IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 WP(C).No. 30246 of 2006(A) --------------------------------------- PETITIONER(S): ------------------------ K. GEETHA, W/O.B. UNNIKRISHNAN NAIR, UPPER PRIMARY SCHOOL ASSISTANT, M.S.M. HIGH SCHOOL, KAYAMKULAM. BY ADVS.MR.K.RAMAKUMAR MR.R.JAYACHANDRAN RESPONDENT(S): RESPONDENTS -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION (H) DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA. 4. DISTRICT EDUCATIONAL OFFICER, MAVELIKKARA. 5. MANAGER, M.S.M. HIGH SCHOOL, KAYAMKULAM. R1 TO R4 BY GOVERNMENT PLEADER SMT.T.B.RAMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON 20/08/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.30246/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPOINTMENT ORDER DTD. 25.7.95 ISSUED TO THE PETITIONER BY R5. P2:- COPY OF THE G.O.(MS) 377/96 DTD. 8.11.96. P2(a):- COPY OF THE GO(MS) 179/98/G.EDN. DTD. 21.5.1998. P3:- COPY OF THE G.O.(P) 240/99/G.EDN. DTD. 29.9.1999. P4:- COPY OF THE JUDGMENT DTD. 22.7.05 IN WPC. 29189/02. P5:- COPY OF THE JUDGMENT DTD. 6.9.05 IN RP. 696/05. P6:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE R1. P7:- COPY OF THE ORDER NO.G.O.(RT) 1386/06/G.EDN. DTD. 31.3.06. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 30246 of 2006-A - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of August, 2009. JUDGMENT The only issue that is raised in this writ petition is the claim for protection raised by the petitioner relying upon Annexure A Government Order, viz. G.O.(P) No.112/2001/G.Edn. dated 26.3.2001 as well as Ext.P3 Government Order, viz. G.O.(P) No.240/99/G.Edn. dated 29.9.1999. The petitioner was a teacher in the school managed by the 5th respondent Manager. She was initially appointed in the school in a leave vacancy in the year 1993. She had different spells of appointment, viz. from 12.10.1993 to 15.12.1993, 22.6.1994 to 6.9.1994, 25.7.1995 to 14.7.1996. From 25.7.1995, she was appointed in a regular vacancy due to the promotion of one Smt. K. Lekha. The same was approved as per Ext.P1 by the District Educational Officer. This was limited till 14.7.1996. Exts.P2 and P2(a) are the representations submitted by the petitioner claiming the benefits of G.O. (MS) No.377/96 dated 8.11.1996 and G.O.(MS) No.179/98/G.Edn. dated 21.5.1998. Ext.P3 is the Govt. Order relied upon by the petitioner in an earlier writ petition, viz. O.P.No.29819/2002. Ext.P4 is the judgment in the said original petition, wherein this court directed the Government to wpc 30246/2006 2 consider the claim in accordance with the said Govt. Order. Against Ext.P4 judgment, R.P.No.696/2005 was filed, which was disposed of by Ext.P5. Thereafter, the petitioner filed a fresh representation as per Ext.P6 which stands rejected by Ext.P7. 2. In Ext.P7, the Government was of the view that the petitioner was not eligible for the benefit of the two Government Orders relied upon by her, as she was not an approved teacher at the time of fixation of staff for the year 1996-97 and 1997-98 and it was also noticed that, the Super Check cell visited the school during 2000-2001 and detected 342 bogus admissions, and consequently it was found that sanctioning of certain posts are irregular. 3. In the counter affidavit filed on behalf of respondents 1 to 4, it is pointed out that the appointment of the petitioner was limited to 14.7.1996, as one senior 51A claimant in the same management retrenched on 15.7.1996 had to be accommodated in the school. It is further pointed out that the petitioner was not eligible for the benefit of G.O.(P) No.377/96/G.Edn. dated 8.11.1996 and G.O.(P) No.219/97/G.Edn. dated 20.6.1997, as she was not an approved teacher at the time of fixation of staff for the year 1996-97 and 1997-98. 4. Learned Senior Counsel appearing for the petitioner submitted that wpc 30246/2006 3 para 2 (i) of Ext.P3 provides a special provision which reads that “all aided school teachers who were in service as on 14.7.1996 and those who are appointed as aided school teachers against regular vacancies upto 14.7.1997, will be eligible for protection.” It is therefore contended that as the petitioner was in service as on 14.7.1996, she is entitled for protection. Reliance is placed on the stipulations contained in Annexure A Govt. Order dated 26.3.2001, wherein after referring to the earlier Government Orders, the Government ordered that “all aided school regular teachers appointed prior to 14.7.1996 who did not complete seven years of service on or before 15.7.1995 and who were not in service as on 14.7.1996 will be given protection. They will be absorbed in the future vacancies arising under the respective management.” It is therefore contended that this aspect has not been considered by the Government while rendering the decision. 5. Learned Govt. Pleader submitted that the benefit of protection is allowable only to teachers retrenched from service and herein, the petitioner will not come within the said category. Her termination is due to the termination of vacancy and in the light of the above fact, she will not be entitled for the benefit of protection. 6. A reference to the orders granting protection to the teachers show that the first Govt. Order is G.O.(P) No.104/69/G.Edn. dated 6.3.1969. The wpc 30246/2006 4 Government was faced with the difficulties experienced by teachers who are retrenched with long service from aided schools due to reasons beyond their control like fall in students strength, change of courses of study or syllabus or teacher pupil ratio, withdrawal of recognition, closure of uneconomic schools and reasons which are beyond the control of the staff and the management. Accordingly, orders were issued for protection of these teachers in the next vacancy arising in any of the aided schools under the management by whom the teacher was appointed. The system continued from time to time and various Government Orders have been issued in the matter. In the subsequent Government Order, viz. G.O.(P) No.164/69/G.Edn. dated 17.4.1969 it was specified that protection will be given to the category of teachers who have a service of two academic years and who have drawn vacation salary consecutively for two years. In G.O. (MS) No.231/84/G.Edn. dated 27.10.1984, it was ordered that in continuation of the earlier orders, all those teachers who enjoy protection as on date or become eligible for protection till 15/7/1986, as per G.O.(Ms) No.104/69 dated 6.3.1969, will be given protection. Subsequent Government Orders followed, explaining the various conditions. Mention could be made about G.O.(Ms) No.60/96/G.Edn. dated 15.2.1996 which stipulated that protection will be given to those aided school teachers who wpc 30246/2006 5 are retrenched due to division fall after completing seven years of service on or before 15.7.1995. 7. Further clarifications were issued as per G.O.(Ms) No.412/97/G.Edn. dated 16.10.1997, stating that protection will be given to those regular aided school teachers who are retrenched due to division fall after completing seven years of service on or before 15.7.1995. Those aided school teachers who had put in a service of not less than eight months service in a division vacancy in seven academic years on or before 15.7.1995 and had drawn vacation salary for seven years will also be eligible for protection. Further orders continued to be issued. As per G.O. (P) No.175/99/G.Edn. dated 26.7.1999, the Government modified the various similar conditions stipulated in the Government Orders issued from 15.2.1996. After referring to the Government Orders granting protection to teachers who are retrenched due to division fall after seven years of service on or before 15.7.1995, it is stipulated in para 2 that all aided school teachers who were in service as on 14.7.1996 will be given protection by retaining them in the respective schools subject to certain conditions. A clarification was issued as per G.O.(P) No.240/99/G.Edn. dated 29.9.1999 (produced as Ext.P3 herein). Later, G.O.(P) No.112/2001/G.Edn. dated 26.3.2001 was issued stating that all aided school regular teachers appointed wpc 30246/2006 6 prior to 14.7.1996 who did not complete seven years of service on or before 15.7.1995 and who were not in service as on 14.7.1996 will be given protection. 8. In fact, in the counter affidavit, the contention is that the petitioner is not an approved teacher at the time of finalisation of staff for the years 1996-97 and 1997-98. Still, the said contention had to be examined in the light of the various Govt. Orders. From time to time, modifications have been made by the Government with regard to the basic requirements for granting protection. 9. Apparently, therefore, the issue will have to be reconsidered by the Government itself in the light of various Govt. Orders relied upon by the petitioner, Exts.P3 and Annexure A. In Ext.P7 as noted already, the claim is rejected on the ground that the petitioner was not an approved teacher at the time of fixation of staff for the years 1996-97 and 1997-98. Learned Senior counsel points out that in Ext.P3 and in Annexure A the condition is only that he should be a regular teacher appointed prior to 14.7.1996 and since the appointment of the petitioner was approved, it will relate back to the original date itself. 10. Since the Government has not examined the matter in the light of the above stipulations and as regards the eligibility of the petitioner under wpc 30246/2006 7 the said Govt. Orders, the matter will have to be reconsidered by the Government. Ext.P7 to the limited extent it finds against the petitioner's claim is therefore set aside. The matter is remitted back to the Government to examine the claim raised by the petitioner based on the two Govt. Orders noted above and any other Government Orders regarding grant of protection. The question whether the petitioner being a teacher appointed prior to 14.7.1996, will be entitled for grant of protection, will have to be examined. 11. Appropriate orders shall be passed after hearing the petitioner and the manager, within a period of three months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/