IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 WP(C).No. 18178 of 2004(L) -------------------------- PETITIONER(S): --------------- THE GENERAL MANAGER, (BY POWER OF ATTORNEY) FR. JACOB BAIJU BEN, S/O. P.A. BENAHY, AGED 36 YEARS, CORPORATE EDUCATIONAL AGENCY ARCH DIOCESE OF VERAPOLY, ST. ALBERTS HIGH SCHOOL CAMPUS, ERNAKULAM-680 018. 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, TRIVANDRUM-14. 3. THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM-30. 4. THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM. MR.K.SANAL KUMAR, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.18178/2004 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF THE ORDER NO.D.DIS.B1-9144/2001 OF THE 4TH RESPONDENT. P2 : COPY OF APPOINTMENT ORDER OF SMT.JESSY JOHN. P3 : COPY OF ORDER NO.ET4/67579/02/D.DIS. OF THE 2ND RESPONDENT. P4 : COPY OF REVISION PETITION FILED BEFORE THE 1ST RESPONDENT. P5 : COPY OF GO(Rt.) NO.2031/2003/GI.Edn. OF THE GOVERNMENT. P6 : COPY OF ORDER NO.B2/16737/2002 OF THE 4TH RESPONDENT. //TRUE COPY// PA TO JUDGE. jg S. SIRI JAGAN, J. ----------------------------------- W.P.(C) No.18178 OF 2004 --------------------------------------- Dated this the 2nd day of November, 2010 JUDGMENT The petitioner is the Manager of a Corporate Educational Agency. For the year 2000-2001, there were 13 class divisions in High School section of one of the schools under the Educational Agency. In science subjects, there were five posts. Three for Physical Science and two for Natural Science. For the year 2001- 2002, one post was reduced. By Ext.P1 staff fixation order, the DEO approved two posts of HSA (Physical Science) and two posts of HSA (Natural Science). Therefore, the excess Physical Science teacher was retrenched. In that year, one Natural Science teacher was promoted as Headmistress. In the resultant vacancy of HSA (Natural Science) the Manager appointed a Rule 51A claimant namely, Smt. Jessy John. The DEO approved that appointment by Ext.P2 order. The retrenched Physical Science teacher challenged the same in an appeal. By Ext.P3 order, the DPI allowed the appeal and ordered recovery of the salary paid to the said Natural Science Teacher from the Manager and the DEO W.P.(C)No.18178/04 2 equally. The Manager filed Ext.P4 revision petition before the Government, which was rejected by Ext.P5 order. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “(a) call for the records relating to Exhibits P-3, P-5 and P-6 and quash the originals of the same by the issue of a writ of certiorari or other appropriate writ or order. (b) declare that Exhibit P-2 is legal and valid.” However, the learned counsel for the petitioner submits that the petitioner is now confining his relief for setting aside that part of Exts.P3 and P5, wherein the salary of the teacher was ordered to be recovered from the Manager. 2. According to the petitioner, he has not done anything wrong to merit a direction to recover the salary paid to the teacher from him. As per the staff fixation order, there were only two posts of Physical Science teachers and two posts of Natural Science teachers. Therefore, one Physical Science teacher who was in excess had to be retrenched which was done. When one Natural Science teacher was promoted, the resultant vacancy had to be filled up by a Natural Science teacher, which only was done, that too by appointing a 51A W.P.(C)No.18178/04 3 claimant. According to the petitioner, this Court and the Supreme Court had repeatedly held that whenever a vacancy arises in a particular subject, a teacher having the qualifications to hold that post alone can be appointed or promoted. The petitioner relies on my decision in D.V.M.N.N.M. Higher Secondary School v. Secretary to Government [2009(3) KLT 488], that of the Division Bench in Rakhee v. State of Kerala [2007(1) KLT 766] and that of the Supreme Court in Deepa Augustine v. Geetha Alex [2008 (2) KLT 771 (SC)]. 3. No counter affidavit has been filed by the respondents. The learned Government Pleader argued for sustaining the impugned orders. 4. I have considered the rival contentions in detail. The facts are not in dispute. For the year 2001-2002, as per staff fixation there were only two posts of HSA (Physical Science) and two posts of HSA (Natural Science). Therefore, one Physical Science teacher had to be retrenched. When one Natural Science teacher was promoted as Headmistress, there arose a vacancy of HSA Natural Science. Going by the W.P.(C)No.18178/04 4 decisions relied upon by the petitioner, a post of HSA (Natural Science) could have been filled up only by a teacher having the qualifications to hold the post of HSA Natural Science. Admittedly, Smt. Jessy John was a Natural Science teacher whereas the retrenched teacher was only a Physical Science teacher. That being so, I do not think that the Manager committed anything illegal as such in appointing Smt. Jessy John in the vacancy of Natural Science teacher. However, probably because of the fact that Smt. Jessy John was also accommodated in some other vacancy in some other school subsequently, the Manager does not now seek reinstatement of Smt. Jessy John in the post after retrenching the Physical Science teacher. He only seeks quashing of the impugned orders to the extent it directs the recovery of salary paid to Smt. Jessy John from the Manager. Even otherwise, in so far as the retrenched teacher is not a party to the writ petition, I cannot now set aside the impugned orders to the extent it directs the appointment of the retrenched physical Science teacher in the vacancy. However, I do not think that there is any justification to order recovery of salary paid to Smt.Jessy W.P.(C)No.18178/04 5 John from the Manager. As is held in the decisions cited by the petitioner, whenever a vacancy arises in a particular subject, the same can be filled up only by a teacher having the qualifications prescribed for that post. If that be so, in a Natural Science vacancy, a Physical Science teacher could not have been validly appointed. In any event, for having done so, the Manager cannot be found fault with and he cannot be mulcted with the liability to repay the salary paid to that teacher to the Government. Therefore, the impugned orders to the extent it directs the recovery of the salary paid to Smt.Jessy John from the petitioner - Manager is quashed. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE acd W.P.(C)No.18178/04 6 W.P.(C)No.18178/04 7