Siju Jacob v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 03RD DAY OF JUNE 2020 / 13TH JYAISHTA, 1942** ## **WP(C).No.5846 OF 2020(E)** ## **PETITIONER:** **SIJU JACOB, AGED 40 YEARS S/O. V.K. YACOB, UPST,** **MAR ELIAS HIGHER SECONDARY SCHOOL, KOTTAPPADY, KOTHAMANGALAM, ERNAKULAM DISTRICT-686692.** **BY ADVS.** **SRI.ELVIN PETER P.J. SRI.K.R.GANESH SMT.N.R.REESHA SMT.T.S.LIKHITHA** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF GENERAL EDUCATION, OFFICE OF THE DIRECTOR GENERAL OF EDUCATION, THYCAUD, THIRUVANANTHAPURAM-695001.** - **3 THE DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION, ERNAKULAM-682030.** - **4 THE DISTRICT EDUCATIONAL OFFICER, KOTHAMANGALAM-686691, OFFICE OF THE DEO, KOTHAMANGALAM, ERNAKULAM.** - **5 THE MANAGER, MAR ELIAS HIGHER SECONDARY SCHOOL, KOTTAPPADY, KOTHAMANGALAM, ERNAKULAM DISTRICT-686692.** - **6 SMT. SOUMYA N. GEORGE, W/O. GEORGE, UPST, MAR ELIAS HIGHER SECONDARY SCHOOL, KOTTAPPADY, KOTHAMANGALAM, ERNAKULAM DISTRICT-686692.** - **7 *ADDL R7.** **WP(C).No.5846 OF 2020(E)** 2 **MINTU MATHEW, AGED 33 YEARS, WIFE OF NIGU VARHESE, UPPER PRIMARY SCHOOL ASSISTANT, MAR ELIAS HIGHER SECONDARY SCHOOL, KOTTAPPADY, KOTHAMANGALAM, ERNAKULAM DISTRICT-686 692 (RESIDING AT CHENNOTHUMALIL HOUSE, KOTTAPPADY, KOTHAMANGALAM, ERNAKULAM DISTRICT.)** ***ADDL R3 IS IMPLEADED AS PER ORDER DATED 03.06.2020 IN I.A.NO.3 OF 2020** **BY ADV. SRI.S.PRASANTH (AYYAPPANKAVU) BY ADV. V.A.MUHAMMED** ## **OTHER PRESENT:** **SRI.SUNIL KUMAR KURIAKOSE, GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.5846 OF 2020(E)** 3 ## **J U D G M E N T** Petitioner, who had been working as High School Teacher (Natural Science) under the 5[th] respondent, is aggrieved by Ext.P7 order by which Government reversed the order of the DEO approving his reversion as UPST and directed his deployment, as he was found eligible for protection while permitting retention of the 6[th] respondent in the School as UPST. Petitioner is also challenging Ext.P6 Circular dated 19.11.2018, which was relied on by Government and seeks a declaration that he is entitled to continue as UPST till a vacancy of HST arises in the School. 2. The petitioner was initially appointed as UPSA in the 5[th] respondent's School on 09.06.2003. He was promoted as HSA (Natural Science) as per Ext.P1 order on 02.07.2012. In Ext.P3 staff fixation proceedings dated 07.07.2017 for the year 2017-18 in the 5[th] respondent School there was reduction of 5 **WP(C).No.5846 OF 2020(E)** 4 divisions in the High School section resulting in reduction of 7 posts of HSAs. Petitioner was shown as Sl.No.1 among the 7 HSAs being retrenched without eligibility for protection. Simultaneously it was directed that the newly sanctioned additional posts of UPSAs shall be filled up by protected teachers following the ratio of 1:1. Thereupon stating that the petitioner and one Neethu Joy, an HST (Maths) were retrenched for want of eligibility for protection, the Manager, issued Ext.P4 order dated 14.07.2017 reverting them as UPSTs. Consequent to this one Mintu Mathew who is the juniormost UPST was shifted to the 9[th] post of UPSA and the 6[th] respondent who was working as UPST was shifted to one of the additional division vacancies sanctioned in 2017-18. The DEO thereafter issued Ext P5 order on 26.10.2017, approving the reversion of petitioner and Smt.Neethu Joy stating that they are eligible for protection in the post of UPST. At the same time the shifting of the 6[th] respondent and Smt.Mintu who are the juniormost UPSTs **WP(C).No.5846 OF 2020(E)** 5 was not approved stating that Manager did not follow 1:1 ratio in filling up additional division vacancies in accordance with the Government Order dated 29.01.2016. Aggrieved by Ext.P5 order of the DEO, Smt.Soumya N. George, the 6[th] respondent and Smt.Minnu Mathew approached the Government with separate revision petitions. After hearing the revision petitioners and the Manager, Government found that the petitioner and Smt.Neethu K Joy who were working HST on promotion from the post of UPST were eligible for protection in accordance with Ext P6 circular which clarified the Government Order dated 29.01.2016 and that under the 2[nd] proviso to Rule 43 of KER, they could have been reverted only if they were not eligible for protection. Government therefore directed to take urgent steps for their deployment after including them in the teachers' bank. Government also ordered that the lien of petitioner and Smt.Neethu Joy could be shifted to the additional division vacancies of UPSAs from 15.07.2017 till the deployment **WP(C).No.5846 OF 2020(E)** 6 proceedings are over, since there existed a confusion regarding their eligibility for protection at that time. In the case of M/s.Soumya George and Mintu Mathew it was found that they were not liable to be retrenched as they were continuing as UPSTs with approval from 03.06.2013 onwards and hence eligible for protection in the light of the Government order dated 29.01.2016. It was directed that they should be accommodated in their respective posts. The DEO was directed to take steps for disbursing their withheld salary. 3. The contention of the petitioner is that the Government Circular Ext.P6 is contrary to the second proviso to Rule 43. It is also his case that when Government ordered his deployment by Ext.P7 order he was not heard. 4. The 6[th] respondent has filed the counter affidavit stating that her appointment as UPSA as per Ext.R6(b) order dated 03.06.2013 was approved with effect from 09.07.2013 initially and thereafter with **WP(C).No.5846 OF 2020(E)** 7 effect from 03.06.2013 as per Ext.R6 (c) order. At the same time, it was pointed out that the petitioner who was appointed initially as a UPSA on 09.06.2003 and was promoted as HSA (Natural Science) with effect from 09.07.2012 was eligible for protection in the light of the G.O.(P) No. 29/2016/G.Edn dated 29.01.2016 and when he was rendered surplus in the staff fixation, he was liable to be deployed. 5. Relying on the division bench judgment of this Court in **District Educational Officer v. Sathyabhama** [2016 (4) KLT 146], the learned counsel for the 6[th] respondent argued that the petitioner who was an HST having eligibility for protection is not liable to be reverted in the light of the second proviso to Rule 43 of Chapter XIVA KER. It is pointed out that the 6[th] respondent is not paid salary from 30.06.2017 onwards on account of the retrenchment ordered based on the reversion of the petitioner. 6. Submission is made on behalf of Mintu Mathew **WP(C).No.5846 OF 2020(E)** 8 also who, got impleaded as per order in I.A.No.3 of 2020, that she is also not getting salary on account of the reversion of HSTs effected by the Manager and approved by the the DEO. According to Mintu Mathew, if the HSTs were not reverted she would not have been disturbed and as found by Government she is entitled to continue as UPST with salary. 7. The learned counsel for the petitioner vehemently argued that Ext.P7 order has to be set aside since it was passed without hearing him, in violation of the principles of natural justice. 8. At the same time Sri. S. Prasanth, the learned counsel for the 6[th] respondent, relying on the judgments of the Apex Court in **Dharampal Satyapal Ltd.** **v. Deputy Commissioner of Central Excise and Ors** [(2015) 8 SCC 519] and the judgment of this Court in W.P.(C).No.25087 of 2011 argued that when the legal position is clear and petitioner does not have a case on merits, it will be a useless formality to remit the **WP(C).No.5846 OF 2020(E)** 9 matter back to Government and moreover it would result in revival of an illegal order. 9. Heard both sides. As the contention of the petitioner is that the the order Ext.P7 is contrary to the 2[nd] proviso to Rule 43 of Chapter XIVA KER and that he is liable to be reverted as UPSA when there is reduction of the post of HST, it is necessary to have a look at the 2[nd] proviso to rule 43. Rule 43, as it stood before its amendment in 2019 read as follows: ## _“Rule 43_ _Subject to Rules 44 and 45 and considerations of efficiency and any general order that may be issued by the Government, vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority, if such hands are available:_ _[Provided that in the case of promotion to the post of High School Assistant (Subject), the minimum subject requirements alone need be satisfied, to safeguard the interests of trained graduates who are awaiting promotions as High School Assistant]._ _Provided further that where a Headmaster or a teacher who has been promoted under this rule faces retrenchment for want of vacancy, he shall be reverted to the category of post from which he has been promoted provided he is not eligible for protection in the retrenched post as per the orders issued by the Government from time to time._ _Note (1):A teacher in a lower grade of pay in one category of post is eligible for promotion to a higher grade of pay in another category of_ **WP(C).No.5846 OF 2020(E)** 10 _post provided._ _(i) he has the prescribed qualifications; and_ _(ii) there is no teacher with the prescribed qualifications in the lower grade of pay of the category of post to which promotions are to be made._ _Note (2):-- Promotion under this rule shall be made from persons possessing the_ _prescribed qualifications at the time of occurrence of vacancy.”_ 10. Thus it is clear that reversion is permissible only in a case where the teacher is not eligible for protection. Petitioner who was initially appointed as UPST got promotion as UPST in the year 2012. As per provisions contained in G.O.(P) No.29/2016/G.Edn dated 29.01.2016, petitioner who continued regularly since his appointment as UPST in 2003 with approval and continued on promotion also with approval is entitled to protection. Only those teachers appointed after 2015-16 are not eligible for protection. This position was clarified in Ext.P6 circular dated 19.11.2018. Therefore the action of the DEO in the staff fixation order treating the petitioner as one ineligible for protection as well as the consequential action of the Manager in reverting him was illegal. The 2[nd] proviso to Rule 43 of chapter **WP(C).No.5846 OF 2020(E)** 11 XIVA KER is interpreted in the judgment in **Sathyabhama** 's case (Supra) and a contingency of reversion as UPSA was to arise only in the case of a teacher without the right for protection. The petitioner could not substantiate either that he is entitled to be reverted or that he is not eligible for protection or that reversion is permissible in his case under the 2[nd] proviso to Rule 43. When petitioner is found eligible for protection the educational authorities have to deploy him. 11. It is true that petitioner was not heard before Ext.P7 order was passed on the revision petitions filed by 6[th] respondent and another UPST. When the legal position is settled that petitioner is not liable to be reverted, remitting the matter back to Government would only be an empty formality, as argued by Sri. Prasant. In the judgment in **Dharampal Satyapal Ltd's case** (supra), the Apex Court was considering the issue as to the requirement of a show cause notice before a demand for recovery was made **WP(C).No.5846 OF 2020(E)** 12 under Section 11A of the Excise Act even when the validity of Section 155 of the 2003 Act was already upheld. After analysing the principles behind procedural fairness, the doctrine of natural justice, etc., under English Common Law, Kautilya's Arthasasthra, the principles evolved by M/s Galligan, Allan, Wade, De-Smith, etc., behind the development of the fundamental principles of audi alterum partum, natural justice, procedural fairness, the judgments in **A.K. Kraipak v Union of India** [(1969) 2 SCC 262], **ECIL v B. Karunakar** [(1993)4 SCC 727], etc., it was found that issuance of notice was necessary in that case before passing an order of recovery. However in in para 38 to 40 it was held as follows: _“_ _**38.** But that is not the end of the matter. While the law on the principle of audi alteram partem has progressed in the manner mentioned above, at the same time, the courts have also repeatedly remarked that the principles of natural justice are very flexible principles. They cannot be applied in any straitjacket formula. It all depends upon the kind of functions performed and to the extent to which a person is likely to be affected. For this reason, certain exceptions to the aforesaid principles have been invoked under_ **WP(C).No.5846 OF 2020(E)** 13 _certain circumstances. For example, the courts have held that it would be sufficient to allow a person to make a representation and oral hearing may not be necessary in all cases, though in some matters, depending upon the nature of the case, not only fullfledged oral hearing but even crossexamination of witnesses is treated as a necessary concomitant of the principles of natural justice. Likewise, in service matters relating to major punishment by way of disciplinary action, the requirement is very strict and full-fledged opportunity is envisaged under the statutory rules as well. On the other hand, in those cases where there is an admission of charge, even when no such formal inquiry is held, the punishment based on such admission is upheld. It is for this reason, in certain circumstances, even postdecisional hearing is held to be permissible. Further, the courts have held that under certain circumstances principles of natural justice may even be excluded by reason of diverse factors like time, place, the apprehended danger and so on._ _**39.** We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasising that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason— perhaps because the evidence against the individual is thought to be utterly compelling —it is felt that a fair hearing “would make no difference”—meaning that a hearing would not change the ultimate conclusion reached by the decision-maker—then no legal duty to_ **WP(C).No.5846 OF 2020(E)** 14 _supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch v. Aberdeen Corpn., who said that: (WLR p. 1595 : All ER p. 1294)_ _“… A breach of procedure … cannot give [rise to] a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain.”_ _Relying on these comments, Brandon L.J. opined in Cinnamond v. British Airports Authority[28] that: (WLR p. 593 : All ER p. 377)_ _“… no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing.”_ _In such situations, fair procedures appear to serve no purpose since the “right” result can be secured without according such treatment to the individual._ _**40.** In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the courts. Even if it is found by the court that there is a violation of principles of natural justice, the courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that the order passed is always null and void. The validity of the order has to be decided on the touchstone of “prejudice”. The ultimate test is always the same viz. the test of prejudice or the test of fair hearing._ 12. Ext.P7 order passed by Government is perfectly in tune with the provisions contained in the **WP(C).No.5846 OF 2020(E)** 15 second proviso to Rule 43 and as interpreted by the Division Bench in Ext.R6(a) judgment in **Sathyabhama** 's case. Therefore I am of the view that it will be an empty formality to remit the matter back to the Government. In the above circumstances, I find that petitioner is not entitled to continue as UPSA on reversion. Therefore I do not find any reason to interfere with the order Ext.P7. The writ petition is dismissed. Sd/- ## **P.V.ASHA, JUDGE.** AS **WP(C).No.5846 OF 2020(E)** 16 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 09/06/2003 ISSUED BY THE MANAGER OF THE 5TH RESPONDENT SCHOOL.** - **EXHIBIT P2** - **TRUE COPY OF THE APPOINTMENT ORDER DATED 02/07/2012 ISSUED BY THE MANAGER OF THE 5TH RESPONDENT SCHOOL.** - **EXHIBIT P3 TRUE COPY OF THE STAFF FIXATION ORDER NO. DT (B2)/4105/2017 DATED 07/07/2017 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE ORDER NO.01/07 DATED 14/07/2017 ISSUED BY THE MANAGER OF 5TH RESPONDENT SCHOOL.** - **EXHIBIT P5 TRUE COPY OF THE ORDER NO.B25283/14/K.DIS. DATED 25/10/2017.** - **EXHIBIT P6 CIRCULAR NO.J2/217/18/G.EDN. DATED 19/11/2018.** - **EXHIBIT P7** - **TRUE COPY OF THE ORDER NO. GO(RT) 600/2020/G.EDN DATED 03/02/2020.** - **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R6(a) TRUE COPY OF THE DECISION REPORTED IN 2016(4) KLT 146** - **EXHIBIT R6(b) TRUE COPY OF THE APPOINTMENT ORDER OF THE 6TH RESPONDENT DATED 3/6/2013** - **EXHIBIT R6(c) TRUE COPY OF THE ORDER NO.B2/2609/18/K.DIS. DATED 03/12/2018 ISSUED BY DEO, KOTHAMANGALAM** - **EXHIBIT R6(d) TRUE COPY OF THE STAFF FIXATION ORDER FOR 2016-17 DATED 11/12/2017** - **EXHIBIT R6(e) TRUE COPY OF THE STAFF FIXATION ORDER FOR 2018-19 DATED 30/6/2018** **WP(C).No.5846 OF 2020(E)** 17 **EXHIBIT R6(f) TRUE COPY OF THE STAFF FIXATION ORDER FOR 2019-20 DATED 17/7/2019 EXHIBIT R6 (g) TRUE COPY OF THE SENIORITY LIST OF TEACHERS AS ON 01/01/2018**