correct application of the Government orders that were issued from time to time, Smt.Naicymol C.S, who was junior to Smt.Smitha A.R, had to be retrenched in preference to Smt.Smitha A.R, pursuant to the staff fixation order for 2010-2011. Ext.P8 order is impugned in W.P.(C).No.5791 of 2016 preferred by Smt. Naicymol C.S and in W.P.(C).No.7510 of 2016 preferred by Smt.Smitha A.R, the prayer is for implementation of Ext.P8 order. 3. Counter affidavits have been filed by the State Government in both the writ petitions, where the impugned orders -6- ## **W.P.(C).No.5791 of 2016 & W.P.(C).No.7510 of 2016** are sought to be justified on the reasons stated therein. 4. I have heard Sri.Jaju Babu, the learned Senior counsel appearing for the petitioner in W.P.(C).No.5791 of 2016 and Sri.P.C.Sadidharan, the learned counsel appearing for the petitioner in W.P.(C).No.7510 of 2016, as also the learned Government Pleader appearing for the official respondents in both the writ petitions. 5. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that, the challenge against Ext.P8 order of the Government dated 29.01.2016 is two fold. Firstly, that Ext.P8 order was passed by exercising a power of review over Ext.P3 order that had already been passed by the Government. It is pointed out that, pursuant to the Full Bench decision of this Court in **Anil Kumar v. State of Kerala (2009 (3) KLT 650),** the Government did not have a power of reviewing an order already passed by it in a revision preferred under Rule 92 of Chapter XIV A of the Kerala Education -7- ## **W.P.(C).No.5791 of 2016 & W.P.(C).No.7510 of 2016** Rules. The second ground on which Ext.P8 order of the Government is impugned is on merits namely, that it was never the case of Smt.Smitha A.R that she ought to be accommodated in the vacancy to which Smt.Naicymol was accommodated, and hence, it was not open to the Government, while considering the inter se merit of the candidates, to hold that, Smt.Smitha A.R could be accommodated in the posts of H.S.A (English) with effect from the date of the staff fixation order for the academic year 2010-2011 and that, Smt.Naicymol could step into the shoes of Smt.Smitha A.R in the matter of retrenchment pursuant to the staff fixation order for the academic year 2010-2011. For the reasons that are stated hereinafter, I am of the view that, the challenge in W.P.(C). No.5791 of 2016, against Ext.P8 order of the Government, must necessarily fail. As regards the first contention raised by the learned Senior counsel, with regard to Ext.P8 order being passed contrary to the mandate of the decision of the Full Bench in **Anil Kumar v. State of Kerala (2009 (3) KLT 650),** I find that, Ext.P8 order was passed pursuant to a direction from this Court in Ext.P5 judgment, where the issue of jurisdiction of the 1[st] respondent to consider the representation of Smt. Smitha AR was -8- ## **W.P.(C).No.5791 of 2016 & W.P.(C).No.7510 of 2016** never raised. When, by a direction of this Court, the 1[st] respondent was called upon to dispose a representation, it would be futile for the petitioner in WP (C ) 5791/2016, who was also a party to the writ petition that was disposed by Ext. P5 judgment, to contend before the 1[st] respondent that the latter had no jurisdiction to consider and pass orders on the said representation preferred by Smt. Smitha AR. The first respondent could have accepted such a submission only at the risk of disobeying the positive direction in Ext.P5 judgment. As regards the second contention with regard to the merits of Ext.P8 order passed by the Government, I find that, it was the specific contention of Smt.Smitha A.R all along that her initial retrenchment, pursuant to the staff fixation order of 20102011, itself was flawed since her retrenchment was under circumstances where a junior H.S.A (Social Science) (Smt.Naicymol.C.S) obtained the benefit of retention as H.S.A (Social Science) in the school by application of 1:40 ratio, in preference to a Senior H.S.A (Social Science), who ought to have been granted the benefit of the 1:40 ratio for the purposes of retention as H.S.A (Social Science). As a matter of fact, it is seen that the Senior H.S.A (Social Science) (Smt.Shyni Yohannan) was -9- ## **W.P.(C).No.5791 of 2016 & W.P.(C).No.7510 of 2016** accommodated to an existing vacancy of H.S.A (English), and thereafter, the 1:40 ratio applied for the purposes of retaining Smt.Naicymol C.S as H.S.A (Social Science). In my view, this was a patent illegality since, it was only after the application of the 1:40 ratio for the purposes of retaining a teacher in a core subject, that the issue of accommodating a surplus teacher in a vacancy arising to the post of H.S.A (English) could have been considered. On following the said procedure, Smt.Shyni Yohannan ought to have been retained on an application of the 1:40 ratio to the first vacancy of H.S.A (Social Science), and Smt.Naicymol C.S., should thereafter have been considered for accommodation in an existing vacancy in the post of H.S.A (English). Since Smt.Naicymol C.S is junior to Smt.Smitha A.R., vis-a-vis the said two candidates, Smt.Smitha A.R would have obtained a preference for accommodation in the existing vacancy of H.S.A (English), and consequently, it would have been Smt.Naicymol C.S who had to face retrenchment pursuant to the staff fixation order for the academic year 2010-2011. I find that, in Ext.P8 order, it was this anomaly that was set right by the 1[st] respondent, by clarifying that Smt.Smitha A.R would have to be seen as retained in the school in -10- ## **W.P.(C).No.5791 of 2016 & W.P.(C).No.7510 of 2016** an existing post of H.S.A (English) pursuant to the staff fixation order for the academic year 2010-2011, and Smt.Naicymol C.S., had to be retrenched pursuant to the same staff fixation order. I, therefore, do not see any reason to interfere with Ext.P8 order in W.P(C).No.5791 of 2016, save for the limited purpose of directing the 1[st] respondent to issue a supplementary order, clarifying the position of Smt.Naicymol C.S, with regard to her accommodation in the school, to vacancies that arose during the period after the staff fixation order for 2010-2011, till the last staff fixation order. The 1[st] respondent shall pass a supplementary order to Ext.P8, as directed, within a period of one month from the date of receipt of a copy of this judgment, after hearing the said Smt.Naicymol.C.S. 6. In view of the fact that, I have dismissed W.P.(C).No.5791 of 2016 in its challenge against Ext.P8 order, W.P.(C).No.7510 of 2016, which seeks an implementation of Ext.P8 order must, consequently, be allowed. I, therefore, allow W.P.(C).No.5791 of 2016 by directing the respondents therein to implement the Government order dated 29.01.2016, which is produced as Ext.P2 in the said writ petition, forthwith. Before parting with these cases, -11- ## **W.P.(C).No.5791 of 2016 & W.P.(C).No.7510 of 2016** I make it clear that, the salary and other allowances paid to Smt.Naicymol C.S, for the period from 2010-2011, when she was discharging services as an H.S.A (Social Science) in the school, shall not be recovered from her. As regards Smt.Smitha A.R, whose writ petition has been allowed, it would be incumbent upon the respondents to disburse the salary and other allowances which are due to her, by virtue of the order dated 29.01.2016 of the Government which has been sustained in this judgment. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/15.11.16