IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 WA.No. 2356 of 2005() --------------------- AGAINST THE JUDGEMENT/ORDER IN OP.4365/2000 Dated 06/09/2005 .................... APPELLANT: PETITIONER ------------------------ MANAGER, ATAKAPUTHUR HIGH SCHOOL, ATAKAPUTHUR.P.O, PIN-679 503. BY ADV. SRI.B.GOPAKUMAR SMT.CHINCY GOPAKUMAR SRI.ASWIN GOPAKUMAR SRI.ANWIN GOPAKUMAR RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (A) DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, PALGHAT. 4. DISTRICT EDUCATIONAL OFFICER, OTTAPPALAM. GOVERNMENT PLEADER FOR R1 TO R4 SMT.R.BINDU THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15.12.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ WA No.2356 of 2005 ------------------------------------------------------------------ Dated 15th December 2009 Judgment Balakrishnan Nair, J. The petitioner in the OP is the appellant. He is the Manager of Atakaputhur High School. 2. The brief facts of the case are the following : During the academic year 1997-98, the number of posts of HSAs in the appellant's school, was reduced from 15 to 14, which resulted in Smt.T.Vijayalakshmi, HSA (Social Science), being rendered surplus. But, in the light of the relevant Government Order, the Teacher-Student strength was lowered to 1:40 and an additional post was created during that academic year, to accommodate Smt.Vijayalakshmi. The next year, one of the HSAs was promoted as Headmistress and therefore, one vacancy of HSA arose. In that vacancy, the Manager appointed Shri.K.T.Kunhimoidu as HSA (Natural Science). He was a Rule 51A claimant for the post. But, during the staff fixation for the year 1997-98, the D.E.O. declined to apply the Teacher-Student ratio of 1:40 and as a result, one post of HSA was reduced, when compared to the previous year. The WA 2356/05 2 vacancy arising as a result of promotion of one of the Teachers as Head Master, was required to accommodate Smt.Vijayalakshmi. The result was that there was no post for the new appointee viz. Shri.Kunhimoidu. Challenging the staff fixation order, a copy of which is produced as Ext.P6 in the Writ Petition, the Manager filed an appeal before the Deputy Director of Education. The said appeal was dismissed by the Deputy Director by Ext.P6(a) order dated 21.11.1997. The matter was carried in revision before the Director of Public Instruction. The revision was dismissed by the Joint Director by Ext.P6(b) order dated 28.07.1998. The Manager and the Teacher moved the Government in revision. Those petitions were dismissed by the Government by Ext.P10 order dated 06.12.1999. Challenging Exts.P6(a), P6(b), P7, P8 and P10, the OP was filed. Ext.P7 was an order, declining to approve the appointment of Shri.Kunhimoidu, in view of Ext.P6 staff fixation order and Ext.P8 is the order of the Appellate Authority, affirming Ext.P7. The learned Single Judge, after hearing both sides, dismissed the Original Petition. Hence this appeal. 3. Heard. The point that arises for consideration is whether the appointment of Shri.K.T.Kunhimoidu should be approved by WA 2356/05 3 throwing out Smt.T.Vijayalakshmi, the existing incumbent. It is true, Shri.K.T.Kunhimoidu is a Rule 51A claimant. But, he can be accommodated, if only there is an open vacancy for the same. In this case, Smt.Vijayalakshmi was always continuing in service and Shri.Kunhimoidu has worked only for short spells as HSA and he is awaiting appointment under Rule 51A. He cannot be accommodated by throwing out an existing incumbent. It is true, the appointments of HSAs have to be made according to subject requirement. Paragraphs 3 and 6 of Circular No.HS/544419/94 dated 10.02.1995, issued by the Director of Public Instruction, dealing with subject requirement, gives protection to the existing incumbents on the date of issuance of that circular. So, in this case, Smt.Vijayalakshmi is entitled to get protection. Even if her retention is not strictly in tune with the subject requirement, she cannot be ousted by bringing in a fresh hand or a retrenched hand. So, the orders of the D.E.O. and the D.P.I., declining approval of appointment of the appellant (Exts.P7 and P8) are legal and valid. The criticism made against the staff fixation order is plainly untenable. The class divisions are to be sanctioned, by applying the ratio of 1:45. Only in certain special circumstances, the ratio can be lowered to retain the existing WA 2356/05 4 incumbents. When there is a vacancy available to accommodate the existing incumbent, which arises as a result of the promotion of one of the HSAs, it is not necessary to lower the ratio to 1:40 to create a post. So, there is nothing wrong with Ext.P6 staff fixation order or the orders of the higher authorities, affirming the same. In the result, the Writ Appeal fails and it is accordingly dismissed. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta WA 2356/05 5