IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 WP(C).No. 678 of 2008(E) ------------------------ PETITIONER(S): --------------- RAJI JOSEPH,AGED 37 YEARS, W/O. SAJU JOSEPH,UPPER PRIMARY SCHOOL ASSISTANT M.H.M.A.U.P.SCHOOL,P.O. CHEEKKODE MALAPPURAM DISTRICT. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): --------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,GENERAL EDUCATION DEPARTMENT,SECRETARIAT,TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION JAGATHY,TRIVANDUM-14. 3. THE DEPUTY DIRECTOR OF EDUCATION P.O.,MALAPPURAM, MALAPPURAM DISTRICT. 4. THE ASSISTANT EDUCATIONAL OFFICER KIZHISSERY, MALAPPURAM DISTRICT. 5. THE MANAGER M.H.M.A.U.P.SHOOL ,PO CHEEKKODE (VIA) CHERUVAYOOR, MALAPPURAM DISTRICT. 6. THE HEADMASTER M.H.M.A.U.P.SHOOL ,PO CHEEKKODE (VIA) CHERUVAYOOR, MALAPPURAM DISTRICT. ADV.SRI.P.VIJAYA BHANU FOR R5 & R6 SRI.P.VENUGOPAL (1086/92) FOR R5 & R6 GOVERNMENT PLEADER, SHRI BINOY CHANDRAN FOR R1 TO R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 678 of 2008(E) APPENDIX PETITIONER'S EXTS.:- EXT.P1 TRUE COPY OF THE APPOINTMENT ORDER AND APPROVAL THEREOF BY THE ASST. EDL.OFFICER. EXT.P2 TRUE COPY OF THE APPOINTMENT ORDER AND APPROVAL THEREOF BY THE ASST.EDL.OFFICER EXT.P3 TRUE COPY OF THE ORDER NO.B3/38125/05/K.DIS OF THE DY.DIRECTOR OF EDN. EXT.P4 TRUE COPY OF THE ORDER NO.D.DIS.10549/06/RA(3)/DPI OF THE 2ND RESPONDENT EXT.P5 TRUE COPY OF THE G.O.(RT).NO.5084/07/G.EDN. OF THE GOVERNMENT EXT.P6 TRUE COPY OF THE G.O.(MS).NO.104/69/EDN. OF THE GOVERNMENT. EXT.P7 TRUE COPY OF THE G.O.(MS).NO.60/96/G.EDN. OF THE GOVERNMENT. EXT.P8 TRUE COPY OF THE G.O.(P).NO.112/2001/G. EDN. OF THE GOVERNMENT. EXT.P9 TRUE COPY OF THE G.O.(MS).NO.113/2000/G.EDN. OF THE GOVERNMENT EXT.P10 TRUE COPY OF THE G.O.(MS).NO.307/2004/G.EDN. OF THE GOVERNMENT. EXT.P11 TRUE COPY OF THE G.O.(MS).NO.302/2002/G.EDN. OF THE GOVERNMENT EXT.P12 TRUE COPY OF THE G.O.(MS).NO.379/2004/G.EDN. OF THE GOVERNMENT EXT.P13 TRUE COPY OF THE G.O.(RT).NO.1701/2007/G.EDN. OF THE GOVERNMENT EXT.P14 TRUE COPY OF THE G.O.(MS).NO.347/1998/G.EDN. OF THE GOVERNMENT EXT.P15 TRUE COPY OF THE G.O.(RT).NO.2673/2002/G.EDN. OF THE GOVERNMENT EXT.P16 TRUE COPY OF THE NOTICE NO.65559/B1/06/GE OF THE GOVERNMENT EXT.P17 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT IN WP(C).NO.10621/2008 \\TRUE COPY// P.A TO JUDGE T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.678/2008-E ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 7th day of September, 2009 J U D G M E N T The request of the petitioner to grant protection in the light of various Government Orders stands rejected on the ground that the Government Orders giving the benefit of protection do not cover the case of a leave substitute and hence, the petitioner is not eligible. This is under challenge in this writ petition. 2. The petitioner's career started way back in 1995, exactly on 06/06/1995. She was appointed as U.P.S.A on that date. One Smt. T.T.Jameela availed leave for the period from 12/09/1995 to 20/11/1995 and the petitioner was appointed in that vacancy. The same was approved. From 04/10/1995 onwards another teacher Smt.K.C.Rukhiya went on long leave and the petitioner was appointed in the said post by the Manager from 04/10/1995 to 29/09/2000. The said appointment was approved. The teacher extended the leave period and the petitioner was again appointed in that vacancy from 29/09/2000 to 28/09/2005. The said appointment was also approved. This is evidenced by Exts.P1 and P2. 3. Thus the petitioner has a long tenure of 10 years and above from 06/06/1995. While the petitioner was continuing as such, due to fall in W.P.(C). No.678/2008 -:2:- division during 2005-06, she was ordered to be terminated. No written order was communicated to her. 4. The petitioner filed W.P.(C).No.20888/2005 seeking for appropriate direction to the respondents to grant various benefits to her. The petitioner was directed to file an appeal against the termination order before the third respondent, Deputy Director of Education. The appeal was rejected as per Ext.P3, which is confirmed by Ext.P4 and later by Ext.P5 order passed in the revision. 5. Heard the learned counsel for the petitioner, learned Government Pleader and the learned counsel appearing for the Manager. 6. Attacking the view taken by the Government, the learned counsel for the petitioner submitted that the scheme provided by the Government as per Ext.P6, namely, G.O.(MS).No.104/69/Edn., dated 06/03/1969, was to grant protection to qualified teachers appointed in regular division vacancies and who have two years or more of continuous service on the date of retrenchment. It is pointed out that by Ext.P7, the Government specified that the aided school teachers who are retrenched due to division fall after completing 7 years of service on or before 15/07/1995 will be granted protection. This was modified by Ext.P8 whereby Government directed that all aided school regular teachers appointed prior W.P.(C). No.678/2008 -:3:- to 14/07/1996 who did not complete 7 years of service on or before 15/07/1995 and who were not in service as on 14/07/1996 will be given protection. Ext.P9 is produced to show that in the case of 54 Physical Education Teachers, the Government directed regularisation in service. Ext.P10 is relied upon to show that the Government directed approval of Physical Education Teachers who were continuing in service after 06/04/2000. Similarly, Exts.P11 and P12 are relied upon to show that even in uneconomic schools Government has granted various benefits to teachers who were retrenched from service. Exts.P13 and P15 are also produced to show that in individual cases the Government has granted benefit of retention as special cases. Particular reference is made to Ext.P15 wherein a leave substitute who was continuing in service for 20 years as Arabic Teacher was granted protection as a special case in relaxation of rules. It is submitted that the petitioner is also entitled for a similar treatment, if it is found that the orders granting protection are not applicable in the case of the petitioner. 7. The learned Government Pleader relying upon the averments in the counter affidavit submitted that the view taken by the various authorities and as confirmed by the Government is perfectly justified. W.P.(C). No.678/2008 -:4:- 8. In Ext.P5 order passed by the Government in revision, the Government was of the view that G.O.(P).No.240/99/Gl.Edn., dated 29/09/1999 provides benefit of retention only in respect of teachers who are working against regular division vacancies alone. 9. The learned counsel for the petitioner relied upon G.O.(P). No.175/99/Gl.Edn., dated 26/07/1999. Paragraph (2) of the same reads as follows:- “2. Government have further examined the matter in detail and are pleased to order 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 following conditions:- i) The Teachers to whom this benefit of protection is granted will be absorbed in the future vacancies arising under the respective management. ii) No substitute will be posted in the case of retirement, resignation, death, leave or voluntary relinquishment etc. of the incumbent, if retained by way of protection. W.P.(C). No.678/2008 -:5:- iii) Protection will not be granted to teachers appointed during 1997-98 and thereafter.” Going by the said paragraph, it is important to notice that the Government ordered that “all aided school teachers who were in service as on 14/07/1996 will be given protection”. Therefore, it is contended that there is no categorisation as leave substitute or anything like it going by the plain terms of the Government Order for getting the benefit of the protection, and hence the petitioner is covered by it. All aided school teachers who are in service as on 14/07/1996 are entitled for protection. 10. My attention is also invited to G.O.(P).No.240/99/Gl.Edn., dated 29/09/1999. Therein, paragraph (2) reads as follows:- “2. Subsequently certain doubts have arisen regarding implementation of the above Government Orders. Accordingly, Government are pleased to issue the following clarifications:- i) All aided school teachers who were in service as on 14/07/1996 and those who are appointed as aided school teachers against regular vacancies during 1996-97 upto 14/07/1997 will be eligible for protection. W.P.(C). No.678/2008 -:6:- However, teachers appointed from 15/07/1997 onwards will not be eligible for protection. ii) Teachers who are working against regular division vacancy alone will be eligible for protection. iii) If the aided school teachers who are eligible for protection as per clarification in para 2(i) above are retrenched during the subsequent years due to division fall, they will be reinstated in service in their parent school. The period during which they are out of service will be regularised as eligible leave without allowances.” 11. It is pointed out that even going by the said paragraph, it is clear that all aided school teachers who were in service as on 14/07/1996 will be eligible for protection. The specification that the teachers should be appointed against regular vacancies applies only to those who were appointed as aided school teachers against regular vacancies during 1996-97 upto 14/07/1997. 12. The various Government Orders granting protection, namely, from Ext.P6 onwards, were issued when the Government was confronted with the situation where many of the teachers appointed were retrenched from aided schools due to fall in student strength, change of courses of W.P.(C). No.678/2008 -:7:- study or syllabus or teacher-pupil ratio, withdrawal of recognition, closure of uneconomic schools and reasons which were beyond the control of the staff and the management. Herein also even though the period of leave was not over, the petitioner was terminated due to fall in division occurred in 2005-06. 13. It is true that the case of leave substitutes are not specifically mentioned in various Government Orders granting protection. But going by the subsequent Government Orders including G.O.(P).No.175/99/Gl.Edn., dated 26/07/1999 and G.O.(P).No.240/99/Gl.Edn., dated 29/09/1999, teachers who were in service for a lessor period than the petitioner are granted protection. The stipulations made in the earlier Government Orders have been relaxed by the Government from time to time. This is evident from Ext.P8 G.O.(P).No.112/2001/Gl.Edn., dated 26/03/2001 also. 14. Therefore, the issue will have to be reconsidered by the Government in the light of G.O.(P).No.175/99/Gl.Edn., dated 26/07/1999, to which strong reliance is placed on by the petitioner. The question whether the petitioner will come within the specific parameters of para (2) of the Government Order wherein the Government had clarified that all aided school teachers who were in service as on 14/07/1996 will be given W.P.(C). No.678/2008 -:8:- protection, has not been examined while rendering Ext.P5. Therefore, Ext.P5 order is liable to be set aside. 15. The learned counsel for the petitioner submitted that the petitioner's case requires special consideration in the light of Rule 3 of Chapter I of K.E.R as he has been continuing for a period more than 10 years. My attention is drawn to Ext.P15 order which was passed in the case of a similar leave substitute. This aspect will also be considered by the Government while examining the whole matter. 16. The writ petition is disposed of directing the Government to pass a fresh order after hearing the petitioner and the Manager within a period of four months from the date of receipt of a copy of this judgment and in the light of the observations made above. To enable the Government to pass fresh orders, Exts.P3 to P5 are set aside. No costs. (T.R. Ramachandran Nair, Judge.) ms