T.N. Sanila v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 11TH DAY OF OCTOBER 2019 / 19TH ASWINA, 1941** ## **WP(C).No.12850 OF 2010(E)** ## **PETITIONER/S:** **T.N. SANILA, H.S.A. (ENGLISH), R.N.M. HIGH SCHOOL, NARIPATTA, KOZHIKKODE DISTRICT.** **BY ADVS. SRI.ELVIN PETER P.J. SRI. K.R. GANESH** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA - REPRESENTED BY THE**| |---|---| ||**SECRETARY TO GOVERNMENT,**| ||**GENERAL EDUCATION DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM.**| |**2**|**THE DISTRICT EDUCATIONAL OFFICER,**| ||**VATAKARA.**| |**3**|**THE MANAGER,**| ||**R.N.M. HIGH SCHOOL,**| ||**NARIPATTA, KOZHIKKODE DISTRICT.**| |**4**|**SMT. SASIKALA,**| ||**H.S.A. (MATHS),**| ||**R.N.M.HIGH SCHOOL, NARIPATTA,**| ||**KOZHIKODE DISTRICT.**| ||**R1 & R2 BY SRI. JESTIN MATHEW, GOVERNMENT PLEADER**| ||**R3 BY ADV. SRI.PRADEEP KRISHNA**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-10-2019, THE COURT ON 11-10-2019 DELIVERED THE FOLLOWING:** W.P.(C) No.12850 of 2010 2 ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P14 Government Order dated 23.02.2010, whereby petitioner is found not eligible for any protection, and the retrenchment of the petitioner from service with effect from 15.07.2003 is not illegal, requiring interference, and for other related and consequential reliefs. Brief material facts for the disposal of the writ petition are as follows: 2. Petitioner was appointed as H.S.A (Social Studies) in R.N.M High School, Naripatta, managed by the 3[rd] respondent, as per Ext.P1 order. The said appointment was approved by the 2[nd] respondent and thereafter the 3[rd] respondent appointed the petitioner as H.S.A (English) _vide_ Ext.P10 order. When Ext.P10 order was forwarded for approval, the same was rejected by the 2[nd] respondent _vide_ Ext.P11 order. Aggrieved by Ext.P11 order, petitioner filed appeal before the Deputy Director of Education, Kozhikode, which was dismissed as per Ext.P12 order. It was thus challenging Ext.P12 order, petitioner filed a Revision before the Director of Public Instruction, which was also dismissed as per Ext.P13 order. Thereafter, second Revision was preferred before the State W.P.(C) No.12850 of 2010 3 Government, which was declined by an order dated 11.06.2007. Thereupon, petitioner has approached this Court by filing W.P.(C) No.1278/2008. The said writ petition was allowed by this Court and the order of the Government in revision was set aside, and further directed the Government to pass fresh orders on the revision filed by the petitioner after providing an opportunity of hearing to the petitioner. It was thereafter that Ext.P14 order was passed, dismissing the Revision. 3. A detailed counter affidavit is filed by the 1[st] respondent, justifying the stand adopted in Ext.P14 order. Among other contentions, it is stated that, the Manager appointed the petitioner as H.S.A. (Social Studies) with effect from 06.11.1997 onwards against the vacancy of K. Gopalakrishnan, H.S.A. (SS) who resigned from service. Petitioner possesses B.A. (English) and B.Ed. (English). Her appointment was approved as H.S.A (SS) with effect from 06.11.1997, as per the order dated 16.08.1999, and she was appointed against the 11[th] post of H.S.A (SS) existed in the school. 4. The Government as per G.O.(MS)No.11/02/G. Edn. dated 07.01.2002, introduced separate category of H.S.A W.P.(C) No.12850 of 2010 4 (English) from the academic year 2002-03 onwards. The new cadre will be created by appointing/promoting qualified hands against the vacancies caused by retirement/additional divisions, resignation etc. The total number of H.S.A (Core Subject) posts sanctioned to the R.N.M High School during 2002-03 and 2003-04 academic year was 35. There were 37 teachers working against 35 sanctioned posts in the school during 200203 onwards. The subject-wise distribution of teachers exist in the roll as per the then existing ratio of 1:1:1 are as follows: |PS|NS|Maths|SS|Total| |---|---|---|---|---| |8|5|13|11|37| The excess two teachers were retained in the school by applying the ratio of 1:40 and allowing protection in terms of G.O.(P)No.175/99/G. Edn. dated 26.07.1999. 5. The sanctioned posts and the subject-wise distribution of H.S.A Core Subjects as per G.O.(MS) No.11/02/G. Edn. dated 07.01.2002 during 2002-04 academic years is as follows: |PS|NS|Maths|SS|Total| |---|---|---|---|---| |7|4|8|8|27 (wrongly<br>stated as 35)| The juniormost teacher named Smt. Sasikala K.K., H.S.A (Maths) with continuous service from 06.06.1994 onwards W.P.(C) No.12850 of 2010 5 and the petitioner, H.S.A (SS), having continuous service from 06.11.1997 onwards were excess during 2003-04. Among them, petitioner was working without protection as her continuous service stands only from 06.11.1997 onwards. 6. It is further submitted that, while implementing the new ratio of 1:1:1, 10 teachers became surplus including the petitioner, and 8 senior teachers accommodated against the 8 posts of H.S.A. (English). As pointed out above, petitioner was working against the 11[th] post of H.S.A (SS) while introducing G.O.(MS) No.11/2002. As Smt. Sasikala K.K., i.e., the 4[th] respondent, has continuous service from 06.06.1994, she was given protection and was retained in the school under protection in terms of G.O.(P)No.403/02/G. Edn. dated 04.12.2002, as she is Guide Captain of the School Guide Group. However, petitioner was not terminated during 2002-03 on the strength of clause 3(a) of G.O. (P)No.11/02/G. Edn. dated 07.01.2002. 7. It is also submitted that, during 2003-04, the same 35 Class divisions were allowed to the school and 37 teachers existed in the school. But, petitioner was retrenched from service with effect from 15.07.2003. The Manager of the school converted the appointment of 6 ## W.P.(C) No.12850 of 2010 the petitioner as H.S.A. (English) in the school with effect from 15.07.2003 on the strength of G.O.(MS) No.187/03 dated 16.07.2003 and requested to approve the appointment as there is no other English teacher in the school and that there were 8 sanctioned posts in the school. But the appointment was rejected by the District Educational Officer, based on the decision taken by the Deputy Director of Education, Kozhikode in a similar case at Iringannur High School of the Educational District. The direction of the Deputy Director of Education was followed and the petitioner was retrenched from service and retained as senior H.S.A whose continuous service begins from 06.06.1994. The stand adopted by the D.E.O was upheld by the Deputy Director of Education, Kozhikode and the Director of Public Instruction, Thiruvananthapuram, and also by the Government as per the impugned order. 8. Therefore, according to the 1[st] respondent, the grounds raised by the petitioner are not sustainable, and further that, all the H.S.As senior to petitioner in Core Subjects are eligible for protection. It is also stated that, if the conversion of H.S.A (SS) to H.S.A (English) is allowed, it will be permitting the junior teachers to be retained in the W.P.(C) No.12850 of 2010 7 school while the seniors to be deployed to other schools as protected teachers. In clause 3 of G.O.(MS) No.11/2002/G. Edn. dated 07.01.2002, it is directed that no cadre of H.S.A (English) will be created in Aided/Government Schools by re-allocating the core subjects (Maths, Science and Social Science) in a phased manner without causing retrenchment of existing H.S.As in core subjects. 9. The 2[nd] respondent has also filed a detailed counter affidavit, raising similar contentions and also holding that the orders passed by the respective statutory authorities are in accordance with law. 10. I have heard Sri. K.R. Ganesh, learned counsel for the petitioner and Sri. Jestin Mathew, learned Government Pleader, and perused the pleadings and the documents on record. 11. The sole question to be considered is, whether any manner of interference is warranted to Ext.P14 order passed by the State Government. On an analysis of Ext.P14 order, it is clear that, all the Government Orders and the provisions of Chapter XIV A K.E.R were taken into account and assimilating the legal and factual situations, it has come to a clear conclusion that, on 15.07.2003, i.e., during 2003-04 academic W.P.(C) No.12850 of 2010 8 year, there were 37 teachers on the roll against 35 sanctioned posts, which are enumerated herein: |_“Subjects_<br>_Physical Science_<br>_Natural Science_<br>_Mathematics_<br>_Social Science_<br>_English_|_Number of posts_<br> <br> <br>_7_<br>_4_<br>_8_<br>_8_<br>_8_|_Number of teachers_| |---|---|---| |||_8_<br>_5_<br>_13_<br>_11_<br>_0”_| 12. Therefore, from the above details, it is evident that, there are 10 teachers in excess in core subjects and there were only 8 posts of H.S.A (English) with effect from 15.07.2003. As per G.O.(MS) No.11/2002/G. Edn. dated 07.01.2002, a new cadre of H.S.A (English) was created in Aided and Government Schools by re-allocating the period of English then allocated to the core subjects, in a phased manner without causing retrenchment of existing H.S.A's (Core Subjects). In the said circumstance, even if the petitioner was qualified to be converted as H.S.A (English) from 15.07.2003 in terms of G.O.(MS) No.187/2003/G.Edn. dated 16.07.2003, her conversion will affect the existing Senior Core Subject Teachers. Government have noted that, at that time, petitioner was an approved HSA (Social Studies) and she was not an approved H.S.A (English). The excess senior Core W.P.(C) No.12850 of 2010 9 Subject teachers have to be accommodated against the post of H.S.A (English) as per clause 3(a) of G.O.(Ms) No.11/2002/G. Edn. dated 07.01.2002. Therefore, when 8 teachers are accommodated, two juniormost teachers are remaining and one of them is the petitioner. 13. As the petitioner was not eligible for any protection, she was retrenched from service with effect from 15.07.2003 and also due to the fact that petitioner was not an approved H.S.A (English). In the year 2003-04, she was not retrenched from the post of H.S.A (English). Therefore, the discussion made above would make it clear that, petitioner could not be accommodated against the post of H.S.A (English) by retrenching the senior excess Core Subjects teachers of the same school. It was also found that the retrenchment of the petitioner was in tune with the judgment of a Division Bench of this Court in ' _**Rakhee v. State of Kerala**_ ' [2007 (1) KLT 766] and taking into account the Government Orders relevant for the purpose. 14. Learned counsel for the petitioner has heavily relied upon Rule 6.1 of Chapter XXIII K.E.R, dealing with sanctioning of posts of High School Assistant (English), which stipulates that, notwithstanding anything contained in any other rule in the said W.P.(C) No.12850 of 2010 10 Chapter, the post of High School Assistant (English) shall be sanctioned on the basis of the periods allocated to English, observing minimum subject requirement. The Note thereto is relevant, which reads that, “subject to any general order that may be issued by the Government, the above rule shall be implemented in a phased manner without causing retrenchment of existing High School Assistants (core subjects) as on 7[th] January, 2002, and observing minimum subject requirement”. In my considered opinion, the said provision will not come to the benefit of the petitioner for the reason that the provision is a conjunctive one, wherein it is stipulated that the post of H.S.A (English) shall be sanctioned on the basis of periods allocated to English, however, observing the minimum subject requirement and also taking into account the Note added thereto. 15. Paragraphs 9 to 15 of the judgment in ' _**Minimole C. v. State of Kerala and Others**_ ' [2012 (4) KLJ 488] are relevant to the context, which read thus: _“_ _**9** . Herein, the staff fixation order clearly provides for one post of H.S.A (English) for the year 2007-08. The vacancy arose due to promotion of Smt. T.L. Gracykutty, H.S.A as Headmistress. In the Government Order dated 07.01.2002, it was provided that the new cadre of H.S.A (English) will be created by allocating periods of English as it was being allocated to_ W.P.(C) No.12850 of 2010 11 _core subjects like Mathematics, Science and Social Studies. Actually, what has to be ensured under the said process is the avoidance of retrenchment of existing H.S.A (core subject) teachers. The new cadre has to be created by appointing qualified hands against vacancies caused by retirement/promotion/resignation etc._ _**10** . Thus in this case the post of H.S.A (English) has been created in the staff fixation order. There is no plea that the H.S.A (Maths) and H.S.A (S.S) teachers became protected as a result of creation of the post of H.S.A (English). Only in such cases alone it can be seen that the retrenchment can be avoided. The two teachers mentioned in the orders, became protected teachers in earlier years due to reduction of posts in those subjects._ _**11** . When Rule 6.1 of Chapter XXIII K.E.R clearly provides for creation of the post of H.S.A (English), that also by observing minimum subject requirement, there cannot be any quarrel that a H.S.A (English) can be appointed in the post. Therefore, it is obvious that a qualified hand alone can be appointed in terms of Rule 6.1 of Chapter XXIII K.E.R._ _**12** . The objection raised by the District Educational Officer in Ext.P4 is that it has to be filled up by recalling a protected teacher in H.S.A (Core subjects). Merely because the two teachers mentioned were teaching English classes that cannot clothe any right on them to be called back to the school for appointment as H.S.A (English)._ _**13** . Thus as a matter of right such teachers in H.S.A (core subjects) cannot, claim redeployment to parent school as evidently, their redeployment depends upon sanction of posts or arising of vacancies in H.S.A (Maths) and H.S.A (S.S)._ _**14** . Therefore, the said reason that two such protected hands are available cannot be a ground to reject the approval of appointment of the petitioner. In Ext.P14 order, the Government was of the view that H.S.A (Mathematics) and H.S.A (S.S) cannot be appointed against posts of H.S.A (English) under any rules or orders in_ W.P.(C) No.12850 of 2010 12 _force and, minimum subject requirement has to be satisfied when appointments are considered against the posts of H.S.As. The said view is the correct one on an interpretation of Rule 6.1 of Chapter XXIII K.E.R. But, in spite of the same, in the impugned order Ext.P10, the Government took a contrary view that such H.S.A (Core Subject) teachers could be recalled, which cannot be justified._ _**15** . The other reason pointed out is that the vacancy will have to be filled up by a protected teacher. The petitioner has pleaded that a protected teacher H.S.A (English) was not available in the district as on the date of her appointment. There is no dispute on the said fact in the counter affidavit. The pleadings of the petitioner in that regard is supported by Ext.P12, a reply given by the Deputy Director of Education, Kollam that in the year 2007-08 no protected H.S.A (English) is available in Kollam District. The Manager has already complied with the obligation to appoint a protected hand [H.S.A (S.S)] as evident from Ext.P13.”_ 16. Reading of the considerations rendered by the learned Single Judge in the afore-quoted judgment, would make it clear that the factual situations and circumstances therein are entirely different from the case on hand. Here is a case where, as pointed out above, petitioner was an approved teacher of H.S.A (Social Studies) and not an H.S.A (English). The said judgment was upheld by a Division Bench of this Court in ' _**State of Kerala v. Minimole**_ ' [2012 (2) KLT 857]. 17. Even though learned counsel for the petitioner has a case that petitioner could have been accommodated by shifting any of the protected teachers to some other W.P.(C) No.12850 of 2010 13 Aided school, in my considered opinion, such a course could not be adopted by the Government, since the petitioner was only a protected teacher in H.S.A (Social Studies) and there was no vacancy available in the school of the 3[rd] respondent as per the staff strength fixed to the said school for the year concerned. 18. Taking into account all the above discussed aspects, I am of the considered opinion that, the State Government have passed Ext.P14 order by following the principles of natural justice and taking into account the relevant legal circumstances on the basis of K.E.R and relevant notifications issued by the State Government to the issue in question. Therefore, I do not think petitioner has made out any case justifying interference of this Court under Article 226 of the Constitution of India. The writ petition fails, accordingly it is dismissed. ## **Sd/-** ## **SHAJI P.CHALY** ## **JUDGE** W.P.(C) No.12850 of 2010 14 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 06.11.1997 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT. EXHIBIT P2 TRUE COPY OF G.O.DATED 07.1.2002 EXHIBIT P3 TRUE COPY OF G.O.DATED 16.07.2003. EXHIBIT P4 TRUE COPY OF G.O.DATED 08.11.96 EXHIBIT P5 TRUE COPY OF G.O.DATED 20.06.97. EXHIBIT P6 TRUE COPY OF G.O. DATED 26.07.99. EXHIBIT P7 TRUE COPY OF G.O.DATED 29.09.99. EXHIBIT P8 TRUE COPY OF G.O.DATED 24.07.2000. EXHIBIT P9 TRUE COPY OF STAFF FIXATION ORDER ISSUED BY THE 2ND RESPONDENT FOR ACADEMIC YEAR 200304.** **EXHIBIT P10 TRUE COPY OF ORDER DATED 01.08.2003 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXHIBIT P11 TRUE COPY OF ORDER DATED 17.10.2003 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P12 TRUE COPY OF ORDER DATED 25.2.2004 ISSUED BY THE DY. DIRECTOR OF EDUCATION, KOZHIKKODE. EXHIBIT P13 TRUE COPY OF ORDER DATED 29.05.2004 ISSUED BY THE D.P.I. EXHIBIT P14 TRUE COPY OF ORDER DATED 23.2.2010 ISSUED BY THE GOVERNMENT.** RESPONDENTS' EXHIBITS: NIL