IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 WA.No. 1726 of 2007() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.3852/2004 Dated 04/12/2006 .................... APPELLANT: RESPONDENT NO.8: -------------------------------------------------- SMT. S.INDULEKHA, U.P.S.A. (RETRENCHED), S.K. V.U.P. SCHOOL, EVOOR NORTH, HARIPPAD EDUCATIONAL SUB DISTRICT. BY ADV. SRI.SAJEEV KUMAR K.GOPAL SRI.BINOY VASUDEVAN RESPONDENTS: PETITIONER & RESPONDENTS 1 TO 7: ---------------------------------------------------------------------------------- 1. S. JAYASREE, W/O. JAYAKRISHNAN, AGED 24, L.G. HINDI TEACHER (PART TIME), S.K.V.U.P. SCHOOL, EVOOR NORTH, HARIPPAD EDUCATIONAL SUB DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM. 4. THE DEPUTY DIRECTOR OF EDUCATION,ALAPPUZHA. 5. THE DISTRICT EDUCATIONAL OFFICER, MAVELIKKARA, ALAPPUZHA DISTRICT. 6. THE ASSISTANT EDUCATIONAL OFFICER, HARIPPAD, ALAPPUZHA DISTRICT. 7. THE MANAGER, S.K.V.U.P. SCHOOL, EVOOR NORTH, HARIPPAD EDUCATIONAL SUB DISTRICT. 8. THE HEADMASTER, S.K.V.U.P. SCHOOL, EVOOR NORTH, HARIPPAD EDUCATIONAL SUB DISTRICT. BY ADV. SRI.V.A.MOHAMMED - R1 BY SR.GOVERNMENT PLEADER SRI. SANDESH RAJA - R2TOR6 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30/06/2008 ALONG WITH WA NO. 1794 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B. KOSHY & P.N. RAVINDRAN, JJ. ---------------------------------------------------- W.A.NO.1726 & 1794 OF 2007 ---------------------------------------------------- Dated this the 30th day of June, 2008. JUDGMENT Ravindran, J: W.A.No.1726 of 2007 is filed by the eighth respondent in W.P. (C).No.3852 of 2004. W.A.No.1794 of 2007 is filed by the very same appellant, who is the sixth respondent in W.P.(C).No.22323 of 2003. The first respondent in W.A.No.1726 of 2007 is the petitioner in W.P.(C).No.3852 of 2004 and the first respondent in W.A.No.1794 of 2007 is the petitioner in W.P.(C).No.22323 of 2007. Since the issues arising for adjudication are one and the same, the writ petitions were heard together and disposed of by a common judgment. Therefore, these appeals were also heard together and are being disposed of by this common judgment. The parties are referred to as they are arrayed in W.A.No.1794 of 2007 and except otherwise mentioned, the documents referred to are those produced in W.P.(C).No.22323 of 2003. The brief facts of the case are as follows: W.A.Nos.1726/1794/07 . 2 2. The appellant in these appeals was appointed as U.P.S.A in S.K.V.U.P. School, Evoor north on 11..6.1993 in a regular vacancy which arose on 1.4.1993 when the incumbent of that post was appointed as Headmaster of the school. Ext.R6(a) is the appointment order issued in that regard. The appellant's appointment as U.P.S.A on 11.6.1993 was approved by the Assistant Educational Officer, Haripad. Though the appellant was appointed in a regular vacancy, she was relieved from service on 14.7.1994 due to fall in the student strength during the academic year 1994-95. Thereafter a leave vacancy of U.P.S.A arose in the school during the period from 4.10.1994 to 22.12.1994. In that leave vacancy, the appellant was appointed and that appointment was also approved by the Assistant Educational Officer, Haripad. On the cessation of the said leave vacancy, the appellant was relieved from service. She thereafter passed the B.A. Degree Examination in Hindi. While matters stood thus, by G.O.(MS) No.60/96 G.Edn. dated 15.2.1996 the State Government ordered that regular teachers of aided schools, who were retrenched on or before 15.7.1995 due to fall in the student strength after completing 7 years of service, will be entitled for protection. By G.O.(P) No.175/99/G.Edn. dated 26.7.1999 the State Government W.A.Nos.1726/1794/07 . 3 ordered that all aided school teachers who were in service as on 14.7.1996 will be given protection by retaining them in their respective schools. Aided School Teachers, who did not get the benefit of either of the aforesaid government orders moved the State Government and thereupon Ext.R6(b) order dated 26.3.2001 was issued. It reads as follows: In the Government Order read as 1st paper above orders were issued to protect all aided school regular teachers who were retrenched due to fall in divisions after completing 7 years of service on or before 15.7.1995. In the G.O. read as second paper above it was ordered that all aided school teachers who were in service as on 14.7.1996 will be given protection by retaining them in the respective schools. 2. subsequently, Government have received representations from non-protected teachers who did not complete seven years of regular service on or before 15..7.1995 and who were not in service against a regular division vacancy as on 14..7.1996. 3. Having examined the matter in detail in consultation with the Director of Public Instruction, Government are pleased to order that all aided school regular teachers appointed prior to 14..7.1996 who did not complete seven years of service on or before 15.7.1995 and who were not in service as on 14.7.1996 will be given protection. They will be absorbed in the future vacancies arising under the respective management. The period during which they are out of service till the date of deployment on protection will be regularised as eligible leave or Leave Without Allowance.” 2. By Ext.R6(b), aided school teachers like the appellant who W.A.Nos.1726/1794/07 . 4 did not have 7 years of service as on 15.7.1995 and were not in service as on 14.7.1996 were also given protection. The Government also ordered that they will be absorbed in future vacancies arising in their respective schools and that the period during which they were out of service till the date of deployment on protection, will be regularised as eligible leave or leave without allowances. Pursuant to and in terms of Ext.R6(b),on 4.6.2001 the Manager of the school issued Ext.R6(c) memo permitting the appellant to join duty in the school as a protected teacher with effect from 6.6.2001, the date on which the school reopened in the academic year 2001-02. As directed in Ext.R6(c) memo, the appellant joined duty on 6.6.2001. It is not in dispute that as on 6.6.2001 there was no open vacancy of U.P.S.A, against which the appellant could have been accommodated though a part time post of lower grade Hindi teacher was lying vacant in the school since 1.4.2001. The said vacancy had arisen due to the retirement of the incumbent Smt. Kamalamma. While issuing the staff fixation order for the academic year 2001-02 [Ext.R6(e)], the Assistant Educational Officer, Haripad directed as follows: W.A.Nos.1726/1794/07 . 5 “Note.1: Smt.P.K. Indira Bai, Smt. T.K. Thankamma and Smt. O. Santhamma UPSAs of the school, who are eligible for protection as per G.O. (MS)60/96/G.Edn. dated 15.2.96 and G.O.(P) No.175/99 dtd 26.7.99 have been deployed in Govt. Schools and working in Govt. UPS Perusery, Govt.H.S.Ambalapuzha, Govt.H.S. Veeyapuram respectively. The two other UPSAs viz.Smt.C.S. Sreekumary and Smt.S.Indulekha who are eligible for protection as per G.O.(P) 112/01/G.Edn dtd 26.3.01 were re-appointed by the Manager on 6.6.2001. The two UPSAs are granted protection as per the G.O. dated 26.3.01. Smt. C.S.Sreekumary will be deployed in Govt. school by the DD(E) Alappuzha. Smt. Indulekha, who is qualified for appointment as Hindi Teacher is provided in the P.T. Hindi teacher post of SKV UPS Evoor North from 6.6.01 to avoid fresh appointment of a Hindi Tr. and consequential commitment to the Govt. Smt. S. Indulekha will teach Hindi for 2 days in a week in Govt. LPS Kanichanalloor also. (Monday and Tuesday).” It is evident from Ext.R6(e) staff fixation order that the appellant was accommodated in the post of part time Hindi teacher from 6.6.2001 onwards. The appellant was also directed to work for two days in a week in Government L.P. School, Kanichanalloor. 4. Ext.R6(e) staff fixation order was issued on 12.7.2001. In the meanwhile, on 20.6.2001 the Manager appointed the sixth respondent in W.A.No.1794 of 2007 as lower grade Hindi teacher by Ext.P1 appointment order. By order passed on 12..7.2001 the W.A.Nos.1726/1794/07 . 6 Assistant Educational Officer, Haripad, declined to appoint her appointment as lower grade Hindi teacher. The Manager carried the matter in appeal to the Deputy Director of Education, Alappuzha, who by Ext.P2 order passed on 5.2.2002 rejected the appeal holding that in view of Ext.R6(b) Government Order, the appellant is entitled to be given protection and posted in her parent school as part time lower grade Hindi teacher. The sixth respondent thereupon moved the Director of Public Instruction. By Ext.P3 order passed on 6.4.2002 the Director of Public Instruction confirmed the orders passed by the Assistant Educational Officer, Haripad and the Deputy Director of Education, Alappuzha. In Ext.P3, the Director of Public Instruction noticed that as per the staff fixation order for the academic year 2001-02, the appellant, a protected teacher had to be accommodated in the post of part time Hindi teacher existing in the school and that there is no vacancy to accommodate the sixth respondent. The Manager thereupon filed a revision petition before the government. By Ext.P4 order passed on 24.3.2003 the State Government rejected the revision petition. In Ext.P4 the State Government held as follows: It is also not possible to appoint fresh W.A.Nos.1726/1794/07 . 7 hands when qualified protected teachers are available for posting. Her claim with reference to Rule 51 A Chapter XIV A K.E.Rs and the rulings of the court regarding appointment of 51 A claimants are not relevant here as she is to be appointed/absorbed not as a 51 A claimant to any post but based on the fact that she being a protected teacher, has to be absorbed in the earliest available vacancy against which she is fully qualified for posting. In the circumstances the request of the Manager to approve the appointment of Smt.S. Jayasree as P.T.L.G Hindi Teacher in SKV UPS. Evoor North, Haripad, Alappuzha is inadmissible and stands rejected. The Manager is strictly directed to implement the orders of Assistant Educational Officer, Haripad in the matter and report compliance to Government”. 5. The first respondent Manager moved the State Government seeking a review of Ext.P4. By order passed on 22.12.2003 (Ext.P8 in W.P.(C) No.3852 of 2004) the review petition was dismissed. The Manager and the sixth respondent teacher thereupon moved this Court challenging the orders passed by the Educational Officers and the State Government. By judgment delivered on 4.12.2006, the learned Single Judge held that as the appellant is not a specialist teacher/language teacher, she is not entitled to the benefit of Ext.R6 (d) government order dated 16.3.1999 and that as a Rule 51 A claimant, she can only seek re-appointment as UPSA and not as W.A.Nos.1726/1794/07 . 8 part time lower grade Hindi teacher. In that view of the matter, the learned Single Judge quashed the orders impugned in the writ petitions and directed the educational authorities to approve the appointment of the sixth respondent as lower grade Hindi teacher with effect from 20.6.2001. Hence, this Writ Appeal. 6. We have heard Sri. Sajeev Kumar K. Gopal, the learned counsel appearing for the appellant, Sri.V.A. Mohammed, the learned counsel appearing for the Manager and Sri.K. Sandesh Raja, the learned Government Pleader appearing for the official respondents. The learned counsel for the appellant contended that it was in implementation of the directions issued in Ext.R6(b) government order dated 26.3.2001 that the appellant was deployed in her parent school as a protected teacher and that the Manager had in fact given effect to Ext.R6(b) order by issuing Ext.R6(c) memo on 4.6.2001. It was submitted that as directed therein, the appellant rejoined duty on 6.6.2001. The learned counsel appearing for the appellant submitted that educational officers and the Government have recognised the entitlement of the appellant for protection and deployment in her parent school. The learned counsel also submitted that in view of Ext.R6(e), the W.A.Nos.1726/1794/07 . 9 appellant had to be accommodated in the vacant post of lower grade Hindi teacher existing in the school since 1.4.2001 and that the Manager as well as the sixth respondent have not challenged the direction issued in the staff fixation order. Lastly it was submitted that there was no vacancy as on 20.6.2001 to accommodate the sixth respondent and that the appellant was posted back in the school as a protected teacher only and not as a claimant under Rule 51 A of Chapter XIV A of the KER and therefore the principles laid down by the Division Bench of this Court in Sree Kumari Amma v. State of Kerala (1988 (2) KLT 359) have no application. Per contra, Sri. V.A Mohamed the learned counsel appearing for the Manager contended that the appellant is not entitled to the benefit of Ext.R6(b) order and that she can claim reappointment only in future vacancies of UPSA under Rule 51 A of Chapter XIV A of the KER. Sri.K.Sandesh Raja, the learned Government Pleader appearing for the official respondents supported the conclusions in the impugned orders. 6. We have considered the submissions made at the Bar by the learned counsel appearing on either side. It is evident from Ext.R6 (b) that the appellant is entitled to the benefit of the said order. W.A.Nos.1726/1794/07 . 10 Ext.R6(b) was issued with a view to give protection to teachers like the appellant, who did not have 7 years of service on or before 15.5.1975 and were not in service as on 14.7.1996. It is not in dispute that the appellant was appointed prior to 14.7.1996 against a regular vacancy of UPSA and that the said appointment was approved. It is also not in dispute that the appellant is qualified to hold the post of lower grade Hindi teacher. The Manager had on 4.6.2001 permitted the appellant to join duty and given effect to Ext.R6(b) government order. The learned Single judge, however, interfered with the decision of the Educational Officers and the State Government on the short ground that Ext.R6(d) government order dated 16.3.1999 applies only to specialist teachers and language teachers and that as the appellant does not belong in either of the said two categories, she is not entitled to the benefit of the said government order. It was also held that the appellant's claim is only under Rule 51 A of Chapter XIV A of the KER for appointment to the post of UPSA. 7. In our considered opinion, the appellant in these writ appeals is entitled to succeed. Ext.R6(b) gives protection to teachers like the appellant who did not have 7 years of service on or before W.A.Nos.1726/1794/07 . 11 15..7.1995 and were not in service as on 14.7.1996. Ext.R6(b) contemplates absorption of the appellant and teachers similarly placed, in future vacancies arising in their respective parent schools. Ext.R6(b) even provides that the period during which they were out of service till deployment on protection will be regularised as eligible leave or leave without allowances. The scheme set out in Ext.R6(b) is not one referable to Rule 51 A of Chapter XIV A of the KER. It is a device adopted by the Government to make use of the services of qualified thrown out teachers like the appellant who have approved service, by accommodating them in future vacancies arising in their parent schools. In view of Ext.R6(b) government order, the appellant had a right to be absorbed against the post of part time lower grade Hindi teacher which arose in the school on 1.4.2001, that is after the date on which Ext.R6(b) order was issued. The vacancy of part time lower grade Hindi teacher had arisen in the school on 1.4.2001 due to the retirement of the incumbent Smt. Kamalamma. In terms of Ext.R6(b), the appellant had a right to be redeployed in her parent school and to be accommodated against the post of lower grade Hindi teacher. It is also not in dispute that she is qualified to hold the said post. In view of the specific directions in Ext.R6(b), the Manager had no right W.A.Nos.1726/1794/07 . 12 or authority to appoint the sixth respondent as a lower grade Hindi teacher and therefore Ext.P1 order of appointment issued by him on 20.6.2001 appointing the sixth respondent as lower grade Hindi teacher in the vacancy that arose on 1.4.2001 is of no effect. Further, as rightly pointed out by the learned counsel for the appellant, neither the Manger nor the sixth respondent have challenged the staff fixation order. A learned Singled Judge of this Court has in Jayasree v. Director of Public Instruction (2002 (2) KLT 346) held that Managers of aided schools cannot ignore the directions of the Educational Officers and the State Government. It was held that such an attitude on the part of Managers of aided schools cannot be tolerated or condoned in the light of the principles governing the rule of law. In view of the clear directions in Ext.R6 (b) and R6(e), the Manager was not entitled to appoint the sixth respondent. The appointment of the sixth respondent is therefore invalid and no right flows therefrom. 8. For the reasons stated above, we hold the Manager was bound to comply with Ext.R6(b) and R6(e) and to accommodate the appellant in the post of lower grade Hindi teacher. We also notice that the main contention raised by the Manager as well as the W.A.Nos.1726/1794/07 . 13 sixth respondent is that the appellant can claim only the right under Rule 51 A of Chapter XIV A of the KER for appointment to the post of UPSA and that she cannot therefore be absorbed against the post of lower grade Hindi teacher. As noticed by us earlier, Ext.R6 (b) is not one intended to enforce a claim under Rule 51 A. On the other hand it was issued with a view to give protection to teachers like the appellant. We therefore hold that there is no merit in the contentions raised by the Manager and the sixth respondent and that the appellant is entitled to succeed. Accordingly both the writ appeals are allowed, the judgment of the learned Single Judge is set aside and the writ petitions are dismissed. No costs. J.B. KOSHY, JUDGE. P.N. RAVINDRAN, JUDGE. cl W.A.Nos.1726/1794/07 . 14