IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 WP(C).No. 254 of 2006(E) ----------------------------------- PETITIONER(S): ----------------------- EMILY C.I., NEEDLE WORK TEACHER, ALP SCHOOL, IRRINGAPURAM, TRICHUR DISTRICT. BY ADV. SMT.SMT.S.KARTHIKA MR.M.S. UNNIKRISHNAN SMT.K.P.GEETHAMANI MR.M.R. ANISON MR.T.R. RAJESH RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVT., GENERAL EDUCATION DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, TRICHUR. 3. THE ASSISTANCE EDUCATIONAL OFFICER, CHAVAKKAD. 4. THE MANAGER, A.L.P. SCHOOL, IRRINGAPURM, TRICHUR DISTRICT. 5. THE HEAD MASTER, ALP SCHOOL, IRRINGAPURAM, TRICHUR DISTRICT. R1 TO R3 BY GOVERNMENT PLEADER MR.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2009, ALONG WITH WPC NO. 507 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 254/2006-E APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT DATED 20/11/2002 IN O.P. NO. 9804/95. EXT.P2: COPY OF THE COMMON JUDGMENT DATED 18/10/2005 IN W.P.(C). NO. 26946/04. EXT.P3: COPY OF THE G.O. DATED 16/12/2005 ISSUED BY THE 1ST RESPONDENT. EXT.P4: COPY OF THE ORDER DATED 27/12/2005 ISSUED BY THE 3RD RESPONDENT. EXT.P5: COPY OF THE STATEMENT SHOWING THE GIRL STUDENTS STRENGTH OF ALPS IRRINGAPURAM AND ST.JOHNS LPS, THYCADU FROM THE YEAR 1988-89 TO 2002- 03. EXT.P6: COPY OF THE G.O.(MS)NO.60/96/G.EDN. DATED 15/02/96. EXT.P7: COPY OF THE G.O.(P)178/2002/G.EDN. DATED 28/06/2002. EXT.P8: COPY OF THE STATEMENT SHOWING THE STUDENTS STRENGTH OF ALP SCHOOL, IRRINGAPURAM FOR THE YEAR 2003-2004. EXT.P9: COPY OF THE STATEMENT SHOWING THE STUDENTS STRENGTH OF ST.JOHNS LP SCHOOL, THAIKKADU FOR THE YEAR 2003-2004. EXT.P10: COPY OF THE STAFF FIXATION ORDER ISSUED BY THE 3RD RESPONDENT FOR THE YEAR 2003-2004 DATD 14/07/2003. EXT.P11: COPY OF THE STAFF FIXATION ORDER ISSUED BY THE 3RD RESPONDENT FOR THE YEAR 2004-2005 DATED 16/06/2004. EXT.P12: COPY OF THE STAFF FIXATION ORDER ISSUED BY THE 3RD RESPONDENT FOR THE YEAR 2005-2006 DATED 15/07/2005. EXT.P13: COPY OF THE STAFF FIXATION ORDER ISSUED BY THE 3RD RESPONDENT FOR THE YEAR 2006-2007 DATED 31/07/2006. EXT.P14: COPY OF THE STAFF FIXATION ORDER ISSUED BY THE 3RD RESPONDENT FOR THE YEAR 2007-2008 DATED 20/07/2007. EXT.P15: COPY OF THE NOTICE DATED 24/10/2006 SENT THROUGH HER LAWYER. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE Rs/ P.N.RAVINDRAN, J. ------------------------------------------ W.P.(C).Nos.254 & 507 of 2006 ------------------------------------------- Dated 31st March, 2009 JUDGMENT Common questions arise in these writ petitions. They were therefore heard together and are being disposed of by this common judgment. For the sake of convenience, the parties are referred to as they are arrayed in W.P.(C)No.254 of 2006 and unless otherwise mentioned, the documents referred to are those produced and marked therein. The brief facts are as follows: 2. The fourth respondent Manager appointed the petitioner as Needle Work Teacher on 1.6.1988. That appointment was against the vacancy that arose on 31.5.1988 on the retirement of Smt.T.S.Radha Bai, Needle Work Teacher. The Assistant Educational Officer declined to approve the petitioner's appointment. The appeal therefrom was dismissed by the Deputy Director of Education. The petitioner thereupon moved the Director of Public Instruction in revision. The Director of Public Instruction set aside the orders passed by the subordinate Educational Officers and directed approval of the petitioner's appointment. The Assistant Educational Officer did not implement the same. The petitioner thereupon filed O.P.No.9804 of 1995 in this Court, which was referred to a Division Bench and disposed of by Ext.P1 WP(C).Nos.254 & 507/2006 2 judgment delivered on 20.11.2002. In the said original petition, this Court had passed an interim order on 23.6.1995 allowing the petitioner to continue in service. In O.P.No.9804 of 1995, the Division Bench of this Court held that the petitioner is entitled to have her appointment approved and also to get salary and allowances for the period during which she was working. It was also held that if in the subsequent staff fixation order no post is sanctioned to accommodate the petitioner, it will be open to the Government to retrench her from service or pass appropriate orders as provided under the rules. Accordingly, the orders impugned in O.P.No.9804 of 1995 were set aside and the respondents were directed to disburse to the teacher arrears of salary and allowances due from 1.6.1988 onwards within three months from the date of receipt of a copy of the judgment. 3. The Government which was a party to O.P.No.9804 of 1995 thereafter issued an order dated 4.6.2003 retrenching the petitioner from service and directed the Manager to pay salary and allowances to the petitioner during the period when she had worked as Needle Work Teacher in the school. Copy of the said order is produced and marked as Ext.P2 in W.P.(C)No.507 of 2006. The Manager and the petitioner thereupon filed W.P.(C) No.28796 of 2003 and W.P.(C) No.26946 of 2004 respectively in this Court challenging the Government order dated 4.6.2003. By Ext.P2 judgment delivered on WP(C).Nos.254 & 507/2006 3 18.10.2005, a learned single Judge of this Court quashed the Government order dated 4.6.2003 and directed the respondents to approve the petitioner's appointment as Needle Work Teacher with effect from 1.6.1988 till 15.7.2003. This Court also directed that the period subsequent to 15.7.2003, will be governed by the observations of this Court in Ext.P1 judgment. 4. In purported implementation of the directions issued by this Court in Exts.P1 and P2 judgments, the Government issued Ext.P3 order dated 16.12.2005 directing payment of salary and allowances to the petitioner for the period from 1.6.1988 to 14.7.2003 subject to the condition that the amount so paid will be recovered from the Manager by invoking Section 8 of the Kerala Education Act, 1956. The Government also ordered that the petitioner will stand retrenched from service with effect from 15.7.2003 and that the salary, if any, paid to the petitioner from 15.7.2003 onwards will be adjusted against the arrears of salary due to her for the period from 1.6.1988 to 14.7.2003. The Assistant Educational Officer thereupon issued Ext.P4 proceedings dated 27.12.2005 approving the petitioner's appointment as Needle Work Teacher during the period from 1.6.1988 to 14.7.2003 subject to the condition that the salary and allowances paid to her during that period will be recovered from the Manager. The Assistant Educational Officer also directed that the petitioner will be deemed to have been retrenched from service with effect from 15.7.2003. Exts.P3 and P4 WP(C).Nos.254 & 507/2006 4 are under challenge in W.P.(C)No.254 of 2006 filed by the teacher. The Manager has also challenged the said orders in W.P.(C)No.507 of 2006 wherein they are produced and marked as Exts.P4 and P5 respectively. The teacher challenges Exts.P3 and P4 to the extent it orders her retrenchment from service with effect from 15.7.2003 and the Manager challenges the direction to retrench the teacher and also the direction to recover the salary and allowances paid to the teacher for the period from 1.6.1988 to 14.7.2003 from him. 5. I have heard Smt.V.P.Seemanthini, the learned Senior Advocate appearing for the teacher, Sri.George Thomas, the learned counsel appearing for the Manager and Sri.T.T.Muhmood, the learned Government Pleader appearing for the official respondents. The learned Senior Advocate appearing for the teacher contended that as on 15.7.2003, Exts.P6, P7 and P9 Government orders were in force which permitted continuance of the petitioner as a protected teacher either in the same school or in an Aided/Government school and therefore the Government and the Assistant Educational Officer should not have directed her retrenchment from service. The learned Senior Advocate also contended that as per the proviso to sub rule (3) of Rule 2 of Chapter XXIII of the Kerala Education Rules as it stood in force on 15.7.2003, the post of Specialist Teacher against which the petitioner was appointed should have been continued. The learned Senior Advocate further contended that the amendment to Rule 2 of Chapter WP(C).Nos.254 & 507/2006 5 XXIII of the KER introduced by G.O.(P)No.189/05/G.Edn. dated 17.6.2005 with retrospective effect from 6.3.1979 cannot affect the petitioner's vested rights and therefore, the amended provisions of Rule 2 of Chapter XXIII of the KER cannot govern the petitioner. The learned Senior Advocate also referred to and relied on the decision of the Apex Court in T.R.Kapur v. State of Haryana (AIR 1987 S.C. 415) and of the Division Bench of this Court in Abdurahiman N.K. v. Government of Kerala and Others (2009(1) KHC 950 (DB)) to contend that vested rights cannot be divested by a retrospective amendment of the rules. The learned counsel appearing for the Manager also reiterated the same contentions. 6. Per contra, the learned Government Pleader contended that as Rule 2 of Chapter XXIII of the KER has been amended with retrospective effect from 6.3.1979, earlier in a point of time that the date on which the petitioner was appointed, the petitioner's rights will be governed by the amended provisions of Rule 2 of Chapter XXIII of the KER. The learned Government Pleader further contended that as per the existing proviso to Rule 2 of Chapter XXIII of the KER, Specialist Teachers appointed in Lower Primary Schools or Lower Primary sections of Upper Primary Schools or High Schools on or before 6.3.1979, alone can continue if their appointments have been approved, till their retirement, resignation, death or transfer and that the posts will stand abolished when they vacate the posts. WP(C).Nos.254 & 507/2006 6 7. The entitlement of the petitioner to have her appointment approved during the period from 1.6.1988 to 14.7.2003 is not in dispute. The rights of parties in that regard are governed by the findings and observations in Exts.P1 and P2 judgments. In Exts.P1 and P2 judgments, this Court has entered a finding that the petitioner is also entitled to payment of salary and allowances for the period during which she had worked in the school. In that view of the matter, I am of the opinion that the stand taken by the Assistant Educational Officer that the Manager is bound to refund the salary paid to the teacher for the said period cannot be sustained. Therefore, Exts.P4 and P5 produced and marked in W.P.(C)No.507 of 2006 to the extent they direct recovery of salary and allowances paid to the teacher during the period from 1.6.1988 to 14.7.2003 from the Manager cannot be sustained. Then the short question that remains to be considered is whether the petitioner was entitled to continue in service after 14.7.2003, either in the same school or as a protected teacher. The learned Government Pleader contended that as the petitioner was not appointed prior to 6.3.1979 in view of amended Rule 2 of Chapter XXIII of the KER which came into force with retrospective effect from 6.3.1979, the petitioner cannot continue in the post since the student strength does not warrant the sanction of the post of Needle Work Teacher. Per contra, the learned Senior Advocate contended that as on 15.7.2003, the proviso to sub-rule (3) of Rule 2 of Chapter XXIII of WP(C).Nos.254 & 507/2006 7 the KER, enabled the petitioner to continue in service. The learned Senior Advocate also contended that a subsequent amendment to Rule 2 though with retrospective effect from 6.3.1979, cannot affect the petitioner for the reason that the right which stood vested in her at the time when she was appointed and also on 15.7.2003 cannot be taken away by a subsequent amendment of the rules with retrospective effect. The Apex Court has in T.R.Kapur's case (supra) held that though the Government is empowered to frame rules to regulate conditions of service and even to amend the rules with retrospective effect, this power is subject to the well recognized principle that the benefits secured under the existing rules cannot be taken away by an amendment with retrospective effect. A similar view has been taken by a Division Bench of this Court in Abdurahiman's case (supra). 8. Rule 2 of Chapter XXIII of the KER as it stood in force on 15.7.2003 reads as follows: “2 (1) Subject to availability of funds, the number of specialist teachers that may be appointed in Lower Primary Schools shall be as follows: (i) A music teacher or a sewing mistress will be allowed to a Lower Primary School having a total strength of 200 or more girl pupils. (ii) A music teacher and a sewing teacher will be allowed to a Lower Primary School where the strength of the girl pupils is 400 or above. (iii) [x x x] (iv) Music/Needle work will be taught also to boys who wish to learn them. (v) As far as possible combined posts of music and (sewing teachers) will be created, (vi) Two or three schools (Departmental and WP(C).Nos.254 & 507/2006 8 Aided both) may be clubbed together for the purpose of appointmnt of specialist teachers. Part- time teachers may be appointed if the number of periods of work in a week is less than 15. (2) The number of specialist teachers who may be appointed in a District shall be fixed by the Director and intimated to the District Educational Officer every year. (3) Notwithstanding anything contained in the above rules, no post of Specialist Teacher shall be created in any Lower Primary School or Lower Primary Sections of Upper Primary or High Schools: Provided that posts already sanctioned against which specialist teachers are appointed and approved may continue as such.” The proviso to sub-rule (3) of Rule 2 of Chapter XXIII of the KER provided that posts already sanctioned against which Specialist Teachers are appointed may continue as such. Therefore, in my opinion, the post of Needle Work Teacher against which the petitioner was appointed ought to have been continued, subject to the condition that a post can be sanctioned only if there was a minimum strength of 200 girl students. This is exactly what was found by this Court in Ext.P1 judgment. If the student strength falls below the prescribed minimum of 200, the consequence would be the retrenchment of those teachers who are not entitled to protection and deployment on protection of those teachers who are entitled to protection. As per Rule 2 of Chapter XXIII of the KER as amended, only teachers appointed prior to 6.3.1979 are entitled to continue in service and once they vacate the posts, the posts will cease to exist. On the WP(C).Nos.254 & 507/2006 9 principles laid down by the Apex Court in T.R.Kapur's case (supra) and by this Court in Abdurahiman's case (supra), any amendment to the rules after 1.6.1988, cannot adversely affect the vested right the petitioner had as on 15.7.2003 to continue in the post if the student strength warranted her retention in service. I am therefore persuaded to hold that Rule 2 of Chapter XXIII of the KER as amended cannot govern the case of the petitioner. 9. The only question that remains is whether the petitioner was liable to be retrenched or had to be deployed on protection. The respondents do not dispute the fact that as on 15.7.2003 Exts.P6, P7 and P9 Government orders were in force. As per the said Government orders, the petitioner was entitled to be deployed to an Aided/Government school as a protected teacher. The Government and the Assistant Educational Officer have not adverted to this aspect when they passed the orders impugned in these writ petitions. The observations made by the Division Bench in Ext.P1 judgment that the Government will be free either to retrench the petitioner or pass appropriate orders as provided under the rules has to be understood as one enabling retrenchment of the petitioner if the student strength does not warrant her retention in service and deploying her under protection if she is eligible for it. On the facts placed before me, I am WP(C).Nos.254 & 507/2006 10 persuaded to hold that the petitioner who had more than seven years of service as on 15.7.2003, was entitled to protection in terms of Exts.P6, P7 and P9 orders. Therefore, the decision taken by the official respondents to retrench her from service is not sustainable. The Government and the Assistant Educational Officer ought to have in my opinion taken steps to deploy the petitioner as a protected teacher in an Aided/Government school in the manner prescribed in Exts.P6, P7 and P9 orders. 10. The petitioner has a further grievance that though she is entitled to payment of salary and allowances for the period from 1.6.1988 to 14.7.2003, she has been paid salary and allowances only in the minimum of the scale of pay and that she has not been sanctioned increments or given other benefits. On the basis of the finding of this Court in Exts.P1 and P2 judgments that the petitioner is entitled to salary and allowances for the period from 1.6.1988 to 14.7.2003, the respondents are bound to re-fix the salary and allowances that the petitioner was entitled to draw during the said period and to disburse the same. In the result, I allow these writ petitions and quash Exts.P3 and P4 in W.P.(C)No.254 of 2006 (Exts.P4 and P5 in W.P.(C)No.507 of 2006) to the extent the said orders direct retrenchment of the teacher WP(C).Nos.254 & 507/2006 11 and recovery of salary and allowances paid to her during the period from 1.6.1988 to 14.7.2003 from the Manager. The competent authority among the respondents shall take steps to deploy the petitioner on protection to an Aided/Government school, taking note of the stipulations in Exts.P6, P7 and P9 orders. The teacher will also be entitled to have her pay fixed in the scale of pay of Needle Work Teacher during the period from 1.6.1988 to 14.7.2003. The arrears of salary and allowances shall be paid within three months from today. Orders regarding deployment of teacher on protection shall be passed on or before the schools re-open for the academic year 2009-2010. It is brought to my notice that the petitioner has continued in the school after 15.7.2003 on the strength of the interim orders passed by this Court right from 15.7.2003 and that order of retrenchment had not taken effect in view of the interim orders passed by this Court in these writ petitions. In my opinion, the said stalemate has arisen on account of the refusal of the Government to deploy the petitioner on protection. I accordingly direct that the Government shall on the petitioner moving an appropriate representation in that regard, take a decision regarding payment of salary and allowances to the petitioner for the period from 15.7.2003 till the date on which she is deployed as a protected teacher to Government/Aided school. In the event of the petitioner filing such a representation, the Government shall consider the same and pass orders thereon within four months from the date of WP(C).Nos.254 & 507/2006 12 receipt of such a representation, taking note of the observations made by this Court in this judgment. P.N.RAVINDRAN Judge TKS