IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 19TH SEPTEMBER 2011 / 28TH BHADRA 1933 WP(C).No. 26439 of 2009(Y) -------------------------- PETITIONER(S): --------------- C.K.SOBHANA HEAD MISTRESS, A.V.P.SCHOOL NHANGALTTIRI P.O., PALAKKAD. BY ADV. SRI.G.KRISHNAKUMAR SRI.M.MANOJ KUMAR MALLIA SMT.RESHMITHA R.CHANDRAN RESPONDENT(S): --------------- 1. DISTRICT COLLECTOR PALAKKAD. 2. DEPUTY DIRECTOR OF EDUCATION PALAKKAD. 3. ASST. EDUCATIONAL OFFICE TRITHALA. 4. DHANYA.N.P. UPSA A.U.P.SCHOOL, NHANGALTTIRI P.O., PALAKKAD. ADV. SRI.SANTHEEP ANKARATH FOR R4 SMT.P.JAYALAKSHMI FOR R4 GOVERNMENT PLEADER SMT.NISHA BOSE FOR R1TO3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26439 of 2009 APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE GO No.(RT).4345/06/GED, DT.6/10/2006 EXT.P2 TRUE COPY OF THE STAFF LIST AS ON 01/06/2009 EXT.P3 TRUE COPY OF THE STAFF FIXATION ORDER NO.D.DIS C/3819/09 DT.29/07/2009 OF THE 2ND RESPONDENT. EXT.P4 TRUE COPY OF THE LETTER DT.12/08/2009 ISSUED TO THE FOURTH RESPONDENT. EXT.P5 TRUE COPY OF THE REQUEST LETTER DT.13/08/2009 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. EXT.P6 TRUE COPY OF THE SUBMISSION OF THE 1ST RESPONDENT, SUBMITTED BY THE FOURTH RESPONDENT. EXT.P7 TRUE COPY OF THE ORDER DT.2/09/2009 ISSUED BY THE 1ST RESPONDENT EXT.P8 TRUE COPY OF THE ORDER/CLARIFICATION DATED 28/8/2009 OF 3RD RESPONDENT. EXT.P9 EXTRACT/GIST OF THE ORDER DT.15/09/2009 OF THE 2ND RESPONDENT. EXT.P9(a) TRUE COPY OF THE ORDER DT.15/09/2009 ISSUED BY THE 2ND RESPONDENT. EXT.P10 TRUE COPY OF THE REPRESENTATION DT.24/08/2009 SUBMITTED BY THE 4TH RESPONDENT TO THE FIRST RESPONDENT. RESPONDENTS' EXTS: NIL \\TRUE COPY// P.A TO JUDGE T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.26439/2009-y ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 19 th day of September, 2011 J U D G M E N T Aggrieved by the order of suspension issued by the second respondent, produced as Ext.P9(a), this writ petition has been filed. This Court had passed an interim order staying the operation of the order and the petitioner is allowed to be reinstated in service and function as Headmistress. The interim order is in force now. 2. The petitioner is the Headmistress of the school. In terms of a common Judgment of this Court in W.P.(C).Nos.14352/2006 and 14649/2006 concerning a dispute regarding the managership of the school, the Government passed Ext.P1 order taking over the affairs of the school and the District Collector was appointed as the Manager. 3. The fourth respondent has been functioning as Upper Primary School Assistant in the school. Her appointment is yet to be approved and she was the junior-most in the category of U.P.S.A and, in the W.P.(C). No.26439/2009 -:2:- seniority list Ext.P2 she is Serial No.27. The whole action was initiated against the petitioner after the staff fixation order Ext.P3 was issued. In the said staff fixation order, one post each of Lower Primary School Assistant and Upper Primary School Assistant was reduced making the total posts sanctioned as 10 each. Thereafter, the petitioner communicated a letter to the fourth respondent, as per Ext.P4, informing about the staff fixation order and stating that the reduction of one post of U.P.S.A may affect her service and she was directed to contact the Assistant Educational Officer in the matter. It is the case of the petitioner that an oral direction was issued by the Assistant Educational Officer not to allow the fourth respondent to mark the attendance. The petitioner thereafter pointed out these facts to the Assistant Educational Officer as per Ext.P5 letter. Ext.P6 is the representation submitted by the fourth respondent before the District Collector in the matter. The stand taken therein is that the staff fixation order does not give any direction to retrench her and, therefore, the W.P.(C). No.26439/2009 -:3:- action taken by the Headmistress is not correct and she may be allowed to continue in the school. Thereafter, the District Collector by Ext.P7 letter instructed the Deputy Director of Education to enquire into the matter after getting explanation from the petitioner and take action, if any required. Ext.P8 is the communication from the petitioner and the proceedings of the Assistant Educational Officer is noted therein. Therein, the Assistant Educational Officer has directed that the teachers if any working in excess to the sanctioned post should not be allowed to continue. This letter is produced to justify the stand of the petitioner that the fourth respondent became excess. 4. The petitioner was suspended from service by the Deputy Director of Education on a prima facie view that her action warrants suitable disciplinary action. The learned counsel for the petitioner submitted that the petitioner did not retrench or terminate the fourth respondent from service, as stated in Ext.P9(a). It is pointed out that since sufficient posts were not there, she had informed the said fact to the fourth respondent W.P.(C). No.26439/2009 -:4:- by communication Ext.P4. After three days, she was allowed to mark the attendance also. It is therefore, submitted that it was only a bona fide action taken by the petitioner with respect to the staff fixation order. 5. My attention was invited to Ext.P7 communication issued by the District Collector which, according to the learned counsel for the petitioner, takes the stand that there was a termination and reinstatement of fourth respondent. It is therefore submitted that the very basis on which the action against the petitioner was initiated was on wrong assumption that the fourth respondent was terminated or rather retrenched from service. It is not correct. It is further submitted that the proceedings are initiated without any application of mind and the circumstances did not justify any disciplinary action against the petitioner and at any rate, the suspension order cannot be justified at all. 6. The second respondent has filed a detailed counter affidavit and the learned Government Pleader W.P.(C). No.26439/2009 -:5:- submitted that the staff fixation order did not order for retrenchment of the fourth respondent and, therefore, the action taken by the petitioner against the fourth respondent in not allowing the fourth respondent to mark the attendance cannot be justified. 7. Evidently, going by the staff fixation order, no directions have been issued to retrench any of the teachers as evident from note (1) therein. 8. The crucial question is whether the petitioner had taken action to retrench or terminate the fourth respondent. No such order issued by the petitioner has been mentioned anywhere in Ext.P7 or Ext.P9(a). What is projected as the illegal action of the petitioner is the refusal to allow fourth respondent to mark attendance for three days. In Ext.P4, the petitioner has only informed the fourth respondent to contact the Assistant Educational Officer, evidently, it was only an action taken by the petitioner after receipt of the staff fixation order. Therefore, it cannot be termed as illegal or irregular exercise. Of course, there is no dispute that the petitioner was acting under oral W.P.(C). No.26439/2009 -:6:- instructions of the Assistant Educational Officer also and, even in Ext.P8, the Assistant Educational Officer was of the view that the teachers if any working in the sanctioned post should not be allowed to continue and the same is dated 28/08/2009. Therefore, prima facie, it can be seen that actually there was no termination or retrenchment of the fourth respondent. Evidently, the Manager alone can retrench or terminate the teachers in the school and no such order has been passed by the District Collector also. If at all any action was taken by the petitioner, it was only a case of disallowing the fourth respondent from marking the attendance for three days. Subsequently, that has also been regularised going by Ext.P7 letter of the District Collector to the Deputy Director of Education. Therefore, the view taken in Ext.P9(a) that the petitioner actually retrenched or rather terminated the fourth respondent from service is a misreading of the state of affairs as on that day. The fourth respondent's representation produced as Ext.P6 actually wants rearrangement of the posts sanctioned in Ext.P3 W.P.(C). No.26439/2009 -:7:- staff fixation order. 9. In view of all the above, the suspension of the petitioner was not warranted and the reasons stated in Ext.P9(a) are clearly unsupportable. Therefore, Ext.P9(a) is quashed. 10. All other contentions are left open. It is made clear that the issue considered by this Court is regarding the legality of the suspension order. The writ petition is allowed as above. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms