WP(C) Nos. 23712 of 2019 (L) and 30483 of 2019 (I); The Manager CFD High School, Mathur, Palakkad v State of Kerala & Others; Rajitha.R v State of Kerala & Others

WP(C)Nos.23712 of 2019 & 1 30483 of 2019 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941** ## **WP(C).No.23712 OF 2019(L)** ## **PETITIONER:** **THE MANAGER, CFD HIGH SCHOOL, MATHUR, PALAKKAD -679584** **BY ADVS. SRI.P.RAMAKRISHNAN SMT.PREETHI RAMAKRISHNAN (P-212) SRI.T.C.KRISHNA SRI.C.ANIL KUMAR SMT.ASHA K.SHENOY SRI.PRATAP ABRAHAM VARGHESE** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHPAURAM-695001 2 THE DIRECTOR OF PUBLIC INSTRUCTIONS, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-695014 3 THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD-678014 4 ASWATHI.A W/O.PROMOD KUMAR, WEST HOUSE, VENMAKARA, NURANI PO, PALAKKAD-678004** **R4 BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH R1 TO R3 BY SRI.JESTIN MATHEW,GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.11.2019, ALONG WITH WP(C).30483/2019(I), THE COURT ON 26.11.2019 DELIVERED THE FOLLOWING:** WP(C)Nos.23712 of 2019 & 2 30483 of 2019 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941** ## **WP(C).No.30483 OF 2019(I)** ## **PETITIONER:** **RAJITHA.R AGED 43 YEARS W/O. PRATHAP, PRATHAP NIVAS, KUOMANKKAD, MATHUR P.O., PALAKKAD DISTRICT, PIN-678 571.** **BY ADVS. SRI.P.GOPAL SRI.B.MURALEEDHARAN** ## **RESPONDENTS:** **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD-678 014. 3 THE MANAGER C.F.D. HIGH SCHOOL, MATHOOR, PALAKKAD-679584. 4 ASWATHI A. W/O. PRAMODKUMAR, WEST HOUSE, VENMAKARA, NOORANI P.O., PALAKKAD-678 004.** **R4 BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH R3 BY SRI.P.RAMAKRISHNAN R1 & R2 BY SRI.JESTIN MATHEW, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.11.2019, ALONG WITH WP(C).23712/2019(L), THE COURT ON 26.11.2019 SAME DAY DELIVERED THE FOLLOWING:** WP(C)Nos.23712 of 2019 & 3 30483 of 2019 ## **J U D G M E N T** Captioned writ petitions are materially connected challenging the Government Order dated 22.7.2019, whereby direction was issued to approve the appointment of Aswathy.A, H.S.A. (Natural Science) for the period from 1.6.2015 to 14.7.2018, if she is qualified otherwise. W.P.(C) No.23712/2019 is filed by the Manager of CFD Higher Secondary School, Mathur, Palakkad, whereas the connected writ petition is filed by H.S.A (Physical Science), who was affected by the impugned Government Order. Therefore, I heard them together and propose to pass this common judgment. Material facts available from 25712/2019 is relied upon to dispose of the writ petitions. 2. On 15.7.2014 the school was sanctioned with four posts of HSA (Physical Science) and three posts of HSA (Natural Science) as per Ext.P1 staff fixation order. On 31.5.2015, one Smt.Krishnamani, HSA (N.S) retired on superannuation. WP(C)Nos.23712 of 2019 & 4 30483 of 2019 On 28.4.2016 the District Educational Officer, Palakkad i.e., the 3[rd] respondent issued Ext.P2 staff fixation order for the academic year 2015-2016. On 1.6.2016, the 4[th] respondent i.e., Aswathy.A was appointed as HSA (N.S). The appointment was placed for approval before the District Educational Officer, however, as per Ext.P3 order dated 7.6.2017 it was rejected. The said order was upheld by the Deputy Director of Education a As per Ext.P4 order dated 20.10.2017. Thereupon, the Manager filed revision before the Director of Public Instructions i.e., the 2[nd] respondent herein. While so, the 4[th] respondent i.e., Aswathy.A. preferred a representation before the State Government and secured a judgment in W.P. (C) No.2254/2018, whereby the State was directed to consider the revision petition filed by Aswathy. In the meanwhile as per Exts.P6 and P7 dated 18.12.2017, the District Educational Officer has issued the staff fixation orders for the year 2016-2017 and 2017-2018 respectively. While so, the 1[st] respondent heard the parties in the revision filed by Aswathy on 14.6.2019 and has passed Ext.P12 order directing 3[rd] respondent WP(C)Nos.23712 of 2019 & 5 30483 of 2019 to approve the 4[th] respondent's appointment as HSA (N.S) w.e.f. 1.6.2015 to 14.7.2018. The contention put forth by the Manager as well as other petitioner, who is affected by Ext.P12 Government Order, is that the Government Order is illegal since there was no vacancy to appoint Aswathy.A. w.e.f. 1.6.2015 as is evident from Ext.P2 staff fixation order. So also there was no scope for appointment of Aswathy since there was an embargo of fresh appointment on account of the Government Order dated 28.6.2002. Further more petitioner in the connected writ petition viz., Rajitha.R had to be retained being a senior HSA (Physical Science) in the retirement vacancy as directed by the 3[rd] respondent . 3. The 4[th] respondent i.e., Aswathy.A. filed a detailed counter affidavit basically contending that on the basis of the appointment order, she joined duty on 1.6.2015 itself and in terms of Rule 7 Chapter XIVA K.E.R the appointment became effective from the said date and the Manager was legally bound to forward the appointment for approval within 15 days in accordance with Rule 8 Chapter XIV K.E.R and WP(C)Nos.23712 of 2019 & 6 30483 of 2019 the District Educational Officer was bound to pass orders on the approval of appointment within 30 days. However, the proposal was not forwarded by the Manager. Smt.Rajitha was working as HSA (Physical Science) during the academic year 2010-2011 on the basis of Ext.P1 staff fixation order issued during the relevant academic year. She was continuing as HSA (Physical Science) since academic year 2009. After 2010-2011 academic years, staff fixation orders were not issued by the 3[rd] respondent since the Government was considering the implementation of teachers' package. However, it was directed by issuing circulars that, till the finalization of the issue of teachers' package, the staff fixation orders in force for the academic year 2010-2011 shall be followed. It was accordingly that, Smt.Rajitha continued in service as HSA (Physical Science) for the subsequent years. During the academic year 2010-2011, five pots of HSA (P.S) was sanctioned in the school and three posts of HSA (N.S) was also sanctioned. The appendix along with staff fixation order for the academic year 2014-2015 shows that, number of posts of HSA (P.S) WP(C)Nos.23712 of 2019 & 7 30483 of 2019 sanctioned was only three and number of posts of HSA (N.S)sanctioned was also three. As per Ext.P2 staff fixation order, three posts of HSA(N.S) sanctioned for the previous academic years were retained for the academic year 2015-2016 and the number of posts of HSA (Physical Science) sanctioned is continued to be three indisputably. Smt.Rajitha was occupying the 5[th] post of HSA (Physical Science) that was sanctioned during the academic year 2010-2011. For want of staff fixation orders for the subsequent academic years Smt.Rajith.R. Continued as HSA (Physical Science). 4. Facts remains, when the staff fixation orders for the academic year 2014-2015 was issued, the post of HSA (P.S) was reduced from 5 to 3 and therefore, the post held by Smt.Rajitha became abolished and she was liable to be retrenched during the academic year 2014-2015 itself. Therefore, she was not entitled to continue in service as HSA(P.S) in the same school and in accordance with the teachers' package she was to be moved to the teachers' bank and had to be deployed on protection. 5. Therefore, the sum and substance of the WP(C)Nos.23712 of 2019 & 8 30483 of 2019 contention put forth by the 4[th] respondent is that, it was appropriately identifying the situation, the Government has passed Ext.P12 order after providing opportunity of hearing to all parties. Learned counsel appearing for Rajitha.R. also supported the arguments advanced by learned counsel for the Manager and submitted that since Smt.Rajitha being a senior teacher to Aswathy, she is entitled to continue in the school and the orders passed by the District Educational Officer as well as the Deputy Director of Education was in accordance with law and the interference made by the State Government cannot be sustained under law. 6. I have heard learned counsel for petitioners Sri.P.Ramakrishnan and Sri.P.Gopal, learned Government Pleader Sri.Jestin Mathew and learned counsel appearing for 4[th] respondent, Sri.Elvin Peter.P.J. and perused the pleadings and documents on record. 7. Respective counsel have addressed their arguments on the basis of the pleadings put forth by them. Learned counsel appearing for Aswathy.A. has WP(C)Nos.23712 of 2019 & 9 30483 of 2019 basically and broadly submitted that during the staff fixation for the year 2014-2015, two posts of HSA(P.S) were abolished and therefore, the 4[th] respondent Smt.Rajitha.R should have been included in the teachers' package and deployed accordingly. It is also submitted that, when the posts of HSA (P.S) were abolished, the persons holding the said post should have been included in the teachers' package during the academic year 2014-2015, since during the said academic year, three posts of HSA (N.S) was available in the school and Smt.Aswathy was entitled to continue. 8. In that regard learned counsel has invited my attention to judgment of a Division Bench of this Court in **Rakhee v. State of Kerala** [2007(1)KLT 766], which was dealing with an identical issue in respect of the subjects - Social Studies and Physical Science. After assimilating the factual situations, it was held that, since there was excess hand in Physical Science, the said incumbent should have been retrenched being the junior most in that subject. It was further held that, going by Rule 51 Chapter XIVA WP(C)Nos.23712 of 2019 & 10 30483 of 2019 K.E.R also, the incumbent to be retrenched is the junior most teacher in the category concerned and the contention that HSAs in different subjects altogether shall be considered as one single category cannot be sustained. The proposition that is emerging from the said judgment is that the category of HSA subjects shall be considered against each subjects for which sanction has been issued by the District Educational Officer concerned in the staff fixation order for the respective years. So also a learned Single Judge of this court in **K.Padmakumar v. The Director of Public Instruction and Others** [2001(2)KERALA Case No.9 has held that, when appointing teacher's subject requirement has to be observed, and when a vacancy of Physical Science Teacher arose, the vacancy has to be filled-up by a teacher qualified in the subject, and on the ground that protection is available for a Social Science teacher, she cannot be appointed in the vacancy. A similar situation is considered by the Apex Court in **Deepa Augustine v. Geetha Alex and Others** [(2008)16 SCC 526] and it was held as follows in paragraph 8: WP(C)Nos.23712 of 2019 & 11 30483 of 2019 **"8.** However, we may observe that whenever the question of promotion arises, the first question which is to be examined is the subject requirement of that vacancy and that person should be appointed who has the minimum qualification for teaching that subject. To illustrate the point: in case a vacancy arises for a subject of Physical Science against that person who possesses minimum qualification for teaching Physical Science should be recruited and not a person who belongs to Social Studies. This will be doing a great harm to the interest of the students. The paramount consideration should be the interest of the students that the person who is being appointed to teach a subject should possess minimum qualification of that subject." 9. Therefore, on an over all appreciation of the contentions put forth by respective counsel, I am of the considered opinion that, the contention advanced by learned counsel for Smt. Aswathy.A i.e., 4[th] respondent in W.P.(C) No.23712/2019 has much force. It is also clear from the legal expositions made above that the orders passed by the Educational Authorities to approve appointment of Rejitha.R being a senior teacher to Aswathy.A, without taking into account the subject requirement to protect the WP(C)Nos.23712 of 2019 & 12 30483 of 2019 interest of the students, cannot be sustained under law. 10. Deducing the facts and circumstances, I am of the considered opinion that, the State Government have identified the situation correctly in accordance with law. Moreover, it is evident from Ext.P12 Government Order that it was passed by the State Government taking into account the arguments advanced by respective counsel and assimilating the factual and legal situations. Therefore, I do not think, the petitioners have made out any case justifying interference of this court exercising the power of judicial discretion under Article 226 of the Constitution of India. 11. However, learned counsel for petitioner in W.P.(C) No.30483/2019 has submitted that, Smt.Rajitha.R continued in service as a teacher and since she has worked as HSA (Physical Science) in the school, the salary for the period was paid to her and in view of Ext.P12 Government Order, there is every likelihood of recovery being initiated against her. Learned counsel has also invited my attention to WP(C)Nos.23712 of 2019 & 13 30483 of 2019 judgment of a learned Single Judge of this court in **Usuvathunnia v. Asst. Educational Officer** [1990 (2)KLT 530] wherein the issue with respect to recovery of salary was considered and held that, the teacher was continued on the basis of approval and since continued in service for long time, and recovery ordered on the basis that the appointment was wrong, was held to be unsustainable. 12. However, fact remains Smt.Aswathy.A is entitled to be approved on the basis of the impugned Government Order on and w.e.f. 1.6.2015 onwards and entitled to be paid salary, however, salary was paid to both of them by the Government. In my considered opinion, since Rajitha.R worked as a teacher in accordance with the order passed by the Educational Authorities, I do not think, recovery will be justified against Rajitha.R. In fact Rajitha.R in her writ petition has sought for such a relief as an alternative prayer also. In that view of the matter, there will be a direction to the respondents not to seek recovery of salary paid to Rajitha.R. from her. Upshot of the above discussion is, W.P.(C) WP(C)Nos.23712 of 2019 & 14 30483 of 2019 No.23712/2019 by the Manager is dismissed and W.P.(C) No.30483/2019 filed by Smt.Rajitha.R is partly allowed as is specified above. **Sd/-** **SHAJI P.CHALY** Smv 23.11.2019 **JUDGE** WP(C)Nos.23712 of 2019 & 15 30483 of 2019 ## **APPENDIX OF WP(C) 23712/2019** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF ORDER DATED 15.7.2014 OF THE 3RD RESPONDENT** **EXHIBIT P2 TRUE COPY OF ORDER DATED 28/4/2016 ISSUED BY THE 3RD RESPONDENT** **EXHIBIT P3 TRUE COPY OF ORDER DATED 7.6.2017 ISSUED BY THE 3RD RESPONDENT** **EXHIBIT P4 TRUE COPY OF ORDER DATED 20/10/2017 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD EXHIBIT P5 TRUE COPY OF REVISION PETITION DATED 3.11.2017 SUBMITTED BY THE PETITIONER EXHIBIT P6 TRUE COPY OF ORDER DATED 18.12.2017 ISSUED BY THE 3RD RESPONDENT EXHIBIT P7 TRUE COPY OF STAFF FIXATION ORDER DATED 18.12.2017 FOR THE ACADEMIC YEAR 2017-18 ISSUED BY THE 3RD RESPONDENT EXHIBIT P8 TRUE COPY OF REPRESENTATION SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 1ST RESPONDENT EXHIBIT P9 TRUE COPY OF JUDGMENT DATED 12.3.2019 IN WP (C)2254/2018 EXHIBIT P10 TRUE COPY OF HEARING NOTE DATED 14.6.2019 SUBMITTED BY THE PETITIONER EXHIBIT P11 TRUE COPY OF THE LETTER DATED 19.6.2019 SEEKING CORRECTION OF A MISTAKE IN THE NOTICE EXHIBIT P12 TRUE COPY OF ORDER DATED 22/7/2019 ISSUED BY THE 1ST RESPONDENT** ## **RESPONDENT'S EXHIBITS:** **EXT. R4 A** TRUE COPY OF THE ORDER DATED 01.06.2015 ISSUED BY THE PETITIONER APPOINTING THIS RESPONDENT AS H.S.A (N.S.) **EXT. R4 B** TRUE COPY OF THE GOVERNMENT ORDER G.O.(MS) WP(C)Nos.23712 of 2019 & 16 30483 of 2019 NO.11/2002/G.EDN DATED 07.01.2002 **EXT. R4 C** TRUE COPY O THE RELEVANT EXTRACT OF THE ATTENDANCE REGISTER AND TEACHERS' TIME TABLE IN THE CFD HIGH SCHOOL **EXT. R 4 D** TRUE COPY OF THE CERTIFICATE CERTIFYING THAT THIS RESPONDENT HAD ATTENDED TEACHERS TRAINING 2016-2017 DATED 28.05.2016 **EXT. R E** TRUE COPY O THE CERTIFICATE CERTIFYING THAT THIS RESPONDENT HAD ATTENDED THE CLUSTER TRAINING OCTOBER 2017- FOR TEACHERS DATED 07.10.2017 **EXHIBIT R4 F** TRUE COPY OF THE ORDER DATED 01.06.2016 ISSUED BY THE PETITIONER MANAGER TO THIS RESPONDENT **EXHIBIT R4 G** TRUE COPY OF THE REVISION PETITION FILED BY THIS RESPONDENT DATED 28.11.2017 ## **APPENDIX OF WP(C) 30483/2019** **PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ORDER OF APPOINTMENT OF THE PETITIONER DATED 2.7.2009 AND THE ORDER OF THE DISTRICT EDUCATIONAL OFFICER APPROVING THE APPOINTMENT OF THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE ORDER OF THE DISTRICT EDUCATIONAL OFFICER NO.D.DIS/B2/7372/2017/2017/REVISED) DATED 18.12.2017. EXHIBIT P3 TRUE COPY OF THE ORDER OF THE GOVERNMENT (ORD.) NO.2973/2013/GEN. DATED 22.7.2019.**