IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 3RD FEBRUARY 2010 / 14TH MAGHA 1931 OP.No. 35436 of 2002(R) ---------------------------------- PETITIONER(S): ----------------------- PHONCY VARGHESE, AGED 26 YEARS, W/O.P.O. MATHAI, HIGH SCHOOL ASSISTANT (PHYSICAL SCIENCE), P.S. HIGH SCHOOL, THIRUMUDIKKUNNU, P.O. EAST KORATTY-680 308. BY ADV. MR.V.A.MUHAMMED, MR.K.E.HAMZA, MR.E.S.ASHRAF, MR.T.V.VIJAYARAJAN. RESPONDENT(S): ------------------------- 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, THRISSUR. 4. THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKUDA, THRISSUR DISTRICT. 5. THE CORPORATE MANAGER, L.F.CHURCH SCHOOLS, THIRUMUDIKKUNNU, P.O. EAST KORATTY-680 308. R1 TO R4 BY GOVERNMENT PLEADER MR.DILEEP MOHAN. R5 BY ADV. MR.V.M.KURIAN. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 03/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 35436/2002-R ORDER ON C.M.P. NO.59836/2002 IN O.P. NO. 35436/2002 CLOSED 03/02/2010. SD/- S.SIRI JAGAN, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPOINTMENT ORDER OF THE PETITIONER. EXT.P2: COPY OF THE ORDER NO.85-11916/2000/L. DIS. OF THE 4TH RESPONDENT. EXT.P3: COPY OF THE ORDER NO.B2-4665/2001/K. DIS. OF THE 3RD RESPONDENT. EXT.P4: COPY OF THE ORDER NO.D. DIS. EM3/45783/01 OF THE 2ND RESPONDENT. EXT.P5: COPY OF THE ORDER NO.56771/A1/2001/G1.EDN. OF THE GOVERNMENT. EXT.P6: COPY OF THE CIRCULAR NO.H2/544419/94 OF THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.SIRI JAGAN, J. ================== O.P.No. 35436 of 2002 ================== Dated this the 3rd day of February, 2010 J U D G M E N T The petitioner was appointed as H.S.A.(Physical Science) for the period from 1.9.2000 to 31.10.2000 against a leave vacancy of Smt.E.J.Jessy, in the 5th respondent's school. Ext.P1 is the appointment order. By Ext.P2 order, the DEO refused to approve the appointment on the ground that there is a protected teacher working in the school in another subject. The petitioner's appeal against the same was rejected. The petitioner's further appeal to the Director of Public Instruction was also dismissed by Ext.P4. The revision filed before the Government met with the same fate, by Ext.P5 order. The petitioner has filed this original petition challenging Exts.P2 to P5 orders and seeking the following reliefs: “(a) call for the records relating to Exhibits P2 to P5 and quash the originals of the same by the issue of a writ of certiorari or other appropriate writ or order. (b) issue a writ of mandamus or other appropriate writ order or direction commanding the 4th Respondent to approve the appointment of the Petitioner as H.S.A. (Physical Science) from 1.9.2000 to 31.10.2000 and disburse the salary and allowances within a time limit.” 2. The contention of the petitioner is that even for accommodating protected teachers, it is necessary that minimum subject ratio has to be followed. The petitioner points out that even in the impugned orders it is categorically stated that the protected teacher in the school is in another subject. According to the petitioner, 2 going by G.O(Ms)No.125/2001/G.Edn. dated 2.4.2001 and G.O(P) No.178/2002/G.Edn. dated 28.6.2002 minimum subject requirement should be ensured while accommodating protected teachers also in the high schools. The petitioner also relies on an unreported Division Bench decision of this Court in W.A.1218/2001, wherein also this Court has held that merely because a teacher is a protected teacher, the same cannot lead to the position that, that teacher must be allowed to rejoin even if the post that falls vacant is not in the subject in which that teacher is qualified to teach. 3. A counter affidavit is filed, which is in line with the impugned orders. 4. I have considered the rival contentions in detail. 5. Going by the impugned orders, it is abundantly clear that the protected teachers cannot claim accommodation in the vacancy in different subject. In the two Government orders referred to by the learned counsel for the petitioner, it has been specifically stated that for giving protection or in recalling protected teachers, it is mandatory to follow the subject ratio of 1:1:1. In the Division Bench decision in W.A.No.1218/1991 a Division Bench of this Court has held thus: “7. In the light of the decisions referred to by the learned Single Judge in his judgment and the decisions above referred to there cannot be any dispute that there has to be a harmonious construction of the relevant rules in Chapter XIV-A of KER. It is also clear that any such construction will have to be consistent with the requirement of Chapter XXXI Rule 2(2) (a) of K.E.R. regarding the qualification of the teacher concerned. 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 3 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 No.1 cannot teach Social Science in the school on the scheme of K.E.R. Of course if it had been demonstrated before us with reference to facts and figures that even if respondent No.6 were to be absorbed in this post, still the subject requirement of Social Science would have been met since there were other High School Assistants having the requisite qualification in terms of Chapter XXXI Rule 2(2)(a) of K.E.R. it would have been possible to uphold the decision of the authorities and justify the declining of interference by the learned Single Judge. But in the absence of any material to show that the subject requirements are met even without permitting or appointing a Social Science Graduate in the post that fell vacant, it has to be held that the authorities were not justified in refusing to approve the promotion of the appellant as High School Assistant in the vacancy that occurred on 1.8.1987. The learned Single Judge not having considered this aspect, we are constrained to interfere with the decision of the learned Single Judge. 6. Since the rejection of the approval for the petitioner's appointment was only on the ground that a protected teacher in another subject is available, those orders are unsustainable and are liable to be quashed. I, therefore, quash the impugned orders. The 4th respondent is directed to pass fresh orders on the question of approval of the petitioner's appointment by Ext.P1 in accordance with the above finding, as expeditiously as possible, at any rate, within one month from the date of receipt of a certified copy of this judgment and disburse the monetary benefits due to the petitioner within another one month from the date of approval. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge 4 S.SIRI JAGAN, J. ================== O.P.No. 35436 of 2002-R ================== J U D G M E N T 3rd February, 2010