State of Kerala v Vimala Alex and Manager, IQBAL Higher Secondary School

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941** **WA.No. 16 of 2019** **AGAINST THE ORDER/JUDGMENT IN WP(C) 12961/2018 of HIGHCOURT APPELLANT/S:** - **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEX II, THIRUVANANTHAPURAM 695 001** - **2 THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM 695 014** - **3 THE DEPUTY DIRECTOR OF EDUCATION, KASARAGOD 671 001** - **4 THE DISTRICT EDUCATIONAL OFFICER,KANHANGAD, KASARAGOD DISTRICT 671 315** ## **BY ADV. GOVERNMENT PLEADER** ## **RESPONDENT/S:** - **1 VIMALA ALEX, D/O. CHANDI, H.S.A. (MALAYALAM), IQBAL HIGHER SECONDARY SCHOOL, AJANUR, KANHANGAD, KASARAGOD DISTRICT** - **2 THE MANAGER, IQBAL HIGHER SECONDARY SCHOOL, AJANUR, KANHANGAD, KASARAGOD DISTRICT 671 121** ## **BY ADV. SMT.VIMALA ALEX (PARTY )** ## **OTHER PRESENT:** - **SRI A.J VARGHESE SR GP, SRI V. VENUGOPAL AMICUS CURIAE** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02.04.2019, THE COURT ON THE 09.04.2019 DELIVERED THE FOLLOWING:** W.A No. 16 of 2019 ::2:: **K. VINOD CHANDRAN & V.G. ARUN, JJ - - - - - - - - - - - - - - W.A. No.16 of 2019** **- -- - - - - - - - - - - Dated this the 09[th] day of April, 2019** **J U D G M E N T** ## **Vinod Chandran, J.** **The appeal is by the State against judgment allowing the claim of the 1[st] respondent to be accommodated against the 6[th] post of High School Assistant (Malayalam) [for brevity 'H.S.A(Malayalam)'], with effect from 02.06.2008, found to be admissible in the academic year 2008-09 based on the old rule as existing prior to Exhibit P1. The 1[st] respondent appeared in person. We appointed Sri. V. Venugopal as** _**Amicus Curiae**_ **. We heard the learned Senior Government Pleader Sri. A.J. Varghese, the 1[st] respondent appearing in person and the learned** _**Amicus Curiae**_ **.** **2. On facts, suffice it to notice that the 1[st] respondent joined the 2[nd] respondent Aided School as H.S.A(Malayalam) with effect from 05.06.2000 in a** W.A No. 16 of 2019 ::3:: **regular vacancy duly approved by the educational authorities. After the appointment of the 1[st] respondent, the Government came out with Ext.P1, G.O(Ms)23/2000/Gen.Edn.Dated 15.07.2000. By the aforesaid G.O the Government interfered with the method of sanctioning of H.S.A(Malayalam) posts by taking into account the overall strength of students studying other regional languages also. The practice of sanctioning Malayalam Posts in accordance with Divisions reckoning the number of students studying other languages under Part I was sought to be prohibited from the academic year 2000-01 and a system introduced to reckon only the strength of students studying Malayalam.** **3. The 1[st] respondent along with some other teachers appointed in the said academic year challenged Ext. P1 G.O. The claim of regularisation of their appointments, in O.P. No.26202/2001 was allowed by a learned Single Judge on 09.03.2010 relying on Ext.P2, G.O(Ms) No. 135/2004/G.Edn. dated 15.05.2004. The appointment of the petitioners prior to the academic** W.A No. 16 of 2019 ::4:: **year 2002-03 was held to be proper. In the meanwhile the 1[st] respondent was retrenched for reason of termination of vacancies in the year 2007-08. The judgment in O.P. No.26202/2001 came in 2010 long after the retrenchment of the 1[st] respondent. The Government, apprehending the 1[st] respondent's claim for continuation in the year 2007-08, filed a review petition which was allowed as per Ext.P4 Order. The Government specifically pleaded in the review that the 1[st] respondent (2[nd] petitioner therein) was not relieved on account of the G.O challenged in the writ petition but for want of vacancies. The 1[st] respondent was found to be not entitled to the benefit of the judgment, but, however, her rights to claim accommodation in subsequent vacancies was preserved.** **4. The claim set up by the 1[st] respondent in the writ petition, from which this appeal arise, was that there was a vacancy available in the year 2008-09 in which she could be accommodated; if the old rule of reckoning admissible posts of Malayalam taking into** W.A No. 16 of 2019 ::5:: **account the overall student strength, was applied. It is also contended that the Management had continued her in the School in all the years when there was an admissible vacancy in which she could have been accommodated. The 1[st] respondent then made a representation before the Chief Minister which was forwarded to the District Educational Officer (DEO). The DEO rejected the same which was challenged in yet another writ petition numbered as W.P(C) No.30964/2011.** **5. We have called for the Judges Papers of W.P(C) No.30964/2011. Ext.P9, in that writ petition was the order of the DEO pursuant to which Ext.P10 was issued by the Manager of the School interdicting the 1[st] respondent from signing the attendance register. In Ext.P9 the DEO categorically found that in the years 2008-09 & 2009-10 there were only five vacancies of HSA(Mal) available in the School and in the year 2010-11 only four vacancies. In the said writ petition,Ext.P6 judgment directed consideration of the claim of the petitioner for retention as** W.A No. 16 of 2019 ::6:: **H.S.A(Malayalam) in one of the retirement vacancies, taking into account the application of 1:40 ratio. Ext.P7 found that even taking into account the ratio of 1:40, the 1[st] respondent cannot be accommodated in the School as H.S.A(Malayalam). Ext.P7 is challenged in the present proceedings.** **6. The 1[st] respondent, who appeared in person, first took us through Ext.P1 Government Order dated 15.07.2000 which restricted sanctioning of posts of H.S.A (Malayalam) reckoning the students studying other regional languages also. Immediately after the Government Order, yet another Government Order was issued as G.O(Ms)No.305/2000/Gen.Edn. Dated 02.09.2000 which took into account the circumstances of the existing language teachers in the State being retrenched from service during the current academic year and hence clarified that the new principle would be followed only for prospective appointments ie.,from 2000-01. Later, Ext.P2 Government Order dated 15.05.2004 was brought out adopting the new principle** W.A No. 16 of 2019 ::7:: **only in the matter of sanction of posts of H.S.A (Malayalam) from 2002-03 onwards. The specific contention taken up by the 1[st] respondent is that the 1[st] respondent's appointment being prior to 2002-03; in the matter of retrenchment and also in the matter of re-induction as a protected teacher, the old principle has to be applied. That is, in considering retrenchment or re-induction, the admissible posts in H.S.A (Malayalam) have to be reckoned taking the over all strength of students in all the regional languages together. Even for considering the induction of protected teachers the Staff Fixation Orders should compute the admissible posts based on the overall strength of students studying all other regional languages, when retrenchment or re-induction of teachers appointed under the old principle are taken up. It is also urged that the new principle as brought out by Ext.P1 has no application as has been found by the judgment of this Court in Rukmini Ramachandran v. The State of Kerala (W.P(C) No.28261/2009 dated** W.A No. 16 of 2019 ::8:: **05.08.2010) by a learned Single Judge and approved by a Division Bench in State of Kerala V. V.P. Bepathu Amma (W.A No. 1030/2014 dated 12.07.2016).** **7. The learned Senior Government Pleader however, would point out that the learned Single Judge misdirected himself insofar as considering the admissible posts for the year 2006-07 and finding six posts to be admissible for sanction even applying the ratio of 1:45. It was on the wrong understanding of the claim having been raised for the year 2006-07 that the writ petition was allowed. It is also argued that in the year 2005, Rule 6J had come in, to the Kerala Education Rules, 1959 (for brevity KER) and from that date, calculation of divisions and periods for sanctioning posts of teachers in regional languages can be made only based on the effective strength of pupils studying that language in all the Divisions of the standards in a High School. The said amendment was brought in by G.O(P) No.92/2005/Gen.Edn. dated 19.03.2005. Hence after 2005, there is no distinction** W.A No. 16 of 2019 ::9:: **available of the old principle and the new principle. The learned G.P also points out that the unreported decisions relied on by the 1[st] respondent, in fact, supports the contention of the Government insofar as the executive orders not capable of impinging upon the statutory rule as available in the KER. Rule 6J having been brought in, under Chapter XXIII there can be no proposition of application of the old principle of sanctioning the posts of H.S.A(Malayalam) reckoning the overall strength of students in all the regional languages. The statutory rule brought in as Rule 6J has to be given its full effect and there can be no reliance on the earlier principle which stands effaced by the introduction of the new Rule.** **8. The learned** _**Amicus Curiae**_ **would submit that the order in the review petition at Ext.P6 took away the benefit of the judgment in O.P NO.26202/2001 insofar as the 1[st] respondent is concerned. The 1[st] respondent's claim to be accommodated in the next available vacancy is only under Rule 51A of Chapter** W.A No. 16 of 2019 **==> picture [26 x 9] intentionally omitted <==** **XIVA of the KER. This is only a preferential claim for a future vacancy and there cannot be a contention raised of accommodating a protected teacher either by computing the vacancies under the 1:40 ratio, nor can it be said that for accommodating the protected teacher the entire student strength has to be reckoned for sanctioning the admissible posts of H.S.A (Malayalam). On the question of application of 1:40 ratio it is submitted that a learned Single Judge of this Court in** _**Rama K. v.State of Kerala in 2012 KHC 512**_ **found the adoption of such a ratio possible only to avoid retrenchment of a teacher and not for accommodating a protected teacher. On the question of application of the old principle, the learned** _**Amicus Curiae**_ **proffers** _**2016(1) KLT 489 (Manager, V.K.N.M Vocational Higher Secondary School v. State of Kerala**_ **). Therein the issue was whether, after amendment of Rule 7A(3) a teacher who had a claim under Rule 51A prior to such amendment, could enforce that claim** _**dehors**_ **the amendment for reason only of a claim having arisen prior to the** W.A No. 16 of 2019 **==> picture [26 x 9] intentionally omitted <==** **amendment. The Hon'ble Supreme Court categorically held that the right at the time of institution of a claim has to be decided on the basis of the law as it exists then. Rule 6J hence stands against the 1[st] respondent insofar as consideration of her claim under the earlier principle of reckoning the overall strength of students in all the regional languages for the purpose of deciding the admissible posts of H.S.A (Malayalam). However, the** _**Amicus Curiae**_ **alertly points out that in fact in the year 2008-09 even as per Ext.P8 Staff Fixation Order there could have been six posts if the old principle was adopted. This is not permissible by reason of Rule 6J** _**.**_ **There is also the aspect of the staff fixation order having not been challenged; which makes the retrenchment and the consequent denial of reinduction in the year 2008-09, a** _**fait accompli,**_ **as has been held in** _**2014(2) KLT 310 (Maji George v. State of**_ _**Kerala),**_ **concludes the** _**Amicus**_ **9. As per the counter affidavit of the Government dated 25.06.2018 the admissible posts of** W.A No. 16 of 2019 ::12:: **H.S.A (Malayalam) calculated on the basis of effective overall strength; even taking the 1:45 ratio, is 24 and as per 1:40 ratio it is 25. This permits the applicable posts of H.S.A (Malayalam) to be six full time posts, the number of periods being 144, ie, between 130 to 144 as per the table provided in the Statement of the Government dated 09.08.2018. However, the same would be permissible only if the overall student strength is reckoned and if the student strength of Malayalam alone is reckoned there is no possibility of an additional 6[th] post being created; which keeps the 1[st] respondent out, in the coming years starting from 2007-08. The 1[st] respondent is said to have been re-deployed and then re-inducted as of now.** **10. We have given anxious consideration to the contentions raised for and against the 1[st] respondent. The essential claim raised by the 1[st] respondent is that, having been appointed prior to 2002-03, the principle brought in by the Government as per Ext.P1 cannot be applied in the case of 1[st] respondent. The 1[st]** W.A No. 16 of 2019 **==> picture [26 x 9] intentionally omitted <==** **respondent would contend that not only in the case of retrenchment but also in the case of re-appointment the posts of H.S.A (Malayalam) has to be determined on the principle as available prior to 15.07.2000, ie, the date of Ext.P1 order. In the case of teachers appointed as H.S.A Malayalam, to posts sanctioned on the basis of overall student strength in all regional languages; the principle has to be applied and continued insofar as retrenchment and re-employment,** _**dehors**_ **the new reckoning devised, on the strength of students studying Malayalam.** **11. The primary fallacy in so contending is that this Court in** _**Beepathu Amma (supra)**_ **found that the G.O issued as Ext.P1, being an executive order cannot run contrary to the statutory provisions of the subordinate legislation, the KER. Therein a teacher who was appointed later to Ext. P1 G.O, challenged the denial of approval of her appointment. The Manager had reckoned the admissible posts of H.S.A(Malayalam), taking the overall student strength and the educational** W.A No. 16 of 2019 ::14:: **authorities declined approval based on the new principle brought in by Ext. P1. This Court found that the appointment having been made reckoning the available posts as prescribed in the KER, approval could not be declined since executive orders cannot override the statutory rule. Hence the principle itself of determining the admissible posts for H.S.A(Malayalam) for reckoning the student strength in Malayalam alone, could not have been implemented by virtue of Ext. P1. The subsequent G.O's granting exemption to teachers appointed earlier to 2002-03, also hence is of no avail. The rigour of the principle brought in by Ext. P1 or the benefit of it being made applicable only from 2002-03, as seen from Ext.P2, cannot hence, help or harm any person appointed to the post of H.S.A (Malayalam) reckoning the entire periods in all regional languages till Rule 6J came into the KER. The said position continued till 2005 when by an appropriate amendment to the statutory rules, Rule 6J was brought in under Chapter XXIII by G.O(P)** W.A No. 16 of 2019 ::15:: **No.92/2000/ Gen.Edn. Dated 19.03.2005.** **12. From the date on which Rule 6J was introduced into the statutory scheme, the admissible posts for HSA (Malayalam) could only be reckoned on the basis of the student strength and the periods existing for Malayalam alone. Neither for the purpose of retrenchment nor for the purpose of re-employment could the earlier principle be applied. The statutory rule did not provide for any such exemption to prior appointees, from the date of its application. The date of appointment of the 1[st] respondent and the same being prior to 2002-03 is hence rendered irrelevant.** **13. The next contention is with respect to the adoption of 1:40 ratio, which again enables only accommodation of teachers, saving them from retrenchment and not re-appointment, being a claim under Rule 51A. In fact, we need not go into that controversy since as pointed out by the learned** _**Amicus Curiae,**_ **even if the ratio is taken at 1:45, on the basis of the effective overall strength of students** W.A No. 16 of 2019 **==> picture [26 x 9] intentionally omitted <==** **there is sufficient admissible posts available for re-appointing the 1[st] respondent. But the principle of reckoning the overall strength of students studying all regional languages, to determine the admissible posts of H.S.A (Malayalam) having been done away with, there cannot be a computation of posts on that basis.** **14. Further, the Staff Fixation Order proceeded on the premise that there are only five admissible posts. The Staff Fixation Order of the years 2008-09 and 2009-10 were never challenged by the Manager or the 1[st] respondent. In fact, Rule 12D under Chapter XXIII enables the Manager to file an appeal to the Deputy Director of Education against the staff fixation orders of the AEO's and DEO's. The teacher herself could have moved the Director of Public Instructions by a revision under Rule 12E(3) of the KER as has been held in B.V.R Kutty Menon v. State of Kerala (2002(2) KLT 73). But a challenge to the staff fixation orders would have been of no fruitful purpose since reckoning the student strength in Malayalam,** W.A No. 16 of 2019 **==> picture [26 x 9] intentionally omitted <==** **there would be no post admissible to accommodate the 1[st] respondent under either of the ratios. Rule 6J applies with all its rigour and the law existing has to be applied as held in** _**Manager, V.K.N.M Vocational Higher Secondary School.**_ **15. In the case of the 1[st] respondent, it has to be observed that her claim for continuance for the year 2007-08 stands concluded by the order of this Court in R.P NO. 606/2011 in OP NO. 26202/2001 produced as Ext.P4 in the writ petition. For the year 2008-09 when Staff Fixation Orders were issued neither the Manager nor the 1[st] respondent challenged the same. The 1[st] respondent filed a representation before the Chief Minister in which there was an order passed which was challenged in W.P(C) No. 30964/2011. The judgment at Ext.P6 directed consideration of the 1[st] respondent for retention as H.S.A(Malayalam) taking into account the application of 1:40 ratio. The order passed pursuant to Ext.P6 judgment is challenged in the writ petition which was allowed by the learned Single Judge; impugned** W.A No. 16 of 2019 **==> picture [26 x 9] intentionally omitted <==** **in this appeal. The learned Single Judge, we find has proceeded on the effective strength of students for the year 2006-07 in which year, the 1[st] respondent was admittedly continuing in the School. As we noticed herein above for the year 2007-08 again the 1[st] respondent cannot have any surviving claim, as there were six H.S.A (Malayalam) continued in the School in the admissible posts for the year. For the year 2008-09 and 2009-10 as we noticed the Staff Fixation Orders did not provide for re-appointment of the 1[st] respondent; having found no additional posts available of H.S.A (Malayalam) reckoning the strength of students studying Malayalam. The teacher who retired in the year was one protected, applying the ratio of 1:40 in the earlier year. There is no question of application of old principle. The new principle as introduced by Ext. P1 or the exemption granted as per Ext. P2, both cannot have any application. But on introduction of Rule 6J the old rule of reckoning overall strength of students studying all regional languages stands effaced.** W.A No. 16 of 2019 **==> picture [26 x 9] intentionally omitted <==** **Applying the said principle there is no admissible vacancy available in the school to accommodate the teacher in the years in which she was kept out starting from 2007-08.** **In the teeth of our findings the impugned judgment has to be set aside. We do so and allow the writ appeal. The parties shall suffer their respective costs. We place on record our appreciation for the incisive study of the facts and law, as done by the** _**Amicus Curiae,**_ **to assist this Court.** **Sd/K. Vinod Chandran, Judge** **Sd/V.G Arun, Judge** **jma**