IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR, THE HONOURABLE MR. JUSTICE V.GIRI & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 WP(C).No. 12707 of 2005(K) ------------------------------------------------- PETITIONER(S): ---------------------- 1. A.G.ABRAHAM, HIGH SCHOOL ASSISTANT (MATHEMATICS), MAR THOMA HIGH SCHOOL, MEKKOZHOOR, PATHANAMTHITTA. 2. R.SHYAMALAKUMARI, HIGH SCHOOL ASSISTANT (NATURAL SCIENCE), MAR THOMA HIGH SCHOOL, MEKKOZHOOR, PATHANAMTHITTA 3. N.SREENATH, HIGH SCHOOL ASSISTANT (SANSKRIT), MAR THOMA HIGH SCHOOL, MEKKOZHOOR, PATHANAMTHITTA. BY ADV. SRI.P.K.BALAKRISHNAN NAIR RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT EDUCATIONAL OFFICER, PATHANAMTHITTA. 3. THE MANAGER, MAR THOMA HIGH SCHOOL, MEKKOZHOOR P.O., PATHANAMTHITTA. 4. ALEYAMMA VARGHESE, HIGH SCHOOL ASSISTANT (SOCIAL SCIENCE), MAR THOMA HIGH SCHOOL MEKKOZHOOR P.O., PATHANAMTHITTA. R1 & R2 BY SR. GOVT. PLEADER SRI.BENNY GERVASIS. R3 BY ADVS. SRI.SATHISH NINAN & SRI.SANTHOSH MATHEW R4 BY ADV. SRI.V.PHILIP MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON 29.07.2009 DELIVERED THE FOLLOWING: WP(C).No. 12707 of 2005(K) APPENDIX PETITIONERS' EXHIBITS: Ext.P1: True copy of the order No.A1-1339/97 dt.16.12.1997 issued by the 2nd respondent. Ext.P2: True copy of the order No.4940/99/B2 dt. 31.5.1999 issued by the 2nd respondent. Ext.P3: True copy of the seniority list prepared by the third respondent dt.1.1.2004. Ext.P4: True copy of the representation dt.20.4.2004 sent by the 1st petitioner to the 2nd respondent. Ext.P5: True copy of the representation dt.20.4.2004 sent by the 2nd petitioner to the 2nd respondent. Ext.P6: True copy of the representation dt. 20.4.2004 sent by the 3rd petitioner to the 2nd respondent. Ext.P7: True copy of the order dt.30.6.2005 sent by the 2nd respondent to the first petitioner. Ext.P8: True copy of the Order No.B2-11350/96 dt. 20.10.1997 sent by the 2nd respondent to the first petitioner. Respondents' Exhibits: Ext.R4(a): Copy of G.O.(MS) No.104/69/Edn. dt. Trivandrum 6.3.1969. Ext.R4(b): Copy of the order dt. 6.7.2004 issued by the 2nd respondent. Ext.R4(c): True copy of the proceedings of the D.E.O., Pathanamthitta, dt. 8.6.2005. Ext.R4(d): True copy of the proceedings of the District Educational Officer, Pathanamthitta, dt. 31.7.2006. Ext.R3(1): True copy of the communication received from the D.E.O. Dated 23.4.2008 Ext.R3(2): True copy of the representation submitted by the third respondent to the Deputy Director of Education dt. 7.5.2008 (True copy) K. BALAKRISHNAN NAIR, V. GIRI & C.T. RAVIKUMAR, JJ. ------------------------------ W.P.(C) No.12707 of 2005 ------------------------------ Dated this, the 29th day of July, 2009 JUDGMENT Balakrishnan Nair, J. The point that arises for decision in this case is, whether the protected teachers will lose seniority in their parent school on being deployed to Government schools or whether they can count the period of their deployment also for the purpose of reckoning seniority in their parent school. 2. The brief facts of the case are the following: The petitioners and the 4th respondent were High School Assistants of Mar Thoma High School, Mekkezhoor P.O., managed by the third respondent. The petitioners were appointed in the cadre of High School Assistants in the third respondent's school on 30.6.1977, 7.6.1978 and 4.6.1989 respectively. Their subjects were Mathematics, Science and Sanskrit respectively. The 4th respondent was appointed as High School Assistant (Social Studies) in the third respondent's school on 1.6.1977. While so, the 4th respondent became a WPC No.12707/05 - 2 - surplus hand in the said school. As a result of division fall, there was reduction of one post of H.S.A. (Social Studies) as per staff fixation order issued by the District Educational Officer for the year 1997-98. Being the junior-most among the Social Studies hands, she was deployed by the Deputy Director of Education, Pathanamthitta by Ext.P1 order dated 16.12.1997 to Government Higher Secondary School, Kadammanitta. Later, the Deputy Director by Ext.P2 order dated 31.5.1999 reposted the 4th respondent to her parent school, as a retirement vacancy arose in that school. She rejoined the school on 1.6.1999. While so, Ext.P3 seniority list dated 15.3.2004 of the H.S.As. of the school as on 1.4.2004 was published, in which the 4th respondent was shown as senior to the petitioners. So, they filed Exts.P4 to P6 objections to the said seniority list on 20.4.2004. When no action was taken on those representations, the writ petition was filed in April 2005 praying to quash Ext.P3 and also to direct respondents 2 and 3 to appoint the first petitioner as Headmaster in the third respondent's school in the vacancy that was going to arise on WPC No.12707/05 - 3 - 1.6.2005 in preference to the 4th respondent. They also prayed for revising the seniority list as prayed for in their representations. Other incidental reliefs were also sought. While so, their representations were rejected by Ext.P7 order dated 30.6.2005 by the D.E.O., Pathanamthitta. Therefore, the writ petition was amended incorporating the challenge against Ext.P7 also. 3. According to the petitioners, since the 4th respondent does not have continuous service in the post of High School Assistant, and as her service is broken between 16.12.1997 and 31.5.1999, she is junior to them. The 4th respondent filed a counter affidavit claiming that a protected teacher has got a lien in the school and therefore, though she served outside, she should be treated as continuing in her parent school for the purpose of seniority and promotion. According to her, she was only transferred from her school to Government Higher Secondary School and she was working on work arrangement basis and therefore, her seniority is in no way affected. During the pendency of the writ petition, there WPC No.12707/05 - 4 - was more than one interim order passed by the Single Bench, but it is unnecessary to refer to those orders or to the various petitions and affidavits filed in the writ petition. The learned Single Judge who heard the writ petition, noticing the alleged conflict between various decisions rendered by this court referred the matter to be heard by the Division Bench. The Division Bench, which heard the matter referred the case to be heard by a larger Bench. The Division Bench took the view that, the matter requires hearing by a larger Bench in view of the observations in the Full Bench decisions of this Court in Sasidharan Nair v. State of Kerala, 2003(1) KLT 998(FB) and Pushparaj v. Manoharan, 2006(2) KLT 951 (FB). 4. First, we will consider, whether in view of the above Full Bench decisions, the point that arises for consideration in this case has to be referred to a larger Bench. The decision in Sasidharan Nair's case (supra) was concerning the following point: “Does a teacher who is transferred from one WPC No.12707/05 - 5 - school to another and is placed at the bottom of the seniority list in the new school, which is under a different management, lose the benefit of the service rendered by him in the previous school for determining the eligibility for promotion to the post of Headmaster.” As per Rule 44A of Chapter XIV-A, Kerala Education Rules, (hereinafter referred to as “K.E.R.”), twelve years graduate service is a mandatory qualification for appointment to the post of Headmaster in the High School. This Court held that the service rendered in the parent school of the incumbent can also be counted for the purpose of computing graduate service in the new school to which the said teacher was transferred, even though the said past service will not be counted for the purpose of seniority. The incumbent concerned was a transferee from one aided school to another aided school under Rule 11 of Chapter XIV-A of the K.E.R.. The point decided in the said decision has nothing to do with the point that arises for decision in this case. The point that arose for decision in Pushparaj v. Manoharan (supra) was, whether the service rendered in the WPC No.12707/05 - 6 - parent school could be counted in the new school for the purpose of computing the five years teaching experience of a junior graduate teacher to get preference in the matter of appointment as Headmaster of an aided U.P. School over a senior non graduate teacher. This also was the case of a teacher who got inter-management transfer from one aided school to another aided school under Rule 11 of Chapter XIV-A of K.E.R.. The Full Bench in Pushparaj's case (supra), held that the observations in Sasidharan Nair's case (supra) that such service could be counted, was correct. So, we notice that the decision in Pushparaj's case (supra), has nothing to do with the point that arises for decision in this writ petition. Further, there is no conflict between these decisions. So, it is unnecessary to refer the matter to a larger Bench. 5. Learned counsel for the petitioners, Sri.P.K.Balakrishnan Nair, submitted that in view of Rule 37 of Chapter XIV-A of KER, and various decisions interpreting the said provision, the 4th respondent can count seniority in her school only from 1.6.1999, the date on which she rejoined the WPC No.12707/05 - 7 - school. Learned Senior Government Pleader, Sri.Benny Gervasis, supported the above proposition. Sri.Philip Mathews, who appeared for the 4th respondent, on the other hand, submitted that the period the 4th respondent was transferred to the Government school, should be treated as part of her service in her parent school and so, her seniority was in no way affected. We also had the benefit of hearing M/s.V.A. Muhammed, M.V.Thamban, George Varghese Perumpallikuttiyil and O.D.Sivadas, who appeared in the connected cases. 6. Though the 4th respondent would submit that under Ext.P1 she was transferred to Government Higher Secondary School, it is evident that she was so transferred as she became a surplus hand in her parent school. There is no provision for transfer of an aided school teacher to a Government Higher Secondary School, unless she is a protected teacher. The words “protected teacher” were not defined in the Kerala Education Act or the Rules framed thereunder. The said term was for the first time defined in Note 1A to Rule 51A of Chapter XIV-A, KER, which was added as per G.O.(P) WPC No.12707/05 - 8 - No.187/05/G.Edn. dated 17.6.2005 notified in the gazette dated 25.6.2005. The newly introduced Note 1A to Rule 51A reads as follows: “Note 1A:- Fresh appointments to vacancies arising in the same or higher or lower category of teaching posts under the Educational Agency shall be made only after providing re-appointment to such teachers thrown out from service and protected teachers available under the Educational Agency. Explanation: For the purpose of this clause, “Protected teacher, means a teacher who has been retrenched for want of vacancy after putting such length of regular service that may be specified by the Government or who is eligible for such Protection as per G.O.(Ms) No.104/69/Edn. dated 6-3-1999 or G.O.(Ms) No.231/84/G.Edn. dated 27-10-1984 or any other orders issued by Government from time to time.” 7. The Government Order providing for protection for the retrenched teachers was issued by the Government for the first time, as per G.O.(Ms) No.104/69/G.Edn. dated 6.3.1999. The relevant portion of the said Government Order reads as follows: “It has been represented by the Joint Council of Teachers Associations that difficulties are being experienced by them due to unexpected retrenchment of qualified teachers with long service from aided schools due to reasons beyond WPC No.12707/05 - 9 - their control. It is a fact that in certain cases qualified teachers with long service happen to be retrenched from aided schools, due to fall in student strength, change of courses of study or syllabus or teacher pupil ratio, withdrawal of recognition, closure of uneconomic schools and reasons which are beyond the control of the staff and the management. Government have considered the representations of the teachers sympathetically. They are of the view that cases of qualified teachers appointed in regular division - vacancies and who have two years or more of continuous service on the date of retrenchment deserve consideration. It is not possible to declare these teachers as supernumerary or protected because according to rules posts cannot be sanctioned to retain these teachers in their parent schools and further such declaration would mean their retention in schools and payment of salary to them without adequate justification. Government after considering all aspects of the question are pleased to order that the lien of these teachers should be retained under the management of the aided schools in which they were working at the time of retrenchment. But they may be posted on a purely working arrangement in the next available vacancies of similar category arising in Government schools in the same educational district. But before posting them on a temporary basis in Government schools, controlling officers will verify WPC No.12707/05 - 10 - that there are no vacancies in the same or other schools belonging to the management under which the teacher was working at the time of retrenchment. In the case of schools under corporate managements which have schools in a region or covering the entire State, the controlling officers should satisfy themselves that there are no vacancies under the corporate management as a whole to absorb these teachers. These teachers when they are posted on working arrangement in Government schools will be paid the salary and allowances drawn by them at the time of their retrenchment. They may be posted and transferred to different Government schools depending on the availability of vacancies. But if there is a Public Service Commission hand in the district who has already been appointed but has been subsequently retrenched due to absence of vacancy, such hand will be appointed before considering the case of retrenched teachers of aided schools. The retrenched teacher will be absorbed in the next vacancy arising in any of the aided schools under the management by whom he was appointed. The controlling officers will not approve any new appointments in the schools under these managements until and unless the retrenched hands are absorbed first. The retrenched teacher will not be entitled to salary and allowances for the period he is out of job. But as this may constitute a break in service the period during which WPC No.12707/05 - 11 - he is out of job will be treated as eligible leave and leave on loss of pay. Normally, these teachers are entitled to vacation salary in the parent school. Hence when they are posted in Government schools, they will be entitled to vacation salary, there also. Teachers who have been retrenched till date and who are covered by these orders will be given relief under these orders. These orders will apply with immediate effect.”. (emphasis supplied) The Government have later issued several orders from time to time extending the benefit of protection to different categories of teachers. The 4th respondent mainly relies on the terms of the aforequoted Government Order to support her case. According to her, the said Government Order would show that a protected teacher will retain her lien in the parent school. Further, the said Government Order would show that if a teacher is retrenched for want of vacancy and she is not posted in any other school, then the period between retrenchment and absorption in the parent school will be treated as eligible leave WPC No.12707/05 - 12 - and leave on loss of pay, to avoid break in service. The petitioners, on the other hand, would say that, seniority is governed by Rule 37 and some loose expression in a Government Order or other connected Government Orders cannot modify the statutory rules. In answer, the 4th respondent would submit the terms of the Government Order should be treated as an order issued under Rule 3 of Chapter I of K.E.R., which enables the Government to relax any rule. Though the counsel on both sides referred to various other Government Orders, we are not referring to them as they are not strictly relevant for the purpose of deciding the issue that arises in this case. Now, we will refer to the relevant rules governing seniority. Rule 37 is the main rule dealing with seniority which reads as follows: “37. (1) Seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit provided he is duly qualified for the post. (2) In the case of teachers in the same grade in the same unit whose date of commencement of continuous service is the same, seniority shall be WPC No.12707/05 - 13 - decided with reference to the date of first appointment. If the date of first appointment is also the same, seniority shall be decided with reference to age, the older being the senior.” (emphasis supplied) Sub-rule (1) of Rule 37 is very specific that seniority of any teacher in any grade in any unit shall be decided with reference to the continuous service in that grade in that unit, provided the incumbent is qualified for the post. It means broken service cannot be reckoned. Rule 34, inter-alia says that in High Schools a common seniority list of HSA (Core subjects) and HSA (Languages) shall be prepared. Rule 35 provides that if there is more than one school, all the schools under the educational agency shall be treated as one unit for the purpose of seniority. Rule 36 deals with publication of seniority list. Going by Rule 37, it is manifestly clear that broken service cannot be counted for the purpose of seniority. In this context, we may refer to Rule 3 of Chapter I of KER, which reads as follows: “3. Where the Government are satisfied that the operation of any rule under these Rules causes undue hardship in any particular case, the WPC No.12707/05 - 14 - Government may dispense with or relax the requirements of that rule to such extent and subject to such conditions as they may consider necessary for dealing with the case in a just and equitable manner”. The power under Rule 3 is a residuary power to be exercised on finding that any rule causes undue hardship in any particular case. Normally, the order should contain reasons for such a finding and for invocation of its power by the Government under Rule 3. We think, the Government Order quoted above granting protection to teachers cannot be treated as a Government Order issued under Rule 3 having regard to the pre-conditions that must exist for exercise of the power under Rule 3. So, the contention of the 4th respondent that the stipulation in the Government Order which runs counter to Rule 37 will be saved by Rule 3 of Chapter I, K.E.R. cannot be accepted. A plain reading of the Rule 37 would show that if a teacher is deployed to the Government School on protection, the same will affect her seniority because seniority is reckoned with reference to the continuous qualified service in the WPC No.12707/05 - 15 - concerned unit. This has been the consistent view taken by this Court while interpreting Rule 37. If a local law is interpreted in a particular manner and applied accordingly in a State for several years, it may not be appropriate to take a different view even assuming a different view is possible on the terms of the statute. See the words of Paripoornan, J. in K.S. Das v. State of Kerala, 1992 (2) KLT 358 (FB): “54. ......... A particular state of law prevailing in a State for a period of time, wherein the people of that area have adjusted themselves with that law in their daily life, should not be ordinarily upset except under compelling circumstances [See T.Venkata Subhamma v. T.Rattamma, (AIR 1987 SC 1775)]. The plea for reconsideration of earlier decisions can be entertained only if the Court is satisfied that there are compelling and substantial reasons therefor. In questions involving construction of statutory or constitutional provisions, two views are often reasonably possible. Even if an alternate view is possible, since the earlier decision held the field for a long time and had regulated the procedure and no decision had taken a contrary view, the WPC No.12707/05 - 16 - reconsideration for upsetting the earlier view will not ordinarily be proper, unless there are compelling and substantial reasons therefore and it is in the interests of the public good. [See - The Keshav Mills Co. Ltd. v. The Commissioner of Incometax (AIR 1965 SC 1636) and Collector of Central Excise v. M/s. Standard Motor Products (AIR 1989 SC 1298)]. This rule is based on expediency and public policy. [See Maktul v. Manbhari, (AIR 1958 SC 918)]. The requirement of public interest should be considered in disturbing a question of law which held the field for a long time. [See - India Electric Works v. James Manthosh (AIR 1971 SC 2313 at p.2318)].”. Though the above statement is made by the learned Judge in a dissenting judgment, the same lays down the correct position in law concerning the point covered by it. 8. In this context, we note that all the reported decisions of the Division Benches of this Court have taken the view that a teacher’s seniority will be affected on his being deployed on protection. A learned Single Judge of this Court in WPC No.12707/05 - 17 - Manager, Mar Sleeba U.P. School v. State of Kerala, 1990 (1) KLT 626 has held that, the word ‘lien’ used in the first Government Order dated 6.3.1999 providing for protection cannot be understood as it is defined in the K.S.R. and it can only be given the meaning of preferential claim for appointment to future vacancies. It was also held that, a protected teacher cannot be treated as a member of the staff of the school. In Rahellamma v. State of Kerala, 1997 (2) KLT 429, a Division Bench of this Court observed as follows: “9. On an analysis of various provisions contained in the K.E.R. it is clear that a teacher who has been retrenched from service for want of vacancy is to be treated as not in service of that school even if he is deployed to work in another school under the scheme of protection given to the retrenched teachers. The protected teacher is allowed to work in another school, but his service cannot be counted for the purpose of seniority vis- a-vis the teachers working in the parent school. A teacher working on deployment as a protected teacher may be entitled to get increment and the service benefits for the period he had worked as a protected teacher. Under R.37 of Chap.XIVA of the K.E.R., he cannot reckon his service for the purpose WPC No.12707/05 - 18 - of seniority in any grade in any unit he had worked previously, namely, in his parent school. The service he has rendered as a protected teacher cannot be taken into consideration as service for the purpose of R.45 of Chap.XIVA of the KER. For a qualified graduate teacher to claim preference over the senior-most qualified under graduate teacher, he should have got service equal to half of the period of the service in the school under the same management.”. (emphasis supplied) The observation that service rendered as a protected teacher cannot be taken into consideration as service for the purpose of seniority in the parent school is the correct legal position. But the view that the said service cannot be reckoned to compute the length of service mentioned in Rule 45 of Chapter XIVA, K.E.R. is no longer a good law, in view of the Full Bench decision of this Court in Pushparaj v. Manoharan, (supra). In Manager, F.M.C.T. High School v. D.E.O. Aluva, 1998 (1) KLT 449, a learned Single Judge of this Court reiterated the principle laid down in Rahellamma v. State of Kerala, (supra) concerning the status of a protected teacher in the WPC No.12707/05 - 19 - following words: “It is now a settled position that a protected teacher is no more a staff of his parent school. His only claim is only to get appointment in