IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 WP(C).No. 7207 of 2005(G) ------------------------------------- PETITIONER: ------------------- P.SREEJISHA, D/O.BHASKARAN NAMBIAR, HIGH SCHOOL ASSISTANT MATHS, RELIEVED, RAHMANIYA HIGH SCHOOL AIDED AYANCHERRY, KOZHIKODE DISTRICT, (RESIDING AT KUNNATH HOUSE, P.O.AYANCHERRY -673 544, VADAKARA, KOZHIKODE DISTRICT). BY ADVS. MR.V.A.MUHAMMED, MR.K.E.HAMZA. RESPONDENTS: ------------------------ 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, KOZHIKODE. 4. THE DISTRICT EDUCATIONAL OFFICER, VADAKARA, KOZHIKODE DISTRICT. 5. THE HEADMASTER, RAHMANIYA HIGH SCHOOL (AIDED), AYANCHERRY, KOZHIKODE DISTRICT. R1 TO R4 BY SR. GOVT. PLEADER MR. MUHAMOOD T.T, R5 BY ADV.MR.PULIKKOOL ABUBACKER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.7207/2005-G: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPOINTMENT ORDER DTD. 25/11/1998. EXT.P.2: COPY OF THE -DO- -DO- DTD. 07/04/1999. EXT.P.3: COPY OF THE ORDER NO. B4/4852/01/(3) OF THE R.3. DTD. 30/04/2001. EXT.P.4: COPY OF THE ORDER NO. D. DIS. 46388/2001/RA4/DPI OF THE R.2. DTD. 17/10/2001. EXT.P.5: COPY OF THE JUDGMENT IN O.P. NO. 24178/2002-C DTD. 04/06/2004. EXT.P.6: COPY OF THE G.O.(RT).NO.137/05/G. EDN. OF THE GOVERNMENT DTD. 10/01/2005. EXT.P.7: COPY OF THE CIRCULAR NO. H2/54419/94 OF THE R.2. DTD. 10/02/1995. EXT.P.8: COPY OF THE G.O.(MS).NO.37/04/G. EDN. OF THE GOVERNMENT DTD. 16/03/1994. EXT.P.9: COPY OF THE JUDGMENT IN W.A. NO. 1218/1991 DTD. 26/05/1999. EXT.P.10: COPY OF THE G.O.(RT).NO.254/01/G. EDN. OF THE GOVERNMENT DTD. 19/01/2001. EXT.P.11: COPY OF THE G.O.(RT).NO.1318/09/G. EDN. OF THE GOVT. DTD. 27/03/2009. EXT.P.12: COPY OF THE JUDGMENT IN W.P.(C).NO.15138/2004 DTD. 18/08/2004. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.7207/2005-G ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 16th day of July, 2009 J U D G M E N T The petitioner is aggrieved by the orders passed by respondent Nos. 1 to 3 as Exts.P3, P4 and P6 regarding the retention of the petitioner in the school as H.S.A (Mathematics). 2. The petitioner was appointed as H.S.A (Maths) from 25/11/1998 to 06/04/1999 against a leave vacancy of Shri T.K.Kunhabdulla, H.S.A who took leave for five years from 07/04/1994 to 06/04/1999 and this appointment was approved by the District Educational Officer, Vadakara. For the academic years 2000-2001 and 2001-2002, the D.E.O sanctioned six posts in Mathematics respectively. Apart from 6 posts in Mathematics, for Physical Science - 4 posts, Natural Science - 3 posts and Social Studies - 6 posts were also sanctioned in the year 2000-2001. For the year 2001-2002, 4 posts in Physical Science, 3 posts in Natural Science and 5 posts in Social Studies were sanctioned apart from 6 posts in Mathematics. Only 6 H.S.As (Maths) were working in the school for the respective Academic years under 1:45 ratio including the petitioner. 3. Whileso, by Ext.P3 order, the Deputy Director of Education held that the petitioner is not liable to be retained. The main reason for W.P.(C). No.7207/2005 -:2:- taking the said decision was that the teachers who have been retained under 1:40 ratio in other subjects have to be accommodated against regular vacancies. The said view has been upheld in Exts.P4 and P6. 4. The petitioner is assailing the said reason on various grounds. It is pointed out that going by the decision reported in Deepa Augustine v.Geetha Alex [2008(2) KLT 771(SC)] as well as the decision reported in Rakhee v.State of Kerala [2007 (1) KLT 766 (SC)], the subject requirement of a vacancy alone could be considered and therefore, when sanctioned posts are there for Mathematics, respondents 1 to 3 cannot consider the question whether teachers who are in excess in a particular subject could be accommodated against a regular vacancy in another subject. 5. In 2007(1) KLT 766, Their Lordships held in paragraph (8) that “Going by R.51 Chapter XIV A K.E.R also, the incumbent to be retrenched is the junior most teacher in the category concerned. The contention that H.S.As in different subjects altogether shall be considered as one single category cannot be countenanced, because teachers are appointed for imparting the lessons in the concerned subjects. Therefore, the category for H.S.A subjects shall be considered against each subject for which sanction W.P.(C). No.7207/2005 -:3:- has been issued by the District Educational Officer concerned in the Staff Fixation Order for the respective years.” 6. The scheme for retention under 1:40 ratio provides benefits to teachers who are rendered surplus for retention in the same school. Normally, they have to be adjusted against regular vacancies in the same subjects and not in vacancies in other subjects otherwise, if they are sought to be adjusted against regular vacancies in other subjects that may breach the subject requirement. This is clear from sub para (ii) of paragraph (C) of Ext.P8. In paragraph (7) of the judgment Ext.P9, it has been held by the Division Bench that:- “Merely because a teacher is a protected teacher coming within the purview of Rule 52 of Chapter XIV-A of K.E.R cannot lead to the position that that teacher must be allowed to rejoin duty even if the post that falls vacant is not in the subject in which that teacher is qualified to teach. The post that fell vacant in the case on hand is that of a High School Assistant in Social Science and respondent No.6 possessed only a degree in Natural Science namely Botany. Obviously, respondent W.P.(C). No.7207/2005 -:4:- No.1 cannot teach Social Science in the school on the scheme of K.E.R.” Therefore, the reasoning adopted in Ext.P3 which is confirmed in Exts.P4 and P6 cannot be sustained. The petitioner is also relying upon Ext.P11 Government Order dated 27/03/2009, in respect of another school wherein, considering a more or less similar issue, it was found that the availability of a teacher in respect of the subject Arabic under 1:40 ratio will not stand in the way of approval of appointment of H.S.A (English). The principle that is applied by the Government is clear form the said Government Order also. 7. Herein, the petitioner was appointed in the leave vacancy of one Shri T.K.Kunjabdulla. There were six sanctioned posts of Mathematics. Therefore, merely because the petitioner was appointed as a leave substitute it cannot stand in the way for the grant of approval. The reasons stated therefore, cannot be sustained. 8. By relying upon paragraph (9) of the counter affidavit filed by the fourth respondent, the learned Government Pleader submitted that the periods available for teaching mathematics will be 102 in Std.VIII to X and, therefore, five H.S.As (Maths) will be sufficient for teaching the subject. In fact, the said reason pointed out in the counter affidavit is not the one W.P.(C). No.7207/2005 -:5:- mentioned in any of the orders impugned. It is well settled that an order which is passed by a Statutory Authority cannot be sought to be supported by other reasons stated in the counter affidavit. Therefore, the said contention cannot be accepted. 9. Therefore, Exts.P3, P4 and P6 are quashed. Since the appointment of the petitioner are approved as per Exts.P1 and P2, there will be a direction to disburse the consequential monetary benefits during the period from 01/05/2001 to 14/07/2002 to the petitioner within a period of two months from the date of receipt of a copy of the arrear bill. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms