Serly Das.T v. State of Kerala & ors.

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT:- THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE 31ST DAY OF MARCH 2016/11TH CHAITHRA, 1938 ## W.P.(C).No.24430 of 2010 (C) --------------------------------------------------- PETITIONER(S):- ------------------------- SERLY DAS.T, AGED 40, SHAJI BHAVAN, NEERKUNNAM, VANDANAM P.O., ALAPPEY, NOW WORKING AS HIGHER SECONDARY SCHOOL TEACHER, JUNIOR, MALAYALAM, ARAVUKAD HSS, PUNNAPPRA. BY ADV. SRI.BENOY THOMAS. RESPONDENT(S):- -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPT., SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, TRIVANDRUM-695 001. 3. REGIONAL DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM-695 001. 4. MANAGER, ARAVUKAD HSS, PUNNAPPARA-688 008. R1 TO 3 BY GOVERNMENT PLEADER SMT.K. SUNITHA VINOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-03-2016, ALONG WITH W.P.(C) NO.12858 OF 2011-F, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- W.P.(C) NO.24430 of 2010-C ## **APPENDIX** PETITIONER'S EXHIBITS:- -------------------------------------- EXT.P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER. EXT.P1(a) TRUE COPY OF THE CHANGE OF STAFF STATEMENT. EXT.P2 TRUE COPY OF THE M.A.DEGREE CERTIFICATE OF THE PETITIONER. EXT.P2(a) TRUE COPY OF THE B.A.DEGREE CERTIFICATE OF THE PETITIONER. EXT.P2(b) TRUE COPY OF THE SET CERTIFICATE OF THE PETITIONER. EXT.P3 TRUE COPY OF THE FRONT PAGE OF THE SSLC BOOK OF THE PETITIONER. EXT.P4 TRUE COPY OF THE ATTENDANCE CERTIFICATE ISSUED BY THE PRINCIPAL DT.19.3.2009. EXT.P5 TRUE COPY OF THE ORDER NO.ACD.C3/18537/HSE/2001 DATED 10.7.2002. EXT.P6 TRUE COPY OF THE APPOINTMENT ORDER DT.5.5.2008. EXT.P7 TRUE COPY OF THE APPROVAL ORDER DT.14.8.2008. EXT.P8 TRUE COPY OF THE GO NO.343/2000/G.EDN. DT.13.10.2000. EXT.P9 TRUE COPY OF THE JUDGMENT IN WA.1970/2002 DT.11.6.2004. EXT.P10 TRUE COPY OF THE JUDGMENT IN OP.NO.3911/2002 DT.7.2.2002. EXT.P11 TRUE COPY OF THE ORDER IN CMP.1181/2002 IN W.A.403/2002 DT.18.2.2002. EXT.P12 TRUE COPY OF THE ORDER IN CMP.4489/2002 IN W.A. 403/2002 DT.18.7.2002. EXT.P13 TRUE COPY OF THE JUDGMENT IN OP.3911/2002 DT.25.2.2005. EXT.P14 TRUE COPY OF THE LETTER NO.ACD.B1/14134/HSE/06 DFATED 31.7.2007. EXT.P15 TRUE COPY OF THE VERIFIED STRENGTH OF STUDENTS IN STANDARD 11 AND 12 FOR MALAYALAM SECOND LANGUAGE FROM THE ACADEMIC YEAR 2001-2002 TO 2008-09. W.P.(C) NO.24430 OF 2010-C - 2 - EXT.P16 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.25176 OF 2009 DT.28.8.2009. EXT.P17 TRUE COPY OF G.O.(RT) NO.923/2010/GEN. EDN. DT.3.3.2010. EXT.P18 TRUE COPY OF THE ORDER NO.G.O.(RT) NO.1341/98 DT.28.3.1998. EXT.P19 TRUE COPY OF THE G.O.(RT) NO.3269/2004/G.EDN. DT.30.7.2004. ## RESPONDENT'S EXHIBITS:- --------------------------------------NIL. vku/ [ true copy ] ## K. Vinod Chandran, J ----------------------------------------------------------------W.P.(C) Nos.24430 of 2010-C & 12858 of 2011-F -----------------------------------------------------------------Dated this the 31st day of March, 2016 ## **JUDGMENT** Petitioner in both the above writ petitions is the same person. The petitioner was appointed as a Higher Secondary School Teacher (Junior) (Malayalam) [for brevity “HSST (J)”] from the academic year 2003-04. The petitioner claims that right from the said academic year the petitioner was entitled to be appointed as a HSST, since in the staff fixation order the Educational authority omitted to take note of the sanction of Computer course, in which also there was necessity for a batch of students who had to be taught the language 'Malayalam'. The petitioner has also an alternative contention that, in any event, there was a requirement for a senior post from 2007-08 and the petitioner should have been accommodated as HSST from that academic year. The Government, however, by Exhibit P17; challenged in W.P.(C) No.24430 of 2010, rejected both the prayers and accommodated the petitioner in the additional hours, which did not have a teacher by virtue of the WP(C).24430 of 2010 & - 2 - 12858 of 2011 promotion of one HSST (Malayalam) to the post of Principal. The said order was _suo motu_ reviewed and overturned by Exhibit P17 (a), produced and challenged in W.P.(C) 12858 of 2011 2. The staff fixation order, for the academic years 2003-04 to 2006-07, is produced as Exhibit P23 by an additional affidavit in W.P.(C) No.12858 of 2011. For the language 'Malayalam' in the academic year 2003-04, the student strength in Standard XI was 245 and Standard XII was 232. There were two HSST (Malayalam) already working there. The Government refused to sanction an additional batch in accordance with the staff fixation, only since the Government computed the student strength required for a batch as 60. 3. The issue stands covered in favour of the petitioner by the judgment in **W.P.(C) No.30702 of 2014** dated 09.03.2016 **[** _**Manju S.Pillai v. State of Kerala & Ors.**_ **]** , paragraphs 7 and 8 of ## which is extracted hereunder: “7. G.O (RT) No.1341/98/G.Edn. dated 28.03.1998 sanctioned one additional division to classes, over 50 students with a margin of 10 students in all the higher secondary schools. Hence if the student strength exceeds beyond 60, then, there should be an additional batch WP(C).24430 of 2010 & - 3 - 12858 of 2011 sanctioned with the basic student strength for each batch maintained at 50. This would have to be determined on the basis of the student strength at each point when it exceeds 50. Every additional 61 students would result in two additional batches, one for the 50 and the other for 11. 8. Circular No.Ad.B1.7224/006/HSC dated 30.05.2000 prescribed the maximum strength of one batch to be 50 and the maximum number of periods to be taught by a full time HSST would be 25. The distribution for various subjects are also available in the circular which speaks of six periods for Part II languages. G.O(MS) 398/2002/G.Edn. dated 29.11.2003 provides for appointment of a HSST Junior on the excess period in a week exceeding by 3. Hence for every period beyond 28 there shall be an additional HSST Junior appointed for the language subjects. The eligible staff strength permissible in the respondent school for the academic year 2007-08 has to be determined on the basis of Ext.R4(a) staff fixation order and the Government Orders and Circular above referred”. 4. Applying the said interpretation to the facts of the above case, for the year 2003-04, as was noticed, there should be 5 batches each in Standards XI and XII, computing the student strength in each batch as 50 with additions above 10 requiring an additional batch. In Standard XI, there would be 4 batches of 50 students and one batch of 45 students and in Standard XII, 4 WP(C).24430 of 2010 & - 4 - 12858 of 2011 batches of 50 students and one batch with 32 students, for the academic year 2003-04. This would require 30 periods in Standard XI and 30 periods in Standard XII; calculating at the rate of six periods in a week for a batch. 25 periods would have to be allotted to a HSST and, hence, the existing teachers would take 50 periods, leaving scope for one appointment of HSST (J) in the remaining 10 periods. 5. For the academic year 2007-08, the staff fixation order is seen at Exhibit P15(a) in W.P.(C) No.12858 of 2011, wherein the student strength in Standard XI was 309 and that in Standard XII at 261. Hence, there would be 6 batches in Standard XI and 6 batches in Standard XII also. For Standard XI, the additional 9 students over and above 6 batches of 50 students would not require an additional batch. In Standard XII, 11 students above the 5 batches would require an additional batch. From the academic year 2007-08, there are, hence, 12 batches; requiring 72 periods to be held for the language 'Malayalam'. So, in addition to the 25 periods each allotted to the already existing two HSSTs, the balance 22 periods would be allotted to the petitioner, who would be treated as a HSST, since she has workload above WP(C).24430 of 2010 & - 5 - 12858 of 2011 15 periods as provided under Chapter XXXII of KER. The same position continues in 2008-09 also, as is indicated at Exhibit P15 (a) in W.P.(C) No.12858 of 2011. 6. The further contention is that an additional Computer Science batch was sanctioned by Exhibit P8 in W.P.(C) No.12858 of 2011. The learned Government Pleader would submit that the same was cancelled by the Government and the petitioner cannot rely on the same. The learned Counsel for the petitioner, however, points out that the cancellation was not made by the Government, but by a judgment of this Court. On sanctioning the additional course in Computer Science in the academic year 2000-01, which was commenced in 2001-02, some other third parties, who were also Managers of schools desirous of getting Higher Secondary Courses, challenged the same before this Court. A learned Single Judge of this Court in O.P.No.18750 of 2000 by judgment dated 24.11.2000, upheld the challenge and cancelled the grant. The Manager of the school in which the petitioner was appointed and continuously working, challenged the judgment of the learned Single Judge in W.A.No.1970 of 2002, which was allowed as per Exhibit P9. Without noticing Exhibit P9, the Government issued WP(C).24430 of 2010 & - 6 - 12858 of 2011 Exhibit P14 direction to stop the batch in Computer Science from the academic year 2007-08 onwards. The Manager stopped the Computer Science batch from the said year and challenged Exhibit P14 order. By Exhibit P20 judgment, produced along with an affidavit dated 23.09.2014 filed in support of I.A.No.10701 of 2014, the said challenge was upheld. Exhibit P14 order was set aside. 7. However, the learned Counsel for the petitioner submits that after the course in Computer Science was stopped in 2007-08, the Manager never resumed the said course. But, the fact remains that from the year in which the course was commenced, i.e., from 2001-02, the school had been regularly conducting a Higher Secondary Course in Computer Science till Exhibit P14 order. In such circumstance, the said student strength would also be reckoned, in which case the petitioner would have sufficient periods to be treated as HSST from the date of her appointment from the academic year 2003-04. 8. The petitioner's claim for appointment as HSST (J) from the academic year 2003-04 and her promotion to the post of HSST from 2007-08 have to be declared and I do so, from the WP(C).24430 of 2010 & - 7 - 12858 of 2011 facts as revealed from the documents produced herein. The petitioner's approval, in accordance with such declaration, shall be granted. In the meanwhile, the Educational Authority, the 3rd respondent, shall verify the commencement and continuance of the course in Computer Science from 2001-02 to 2007-08. On verification if the course is found to have been continued, the number of students as on 2003-04 shall also be verified and if there are sufficient periods available computing the batches and periods as herein above, then necessarily approval shall be granted as HSST itself from the date of appointment, i.e., from the academic year 2003-04. The petitioner shall produce a certified copy of this judgment along with the staff fixation orders before the 3rd respondent and the 3rd respondent shall also verify the records with proper notice to the Manager and shall issue necessary orders revising the staff fixation and approving the appointment of the petitioner in accordance with law and the directions herein above. The same shall be done within a period of four months from the date of receipt of a certified copy of this judgment. The arrears of salary shall also be computed and paid within two months from the date of issuance of the approval orders. WP(C).24430 of 2010 & - 8 - 12858 of 2011 9. Exhibit P17, challenged in W.P.(C) No.24430 of 2010, accorded sanction for the approval of appointment of the petitioner in the additional periods arising on the promotion of one HSST (Malayalam) to the post of Principal. Exhibit P17(a) produced in W.P.(C) No.12858 of 2011, is the _suo motu_ revision effected of the same. As a consequence of the declaration made by this Court and the further consideration directed the writ petitions are to be allowed, setting aside Exhibits P17 and P17(a), which are unsustainable. The writ petitions would stand allowed. Parties are directed to suffer their respective costs. **Sd/-** K.Vinod Chandran Judge vku/- [ true copy ]