IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 WP(C).No. 30841 of 2008(V) ------------------------------------- PETITIONER(S): ----------------------- SURENDRAN.P.M, HSA(SS),GHSS,VADAKARA, RESIDING AT PEEDIKAYULLATHIL METHAL, P.O.AROOR, VADAKARA. BY ADV.MR.R.K.MURALEEDHARAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA REP.BY SECRETARY, GENERAL EDUCATION DEPARTMENT, TRIVANDRUM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. 3. K.P.NANU, HSA(SS), GHSS, PAYYOLI. GOVERNMENT PLEADER FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.30841/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER DT. 16.6.08 BY THE 2ND RESPONDENT. P2:- COPY OF THE PROCEEDINGS DT. 12.10.08 OF THE 2ND RESPONDENT. P3:- COPY OF THE GO(P) NO.403/02/G.EDN. DT. 4.12.02. TRUE COPY P.S. TP JUDGE TSS P.N.Ravindran, J. ================== W.P.(C) No.30841 of 2008 ===================== Dated this the 4th day of March, 2009. JUDGMENT Heard Sri. R.K.Muralidharan, the learned counsel appearing for the petitioner and Smt. T.B.Remani, the learned Government Pleader appearing for respondents 1 and 2. Though notice has been served on the third respondent, there was no representation for the third respondent when the case was called on for hearing today. 2. The petitioner is an aided school teacher presently on protection. He was appointed as Upper Primary School Assistant in Rehmania High School, Ayyancheri, Vadakara in the year 1983. He was promoted as H.S.A. (Social Science) on 29.7.1993. While the petitioner was thus continuing in service during the academic year 2003-2004 there was fall in the student strength which necessitated his retrenchment from service. Thereupon, as a teacher entitled to protection under the Government orders governing the field, he was deployed to Balussery Boys G.H.S.S. Later during the academic year 2007-2008, he was transferred and posted in four schools namely, Iringallur H.S., Government Ganapath V.H.S.S., Feroke, Ganapath Boys High School, Chalappuram and Cheruvannur G.H.S.S. 3. While matters stood thus, a vacancy of H.S.A. (Social Science) WP(C) 30841/08 -: 2 :- arose in G.H.S.S., Vadakara when the incumbent Sri. T.Sreedharan was deputed as Block Project Officer, Thodannur. That vacancy was filled up by posting Sri. O.P. Mohanan, a protected teacher. Sri. O.P. Mohanan, was repatriated to his parent school in the year 2008. Thereupon, by Ext.P1 order dated 16.6.2008, the petitioner was transferred from Cheruvannur and posted in G.H.S.S., Vadakara in the vacancy that arose on the deputation of Sri. T. Sreedharan as Block Project Officer, Thodannur. Nearly four months thereafter, by Ext.P2 order passed on 12.10.2008, the Deputy Director of Education posted the third respondent, a Government School Teacher as H.S.A. in the vacancy that arose on deputation of Sri. T.Sreedharan as Block Project Officer. The Deputy Director of Education also directed that if protected teachers are continuing in the post, such teachers shall be relieved. In this Writ Petition, the petitioner challenges Ext.P2 and seeks a direction to respondents 1 and 2 not to transfer him from G.H.S.S., Vadakara to accommodate the third respondent. The petitioner relies on the stipulations in paragraph 2 (i) of Ext.P3 Government order to contend that the vacancy of H.S.A., which arose as a result of the deputation of a Government School Teacher as Block Project Officer can be filled up only by appointing a protected teacher. 4. The learned Government Pleader appearing for respondents 1 and 2 contends that the petitioner cannot claim continuance in the G.H.S.S.,Vadakara and cannot object to the posting of the third WP(C) 30841/08 -: 3 :- respondent in that school. Relying on Ext.P3, the learned Government Pleader submits that the deployment on protection is only a concession extended to the petitioner and that he has no right to continue in a particular school. 5. I have considered the submissions made at the Bar by the learned counsel appearing on either side. The official respondents do not have a case that Ext.P3 Government order has been modified or withdrawn. Paragraph 2(i) of Ext.P3 reads as follows: “2. The Guidelines issued as per the G.O. read as 1st paper above could not be implemented in toto for various reasons. Therefore Govt. after having reconsidered the matter in detail in consultation with DPI, are pleased to modify the G.O. read as 1st paper above, adding the following guidelines thereto. (i) 50% of the vacancies of 1030 BRC trainers required in the 8 non-DPEP Districts for the implementation of SSA (Sarva Siksha Abhiyan) Programme shall be filled up by selection process from among qualified and competent protected teachers. The remaining 50% vacancies shall be filled up by Government School teachers, and protected teachers in the respective districts shall be deployed in the resultant vacancies. The vacancies which arise as a result of the posting of 103 Block Project Officers from among Government school teachers shall also be filled up by protected teachers. If the number of protected teachers is not sufficient to fill up the resultant vacancies in a particular District, such teachers of neighbouring districts shall be considered for deployment.” (emphasis supplied) WP(C) 30841/08 -: 4 :- 6. It is evident from paragraph 2(i) of Ext.P3 quoted above that vacancies which arise as a result of the posting of a Government School Teacher as Block Project Officer shall be filled up by protected teacher. In fact, the Government order referred to above stipulates that if the number of protected teacher in a particular district is not sufficient to fill up such vacancies, protected teachers in the neighbouring districts shall be considered for deployment against the remaining vacancies. Therefore, on a plain reading of paragraph 2(i) of Ext.P3, it is evident that vacancies which have arisen on account of posting of Government School Teachers as Block Project Officers can be filled up only by posting protected teachers. It is not in dispute that the vacancy of H.S.A. (Social Science) arose in G.H.S.S., Vadakara when Sri. T.Sreedharan, H.S.A. (Social Science) of that school was deputed as Block Project Officer, Thodannur. The vacancy was initially filled up by deploying Sri. O.P. Mohanan, a protected teacher. Later, Sri. O.P.Mohanan was repatriated to his parent school and therefore a vacancy of H.S.A. again arose in the G.H.S.S., Vadakara, which was filled up by appointing the petitioner in terms of the stipulation in Ext.P3 by Ext.P1 order dated 16.6.2008. By Ext.P2 the third respondent has been posted in the petitioner's place, with the result, the petitioner will be relieved without a posting. 7. In my considered opinion, as Ext.P3 is still governing the field, the transfer and posting of the third respondent as H.S.A. (Social Science) in the G.H.S.S., Vadakara in the vacancy that arose on the deputation of WP(C) 30841/08 -: 5 :- Sri. T.Sreedharan as Block Project Officer cannot be sustained. Ext.P3 Government order is binding on the Deputy Director of Education, Kozhikode. Paragraph 2(i) of Ext.P3 categorically states that vacancies of Government School Teachers arising as a result of their posting as Block Project Officers shall be filled up by protected teachers. Therefore, Ext.P2 in so far as it transfers the third respondent and posts him as H.S.A. (Social Science) in G.H.S.S., Vadakara cannot be sustained. In the result, this Writ Petition is allowed, Ext.P2 in so far as it relates to the petitioner and the third respondent is quashed and the respondents are directed to retain the petitioner as protected teacher in G.H.S.S.,Vadakara so long as Sri. T.Sreedharan continues on deputation as Block Project Officer. P.N.Ravindran, Judge. ess 16/3