IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931 WP(C).No. 11378 of 2009(N) ---------------------------------------- PETITIONER(S): ----------------------- GEORGE MATHEW,HIGH SCHOOL ASSISTANT (NATURAL SCIENCE),V.S.V.HIGHER SECONDARY SCHOOL, EZHUKONE, KOLLAM DISTRICT. BY ADVS.MR.M.V.THAMBAN MR.V.K.SATHYANATHAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA,REPRESENTED BY THE SECRETARY TO THE GOVT.,DEPARTMENT OF GENERAL EDUCATION,GOVT.SECRETARIAT,THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICERS, KOTTARAKKARA,KOLLAM DISTRICT. 4. THE MANAGER,V.S.V.HIGHER SECONDARY SCHOOL, EZHUKONE,KOLLAM DISTRICT. 5. A.JAYAMON, HIGH SCHOOL ASSISTANT (PHYSICAL SCIENCE)V.S.V.HIGHER SECONDARY SCHOOL EZHUKONE, KOLLAM DISTRICT. GOVT. PLEADER MR.A.J.VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.Ravindran, J. ================== W.P.(C) No.11378 of 2009 ===================== Dated this the 6th day of April, 2009. JUDGMENT Heard Sri. V.K.Sathyanathan, the learned counsel appearing for the petitioner and Sri. A.J. Varghese, the learned Government Pleader appearing for respondents 1 to 3. In the nature of the order that I propose to pass, it is not necessary to issue notice to or hear respondents 4 and 5. 2. The petitioner entered service as H.S.A. (Natural Science) in the fourth respondent's school on 1.6.1998. The said appointment was approved. During the year 2005-2006, the number of divisions sanctioned in the high school section was four. Therefore, four posts namely, 1 H.S.A. (Mathematics), 1 H.S.A. (Natural Science), 1 H.S.A. (Physical Science) and 1 H.S.A. (Social Studies) were sanctioned. During the academic year 2006-2007, there was a fall in the student strength and thereby the number of teachers was reduced to three. The petitioner being the junior to the fifth respondent, who is a H.S.A. (Physical Science) was retrenched. The petitioner unsuccessfully challenged his retrenchment from service before the District Educational Officer, Kottarakkara and the Director of Public Instruction. Thereafter, he moved a revision petition before the Government. By Ext.P7 order passed on 27.11.2008, the Government concurred with the subordinate educational officers. In view of the orders passed by the subordinate WP(C) 11378/09 -: 2 :- educational officers retrenching the petitioner from service, the salary drawn by him from 15.7.2006 to 31.12.2006 was also sought to be recovered. Exts.P5 and P7 orders passed by the Director of Public Instruction and the Government respectively and Ext.P8 letter sent by the Principal of the school to the petitioner calling upon him to refund the sum of Rs.57,209/- drawn by him as salary during the period from 15.7.2006 to 31.12.2006 are under challenge in this Writ Petition. 3. The pleadings and the materials disclose that the petitioner is junior to the fifth respondent. It is also admitted that during the academic year 2006-2007 only three posts of High School Assistants. in the core subjects were sanctioned in the school. Therefore, the petitioner being the junior science teacher was retrenched. The petitioner contends that as a Natural Science teacher, he should have been retained in the school for the reason that the workload demanded his retention in service as Natural Science teacher. The said contention did not find acceptance at the hands of the Director of Public Instruction who passed Ext.P5 order or the Government which passed Ext.P7. The petitioner has not been able to point out with reference to any Government order or the provisions in the Kerala Education Rules that if only one post of H.S.A. in Science is sanctioned in the school, the teacher qualified to teach Natural Science should be retained in preference to the Physical Science teacher. In my opinion, as the junior among the Science teachers, the petitioner had to give way to the fifth respondent. In these WP(C) 11378/09 -: 3 :- circumstances, I find no merit in the challenge to Exts.P5 and P7. As regards Ext.P8, I notice that the petitioner was retrenched from service only on 31.12.2006, after Ext.P5 order was passed by the Director of Public Instruction. The petitioner had actually worked as a teacher during the period from 15.7.2006 to 31.12.2006. In these circumstances, I am of the opinion that if the petitioner is aggrieved by Ext.P8, he should move the Government seeking redressal of his grievances. 4. I accordingly direct that in the event of the petitioner filing an appropriate representation before the Government within one month from today canvassing the correctness of Ext.P8 and the steps taken to recover the salary drawn by him during the period from 15.7.2006 to 31.12.2006, the Government shall consider the same and pass orders thereon within another two months thereafter. Till such time, the recovery proposed against the petitioner shall be kept in abeyance. The Government shall while passing orders in the matter, ascertain whether the petitioner had actually discharged duty as H.S.A. in the fourth respondent's school during the period from 15.7.2006 to 31.12.2006 and if it is found that he had in fact discharged duty as H.S.A. then the Government shall apply the principle underlying Section 70 of the Indian Contract Act in favour of the petitioner. P.N.Ravindran, Judge. ess