V. Suma, C. P. Sunanda and P. Raghunath v. District Educational Officer, Palakkad; Deputy Director of Education, Palakkad; State of Kerala (represented by the Secretary, Education Department) and Addl. R4 impleaded

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **TUESDAY, THE 12TH DAY OF AUGUST 2014/21ST SRAVANA, 1936** **WP(C).No. 30000 of 2013 (Y) ----------------------------** ## **PETITIONER(S):** **---------------** ## **1. V.SUMA** **HIGH SCHOOL ASSISTANT (H.S.A.) (NOW REVERTED TO UPPER PRIMARY SCHOOL ASSISTANT (UPSA) KTM HIGH SCHOOL, MANNARKKAD, PALAKKAD DISTRICT.** **2. C.P.SUNANDA UPPER PRIMARY SCHOOL ASSISTANT (UPSA) KTM HIGH SCHOOL, MANNARKKAD PALAKKAD DISTRICT. (NOW WORKING AT BLOCK RESOURCES CENTRE).** **3. P.RAGHUNATH UPPER PRIMARY SCHOOL ASSISTANT (UPSA) KTM HIGH SCHOOL, MANNARKKAD PALAKKAD DISTRICT. (NOW WORKING AT BLOCK RESOURCES CENTRE).** **BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S):** **--------------** **1. THE DISTRICT EDUCATIONAL OFFICER PALAKKAD-678001.** **2. THE DEPUTY DIRECTOR EDUCATION PALAKKAD-678001.** **3. STATE OF KERALA** **REPRESENTED BY THE SECRETARY GENERAL EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM-695001.** ***ADDL.R4 IMPLEADED:** **ADDL.R4: N.MOHANAKRISHNAN, UPPER PRIMARY SCHOOL ASSISTANT, KTM HIGH SCHOOL, MANNARKKAD PALAKKAD DISTRICT.** ***[ADDL.R4 IS IMPLEADED AS PER ORDER DT.12/6/2014 IN I.A.NO.5113/14 IN THE WP(C)]** **ADDL R4 BY ADV. SRI.K.JAJU BABU (SR.) ADDL R4 BY ADV. SMT.M.U.VIJAYALAKSHMI ADDL R4 BY ADV. SRI.BRIJESH MOHAN BY GOVERNMENT PLEADER SRI.RAFEEK.V.K** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-08-2014, ALONG WITH WPC.11026/2014 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 30000 of 2013 (Y)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT-P1: TRUE COPY OF STAFF FIXATION ORDER ISSUED BY THE D.E.O., PALAKKAD FOR KTM HIGH SCHOOL, MANNARKKAD FOR THE ACADEMIC YEAR 200607.** **EXHIBIT-P2: TRUE COPY OF THE REVISED STAFF FIXATION ORDER DATED 7.12.2007 FOR KTM HIGH SCHOOL, MANNARKKAD ISSUED BY THE D.E.O. PALAKKAD.** **EXHIBIT-P3: TRUE COPY OF THE STAFF FIXATION ORDER FOR KTM HIGH SCHOOL, MANNARKKAD FOR THE ACADEMIC YEAR 2007-08 ISSUED BY THE D.E.O., PALAKKAD.** **EXHIBIT-P4: TRUE COPY OF THE GOVERNMENT ORDER, G.O.(P) 4/05/G.EDN DATED 4.1.2005.** **EXHIBIT-P5: TRUE COPY OF CIRCULAR DATED 24.3.1999 ISSUED BY THE GOVERNMENT.** **EXHIBIT-P6: TRUE COPY OF GOVERNMENT ORDER, G.O.(P) NO.12/08/G.EDN DATED 9.1.2008.** **EXHIBIT-P7: TRUE COPY OF GOVERNMENT ORDER, G.O.(RT) NO.2596/08/G.EDN DATED 9.6.2008.** **EXHIBIT-P8: TRUE COPY OF THE GOVERNMENT ORDER, G.O.(RT) NO.2716/09/G.EDN DATED 3.7.2009.** **EXHIBIT-P9: TRUE COPY OF JUDGMENT IN W.P.(C) NO.20147/08 DATED 17.6.2010.** **EXHIBIT-P10: TRUE COPY OF ORDER OF THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD DATED 11.1.2011.** **EXHIBIT-P11: TRUE COPY OF GOVERNMENT ORDER, G.O.(MS) 352/2000 G.EDN DATED 25.10.2000.** **EXHIBIT-P12: TRUE COPY OF GOVERNMENT ORDER, G.O.(MS) 109/1998/G.EDN DATED 6.4.1998.** **EXHIBIT-P13: TRUE COPY OF GOVERNMENT ORDER, G.O.(RT) 4248/11/G.EDN DATED 12.10.2011.** **EXHIBIT-P14: TRUE COPY OF JUDGMENT IN W.P.(C) 33464 OF 2011.** **EXHIBIT-P15: TRUE COPY OF GOVERNMENT ORDER G.O. (RT) 4259/2013/G.EDN DATED 15.10.2013.** **EXHIBIT-P16: TRUE COPY OF THE GOVERNMENT ORDER G.O. (RT)1449/14/G.EDN DATED 28.03.2014.** **EXHIBIT-P17: TRUE COPY OF REPRESENTATION DATED 4.4.2014 SUBMITTED BY PETITIONERS 2 AND 3 TO THE GOVERNMENT.** **RESPONDENT(S)' EXHIBITS:NIL** **------------------------** **//TRUE COPY//** **P.A TO JUDGE** ## **A.K.JAYASANKARAN NAMBIAR, J.** **.............................................................** W.P.(C)No.30000 of 2013 & W.P.(C)No.11026 of 2014 **.............................................................** Dated this the 12[th] day of August, 2014 ## **J U D G M E N T** Since these two writ petitions involve common issues they are taken up together and disposed by this common judgment. The reference to the facts and exhibits are from W.P.(C).No.30000 of 2013. 2. W.P.(C).No.30000 of 2013 is filed by three petitioners who are teachers in the KTM High School Mannarkkad, Palakkad district. The 1[st] petitioner was appointed as a UPSA on 07.12.1994 and thereafter promoted as HSA with effect from 01.06.1998. The 2[nd] petitioner was appointed as the UPSA on 22.06.2000 and is continuing as such. The 3[rd] petitioner was appointed as UPSA on 12.07.2000 and is continuing as such. Based on Ext.P2 revised staff fixation order for the academic year 2006-2007, there was a reduction of four divisions in the High School section of the said School. The direct effect of the said staff fixation order was that the 1[st] petitioner, along with Sri.Mohanakrishnan (the petitioner in W.P.(C).No.11026 of 2014), were reverted as UPSA in the said School. As a consequence, the 2[nd] and 3[rd] petitioners faced W.P.(C)No.30000 of 2013 & W.P.(C)No.11026 of 2014 2 retrenchment, as noticed in Ext.P1 order. This position, as regards the status of the petitioners and Sri.Mohanakrishnan, continued in the academic year 2007-08 also. The issue that arises in this case is primarily with regard to the applicability of the 1:40 ratio prescribed through various Government orders for the purposes of retaining those teachers who faced the immediate prospect of retrenchment pursuant to a division fall noticed at the time of staff fixation. In the case at hand, on account of the stand taken by the education authority that the Government orders granting protection to teachers by application of the 1:40 ratio would be available only in cases of teachers facing retrenchment and not in respect of those facing reversion, two teachers who were functioning as HSA's in the School were not extended the benefit of protection and accordingly they were reverted to the lower post of UPSA. The reversion of the two HSA's resulted in two UPSA's facing the prospect of retrenchment and hence, at their instance, proceedings were initiated before the educational authorities for the purposes of getting the benefit of the protection orders extended to the HSA's so that the eventuality of retrenchment of UPSA's could be avoided. Reliance is placed by the petitioners on Ext.P6 Government order where, according to them, the Government rectified the anomaly that existed in Ext.P4 Government Order which confined the benefit of 1:40 ratio to only W.P.(C)No.30000 of 2013 & W.P.(C)No.11026 of 2014 3 persons facing the prospect of retrenchment and not to promotees under Rule 43 who faced the prospect of reversion. 3. In a petition filed by the 1[st] petitioner claiming the benefit of protection, the Government passed Ext.P7 order rejecting the same. A similar revision petition filed by the 3[rd] petitioner was also rejected vide Ext.P8 order. Although these orders were challenged by the 1[st] and 3[rd] petitioners through separate writ petitions namely W.P.(C).No.20147 of 2008 and W.P.(C).No.27797 of 2009, the said writ petitions were disposed with a direction to the Government to consider the case of the petitioners afresh. This led to Ext.P13 order dated 12.10.2011 wherein the Government considered the issue of application of the 1:40 ratio to the various teachers facing the prospect of reversion and retrenchment in the School and issued directions to the DEO Palakkad to revise the staff fixation for the year 2006-2007 and 2007-2008 of the School based on the observations of the Government in the said order. Subsequent to Ext.P13 Government Order, and based on representations that were preferred by the petitioners, the Government once again considered the matter based on the directions issued by this Court in Ext.P14 judgment, this time with reference to the availability of the benefit, under Exts.P11 and P12 Government orders, to the HSA's in the School in question. By Ext.P15 order, the Government W.P.(C)No.30000 of 2013 & W.P.(C)No.11026 of 2014 4 found that the two teachers who were functioning as HSA's in the School were eligible for protection in terms of Exts.P11 and P12 Government orders and that they were eligible to be deployed in vacancies elsewhere and would have been reverted only in the event of want of a vacancy. After having found so, the Government went on to hold that even though they were eligible for the protection, the Government did not grant the protection or deploy the said HSA's as per Government instructions issued regarding redeployment because, at that distance of time, it was not possible to review this arrangement with regard to deployment. The relevant portion of Ext.P15 order is extracted hereunder: "10. Government have issued executive orders for protection vide G.O.(P) No.4/05/GEdn dated 4.1.2005, G.O.(P).No.12/08/GEdn dated 9.1.2008 and 41/10/GEdn dated 20.3.2010. Hence G.O.(MS) No.352/00/GEdn dated 25.10.00 should be read with the above G.Os. Also G.O.(MS).No.109/98/GEdn dated 6.4.1998 should be read with G.O.(P) No.175/99/GEdn dated 26.7.1999 as G.O.(P) No.240/99/GEdn dated 29.9.1999. However as per G.O.(P). No.109/98/GEdn dated 6.4.1998, Primary and High School service together will be reckoned for assessing the eligibility of protection. In the present case both the teachers were eligible for protection as per Government Order dated 6.4.1998. As per G.O(MS) No.338/2000/GEdn dated 10.10.2000 and G.O. (MS) 352/2000/Gedn dated 25.10.2000 they were eligible to be deployed in vacancies elsewere and would have been reverted only in the event of want of vacancy. 11. Even though they were eligible for W.P.(C)No.30000 of 2013 & W.P.(C)No.11026 of 2014 5 protection, they were not given protection and deployed to elsewhere as per Government instruction issued regarding redeployment and it is not possible to review this deployment at this distance of time." 4. Aggrieved by Ext.P15 order of the Government to the extent it did not give effect to the findings recorded therein namely that the HSAs were eligible for protection as per Exts.P11 and P12 orders, and on finding that the non-implementation of the Government decision effectively deprived them of the relief that they were seeking against retrenchment, the petitioners preferred this writ petition impugning Ext.P15 order. For the sake of completion, it needs to be mentioned that while the writ petition was pending, the Government itself suo motu modified Ext.P15 order passed by it and passed Ext.P16 order dated 28.03.2014. In the said order it was clarified that on a re-examination of the matter, the Government was convinced that the HSAs in question were eligible for protection from 2006-2007 with salary of HSA for the period they actually worked and further that the 2[nd] and 3[rd] petitioners in the present writ petition were therefore not liable for retrenchment. There was also a direction to the education authority to fix the service of the 2[nd] and 3[rd] petitioners provisionally without any monetary benefits. W.P.(C)No.30000 of 2013 & W.P.(C)No.11026 of 2014 6 5. Ext.P16 order of the Government is the subject matter of challenge in writ petition 11026 of 2014 on the ground that the said order is one which the Government had no jurisdiction to pass since it was essentially a review of Ext.P15 order and it had been clarified by a Full Bench decision in this Court in **Anilkumar v. State of Kerala** (2009 (3) KLT 650) that the Government has no power to entertain a review petition under Rule 93 against an order passed in revision under Rule 92 of Chapter XIV A of the KER. 6. I have heard learned counsel Sri.Dr.George Abraham, on behalf of the petitioner in W.P.(C)No.30000 of 2013, Sri.Brijesh Mohan on behalf of petitioners in W.P.(C)No.11026 of 2014 and the learned Government Pleader Sri.Rafeek.V.K., appearing on behalf of respondents in both the writ petitions. 7. On a consideration of the facts and circumstances of the cases as also the rival submissions, I feel that, at the outset, the contention with regard to the legality of Ext.P16 order, which is produced and impugned as Ext.P6 order in W.P.(C).No.11026 of 2014, needs to be considered. It is apparent from a reading of the said order that it virtually reviews Ext.P15 order produced in W.P. W.P.(C)No.30000 of 2013 & W.P.(C)No.11026 of 2014 7 (C).No.30000 of 2013. In view of the decision of the Full Bench of this Court noticed above, it is apparent that the Government never had the jurisdiction to exercise the power of review under the KER against Ext.P15 order and hence the said order must necessarily be quashed as being one passed without jurisdiction. 8. The next issue that I must deal with is the legality of Ext.P15 order of the Government which is the subject matter of challenge in W.P.(C).No.30000 of 2013. As already noticed above, in Ext.P15 order the Government has specifically found that the two HSA's in the School were eligible for protection as per Government Order dated 06.04.1998 as also the Government Orders dated 10.10.2000 and 25.10.2000, dealing with deployment subject to availability of vacancies in other Schools. If Ext.P15 Order was actually implemented through grant of protection to the two HSA's then the logical result would have been that the 2[nd] and 3[rd] petitioners would not be retrenched consequent to the staff fixation. Ext.P15 order did not provide any relief to the 2[nd] and 3[rd] petitioners only because the Government took the stand that, although the two HSA's were entitled to the protection under the various Government orders, a deployment that had to be done in 2007 could not be done at the belated stage when Ext.P15 order was passed. W.P.(C)No.30000 of 2013 & W.P.(C)No.11026 of 2014 8 9. In view of the factual situation prevailing in the instant case namely, that consequent to the staff fixation order for the year 2006-07, the 2[nd] and 3[rd] petitioners faced retrenchment only on account of the non-extension of the protection to the HSA's in the School, and that with effect from 2011, they have all been getting the salary due to them by virtue of being included in the teachers package, and further that their primary concern even today is only with regard to the continuity in service as UPSA's for the purposes of service benefits, I find that there can be no justification for not giving effect to the findings already made in Ext.P15 order of the Government as far as petitioners 2 and 3 are concerned. Accordingly, Ext.P15 order is quashed to the extent it does not give effect to the rights of petitioners 2 and 3, traceable to Exts.P11 and P12 Government Orders which have been found to be applicable for affording protection, inter alia, to the 1[st] petitioner in the instant case. In otherwords Ext.P15 shall now have the effect of allowing the claim of the petitioners in the representations filed by them before the Government. The 1[st] respondent shall accordingly implement the decision in Ext.P15 order of the Government as modified by this judgment by passing revised orders of staff fixation pertaining to the KTM High School, Mannarkkad, Palakkad for the year 2006-2007. The staff fixation orders for the subsequent W.P.(C)No.30000 of 2013 & W.P.(C)No.11026 of 2014 9 years, to the extent they are affected by the staff fixation order for 2006-2007, shall also be modified accordingly. Writ petitions are disposed as above. **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/