IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 10TH NOVEMBER 2010 / 19TH KARTHIKA 1932 WP(C).No. 32381 of 2010(W) -------------------------- PETITIONER(S): --------------- M.R. MAJU, LOWER PRIMARY SCHOOL ASSISTANT, K.M.M. LP SCHOOL, ATHIPOTTA, ALATHUR, PALAKKAD DISTRICT. RESIDING AT "DHILARA" LAKKIDI.P.O., OTTAPPALAM, PALAKKAD DISTRICT-679301. BY ADV. SRI.ASOK M.CHERIAN SRI.S.KANNAN SMT.S.RAKHEE RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO ITS GOVERNMENT, DEPARTMENT OF EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD 678 001. 3. THE ASSISTANT EDUCATIONAL OFFICER, ALATHUR 678 541. GOVERNMENT PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.32381 of 2010 --------------------------------------------- Dated this the 10th day of November, 2010 JUDGMENT While working as Lower Primary School Assistant in KMM LP School, Athipotta, the petitioner was deployed on protection to another school, since the petitioner was entitled to protection as per the various Government orders in force. The petitioner was found to be surplus, as per the staff fixation order for the year 2007-2008. When he was ordered to be deployed, the petitioner filed W.P.(C) No.28978 of 2008 challenging deployment. The petitioner contended in W.P.(C) No.28978 of 2008 that as per G.O.(P) No.175/99/G.Edn. dated 26.7.1999 (Exhibit P1 in this Writ Petition and Exhibit P2 in WPC No.28978 of 2010), the petitioner was entitled to be retained in the same school. The petitioner relied on the second paragraph of the Government Order dated 26.7.1999. A contention was taken by the respondents in Writ Petition No.28978 of 2008 that there were subsequent Government Orders and those Government Orders would govern the field. The learned Single Judge who disposed of W.P.(C) No.28978 of 2008 directed the Assistant Educational Officer to WPC No.32381/2010 2 examine the matter and pass appropriate orders. An interim order was passed in that Writ Petition permitting the petitioner to continue in the same school. The learned Single Judge also directed that the claim of the petitioner will be duly considered while finalising the staff fixation for the year 2009-2010. 2. After the disposal of W.P.(C) No.28978 of 2008, the first respondent disposed of the matter as per Exhibit P4 order dated 26.5.2010 rejecting the contentions raised by the petitioner and directing that he shall be deployed, if found surplus in the staff fixation order 2010-2011. As per Exhibit P3 staff fixation order for the academic year 2010-2011, the petitioner was found surplus and he was ordered to be deployed as a protected teacher. Exhibit P4 is under challenge in this Writ Petition. The petitioner relies on Exhibit P1 Government Order dated 26.7.1999. The interpretation of paragraph 2 thereof is made in such a manner by the petitioner that he is entitled to continue in the same school. For the sake of convenience, paragraph 2 of Exhibit P1 Government Order is extracted below : “Government have further examined the matter in detail and are pleased to order that WPC No.32381/2010 3 all aided school teachers who were in service as on 14.7.1996 will be given protection by retaining them in the respective schools subject to the following conditions : (i) The teachers to whom this benefit of protection is granted will be absorbed in the future vacancies arising under the respective management. (ii) No substitute will be posted in the case of retirement, resignation, death, leave or voluntary relinquishment etc., of the incumbent, if retained by way of protection. (iii) Protection will not be granted to teachers appointed during 1997-98 and thereafter. 3. Government further order that the teacher student ratio will be revised from 1:45 to 1:40 in the schools affected by the specific problem of division fall for the limited purpose of accommodating the teachers rendered surplus subject to the condition that no post will be created on this account. 4. The clarifications issued subsequent to the orders read as third to fifth will also prevail mutatis muntandis. 5. The Education Officers will revise the WPC No.32381/2010 4 staff fixation orders for the year 1999-2000 accordingly.” 3. To my mind, what is provided in Exhibit P1 Government Order is that by applying 1:40 teacher student ratio, if surplus teachers could be accommodated, they would be retained in the same school. Exhibit P1 Government Order does not provide for retaining surplus teachers, who were entitled to protection, in the same school. It is true that there is a Government Order allowing teachers having 23 years of service to be retained in the same school in spite of the fact that they were found surplus. The petitioner does not have service for a period of 23 years. If the teacher student ratio at 1:40 is applied, then also the petitioner would be surplus, going by Exhibit P3 staff fixation order. What was directed in Exhibit P2 judgment, to my mind, is to consider the question of retention of the petitioner in the same school by applying 1:40 teacher student ratio. It is submitted that even as per the staff fixation order 2009-2010, the petitioner could not have been accommodated after applying 1:40 ratio. Exhibit P2 does not confer any right which was not WPC No.32381/2010 5 granted as per Exhibit P1 Government Order dated 26.7.1999. On a consideration of Exhibit P1 Government Order, I am of the view that the petitioner is not entitled to continue in the same school even after he is found to be surplus by applying 1:40 ratio. 4. In the facts and circumstances mentioned above, Exhibit P4 order cannot be faulted. The petitioner is not entitled to continue in the same school on protection. He is not entitled to the benefit of Exhibit P1 Government Order dated 26.7.1999. Therefore, the petitioner is not entitled to any relief in the Writ Petition. 5. The learned counsel for the petitioner submitted that it is not clear from Exhibit P3 staff fixation order that by applying 1:40 teacher student ratio, the petitioner is surplus. If the petitioner is not surplus, certainly the petitioner would be entitled to the benefit of Exhibit P1 Government Order. With the above observations, the Writ Petition is dismissed. K.T.SANKARAN JUDGE csl