IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 WP(C).No. 5058 of 2008(B) ------------------------- PETITIONER(S): ------------------ S.R.KRISHNANKUTTY NAIR, MANAGER, K.S.M.H.S., EDAVATTAM, KOLLAM DISTRICT. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): ------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM. 3. THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA. 4. S.OMANA AMMA, HSA (MATHEMATICS), K.S.M.H.S., EDAVATTAM, KOLLAM DISTRICT. ADV. SRI.M.V.THAMBAN FOR R4 GOVERNMENT PLEADER SMT.SMITHAFOR R1-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/09/2009, ALONG WITH WPC NO. 15566 OF 2008 & WPC NO. 7563 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.5058/08 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE ORDER NO.B4/5730/06 DT 18.1.2007. EXT.P2: TRUE COPY OF THE ORDER NO.32730/A3/07/GL.EDN. DT 22.1.2008. EXT.P3: TRUE COPY OF the PROCEEDINGS OF THE DEO, KOTTARAKKARA NO.B3/4564/04 DT 12.10.2004. EXT.P4: TRUE COPY OF THE LETTER NO.B3/8353/04/L.DIS DT 21.10.2004. EXT.P5: TRUE COPY OF THE INTERIM ORDER IN WPC NO.34586/2004 DT 8.12.2004. EXT.P6: TRUE COPY OF THE PROCEEDINGS OF THE DEO, KOTTARAKKARA AS PER ORDER NO.B3/4690/05 DT 31.8.2005. EXT.P7: TRUE COPY OF THE VERIFICATION REPORT DT.10.7.2007. EXT.P8: TRUE COPY OF THE HIGHER LEVEL VERIFICATION REPORT DTD.17.1.2008. EXT.P9: TRUE COPY OF THE GO(P) NO.317/2005/G.EDN. DTD 17.8.2005. EXT.P10: TRUE COPY OF THE GO(P) NO.226/2003/G.EDN. DTD.14.8.2003. EXT.P11: TRUE COPY OF THE GOVERNMENT ORDER NO.7615/A3/2007/G.EDN. DTD. 31.5.2007. EXT.P12: TRUE COPY OF THE ORDER NO.H2/53354/2007 DTD.4.8.2007. EXT.P13: TRUE COPY OF THE INTERIM ORDER IN WPC NO.24969/2007 DTD. 1.11.07. EXT.P14: TRUE COPY OF THE COUNTER AFFIDAVIT FILED IN WPC NO.24969/2007. EXT.P15: TRUE COPY OF THE COMMUNICATION NO.B4/5730/06 DTD.14.2.2008 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM. EXT.P16: TRUE COPY OF THE ORDER NO.B3/4863/06/D DIS.DTD.12.1.2007. EXT.P17: TRUE COPY OF THE ORDER NO.B3/2267/08/D DIS DTD. 31.3.2008. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NOs. 5058, 7563 & 15566 OF 2008 ============================== Dated this the 15th day of September, 2009 J U D G M E N T Among the three cases, I shall first deal with WP(C) No.15566/08. 2. The writ petition is filed by Smt.S.Smitha, who has been appointed as an HSA(Physical Science) by the 2nd respondent Manager of K.S.M.V.H.S.S, Edavattom, Kollam District in the retirement vacancy of Sri.P.Surendran Pillai, who retired from service on 31/5/2007. Ext.P1 is the appointment order. By Exts.P2 and P3, the Manager submitted proposal for approval of the appointment. However, the appointment has not been approved, which according to the petitioner was for the reason that in Ext.P4 staff fixation order issued on 31/3/2008 for the academic year 2007-08, there is a remark that Smt.Omana Amma, the 3rd respondent in this writ petition, HSA(Maths) having continuous service w.e.f. 20/6/83 has been recalled and accommodated against the second post of HSA(Physical Science) vide order of the Deputy Director of Education, Kollam till deployment. It was thereupon that this writ petition was filed WPC Nos.5058, 7563 & 15566/08 :2 : praying to quash the aforesaid remarks in Ext.P4 staff fixation order and to direct the DEO, the 1st respondent to grant approval to the appointment of the petitioner w.e.f. 1/6/07 with all consequential benefits. 3. Respondents 1 and 3 have filed counter affidavits. In the counter affidavit filed by the 1st respondent, the fact that the appointment of the petitioner was against the retirement vacancy of Sri.Surendran Pillai HSA(PS) and that appointment order was submitted to the office on 13/6/07 for approval are admitted. It is stated that according to the staff fixation order, the second post of HSA(Physical Science) was set apart for accommodating Smt.Omana Amma and therefore, there was no vacancy to accommodate the petitioner w.e.f. 4/6/07. It is further stated that as per GO(P) No.46/06/G.Edn. dated 01/02/06, the school being one opened after 1979, even if there was an open vacancy, it should have been set apart for accommodating a protected teacher and that for that reason, the petitioner could not have been appointed. 4. The 3rd respondent in the counter affidavit submits that she has been recalled to the school of the 2nd respondent based WPC Nos.5058, 7563 & 15566/08 :3 : on GO(P) No.226/03/G.Edn. dated 14/8/03. It is also stated that in view of GO(P) No.317/05/G.Edn imposing ban on appointment from the academic year 2006-07 onwards, the petitioner could not have been appointed. Yet another plea raised is that the petitioner should have pursued the statutory remedies rather than invoking the extra ordinary jurisdiction of this Court. 5. In so far as the contention raised by the 1st respondent that the second post available as per the staff fixation order was for accommodating protected teacher Smt.Omana Amma, who is recalled based on GO(P) No.226/03/G.Edn, along with IA 6159/09, the petitioner has produced as Ext.P8, GO(P) No. 8536/A3/2008/G.Edn dated 28/4/2009 by which the Secretary to the Government has informed the Deputy Director of Education, Kollam that recalling Smt.Omana Amma without a sanctioned post was highly irregular and against the spirit of the provisions contained in GO(P) No.226/03/G.Edn dated 14/8/2003. On this basis, Deputy Director is directed to cancel his orders recalling Smt.Omana Amma H.S.A(Maths) to the 2nd respondent school without a sanctioned post and issue consequential orders. Nobody has a case that this order has been challenged by anyone WPC Nos.5058, 7563 & 15566/08 :4 : of the parties so far. If that be so, the contention that the second post allowed as per the staff fixation order was for accommodating a protected teacher Smt.Omana Amma no longer is available to be held against the petitioner. Therefore, the impugned remark in Ext.P4 staff fixation order is illegal. 6. In so far as the other contention that as per GO(P) No.46/06/G.Edn, even if there was an open vacancy, that ought to have been filled up by a protected teacher, the school being established after 1979, in Ext.P9, the argument note filed by the manager before the Government, it is stated thus, In this context, I make it further clear before the Government that I have reserved one vacancy of H S A (Malayalam) that arose consequent to the retirement of Smt.Vijayamma Kunjamma H S A (Malayalam) on the afternoon of 31st March, 2008 to satisfy the requirement under the provisions of GO(P) No.46/2006/Gl.Edn dated 1.2.2006 and it is left to the Deputy Director of Education, Kollam to effect the required deployment under protection. 7. Therefore, the Manager having undertaken before the Government that the retirement vacancy of HSA(Malayalam) has been set apart to satisfy the requirements of GO(P) No.46/06/Gl.Edn, in my view, that reason also cannot be held against the petitioner. WPC Nos.5058, 7563 & 15566/08 :5 : 8. Referring to Ext.P10, the information issued by the Public Information Officer that, as on 15/7/2008, no HSA (Physical Science) was awaiting deployment, it is also pointed out, GO(P) No.46/06, cannot be a reason to approve his appointment. In these circumstances, Smt.Omana Amma's recalling or the absence of a protected teacher in the school cannot be a reason to withhold the approval of the appointment of the petitioner. 9. Similarly, in so far the ban imposed as per GO(P) No.317/05/G.Edn is concerned, on a reading of the said Government order, I am inclined to think that the filling up of retirement vacancies is not affected in any manner by virtue of the ban imposed therein. Necessarily therefore, the appointment of the petitioner in WP(C) No.15566/08 deserves to be approved. 10. As a necessary consequence of my conclusion in WP(C) No.15566/08, the prayer made by Smt.Omana Amma who has filed WP(C) No.7563/08 for continuing in the school referred to above has to be rejected. She necessarily has to be returned to the school from where she has been recalled and it is the responsibility of the authorities to pass necessary orders in this behalf. She has a further complaint that with the issuance of WPC Nos.5058, 7563 & 15566/08 :6 : Ext.P8 referred to above, she was not permitted to mark attendance and work in the school. It is also her case that she has not been paid salary for the period thereafter. On the other hand, the case of the Manager seems to be that she was absent. I find from the records that complaining of all these, Smt.Omana Amma has approached the DEO by filing Exts.P7 and P9 and the Deputy Director by filing Ext.P8. 11. In view of the disputed questions that are raised by the Manager and Smt.Omana Amma, I direct the DEO, Kottarakkara to enquire into the complaint of Smt.Omana Amma and it is directed that on such enquiry, which shall be held with notice to Smt.Omana Amma and the Manager, if the DEO finds that if there is substance in what she complains, the DEO shall issue necessary consequential orders remedying her grievances in this behalf. 12. Now what remains is WP(C) NO.5058/08 filed by the Manager of the school. Two issues are raised in this writ petition. One is that as per Exts.P16 an P17 staff fixation orders issued for the year 2006-07 and 2007-08 additional posts are not sanctioned relying on GO(P) No.317/05/G.Edn and challenge is against the said Government order. WPC Nos.5058, 7563 & 15566/08 :7 : 13. In the judgment in WP(C) No.23452/07 and connected cases rendered today, this Court has already upheld the validity of the Government order and the ban imposed by the aforesaid Government order from the year 2006-07. So long as the ban was in force, additional divisional vacancies could not have been sanctioned and I do not find any merit in the challenge against Exts.P16 and P17. 14. In his writ petition, the Manager has also challenged Ext.P1, the order dated 18/1/07, by which extending the benefit of GO(P) No.226/03/G.Edn dated 14/8/03, Smt.Omana Amma has been recalled to his school. The contention raised by the counsel for the petitioner is that even if it is assumed that Smt.Omana Amma satisfies the requirement of completion of 23 years of service and grant of Selection Grade, GO(P) No.226/03/G.Edn, the benefit of which has been extended, takes in only retention of such teachers in the school without deployment and do not provide for recalling deployed teachers and that too in the absence of any vacancy in the concerned subject. 15. In this behalf, counsel also relies on Ext.P14, the counter affidavit filed by the State of Kerala in WP(C) WPC Nos.5058, 7563 & 15566/08 :8 : No.24969/07, para 3 of which reads as under: Protected teachers once deployed could not be recalled to parent school solely due to the fact that they have completed 23 years of service. This concession was granted to the teacher at the time of deployment. To make it more clear, a teacher who has 23 years of service at the time of deployment can be retained in the parent school without deployment. For recalling him/her to parent school, there should be vacancy in the parent school. Here about 5 vacancies of H.S.A. Core subject (English) occurred in the school after the deployment of protected teachers H.S.A. (Core Subjects) from the school. The above H.S.A's (Core subjects) including the 5th respondent became retrenched before the introduction of the new cadre of H.S.A.(English) and as such the introduction of H.S.A. (English) could be made only in a phased manner and that is being followed in the state at present. 16. Learned counsel for the petitioner also relied on Circular No.H265466/06 dated 5/1/07 issued by the Director of Public Instructions, which also states that in the absence of posts, redeployed teacher completed 23 years of service will have no right to be recalled. It is stated that the vacancy to which Smt.S.Smitha, the petitioner in WP(C) No.15566/08 was appointed is that of (HSA)Physical Science, where as Smt.Omana Amma is a HSA(Maths) and that there was no post of HSA(Maths) available to accommodate her. 17. The counsel for Smt.Omana Amma argued that this WPC Nos.5058, 7563 & 15566/08 :9 : was a benefit extended to senior teachers and therefore even in the absence of post in the concerned subject, if a vacancy is available, the senior teacher is entitled to be recalled. First of all GO(P) No.226/03/G.Edn provides for exemption for senior teachers from redeployment and do not deal with cases of recalling and such recalling is possible only if there is a vacancy in the concerned subject. This position is fully supported by Ext.P14 affidavit and Circular No.H265466/06 dated 5.1.2007 issued by the DPI. This was reason for cancelling the order recalling Smt.Omana Amma as per Ext.P8 in WP(C) NO.15566/08. If this be the position, necessarily Ext.P1 produced in WP(C) NO.5058/08 cannot be sustained and is to be quashed. 18. Accordingly, the writ petitions are disposed of with the following directions. (1) The remark “Smt.Omana Amma, HSA(Maths) having continuous service w.e.f. 20.6.83 has been recalled and accommodated against the 2nd post of HSA(PS) vide order No.B4/5730/06 of the DD(E) Kollam till deployment” contained in Ext.P4 produced in WP(C) NO.15566/08 will stand quashed. DEO, Kottarakkara is directed to approve the appointment of the WPC Nos.5058, 7563 & 15566/08 :10 : petitioner in WP(C) No.15566/08, Smt.S.Smitha, appointed by the 2nd respondent Manager therein and pass orders within one month. (2) Ext.P1 produced in WP(C) No.5058/08 recalling Smt.Omana Amma to the parent school will stand set aside. (3) WP(C) No.7563/08 will stand disposed of directing that Smt.Omana Amma will be immediately deployed to the extend possible, to the school from where she was recalled itself and the DEO, Kottarakkara will enquire into the complaints made by her as per Exts.P7 and P9 with notice to the parties and if it is found that there is substance in the complaint, necessary orders remedying her grievance will be passed. ANTONY DOMINIC, JUDGE Rp