Smt. Elizit Scaria v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **TUESDAY, THE 25TH JANUARY 2011 / 5TH MAGHA 1932** **WP(C).No. 18301 of 2009(G)** **----------------------------------** ## **PETITIONER(S):** - **-------------------** **SMT.ELIZIT SCARIA, HSA (PHYSICAL SCIENCE), INFANT JESUS HIGH SCHOOL, VADAYAR, KOTTAYAM.** **BY ADVS. SRI.K.R.KURUP SRI.C.R.SYAM KUMAR** ## **RESPONDENT(S):** - **---------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.** **3. THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM.** **4. THE DISTRICT EDUCATIONAL OFFICER, KADUTHURUTHY, KOTTAYAM.** **5. THE MANAGER, INFANT JESUS HIGH SCHOOL, VADAYAR, KOTTAYAM.** **R1-4 BY GOVT. PLEADER SRI.T.T.MUHAMOOD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **svs** ## **WP(C).No. 18301/2009(G)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE ORDER OF APPOINTMENT OF THE PETITIONER DATED 01/08/2006.** - **P2: COPY OF THE ORDER PASSED BY THE 4TH RESPONDENT DATED 24/02/2007.** - **P3: COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 13/07/2004.** - **P4: COPY OF THE STAFF FIXATION ORDER DATED 31/07/2006.** - **P5: COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 16/08/2007.** - **P6: COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 05/02/2008.** - **P7: COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 16/11/2007.** - **P8: COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 04/06/2009.** - **P9: COPY OF THE HEARING NOTICE ISSUED BY THE 1ST RESPONDENT DATED 05/09/2008.** ## **RESPONDENT'S EXHIBITS NIL** ## **/TRUE COPY/** ## **P.A. TO JUDGE** ## **svs** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 18301 of 2009-G** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 25th day of January, 2011.** ## **JUDGMENT** The main relief sought for in the writ petition is to quash the various orders leading to Ext.P8 and to grant a declaration that the appointment of the petitioner as H.S.A. (Physical Science) in the school managed by the fifth respondent is liable to be approved from 1.8.2006. 2. Shortly stated, the relevant facts are the following: The petitioner was appointed in the school with effect from 1.8.2006 in the retirement vacancy of one Shri P.O. Syriac, H.S.A. (Physical Science). The objection taken by the Educational Officers and the Government is that one Smt. Rosa P.C., H.S.A. (Physical Science) is a protected teacher available to be recalled to the school. Accordingly, it is held that the petitioner cannot get approval from 1.8.2006. With regard to the said aspect, the case of the petitioner is the following: 3. Smt. Rosa became a protected teacher from 15.7.1982. After the Government created the post of H.S.A. (English) for teaching English language in High School classes, in terms of the Government Order, viz. G.O.(Ms) No.187/03/G.Edn. dated 16.7.2003, she submitted an wpc 18301/2009 2 application for converting her as H.S.A. (English). The Manager gave a no objection certificate and thereafter in terms of the no objection certificate issued by the Manager, the third respondent Deputy Director of Education converted the designation of Smt. Rosa as H.S.A. (English) from H.S.A. (Physical Science). Accordingly, she has been working in the Government school on deployment as H.S.A. (English). In the staff fixation order produced as Ext.P4 also, against her name it is shown as H.S.A. (English). Smt. Rosa attained superannuation on 31.7.2006 and continued upto 31.3.2007 in terms of the relevant rules. It is therefore contended that on the date of superannuation of the said teacher, she was not entitled to be recalled to the parent school as H.S.A. (Physical Science) in view of the conversion. 4. The petitioner also has produced Ext.P7 order passed by the Deputy Director of Education, Kottayam wherein in respect of a teacher who was working as H.S.A. (Social Science) and was redesignated as H.S.A. (English), he was posted in the parent school in the vacancy of H.S.A. (English) itself. This is produced in support of the plea of the petitioner. 5. Heard learned counsel for the petitioner and learned Govt. Pleader. 6. Learned counsel for the petitioner submitted that the conversion of wpc 18301/2009 3 Smt. Rosa as H.S.A. (English) has become final as evident from Ext.P3 order. What is protected is her seniority in the cadre of H.S.A. It is pointed out that what is allowed by Ext.P3 is “conversion to the post of H.S.A. (English)” in terms of the Government Orders. It is therefore pointed out that Ext.P4 staff fixation order of the parent school also will show that she is an H.S.A. (English). It is further pointed out that in the vacancy of H.S.A. (Physical Science), she was not entitled to be recalled. Reliance is also placed on the decision of a Division Bench of this Court in **Rakhee v. State of Kerala** (2007 (1) KLT 766) as well as G.O.(Ms) No.300/03/G.Edn. dated 1.11.2003. 7. Evidently, the Government as per G.O.(MS) No.187/03/G.Edn. dated 16.7.2003 allowed the existing High School Assistants who have the required qualification to be posted as H.S.A. (English), to be accommodated against newly created posts of H.S.A. (English). In the Govt. Order dated 1.11.2003 it was ordered that “existing High School Assistants who have the required qualification to be posted as H.S.A. (English), are allowed conversion to the post of H.S.A. (English) without losing their seniority in the cadre of H.S.A. Evidently, the conversion is to the “newly created” post of H.S.A. (English). The question is whether after the conversion also that wpc 18301/2009 4 teacher can have any right to the converted post, herein, H.S.A. (Physical Science). 8. Learned Govt. Pleader submitted that the orders regarding recalling of protected teachers, especially G.O.(Ms) No.178/02/G.Edn. dated 28.6.2002 will show that the protected teacher has to be absorbed in the original post as and when vacancy arises in the said category. Therefore, even after conversion to the post of H.S.A. (English), as the teacher who was converted as such as got the qualification to work as H.S.A. (Physical Science), she was entitled to be recalled. 9. In G.O.(Ms) No.178/02/G.Edn. dated 28.6.2002 what is stated in para (iii) is as follows: “(iii) Protected teachers under various managements shall be appointed in the schools under the respective managements, against the existing/arising vacancies in the categories of HSA/UPSA/LPSA/Language teacher by protecting their salary in the original posts. They shall be absorbed in their original post as and when vacancies arise in those categories. Minimum subject requirement should be ensured while accommodating protected teachers in High Schools.” The idea under the said paragraph is that protected teachers will be appointed against the existing/arising vacancies in various categories wpc 18301/2009 5 mentioned therein. Evidently, High School Assistants will be appointed in different subjects like Mathematics, Physical Science, Natural Science, English, etc. Merely because such an H.S.A. is having a qualification to teach another subject, unless it is specified in the various orders, it cannot be said that he/she has a right to be recalled in any other category or the post of H.S.A. The learned Govt Pleader wanted to read into the said paragraph of G.O.(MS) No.178/2002 the condition that teachers having qualification for teaching a particular subject, can also be recalled to the said post. Evidently, that contention cannot be accepted since there is no express provision as such in the said Govt. Order or in any other Govt. Orders providing for recalling of protected teachers. Apart from that, as rightly pointed out by the learned counsel for the petitioner, herein Smt. Rosa has already been converted as H.S.A. (English) by Ext.P3 order. The same was based on her application and as permitted by various Govt. Orders. What is protected is her seniority in the cadre of H.S.A. The category change has been recorded in the service book also. Even going by Ext.P3, no specific condition is provided that the teacher Smt. Rosa could be recalled in the parent school in the respective category, viz. H.S.A. (Physical Science) from which the conversion is allowed, etc. even after conversion as H.S.A. (English). As on the date of passing of Ext.P3, Smt. Rosa was a protected wpc 18301/2009 6 teacher. Unless it is specified as such under any of these orders, it cannot be envisaged that she can be recalled to the parent school wherein she was working as H.S.A. (Physical Science) when the vacancy in that category arose. Apart from that, she continued to be a protected teacher and on her request, she was converted as H.S.A. (English). It is clear from Ext.P7, an order passed in the case of Shri P.J. George, H.S.A. (English) that he was formerly H.S.A. (Social Science) in the school and was later redesignated as H.S.A. (English). When a vacancy arose due to retirement of Smt. Mary S., H.S.A. (English) he was recalled to work as H.S.A. (English). 10. A Division Bench of this Court in **Rakhee v. State of Kerala** (2007 (1) KLT 766) considered a case relating to applicability of Rule 51 of Chapter XIV-A. It was held that when the staff fixation order is finalised, and the post in each categories are allowed, in the eventuality of retrenchment, the juniormost teacher in the category concerned will have to be retrenched. The contention that H.S.A. in different subjects should be taken together as a single category for the purpose of retrenchment was not accepted by the Division Bench. Paragraphs 7 and 8 of the said judgment are re-produced below wherein the said finding was rendered: “The incumbent to be retrenched shall be the junior most teacher in Physical Science where there are more teachers than the number of wpc 18301/2009 7 posts sanctioned. Going by R.51 Chapter XIV A K.E.R also, the incumbent to be retrenched is the junior most teacher in the category concerned. The contention that HSAs in different subjects altogether shall be considered as one single category cannot be countenanced, because teachers are appointed for imparting the lessons in the concerned subjects. Therefore, the category for H.S.A subjects shall be considered against each subject for which sanction has been issued by the District Educational Officer concerned in the Staff Fixation Order for the respective years.” This also will indicate that each category of H.S.A. is different, as their Lordships were of the view that the category for H.S.A. subjects shall be considered against each subject for which sanction has been issued by the District Educational Officer concerned in the Staff Fixation Order for the respective years. It is therefore safe to rely upon the said dictum. In the staff fixation order, Smt. Rosa was shown as H.S.A. (English) as evident from Ext.P4 which is of the year 2006-2007 when the vacancy arose to which the petitioner was appointed. 11. In that view of the matter, it cannot be said that she was entitled to be recalled in the vacancy of H.S.A.(Physical Science) on 1.8.2006. Therefore, there is no irregularity in the appointment of the petitioner from 1.8.2006 and the appointment is therefore liable to be approved with effect from 1.8.2006. wpc 18301/2009 8 Therefore, the writ petition is allowed. The impugned orders Exts.P2, P5, P6 and P8 are quashed. There will be a declaration that the appointment of the petitioner as H.S.A. (Physical Science) in the Infant Jesus High School, Vadayar is legal and valid and is liable to be approved with effect from 1.8.2006. Accordingly, there will be a direction to the fourth respondent to approve the appointment of the petitioner as H.S.A. (Physical Science) with effect from 1.8.2006 and the orders will be passed and monetary benefits will be disbursed within a period of two months from the date of receipt of a copy of this judgment. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/**