Sunil John Mathew v. Lency K.L. and others

## **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 12TH DAY OF MARCH 2019 / 21ST PHALGUNA, 1940** ## **WA. No.2032 of 2018** **AGAINST THE JUDGMENT IN WP(C) NO.2608/2018 OF THE HIGHCOURT OF KERALA DATED 12.07.2018** ## **APPELLANT/4TH RESPONDENT:** **SUNIL JOHN MATHEW, AGED 44 YEARS S/O.P.M.MATHEW, PERAMPIL HOUSE, AIMURY P.O., KOOVAPPADY, PERUMBAVOOR-683 544, (NOW WORKING AS H.S.A.(MALAYALAM), MAR THOMA GIRLS HIGHER SECONDARY SCHOOL, THRISSUR-1).** **BY ADV. DR.GEORGE ABRAHAM** ## **RESPONDENTS/PETITIONER/RESPONDENTS 1,2,3,5 & 6:** - **1 LENCY K.L., AGED 37 YEARS W/O. LAWRENCE V.M., RESIDING AT KAKKASSERY HOUSE, KOTTPPADI P.O., THRISSUR - 680 505.** - **2 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **3 DISTRICT EDUCATIONAL OFFICER, THRISSUR-680 020.** - **4 MAR THOMA GIRLS HIGHER SECONDARY SCHOOL THRISSUR-1, REPRESENTED BY THE MANAGER.** - **5 DIRECTOR OF PUBLIC INSTRUCTIONS OFFICER OF THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-695 001.** - **6 DEPUTY DIRECTOR OF EDUCATION, THRISSUR-680 020.** - **BY SRI.BIJU ABRAHAM SRI A.J VARGHESE, SR. GOVERNMENT PLEADER** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** W.A. No.2032 of 2018 2 ## **JUDGMENT** ## **K. Vinod Chandran, J.** **The appeal arises from the judgment of a learned Single Judge, which relied on the judgment of an another Division Bench in** _**District Educational Officer, Kannur v. A.V. Sathyabhama and others [2016 (4) KHC 911**_ **to allow the writ petition. The question raised is whether an UPSA promoted as HSA on 01.06.2016 is entitled to be protected under Ext.P5 G.O. dated 29.01.2016.** **2. The brief facts to be noticed are that the 1[st] respondent herein was appointed in a promotion vacancy as HSA on 01.06.2016. The appellant herein was originally appointed as UPSA on 01.06.1999 and then promoted as HSA on 01.06.2016, in which vacancy the 1[st] respondent was appointed as UPSA. In the academic year 2017-2018, there was a division fall in the High School and the appellant, who was a promoted hand in the post** W.A. No.2032 of 2018 3 **of HSA, was directed to be reverted to the post of UPSA as per the staff fixation order. On such reversion, the 1[st] respondent would be retrenched from service subject only to Rule 51A of the Kerala Educational Rules, 1959 [for brevity, 'the KER']. The 1[st] respondent then filed a writ petition before this Court contending that the appellant herein is entitled to protection as per Ext.P5 G.O. The appellant resisted the same before the learned Single Judge, since even if protected, he would be sent out from the School and would have to continue in another School, where there is a vacancy of HSA.** **3. The learned Single Judge found that the question is squarely covered by** _**A.V. Sathyabhama**_ **[supra]. Therein, according to the learned Single Judge, the Division Bench had categorically found that the initial appointment to service and regularisation there at is the relevant aspect, which has to be considered for the purpose of** W.A. No.2032 of 2018 4 **enabling protection of a teacher. The appeal challenges the said reliance on the Division Bench, placed by the learned Single Judge, contending that the relevant G.O.'s are distinguishable on the protection enabled.** **4. The learned Counsel for the appellant points out Ext.P5 and specifically refers to Clause I(6), wherein any appointments made after 2015-2016 is specifically excluded from the benefit of protection. The learned Counsel appearing for the 1[st] respondent would assert that going by Clause I(1) of Ext.P5 G.O., any person, regularly continuing in service by virtue of an appointment granted prior to 31.03.2011, is entitled to protection. The 1[st] respondent also asserts that the judgment cited would squarely apply in the present case. The learned Senior Government Pleader would submit that Ext.P5 dated 29.01.2016 was brought out in the context of the earlier package having been** W.A. No.2032 of 2018 5 **set aside by judgment of a learned Single Judge. The Government though initially filed an appeal from the judgment, later withdrew it and issued Ext.P5.** **5. We notice that Ext.P5 package was introduced only subject to a challenge made from the judgment in WP(C) No.19008 of 2013 and connected cases. We have been informed that the said judgment has been approved up to the Hon'ble Supreme Court. However, it does not affect the specific issue of protection as raised in the present writ petition, since the referred decision is with respect to the ratio between the teachers and students and the manner in which staff fixation orders have to be passed up to Standard VIII and then in the High Schools also.** **6. We first have to look at the decision cited by the learned Counsel for the 1[st] respondent.** _**A.V. Sathyabhama**_ **[supra] was a case in which the** W.A. No.2032 of 2018 6 **UPSA's entered service on various dates in July, 1997. They were promoted as HSA's in January, 1998 and June, 1999. The protection orders were also specifically referred to in the judgment. The Division Bench, in paragraph 12 found that GO(P) No.175/99/G.Edn. Indicates that all aided School teachers, who were in service as on 14.07.1996, will be given protection by retaining them in the respective Schools subject to the three conditions specified therein. Later, a clarification was issued by GO(P) No.240/99/G.Edn., wherein all aided School teachers, who were in service as on 14.07.1996 and those appointed during 1996-1997 up to 14.07.1997, were eligible for protection. Then GO(P) No.187/05/ G.Edn. was issued inserting second proviso to Rule 43 in Chapter XIV-A KER, which we extract hereunder:** _**“Provided further that where a Headmaster or a teacher who has been**_ W.A. No.2032 of 2018 7 _**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.”**_ **7. The aforesaid proviso enabled those teachers, who could not be retained on the basis of the protection orders, to be reverted to their original posts. This applies only to teachers, who are continuing in promoted posts and the Headmasters, which is a promotion post. The Division Bench specifically found on a combined reading of the Government Orders and the proviso that the protection provided by Exts.P2 & P3 is available to all aided School teachers, who were in service as on 14.07.1996 and also those who were appointed against regular vacancies during 19961997 up to 14.07.1997 [wrongly noticed in the** W.A. No.2032 of 2018 8 **judgment as 14.07.1999]. We find a clear distinction in so far as the Government Orders therein and the Government Order at Ext.P5. We also notice the observation made by the Division Bench in paragraph 15, which is as hereunder:** _**“The Government Orders do not prescribe that those who are appointed on or before 14.07.1997, but promoted thereafter, will be retained in service on protection only in the post in which they were initially appointed.” [sic]**_ **We find on a complete reading of Ext.P5 that such a stipulation is available in the present G.O. read with the second proviso to Rule 43 .** **8. We extract Clause I of Ext.P5** ## **hereunder:** _“I._ അധധധ്യാപക _/_ അനധധധ്യാപകരുടടെ സസംരക്ഷണസം തധ്യാടഴെ പറയുന്ന വവിഭധ്യാഗസം ജജീവനകധ്യാർകക്ക് സസംരക്ഷണസം _._ അനുവദവിക്കുന്നതധ്യാണക്ക് _(1) 31.3.2011_ നക്ക് നവിയമനധ്യാസംഗജീകധ്യാരതതധ്യാടടെ റഗുലർ സർവജീസവിൽ തുടെർന്ന അധധധപക _/_ അനധധധപകർ _;_ ്യാ ്യാ _- - (2)_ അധധധപക പധതകജക വഴവ _1 6 2011_ തൽ നവയമനധസഗജകധരസ ്യാ ്യാ ്ക് െി മു ി ്യാം ീ ്യാ ം ലഭവ അധധധപക _/_ അനധധധപകർ _;_ ിച്ച ്യാ ്യാ W.A. No.2032 of 2018 9 - _(3)_ മുൻകധ്യാല സസംരക്ഷവിത ഉതരവുകൾ വഴെവി സസംരക്ഷണസം ലഭവിച്ച _;_ - നവിലവവിലുള്ള അധധധ്യാപകരുസം അനധധധ്യാപകരുസം _- (4)_ അധധധ്യാപക പധ്യാതകജക്ക് വഴെവി ക്ലസ്റ്റർ തകധ്യാ ഓർഡവിതനറ്റർമധ്യാരധ് **യ** ാ വി _,_ നവിയമവികടപ്പെട്ട റവിട്രഞക്ക്ടെക്ക് അധധധ്യാപകർ തസവിക ഇലധ്യാടത തടന്ന അധധധ്യാപക പധ്യാതകജക്ക് വഴെവി മറ്റക്ക് സ്കൂളുകളവിതലകക്ക് പുനർവവിനധസവിച്ചക്ക് ശമ്പളസം _;_ വധ്യാങവി വരുന്ന ടസ്പെഷധലവിസ്റ്റക്ക് അധധധ്യാപകർ ക _(5) 2011-2012_ മുതൽ _2014-15_ വടര രധ്യാജവി _,_ മരണസം _,_ റവിട്ടയർടമന്ക് _,_ ടപധതമധഷൻ _,_ സലസ മധ സ എനജ റ ലർ തസവകകളവൽ ്യാ ്യാ ്ഥ ം ്യാറ്റം ്നീ ഗു ി ി നവിയമവികടപ്പെട്ടതുസം _,_ ഖണവിക _II_ ടല ഉപഖണവിക _(2)_ ടല അനപധതപകധരസ അസഗജകരവകട വരസ ു ്യാ ്യാ ം ം ീ ി പ്പെട്ട ും _(6) 2015-2016_ അധധയനവർഷസ ത നവയമനങൾകക ം മു ലുള്ള ി ്ക് സസരകണധന ല സ അനവദവകനത _.”_ ധ ല ം ്ഷ ്യാ ുകൂ ം ു ി ്കു ്ന (underlining by us for emphasis) ## **9. Sub-clause (1) indicates that any** **person in regular service on the basis of an approval on or before 31.03.2011 would be granted protection in that post. We are called upon to consider whether this would apply to the initial appointment or the appointment to the promoted post. At the risk of repetition, we observe that in the GO's considered in** _**A.V. Sathyabhama**_ **[supra], there was no reference to the continuation in regular service on the basis of an approval.** W.A. No.2032 of 2018 10 **Admittedly, in the promoted post also, there should be an approval obtained from the Educational Authority. There is also a period of probation in the promoted post which has to be declared after the stipulated period. In other words while the earlier GO's protected all who were in service prior to 14.07.1996 and those appointed in regular vacancies till 14.07.1997; here the protection is to those who continued in regular service, with approval, till 31.03.2011. The appellant if continuing as an UPSA would have been entitled to protection since his continuance is based on the approval granted to his appointment as UPSA. However as on the date of division fall he is continuing in the promoted post of HSA, which approval was obtained with effect from 01.06.2016. Hence the appellant would not be entitled to protection, in the promoted post, his approval being subsequent to 31.03.2011. But by virtue of** W.A. No.2032 of 2018 11 **the second proviso would be retained in the reverted post of UPSA.** **10. This interpretation is further fortified by sub-clauses (5) and (6) of Clause I. By sub-clause (6) it has been specifically indicated that no appointments after 2015-2016 academic year would be allowed protection. The appointment of the appellant to the post of HSA was on 01.06.2016, in the next academic year of 20162017. We revert back to the observation of the Division Bench we extracted from paragraph 15, therein it was noticed that a clause restricting protection in the promoted post was not available in the earlier GO's of 1996 and 1997. Ext.P3 is the appointment order of the appellant herein to the promoted post, for which approval was necessary and approval was obtained. As per Ext.P5 GO, it cannot be said that the protection is available to all teachers continuing in regular service prior to** W.A. No.2032 of 2018 12 **31.03.2011. Further Clause I(5) of Ext.P5 in its first limb enables protection of teachers** _**inter alia**_ **promoted or transferred between 2011-2012 to 2014-2015 academic years. If Clause I(1) had to be interpreted as protection being enabled for all persons continuing in service on or before 31.03.2011; then necessarily there was no necessity for sub-clause(5); since the transferred or promoted teachers who are so enabled protection were in service before 31.03.2011. So the promoters, who were so appointed in the promoted post between 2011-2012 to 2014-2015, were only enabled protection in the promoted post.** **11. On the facts coming out herein, we notice that the 1[st] respondent was appointed on 02.06.2016, which does not enable him for protection either under sub-clauses (1) or (5)and is pointedly excluded by sub-clause (6). We postulate a situation, wherein the HSA was** W.A. No.2032 of 2018 13 **appointed on promotion between 2011-2012 and 20142015; in which event, the protection enabled is in accordance with sub-clause (5) of Clause I and not sub-clause (1) of Clause I.** **12. On the facts arising herein, as we noticed, the appellant was promoted as an HSA on 01.06.2016 as per Ext.P3 appointment order, which was also approved. The approval relates back to the date of appointment, ie. 01.06.2016. The continuation of the appellant in the post of HSA was in accordance with the approval with effect from 01.06.2016. We also notice the approval granted to Ext.P3, which is as herein below:** _**“The appointment is approved as HSA [Malayalam] with effect from 01.06.2016 onwards based on the declaration of the Manager and subject to the condition mentioned in the GO(P) No.29/16/G.Edn. dated 29.01.2016 and 951951/J2/16/G.Edn.”**_ **The G.O. mentioned therein is Ext.P5. The approval** W.A. No.2032 of 2018 14 **was in accordance with Ext.P5 G.O. also, which enables protection only to teachers, who were continuing on the basis of approval orders on or before 31.03.2011. True, the teachers promoted between 2011-2012 to 2014-2015 also were granted protection. The appellant herein was promoted after the academic year 2014-2015, on 01.06.2016, which takes him out of the ambit of the protection afforded as per Ext.P5. Then we have recourse to the proviso to Rule 43, which speaks of a teacher in a promoted post not being enabled to protection, being enabled for reversion to the original post. Here, the appellant was promoted as HSA from the post of UPSA. He would hence have to be reverted to the post of UPSA as is found in the staff fixation order.** **13. The learned Counsel for the 1[st] respondent relied on Ext.P6 issued by the Director of Public Instructions [DPI] and a Circular issued** W.A. No.2032 of 2018 15 **by the Special Secretary of the Kerala Education Department, later of which was produced across the Bar, bearing No.J2/217/18/G.Edn. dated 19.11.2018. A reading of Ext.P7 would not support the case of the 1[st] respondent. There the objection noticed was with respect to a HSA regularly appointed being deployed as HSA to another school on protection and a promoted HSA, who is senior being reverted, when the person reverted is also entitled to protection. This situation does not arise here.** **14. The Circular, however, takes a totally different stand from the G.O. at Ext.P5. We extract** ## **the Circular hereunder:** "സൂചന സർകധ്യാർ ഉതരവക്ക് പകധ്യാരസം 2015-16 മുതലുള്ള നവിയമനങൾകക്ക് സസംരക്ഷണസം അനുവദവികവിടലന്നക്ക് വധക്തമധ്യാകവിയവിട് **ട** ുണ്ടെങവിലുസം തനരതത അതധ് **യ** ാ തക്ക് 2015-16 നു മുമ്പക്ക് തധ്യാഴെടത തസവികയവിൽ നവിയമനധ്യാസംഗജീകധ്യാരസം തനടെവിയ തശഷസം പവി ന്നജീടെക്ക് അതധ് **യ** ാ തക്ക് 2015-16 നു തശഷസം പതമധ്യാഷൻ ലഭവിക്കുന്നവർകക്ക് പുതവിയ തസവികയവിൽ സസംരക്ഷണമവിടലതന്നധ്യാ ഉടണ്ടെതന്നധ്യാ ഈ . ഉതരവവിൽ പരധ്യാമർശവിക്കുന്നവില 43 .ഇ.ആർ. റൂൾ പകധ്യാരമുള്ള പതമധ്യാഷൻ ടക പകധ്യാരമുള്ള . സ്റ്റധ്യാറ്റൂട്ടറവി അവകധ്യാശമധ്യാണക്ക് ആ അവകധ്യാശസം സവിദവിക്കുന്നതവിലൂടടെ W.A. No.2032 of 2018 16 . സസംരക്ഷണതവിനുള്ള അവകധ്യാശസം നവിതഷധവികടപ്പെടുന്നതക്ക് ശരവിയല . . . . അതുടകധ്യാണ്ടൂ തടന്ന യുപവിഎസക്ക്റ്റവി തസവികയവിൽ സസംരക്ഷണതവിനർഹതയുണ്ടെധ് **യ** ാ വിരുന്ന ഒരദധധ്യാപകൻ നവിയമധ്യാനുസൃതസം പതമധ്യാഷൻ ലഭവിച്ചക്ക് എച്ചക്ക്.എസക്ക്.റ്റവി. ആടയന്നതുടകധ്യാണ്ടെക്ക് [2015-16 നു തശഷമധ് **യ** ാ ധ്യാലുസം] ടെവിയധ്യാനക്ക് എച്ചക്ക്.എസക്ക്.റ്റവി. തസവികയവിൽ സസംരക്ഷണസം ലഭവിക്കുന്നതധ്യാണക്ക്.” **15. A Circular issued by the General Education Department cannot interpret the order issued by the Government invoking its executive powers. The Circular can at best be considered as an understanding of the Officer in the General Education Department and it would not enure to the benefit of the 1[st] respondent, especially it being contrary to the protection granted in Ext.P5.** **16. We, also from the underlined portion in the above extract, notice that the Special Secretary has found that there is nothing in the G.O. indicating whether an approval granted after 2015-2016 would dis-entitle protection. This is specifically against sub-clauses (5) and (6) as we extracted from the G.O. In this context, it has to** W.A. No.2032 of 2018 17 **be emphasised that the proviso introduced under Rule 43, makes it very clear that the eligibility of protection in the retrenched post should be as per the orders issued by the Government from time to time. Ext.P5 is the order now issued, which specifically restricts protection to any appointments approved after 31.03.2011 and also to promotions or transfers approved after 2015-2016. The further finding in the circular that merely because of a promotion, which is a statutory right under Rule 43, the protection cannot be denied is a clear misunderstanding. Even if appointed by promotion, a division fall would entail retrenchment. This is sought to be avoided by the protection granted by the Government. If protection is not enabled there is the 2[nd] proviso under Rule 43 which provides for reversion and thus continuance in the post from which there was a promotion.** W.A. No.2032 of 2018 18 **17. On the above interpretation given to Ext.P5, we are of the opinion that the judgment of the learned Single Judge cannot be sustained. We hence set aside the judgment and direct the staff fixation order to be complied with scrupulously.** **The writ appeal would stand allowed. The parties shall suffer their respective costs.** **Sd/-** **K. VINOD CHANDRAN, JUDGE.** **Sd/-** **V.G. ARUN, JUDGE.** **sp/12/03/19** **//True Copy//** **P.A. To Judge**