IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 WP(C).No. 16491 of 2010(J) -------------------------- PETITIONER(S): --------------- MINIMOLE C., HSA ENGLISH, AKM VHSS, THADICADU P.O.,PUNALUR, KOLLAM DISTRICT. BY ADV. SMT.P.V.ASHA SMT.VINITHA B. RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESNTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMETN, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, KOLLAM. 4. DISTRICT EDUCATIONAL OFFICER,PUNALUR. 5. MANAGER, AKM VHSS, THADICADU P.O., PUNALUR - 691306. GOVERNMENT PLEADER, SMT.NISHA BOSE FOR R-1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/10/2011,, THE COURT ON 03/11/2011 DELIVERED THE FOLLOWING: W.P.(C).No. 16491/2010 APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE ORDER DATED 0/06/2007 OF THE FIFTH RESPONDENT. EXT.P2 TRUE COPY OF THE ORDER DATED 01/06/2007 OF THE FIFTH RESPONDENT EXT.P3 TRUE COPY OF THE STAFF FIXATION ORDER FOR THE YEAR 2007-08 EXT.P4 TRUE COPY OF THE ORDER DATED 01/03/2008 OF THE 4TH RESPONDENT EXT.P5 TRUE COPY OF THE APPEAL DATED 21/07/2008 OF MANAGER TO THE 3RD RESPONDENT EXT.P6 TRUE COPY OF THE ORDER NO.B6/4774/08/K.DIS DATED 31/10/2008 OF THE 3RD RESPONDENT EXT.P7 TRUE COPY OF THE REVISION PETITION SUBMITTED BY THE PETITIONER DATED 18/11/2008 EXT.P8 TRUE COPY OF THE ORDER DATED 8/4/2009 OF THE 2ND RESPONDENT EXT.P9 TRUE COPY OF REVISION PETITION DATED 29/04/2009 BY THE PETITIONER EXT.P10 TRUE COPY OF GO RT NO.1651/2010/G.EDN. DATED 16/4/2010 EXT.P11 TRUE COPY OF THE CIRCULAR DATED 4/4/2005 OF THE GOVT. EXT.P12 TRUE COPY OF THE LETTER DATED 10/11/2009 OF THE DDE. EXT.P13 TRUE COPY OF THE LETTER DATED 20/10/2009 OF 3RD RESPONDENT. EXT.P14 TRUE COPY OF THE ORDER DATED 27/05/2006 OF THE GOVT. RESPONDENTS' EXTS: NIL \\TRUE COPY// P.A TO JUDGE T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.16491/2010-J ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 3 rd day of November, 2011 J U D G M E N T The filling up of a post of High School Assistant (English) has resulted in a tug between the petitioner who is a fresh appointee, with Post Graduation and B.Ed in English and protected teachers who have been deployed from the school and working as H.S.A in core subjects. 2. The vacancy arose in a High School on 01/06/2007 consequent on the promotion of Smt.T.L.Gracykutty, H.S.A as Headmistress. The Manager appointed the petitioner as H.S.A. (English) in the promotion vacancy. The promotion of the Headmistress was approved as per order dated 03/07/2007 by the District Educational Officer. 3. Ext.P3 is the staff fixation order for the year 2007-08. In H.S.A (English) one post has been sanctioned. The District Educational Officer mainly pointed out two reasons for rejecting the grant of approval. Those are, (a) that the vacancy should be W.P.(C). No.16491/2010 -:2:- filled up by appointing a protected teacher of another aided school and, (b) that the vacancy has to be filled up by recalling a protected teacher in H.S.A (Core subject) as two protected teachers of the same school Shri C.T.Symon, H.S.A (S.S) and Shri K.J.Prasad Kumar, H.S.A (Maths) are available. In the appeal filed by the Manager, the said view has been confirmed and the revision filed before the Director of Public Instruction resulted in Ext.P8 order, reaffirming the same. A revision petition was filed by the petitioner before the Government and overruling the objections and arguments raised by the petitioner, the Government also took the view in Ext.P10 that the vacancy should have been filled up by a protected teacher from H.S.A (Core subjects). 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. Learned counsel for the petitioner submitted that no protected teachers are available in English in the District and, therefore, the reason that the vacancy had to be filled up by a protected teacher is not sustainable. The Manager has already appointed a W.P.(C). No.16491/2010 -:3:- protected teacher in another subject as evident from Ext.P13. It is further pointed out that the further objection that the protected hand in H.S.A (Core subjects) has to be recalled goes against the view taken by the Government in Ext.P14 order passed in another case. The sanctioned post is H.S.A (English) alone. 6. The learned counsel for the petitioner points out that the Government as per G.O.(MS).No.11/02/G.Edn. dated 07/01/2002 introduced the post of H.S.A (English) to uplift the standard of teaching in English. It is pointed out that the vacancies which arise due to promotion could be filled up by appointing fresh hands. Later, the Rules itself have been amended by introducing Rule 6.I in Chapter XXIII K.E.R. It is therefore submitted that when the minimum subject requirement has to be observed, a H.S.A (English) alone can be appointed. Reference was also made to the principles stated by the Apex Court in Smitha Johny v. Josny Varghese and others [ILR 2010 (4) Ker 533] wherein the right of a claimant under Rule 43 of W.P.(C). No.16491/2010 -:4:- Chapter XIV A K.E.R for promotion as H.S.A (English) was upheld. 7. The learned Government Pleader submitted that when protected H.S.A (Maths) and H.S.A (S.S) are available, any of those teachers could be recalled to the parent school. It is pointed out that the object of G.O. dated 07/01/2002 will only be served when retrenchment is avoided of teachers working in H.S.A (Core Subjects). It is pointed out that all the authorities found that the above teachers were handling English classes also. 8. Rule 6.I of Chapter XXIII K.E.R reads as follows: “6.I Sanctioning of posts of High School Assistant (English): Notwithstanding anything contained in any other rule in this Chapter the post of High School Assistant (English) shall be sanctioned on the basis of the periods allocated to English, observing minimum subject requirement. Note:- Subject to any general order that may be issued by the Government, the above W.P.(C). No.16491/2010 -:5:- rule shall be implemented in a phased manner without causing retrenchment of existing High School Assistants (core subjects) as on 7 th January 2002, and observing the minimum subject requirement.” A reading of the same will show that post of H.S.A (English) has to be sanctioned observing minimum subject requirement. The note therein seeks implementation of the Rule in a phased manner. The rider provided therein is that the creation of the post shall not cause retrenchment of existing H.S.As in core subjects as on 07/01/2002 as well as observance of minimum subject requirement. 9. Herein, the staff fixation order clearly provides for one post of H.S.A (English) for the year 2007-08. The vacancy arose due to promotion of Smt.T.L.Gracykutty, H.S.A as Headmistress. In the Government Order dated 07/01/2002 it was provided that the new cadre of H.S.A (English) will be created by allocating periods of English as it was being allocated to core subjects like Mathematics, Science and Social Studies. Actually, what has to be ensured under the W.P.(C). No.16491/2010 -:6:- said process is the avoidance of retrenchment of existing H.S.A (core subject) teachers. The new cadre has to be created by appointing qualified hands against vacancies caused by retirement/promotion/resignation etc. 10. Thus in this case the post of H.S.A (English) has been created in the staff fixation order. There is no plea that the H.S.A (Maths) and H.S.A (S.S) teachers became protected as a result of creation of the post of H.S.A (English). Only in such cases alone it can be seen that the retrenchment can be avoided. The two teachers mentioned in the orders, became protected teachers in earlier years due to reduction of posts in those subjects. 11. When Rule 6.I of Chapter XXIII K.E.R clearly provides for creation of the post of H.S.A (English), that also by observing minimum subject requirement, there cannot be any quarrel that a H.S.A (English) can be appointed in the post. Therefore, it is obvious that a qualified hand alone can be appointed in terms of Rule 6.I of Chapter XXIII K.E.R. W.P.(C). No.16491/2010 -:7:- 12. The objection raised by the District Educational Officer in Ext.P4 is that it has to be filled up by recalling a protected teacher in H.S.A (Core subjects). Merely because the two teachers mentioned were teaching English classes that cannot clothe any right on them to be called back to the school for appointment as H.S.A (English). 13. Thus as a matter of right such teachers in H.S.A (core subjects) cannot claim redeployment to parent school as evidently, their redeployment depends upon sanction of posts or arising of vacancies in H.S.A (Maths) and H.S.A (S.S). 14. Therefore, the said reason that two such protected hands are available cannot be a ground to reject the approval of appointment of the petitioner. In Ext.P14 order, the Government was of the view that H.S.A (Mathematics) and H.S.A (S.S.) cannot be appointed against posts of H.S.A (English) under any rules or orders in force and, minimum subject requirement has to be satisfied when appointments are considered against the posts of H.S.As. The said view is the correct one on an interpretation of Rule 6.I of W.P.(C). No.16491/2010 -:8:- Chapter XXIII K.E.R. But, in spite of the same, in the impugned order Ext.P10, the Government took a contrary view that such H.S.A (Core Subject) teachers could be recalled, which cannot be justified. 15. The other reason pointed out is that the vacancy will have to be filled up by a protected teacher. The petitioner has pleaded that a protected teacher H.S.A (English) was not available in the district as on the date of her appointment. There is no dispute on the said fact in the counter affidavit. The pleadings of the petitioner in that regard is supported by Ext.P12, a reply given by the Deputy Director of Education, Kollam that in the year 2007-08 no protected H.S.A (English) is available in Kollam District. The Manager has already complied with the obligation to appoint a protected hand [H.S.A (S.S)] as evident from Ext.P13. 16. The approval of appointment could be rejected only for valid reasons. Herein, there is a sanctioned post of H.S.A (English) as per the staff fixation order and there is no dispute that the petitioner is qualified for appointment also. Evidently, therefore, W.P.(C). No.16491/2010 -:9:- the appointment of the petitioner is only in tune with the provisions contained in Rule 6.I of Chapter XXIII K.E.R. 17. In that view of the matter, the impugned orders cannot be supported. The appointment of the petitioner is consequent on the promotion of Smt.T.L.Gracykutty, H.S.A as Headmistress. By creation of the post of H.S.A (English), nobody has been sought to be retrenched also. 18. The decision of the Apex Court in Smitha Johny's case [ILR 2010 (4) Ker 533] shows that a vacancy of H.S.A (English) arose on 01/04/2005 and the same was filled up by a qualified U.P.S.A by promotion. Of course, there was a claimant who was not qualified as on the date of occurrence of vacancy the said claim was adjudicated by the Apex Court. 19. The writ petition is therefore allowed. The impugned orders Exts.P4, P6, P8 and P10 are quashed. There will be a direction to approve the appointment of the petitioner as H.S.A (English) pursuant to Ext.P1 order of appointment and appropriate orders will be passed within a period of six weeks from the date of W.P.(C). No.16491/2010 -:10:- receipt of a copy of this Judgment by the District Educational Officer. The petitioner will be sanctioned consequential monetary benefits also. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms