IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 WP(C).No. 19832 of 2007(J) -------------------------- PETITIONERS: --------------- 1. C.B. BIBIN, DEEPA BHAVAN, ERICHALLOOR, PLAMOOTTUKADA P.O., THIRUVANANTHAPURAM. 2. GEETHA DEVI L., 'PANCHAMI', VAZHATHOOR, NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.ELVIN PETER P.J. RESPONDENTS: ----------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE ASSISTANT EDUCATIONAL OFFICER, KATTAKKADA, THIRUVANANTHAPURAM. 4. THE DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER, SMT. SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC : 19832/07 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE APPOINTMENT ORDER DATED 1.6.98 ISSUED TO THE FIRST PETITIONER. EXT.P2 : TRUE COPY OF THE APPOINTMENT ORDER DATED6.7.98 ISSUED TO THE 2ND PETITIONER. EXT.P3 : TRUE COPY OF THE STAFF FIXATION ORDER DATED 15.1.05 ISSUED BY THE 3RD RESPONDENT FOR THE ACADEMIC YEAR 2004-05 IN RESPECT OF GNANODAYAM LPS. EXT.P4 : TRUE COPY OF THE ORDER DATED 14.10.05 OF THE 2ND RESPONDENT. EXT.P5 : TRUE COPY OF THE JUDGMENT DATED 5.4.06 IN WPC NO.26409/05AND CONNECTED CASES. EXT.P5(A) : TRUE COPY OF THE REPRESENTATION DATED 15.6.06 SUBMITTED BY THE PETITIONERS BEFORE THE FIRST RESPONDENT. EXT.P6 : TRUE COPY OF THE ORDER DATED 20.11.06 OF THE GOVERNMENT. EXT.P7 : TRUE COPY OF THE REPRESENTATION DATED 12.12.06 SUBMITTED BY THE PETITIONERS BEFORE THE HON'BLE CHIEF MINISTER OF KERALA. EXT.P8 : TRUE COPY OF THEORDER DATED 10.10.02OF THE GOVERNMENT. EXT.P9 : TRUE COPY OF THE ORDER DATED 22.4.04 OF THE GOVERNMENT. EXT.P10 : TRUE COPY OF THE ORDER DATED 16.12.04OF THE GOVERNMENT. /TRUE COPY/ PA TO JUDGE S. SIRI JAGAN, J. ------------------------------------------------- W.P.(C)No. 19832 OF 2007 ------------------------------------------------- Dated this the 2nd day of June, 2009 JUDGMENT Petitioners were teachers of the Gnanodayam Lower Primary School, Mannamkonam, Kattakkada, Thiruvananthapuram, which was an aided school. While they were working as teachers in that school, there arose a dispute regarding the management of the school among the members of the family, who owned the school. On an inspection by the Educational Authorities it was found that, the buildings of the school were in a dilapidated condition and were not fit for conducting classes as there was danger to the life of the students and teachers. Accordingly, the 2nd respondent, Director of Public Instructions, directed the Headmaster of the school to issue transfer certificates to the students. The 3rd respondent was directed to report the names of the staff of the school. Subsequently, the Government by notification dated 21.10.05, published in the Kerala Gazette dated 20.12.05, directed closure of the school. According to the petitioners, in view of Government Orders on the subject, they are eligible for deployment in Government schools as protected WPC :19832/07 -:2:- teachers. The petitioners therefore approached this Court by filing WP(C) No.2640/95 in which this Court by Ext.P5 judgment directed the Government to consider the question of giving protection to the teachers of the school including the petitioners. Thereafter, the Government considered the question and passed Ext.P6 order holding that the Government Orders relied on by the petitioners do not apply to the petitioners and therefore they are not entitled to deployment in the Government Schools as claimed by them. Ext.P6 order is under challenge before me. 2. The contention of the petitioners is that by Ext.P8 Government Order dated 10.10.02 the Government, in respect of 52 schools closed as uneconomic schools, granted the teachers of those schools the benefit of deployment in Government Schools, if they have completed 5 or more years. By Ext.P9, apparently in clarification of Ext.P8 order, the Government directed that the period during which such teachers were kept out of service before deployment should be treated as eligible leave or Leave Without Allowances. Again by Ext.P10 order in respect of 48 other schools similar benefits have been granted to teachers, who were retrenched WPC :19832/07 -:3:- on account of closure of the schools. Petitioners’ contention is that the denial of the very same benefit to the petitioners is discriminatory insofar as for denying such benefit in Ext.P6, the Government has not given any sustainable reasons. The counsel for the petitioners argues that insofar as such deployment is to be made on the basis of the powers conferred under Section 13 of the Kerala Education Act, such powers cannot be exercised in an arbitrary and discriminatory manner so as to exclude some teachers of some closed schools while teachers of other closed schools are given that benefit. 3. A counter affidavit has been filed by the 1st respondent. According to the 1st respondent, Exts.P8 to P10 Government Orders are not applicable to the petitioners. Those are in respect of teachers of specified schools mentioned therein. Government has not chosen to issue any similar orders in respect of the petitioners in exercise of powers under Section 13, nor a general order without which the petitioners cannot as of right claim deployment in Government schools. 4. I have considered the rival contentions in detail. 5. In Ext.P6 the request of the petitioners have been rejected WPC :19832/07 -:4:- on the ground that GO (MS) No.379/04/G.Edn. dated 16.12.04 is not applicable to the petitioners. The said Government Order is Ext.P10. That Government Order is in respect of 48 schools which were directed to be closed by the Government with effect from 01.05.02. Therefore it is clear that, that Government Order applies only to teachers of those 48 schools and not to other schools. Ext.P8 which is GO(MS) No.302/2002/G.Edn dated 10.10.02 is in respect of 52 uneconomic schools directed to be closed down by the Government. Therefore, that also is applicable to only those 52 schools and no other schools. Ext.P9 is only a clarification in respect of the absorption of teachers of schools closed down as uneconomic presumably in respect of Ext.P8. That being so, the reason given in Ext.P6 is that GO(MS) 379/04 does not apply to the petitioners cannot be faulted. 6. The next contention of the petitioners is that while exercising the powers under Section 13, the Government cannot discriminate between teachers of different schools which are closed down. According to them, Government is bound to exercise the discretion vested on them under Section 13 uniformly to teachers of all closed WPC :19832/07 -:5:- schools. Section 13 reads thus: “13. Absorption of teachers on retrenchment:- Where any retrenchment of teachers in any aided school is rendered necessary consequent on orders of the Government relating to the course of studies of scheme of teaching or of such other matters, it shall be competent for the Government or the manager of an aided school to appoint such teachers in any Government school or aided school, as the case may be,” 7. I am of opinion that, Section 13 does not mandate that every time an aided school is directed to be closed down, automatically the Government should issue orders absorbing teachers of that school to Government schools. Section 13 is only an enabling provision by which the Government is given powers to pass orders to absorb teachers of closed schools in Government schools or other aided schools. No teacher of any closed school has a right to be absorbed in a Government school. Ordinarily teachers of closed schools stand retrenched. Absorption in Government schools is only a concession given by the Government, taking into account the hardships caused to the teachers on account of closure of schools. For more reasons than one, such as financial stringency, want of vacancies etc., it may not be possible for the Government to absorb teachers of closed schools in Government schools. In any event, WPC :19832/07 -:6:- insofar as the teachers have no right as such to be absorbed, they cannot claim that Government should issue orders absorbing them since others were ordered to be absorbed earlier. On the other hand, I am of opinion that, unless the petitioners prove that the Government has taken the decision not to absorb the petitioners on mala fide or extraneous considerations, the petitioners cannot compel the Government to absorb them. Here the petitioners do not allege any mala fides on the part of the Government in not issuing orders under Section 13 directing absorption of the petitioners in Government schools. Such a decision has to be taken by the Government as a policy decision and not a matter of routine. As such, I am of opinion that, the petitioners cannot as of right claim that the Government should pass orders under Section 13 directing absorption of the petitioners in Government schools. Therefore, there is no merit in the writ petition and accordingly the same is dismissed. S. SIRI JAGAN, JUDGE ttb