IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 WP(C).No. 27022 of 2008(P) -------------------------- PETITIONER(S): --------------- CORPORATE MANAGER CORPORATE EDUCATIONAL AGENCY, DIOCESE OF IRINJALAKUDA, BISHOP'S HOUSE, IRINJALAKUDA-1 BY ADV. SRI.S.MUHAMMED HANEEFF RESPONDENT(S): --------------- 1. DISTRICT EDUCATIONAL OFFICER IRINJALAKUDA. 2. DEPUTY DIRECTOR OF EDUCATIONS, THRISSUR. 3. DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM 4. STATE OF KERALA, REP. BY ITS SECRETARY GENERAL EDUCATION DEPARTMENT , SECRETARIAT THIRUVANANTHAPURAM. GOVERNMENT PLEADER NISHA BOSE FOR R1 - R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/09/2011, ALONG WITH WPC NO. 28685 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27022 of 2008 APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2006-07 IN RESPECT OF THE PETITIONER'S SCHOOL. EXT.P2 TRUE COPY OF THE ORDER NO.B3/2970/07/K.DIS DT.23/06/2007 ISSUED BY THE 1ST RESPONDENT. EXT.P3 TRUE COPY OF THE ORDER NO.D.DIS/60674/2007/RA/2/DPI DT.10/12/2007 ISSUED BY THE 3RD RESPONDENT. EXT.P4 TRUE COPY OF THE ORDER PASSED BY THE GOVERNMENT DT.4/8/2008. RESPONDENTS' EXTS: NIL \\TRUE COPY// P.A TO JUDGE T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). Nos.27022/2008-P & 28685/2008-M ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 1st day of September, 2011 J U D G M E N T In both these writ petitions, the challenge is against the same orders. In W.P.(C). No.27022/2008, the Manager is the petitioner whereas in W.P.(C). No.28685/2008, the teacher is the petitioner. 2. I shall refer to the facts cited in W.P.(C). No.27022/2008 for disposal of the writ petitions. The school is an aided one. In the staff fixation for the year 2006-07, in the Holy Cross High School, Mapranam the District Educational Officer sanctioned two additional posts of High School Assistants one in Physical Science and the other in Social Studies. Ext.P1 is the copy of the said order. The Management filled up the two vacancies, by transferring the existing teachers working under the Management. In St.Xavier's High School, Karachira, another school under the same Corporate Management, for the year 2006- 07, reduction of one Division and consequent reduction of one post of H.S.A were ordered. Accordingly, the petitioner in W.P.(C). No.28685/2008, H.S.A (Social W.P.(C). Nos.27022/2008 & 28685/2008 -:2:- Studies) was thrown out being the junior most H.S.A (S.S) under the management. She was accommodated in the additional post sanctioned with effect from 15/08/2006 in the Holy Cross High School, Mapranam. The post of H.S.A (Physical Science) was filled up by transferring Smt.Leena Antony Chethalan, H.S.A (P.S) from St.George High School, Pariyaram with effect from 01/08/2006. Based on a review report of the Deputy Director of Education made without notice to the Management, a revised order was passed by the District Educational Officer in the next academic year cancelling the order Ext.P1. Ext.P2 is the copy of the said order. The affected teacher filed an appeal and the third respondent dismissed the said appeal by Ext.P3 order. Thereafter, the Management filed a revision petition before the Government which stands disposed of by Ext.P4 order. These three orders are under challenge in W.P.(C). No.27022/2008 and in W.P. (C).No.28685/2008. W.P.(C). Nos.27022/2008 & 28685/2008 -:3:- 3. Heard the learned counsel for the petitioners Shri S.Muhammed Haneef and the learned Government Pleader. 4. The learned counsel for the petitioners submitted that the action taken by the Deputy Director of Education in reviewing the staff fixation is without any authority of law. There is no provision under Rule 12 of Chapter XXIII of Kerala Education Rules or other provisions of the said Chapter enabling the Deputy Director of Education to review the staff fixation as was done here. It is pointed out that the two additional posts were sanctioned after the conduct of the Higher Level Verification and, therefore, the question of reviewing the sanction of additional posts cannot arise at all at the hands of the Deputy Director of Education. 5. In justification of the review, what is averred in the counter affidavit by the fourth respondent-Government in W.P.(C). No.27022/2008 is that after completing the fixation of staff strength by the Educational Officers, the Deputy Director of the W.P.(C). Nos.27022/2008 & 28685/2008 -:4:- District will review the fixation orders passed by the Educational Officers. As per the review report on the staff fixation orders 2006-07, the Deputy Director of Education, Thrissur objected the sanction of two additional division in Holy Cross High School, Mapranam and directed to cancel the additional posts. 6. It is clear from para.2 of the counter affidavit that during the academic year 2006-07, Corporate Manager proposed Higher Level Verification and after Higher Level Verification, two additional divisions are seen admissible and thereby sanctioned two additional divisions and two additional posts each in High School Assistant (Physical Science) and in High School Assistant (Social Studies) under the restriction stipulated in G.O.(P).No.317/05/G.Edn., dated 17/08/2005. The stand taken is that a direction was issued to the Manager in the staff fixation order itself that the appointment/transfer to these additional posts is restricted vide G.O.(P). No.317/05/G.Edn., dated 17/08/2005. W.P.(C). Nos.27022/2008 & 28685/2008 -:5:- 7. The learned Government Pleader made available the review report of the Deputy Director of Education, Thrissur dated 22/02/2007 in relation to the school. It shows that two additional posts were sanctioned after the Higher Level Verification. Reliance is placed on G.O.(P).No.317/05/G.Edn., dated 17/08/2005. Accordingly, it is concluded that if the posts are allowed by the District Educational Officer as per the Staff Fixation Order, the Management will be free to make the appointment and, therefore, the action of the District Educational Officer in sanctioning the posts is not justified. In terms of the above, a direction has been issued to the District Educational Officer. 8. Therefore, the main question that emerges is whether the additional posts allowable to the school can be withdrawn simply based on the ban order issued vide the G.O.(P).No.317/05/G.Edn., dated 17/08/2005. A reading of the said order shows that it is a consolidated order issued after referring to various Government Orders issued from the year 1999. It evidences the fact that the various restrictions were W.P.(C). Nos.27022/2008 & 28685/2008 -:6:- being imposed in respect of different academic years with regard to the filling up of teaching as well as non-teaching posts. This was implemented by the Government as part of economy measures. Para.3 of the Government order details the scheme envisaged under the G.O.(P).No.317/05/G.Edn., dated 17/08/2005. 9. It is evident from the said order that all the appointments in Government and Aided Schools made against regular additional division vacancies 2004-05 will be approved. Direction is issued to revise the staff fixation for the year 2004-05 and 2005-06. With regard to the academic year 2006-07, clause (vi) of para.3 of the Government Order states thus: “The restriction imposed on appointment of teachers and non teaching staff consequent to additional division vacancies shall continue from the academic year 2006-07 onwards.” 10. As rightly pointed out by the learned counsel for the petitioners, there cannot be any restriction with regard to the sanction of additional division W.P.(C). Nos.27022/2008 & 28685/2008 -:7:- vacancies. The sanction of additional posts in the staff fixation and the restriction if any, with regard to the appointments to be made are different. When the students' strength reflects the number of divisions to be sanctioned in terms of the provisions of the Kerala Education Rules and the sanction of posts, the District Educational Officer and the authorities concerned will have to go through the procedures prescribed under Rule 12 and other provisions of the Chapter XXIII K.E.R and will have to finalise the staff fixation. Of course, it is upto the Government to prescribe any norms for restriction of fresh appointments and the same was clearly adopted by G.O.(P).No.317/05/G.Edn., dated 17/08/2005. Therefore, it is not as if the said Government Order affects the power of the District Educational Officer to sanction the additional division posts. In that view of the matter, the review report of the Deputy Director of Education which takes the stand that no new post can be sanctioned in the light of G.O.(P).No.317/05/G.Edn., dated 17/08/2005 cannot be said to be correct. W.P.(C). Nos.27022/2008 & 28685/2008 -:8:- 11. Therefore, the staff fixation order was issued properly. 12. In that view of the matter, the view taken in the various orders culminating in the Government Order G.O.(Rt).No.3560/08/G.Edn., dated 04/08/2008, a copy of which is produced as Ext.P4 in W.P.(C). No.27022/2008 and Ext.P6 in W.P.(C). No.28685/2008, cannot be justified. 13. The next question is with regard to the approval of the appointments made by the Management. Herein, we are concerned only with the cancellation in the next academic year as the teachers were accommodated in the vacancies for the remaining part of the academic year 2006-07. 14. What remains is the consideration of the claim of the petitioner in W.P.(C). No.28685/2008. She was the junior most under the Management and was thrown out from St.Xavier's High School, Karachira during the staff fixation 2006-07. It is averred in the writ petition that she was initially appointed from 09/10/1985 to 12/12/1985 as an Upper Primary School W.P.(C). Nos.27022/2008 & 28685/2008 -:9:- Assistant and the said appointment was approved. She was promoted as High School Assistant (Social Studies) for the period from 20/06/2000 to 18/09/2000. 15. The learned counsel for the petitioners submitted that the said teacher is entitled for promotion under the various Government Orders and, therefore, there cannot be any objection for accommodating her in one of the additional post in Holy Cross High School, Mapranam. 16. The learned Government Pleader submitted that in the light of G.O.(P).No.317/05/G.Edn., dated 17/08/2005, there is a restriction regarding appointment of any teachers including teachers by way of transfer. It is the case of the learned counsel for the writ petitioners that even the Government has been permitting appointment in additional division vacancies based on various other Government Orders. 17. Having found that the sanction of additional division vacancies cannot be objected to, what remains is only consideration of the claim of the petitioner in W.P.(C). No.28685/2008. During the subsequent years, W.P.(C). Nos.27022/2008 & 28685/2008 -:10:- she is reverted as U.P.S.A and is now continuing in the same school. Therefore, what is involved is the relevant period from 14/07/2007 to 01/06/2008. 18. Regarding the claim for salary for the said period, the matter will be reconsidered by the Government and appropriate orders will be passed after considering various Government Orders which were governing the matter, within a period of four months from the date of receipt of a copy of this Judgment. 19. Exts.P2 to P4 in W.P.(C).No.27022/2008 are quashed and the writ petitions are allowed as above. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms