IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 WP(C).No. 17077 of 2008(G) -------------------------------------- PETITIONER: ------------------- THE MANAGER, S.N.HIGHER SECONDARY SCHOOL, OKKAL P.O.,PERUMBAVOOR. BY ADVS. SRI.JOHNSON ABRAHAM, SRI.NELSON ABRAHAM. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM,CIVIL STATION, KAKKANADU. 4. THE DISTRICT EDUCATIONAL OFFICER, KOTHAMANGALAM. 5. AMRITHA SHALINI PAUL, HIGHER SCHOOL ASSISTANT (ENGLISH), S.N.HIGHER SECONDARY SCHOOL, OKKAL P.O., PERUMBAVOOR (RESIDING AT KOOTTUNGAL HOUSE, S.VAZHAKULAM P.O.) 6. V.R.SHEEBA,W/O. MOHANAN, AGED 38 YEARS, HIGH SCHOOL ASSISTANT, S.N.HIGHER SECONDARY SCHOOL, OKKAL P.O., PERUMBAVOOR RESIDING AT VALANCHERY HOUSE OKKAL P.O.) W.P.(C). NO.17077/2008-G: 7. SEENA NARAYANAN, HIGH SCHOOL ASSISTANT (SS), S.N.HIGHER SECONDARY SCHOOL, OKKAL P.O., PERUMBAVOOR . R1 TO R4 BY GOVERNMENT PLEADERS SRI. SANDESH RAJA & SRI. P.M. MANOJ, R5 BY ADV. SMT.P.V.ASHA, R6 BY ADVS. SRI.V.A.MUHAMMED, SRI.K.E.HAMZA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/05/2010 ALONG WITH W.P.(C). NOS. 18120/2008 & 23421/2009 THE COURT ON 28/09/2010 DELIVERED THE FOLLOWING: W.P.(C). NO.17077/2008-G: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPOINTMENT ORDER OF RESPONDENT NO.5 AS HSA (ENG). EXT.P.2: COPY OF THE ORDER NO.K.DIS.B4/5787/05 DTD. 26/05/2006 OF R.4. EXT.P.3: COPY OF THE ORDER NO.18132/06 B4/K. DIS. DTD. 01/09/2006 OF R.3. EXT.P.4: COPY OF THE ORDER NO. ET(R)/65145/06/DPI, D. DIS. DTD. 25/01/2007 OF R.2. EXT.P.5: COPY OF THE ORDER NO. (RI).NO.685/08/G. EDN. DTD. 06/02/08 OF R.1. EXT.P.6: COPY OF THE G.O.(MS).11/2002 DTD. 07/01/2002. EXT.P.7: COPY OF THE G.O.(MS).NO.187/03/G1.EDN. DTD. 16/07/2003. EXT.P.8: COPY OF THE ORDER NO. B4/2054/2008 DTD. 18/04/2008 OF R.4. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. C.T.RAVIKUMAR, J. ---------------------------- W.P.(C)Nos.17077, 18120 of 2008 & 23421 of 2009 ---------------------------- Dated 28th September, 2010 JUDGMENT Whether the order of the Government in Ext.P7 restoring Ext.P3 order of the District Educational Officer rejecting the approval of the petitioner's appointment, is legally sustainable is the issue to be decided in W.P.(C)No.18120 of 2008. Invariably, the correctness of Ext.P2 staff fixation order also calls for consideration in that context. The decision on the aforesaid issues in the said writ petition would decide the fate of the other writ petitions. Since common issues and inter- related facts involved in these writ petitions they were heard and are being disposed of, jointly. For the sake of convenience, W.P.(C) No.18120 of 2008 is treated as the leading case and facts, the parties and documents are being referred hereafter in the manner they are set out in the said writ petition unless and otherwise specifically mentioned. 2. The petitioner is a graduate in Communicative English with B.Ed. in English Literature. As per Ext.P1 she was appointed in S.N. Higher Secondary School, Okkal (for short `the school' only), as High School Assistant in English. The said appointment was made in anticipation of sanctioning of an additional division in the academic year WP(C).No.17077/2008 & connected cases 2 2005-2006. Subsequently, Ext.P2 staff fixation order for the year 2005-06 was issued. Evidently, no additional post of HSA (English) was sanctioned and only one additional post of HSA (core subjects) was sanctioned for 2005-06 as per G.O.(P)No. 317/2005/G.Edn. dated 17.8.05 (Ext.P7 in W.P.(C)No.23421 of 2009). In the meanwhile, the third respondent who was working as UPSA in the school submitted an objection against the petitioner's appointment as HSA (English) and claimed promotion against the anticipated additional post as HSA (Natural Science). Thereupon, the second respondent - DEO declined to approve the appointment of the petitioner and directed the 4th respondent - Manager to appoint the 3rd respondent with immediate effect, as per Ext.P3 dated 26.5.2006. According to the petitioner, she was unaware of Ext.P2 staff fixation order as also the objection raised by the 3rd respondent. It is not known as to how a teacher of a school could contend that he/she was unaware of the staff fixation pertaining to that school. Be that as it may, the petitioner preferred Ext.P4 appeal against Ext.P3 order, before the Deputy Director of Education. The 4th respondent has also preferred an appeal against the same. Based on the judgment of this Court in O.P.No.15805 of 2006 filed by the 3rd respondent, the Deputy Director of Education considered the appeal preferred by the Manager and allowed the same as per Ext.P5 order WP(C).No.17077/2008 & connected cases 3 with a direction to the 2nd respondent - DEO to approve the appointment of the petitioner with effect from 16.7.2005 if her appointment was otherwise in order. In the meanwhile, the 3rd respondent was promoted as HSA, but only with effect from 15.7.2006. However, she filed an appeal against Ext.P5 order. As per Ext.P6 the Director of Public Instruction upheld Ext.P5 order of the DEO. Thereupon, the 3rd respondent preferred a revision petition against Ext.P6. After hearing all the parties, Government as per Ext.P7 order dated 6.2.2008 set aside Exts.P5 and P6 orders passed respectively by the DDE and the DPI and directed the 2nd respondent to promote the 3rd respondent as HSA (Natural Science) with effect from 15.7.2005 notionally with no consequential monetary benefits if she was senior among the qualified 43 claimants to be considered for promotion as HSA (Natural Science). Consequently, DEO issued Ext.P8 order dated 18.4.2008 approving the appointment of the 3rd respondent who was actually promoted in the meanwhile, as HSA (Natural Science) with effect from 15.7.2005 notionally and as regular hand with effect from 6.2.2008, the date of Ext.P7 order. The contention of the petitioner is that Exts.P2, P3, P7 and P8 orders are illegal and unsustainable in the light of Ext.P9 Government order dated 7.1.2002 whereby Government have created a new cadre of HSA WP(C).No.17077/2008 & connected cases 4 (English) and Rule 61 of Chapter XXIII of the Kerala Education Rules (for short `KER' only). The further contention is that the effective strength of pupils in the school was increased to 1474 from the previous year's strength of 1374 and therefore, in the light of the Higher Level Verification conducted in the school on 26.9.06 two more additional divisions could have been and should have been sanctioned in the High School Section. According to the petitioner, additional posts were not sanctioned only due to the ban orders. In short, according to the petitioner her appointment should have been approved in terms of Ext.P1 and she should not have been denied the salary thenceforth. W.P.(C)No.18120 of 2008 has been filed mainly with the above contentions. 3. Separate counter affidavits have been filed by the respondent Nos.1 and 3 in W.P.(C)No.18120 of 2008. The petitioner in W.P.(C)No.23421 of 2009 got herself impleaded in the writ petition as additional respondent No.5. In fact, it was only thereafter that she filed the said writ petition viz., W.P.(C)No.23421 of 2009 in which the petitioner and the third respondent in W.P.(C)No.18120 of 2009 were arrayed respectively as respondent Nos.5 and 6. Before adverting to the contentions of the first and third respondents I may refer to the contentions of the additional 5th respondent viz., taken in W.P.(C) WP(C).No.17077/2008 & connected cases 5 No.23421 of 2009. She was appointed as per Ext.P1 order dated 1.6.2006 (Ext.P1 in W.P.(C)No.23421 of 2009) as HSA (English) with effect from 7.6.2006 in the promotion vacancy of one K.Manju as Higher Secondary School Teacher. Approval to the said appointment was rejected by the DEO as per order No.B4-3886/06 dated 28.2.2007 citing the reasons that no additional post was sanctioned for 2006-2007 as per G.O.(P)No.317/2005/G.Edn. dated 17.8.2005 and non- availability of post to accommodate her on account of the non-approval of the appointment of the said K.Manju as HSST. Though an appeal was preferred against the said order the DDE rejected the appeal. A revision petition was then filed before the DPI against the said order. As per Ext.P2 order in W.P.(C)No.23421 of 2009 the said revision petition was allowed and taking into account the approval of the appointment of the said K.Manju as HSST with effect from 17.7.2006 the DEO was directed to approve her appointment as HSA (English) with effect from 17.7.2006 in case the appointment was otherwise in order. Non-approval of the appointment by the DEO despite Ext.P2 and consequential non-disbursement of salary made the 5th respondent to approach the DPI. However, DPI as per Ext.P3 in W.P.(C)No.23421 of 2009) stayed Ext.P2 order citing the reason of pendency of W.P.(C) Nos.17077 and 18120 of 2008 and also the factum that three teachers WP(C).No.17077/2008 & connected cases 6 working against two sanctioned posts. It was in the said circumstances that she got herself impleaded as the 5th respondent in W.P.(C)No.18120 of 2008. It is the further case of the 5th respondent that the petitioner in W.P.(C)No.18120 of 2008 was appointed on 16.7.2005 as HSA (English) against the additional post anticipated in the year 2005-06 and sanctioned as per Ext.P2 staff fixation order for 2005-06. Further, it is contended that a temporary ban was imposed by the Government on promotion of claimants under Rule 43 of Chapter XIV-A of KER while exempting those who got prescribed qualification to be posted as HSA (English), as per Ext.P4 in W.P.(C) No.23421 of 2009. Implementation of the said Ext.P4 Government order made one post of HSA (Social Studies) excess in the school and one Seena Narayanan (7th respondent in W.P.(C)No.17077 of 2008 was accordingly rendered excess. Simultaneously, one additional post was then sanctioned for Science. The 3rd respondent herein then staked claim against the said additional post for Natural Science. The rest of the contentions in W.P.(C)No.23421 of 2009 are virtually taken based on Exts.P3, P5 to P7 orders (produced respectively as Exts.P5, P5(a), P5(b) and P5(c). The 5th respondent's further contention is that in case the appointment of the 3rd respondent is set aside by allowing W.P.(C)No.18120 of 2008, then the appointment of the petitioner WP(C).No.17077/2008 & connected cases 7 would be approved with effect from 16.7.2005 and as a consequence, she could be accommodated against the vacancy occurred on account of the appointment of Smt.K.Manju as HSST. That apart, according to the 5th respondent, a lifting of the ban on appointments made as per Ext.P7 Government order dated 17.8.2005 (Ext.P7 in W.P.(C)No.23421 of 2009) or declaration of the same as ultra vires would also provide a vacancy to accommodate her as HSA (English). The 5th respondent herein therefore assails Ext.P3 order in W.P.(C)No.23421 of 2009 in the said writ petition as being illegal besides seeking a declaration that Ext.P7 series of Government orders imposing ban on appointment in the aided schools as violative of the provisions in Chapter XXIII of KER. 4. W.P.(C)No.17077 of 2008 has been filed by the 4th respondent - Manager. The petitioner, the third respondent and Smt.Seena Narayanan are arrayed respectively as respondents 5 to 7 therein. The prayer is for a direction to the DEO to approve the appointment of the fifth respondent therein viz., the petitioner herein. On the same set of facts involved in this it prayed for quashing Ext.P5 order therein viz., Ext.P7 order of the Government allowing the revision petition filed by the 3rd respondent as also Ext.P8 which is Ext.P8 in W.P.(C)No.18020 of 2008. WP(C).No.17077/2008 & connected cases 8 5. I may, now, revert to W.P.(C).18020 of 2008 and advert to the contention of the 3rd respondent. Admittedly, the 3rd respondent was subsequently, promoted as High School Assistant (Natural Science) from 17.7.2006 against the additional posts likely to be sanctioned during 2006-2007. In this context, it is to be noted that, in the counter affidavit filed by the first respondent it is stated that the 3rd respondent was thus promoted in July, 2006 against an additional post but, the same was not approved on account of the ban imposed as per G.O.(P) 317/05/G.Edn. dated 17.8.2005 (Ext.P7 in W.P.(C)No.23421 of 2009). The third respondent raised contentions to support and sustain Exts.P2, P7 and P8 orders. It is contended that the petitioner could not place reliance on the Full Bench decision of this Court in Philomina v. Babu Varghese (2001 (2) KLT 519 (F.B)) as the same was reversed by the Hon'ble Apex Court in the decision in Deepa Augustine v. Geetha Alex (2008 (2) KLT 771(SC)). Reliance was also placed on the decision of this Court in Rakhee v. State of Kerala (2007 (1) KLT 766). Those contentions were raised to drive home the point that whenever a question of promotion/appointment of the like nature as involved in these cases arises, the paramount consideration should be the interest of the students and not the mere promotional prospects or chances of appointment against the concerned post. In other words, WP(C).No.17077/2008 & connected cases 9 the subject requirement of the concerned vacancy and the qualification of the prospective appointee or promotee for teaching that subject should be the consideration. In fact, the petitioner relied on the Full Bench decision of this Court in Philomina v. Babu Varghese (supra) to sustain the challenge against Exts.P7 and P8 where as the 3rd respondent placed reliance on the decision of the Hon'ble Apex Court to canvass the position that the petitioner could not place reliance on the Full Bench decision in the light of the decision of the Hon'ble Apex Court in Deepa Augustine v. Geetha Alex (supra). The 3rd respondent has also relied on the decision of a Division Bench of this Court in Rakhee v. State of Kerala (2007 (1) KLT 766) 6. Prior to the appointment of the petitioner as HSA (English) from 16.7.2005 the classification of core subjects and teachers working were as hereunder: PS NS Maths S.S English Total Sanctioned posts 3 3 5 4 4 19 Teachers on roll 3 2 5 5 3 18 In the said context, the remarks at item Nos.1 and 4 of Ext.P2 assume relevance and they read thus: “1) One additional post each of HSA (Core subject) and UPSA is sanctioned for 2005-06 as per G.O(P) No.317/05/GE dt. 17.8.05. (emphasis supplied) WP(C).No.17077/2008 & connected cases 10 4) Smt.Seena Narayanan, HSA (SS) having continuous service from 5.7.01 is adjusted against the vacancy of HSA (Eng.) as per para 6(a) of G.O. (MS)No.11/02/G.Edn. dt. 7.1.02 so as to avoid her retrenchment from service.” Admittedly, the petitioner was appointed as HSA (English) anticipating sanctioning of additional vacancy, with effect from 16.7.2005 and therefore, evidently before the issuance of Ext.P2 staff fixation order. At the outset, I may point out that despite seeking prayer to quash the remarks contained in Ext.P2 adjusting the HSA (SS) against the vacancy in HSA (English) the petitioner did make/implead the concerned person in the party array though in the said remark it was specifically stated that Smt.Seena Narayanan, HSA (SS), having continuous service was adjusted against the vacancy of HSA (English). Therefore, the writ petition is liable to dismiss on that score. Admittedly, only four sanctioned posts were available and only three teachers were on the rolls. As per Ext.P2 she was adjusted against the 4th vacancy in English. Therefore, the first question to be considered and answered is whether it is the peittioner or the said Smt.Seena Narayanan who is entitled to be accommodated against the said 4th vacancy in English. In the case of the petitioner she was a fresh appointee whereas the said Smt.Seema Narayanan was HSA WP(C).No.17077/2008 & connected cases 11 (SS) who was otherwise facing retrenchment as she was the 5th Social Studies hand. The petitioner has relied on the amendment brought to Chapter XXIII of the Kerala Education Rules to escape the situation. That Apart, it is the contention of the petitioner as also the 4th respondent - Manager that as per para 3(d) of G.O.(MS) No.11/02/G.Edn. dated 7.1.2002 issued with a view to achieve improvement in the standard of English teaching/learning the petitioner should have been given approval for her appointment. Rule 6.I was added with effect from 7.1.2002 and the same reads thus:- “6.I Sanctioning of posts of High School Assistant (English): Notwithstanding anything contained in any other rule in this Chapter the post of High School Assistant (English) shall be sanctioned on the basis of the periods allocated to English, observing minimum subject requirement. Note:- Subject to any general order that may be issued by the Government, the above rule shall be implemented in a phased manner without causing retrenchment of existing High School Assistants (core subjects) as on 7th January 2002, and observing the minimum subject requirement.” The contention of the petitioner is that in the light of Rule 6.I the appointment of the petitioner should have been approved by the DEO. At any rate, Ext.P7 is illegal in so far as it interfered with Exts.P5 and P6 orders passed in favour of the petitioner directing the DEO to approve her appointment. The learned counsel for the 3rd respondent WP(C).No.17077/2008 & connected cases 12 and the learned Government Pleader resisted the said contention relying on the Note under Rule 6.I. It is contended that in view of the said Note existing HSA (Core subjects) as on 7th January, 2002 could not be retrenched for appointing and approving the appointment of the petitioner. However, the learned counsel for the petitioner and the 4th respondent Manager would contend that as per the Note itself the protection thereunder is subject to any general order and para 3(d) of Government order dated 7.1.2002 would further fortify their contention. It reads thus:- “3.(d) In order to implement the Orders at Para 3(a) above, a temporary ban on promotion of claimants as per Rule 43 of Chapter XIV A KER will be imposed exempting those who have the prescribed qualification to be posted as HSA (English).” According to them, even if Smt.Seena Narayanan could be promoted it could be made only if she possessed the prescribed qualification for being posted as HSA (English). In fact, the petitioner's core contention is against the order passed in favour of the 3rd respondent. I will deal with that question later. The contention of the learned counsel for the 3rd respondent and also the learned Government Pleader is that there is no such prescription or condition in Rule 6.I and it, virtually, permits only implementation of the rule in a phased manner without causing retrenchment of existing High School WP(C).No.17077/2008 & connected cases 13 Assistants (core subjects). Therefore, even the question of minimum subject requirement would not call for consideration in the context of the case. 7. In fact, the petitioner relied on the decision of the Full Bench of this Court reported in Philomina v. Babu Varghese (supra) only to canvass the position that the DEO and the Government should not have declined approval of her appointment as HSA (English) and should not have ordered for promoting the third respondent. In fact, relying on Rule 6.I and the Government order dated 7.1.2002 it is contended that the 3rd respondent could not have been promoted as HSA (NS) against the additional vacancy sanctioned as per Ext.P2 and in terms of Rule 6.I the petitioner's appointment should have been approved even if Smt.Seena Narayanan is to be adjusted against the 4th vacancy. Such an appointment would have resulted in excess HSAs in English as the sanctioned strength was only 4. It is pointing out the said aspect that the 3rd respondent contended that adjustment of Smt.Seena Narayanan could only be effected against the 4th vacancy of HSA in English and in which event in the light of the fact the additional vacancy was sanctioned in HSA (Core Subjects) and on account of the fact that only two HSA (NS) were there on the rolls as against the sanctioned strength of 3 HSA (NS) posts the 3rd respondent alone WP(C).No.17077/2008 & connected cases 14 could have been and should have been promoted against the said vacancy. In that context, the stand of the Government as borne out from the counter affidavit is that the third respondent is the rightful claimant for the additional HSA (Core subject) sanctioned as per Ext.P2. The learned counsel for the petitioner submitted that the 3rd respondent could not have been promoted instead her appointment should have been approved in the light of the decision in Philomina v. Babu Varghese (supra). 8. The question therefore, is whether in the light of the decision in Philomina v. Babu Varghese (supra) and in terms of Rule 6.I of Chapter XXIII of the KER whether the petitioner's appointment is liable to be approved or in the light of the decision of the Hon'ble Apex Court in Deepa Augustine v. Geetha Alex (supra) whether Exts.P3, P7 and P8 orders are to be sustained. 9. The contention of the petitioner is that considering the fact that there were 102 periods for English and only 43 periods were there for Natural Science the minimum requirement for the subject English would become more than 4 while that of the subject Natural Science would become only less than 2. According to the learned counsel for the 3rd respondent, the petitioner cannot canvass the said position relying on the decision in Philomina v. Babu Varghese (supra) as WP(C).No.17077/2008 & connected cases 15 the same was reversed by the Hon'ble Apex Court as per the decision in Deepa Augustine v. Geetha Alex (supra). That apart, according to the 3rd respoindent in the light of the decision in Rakhee v. State of Kerala (supra) the petitioner cannot claim the said relief. 10. In the context of the contentions paragraph 4 of the decision in Deepa Augustine v. Geetha Alex (supra) assumes relevance. It reads thus:- “4. However, now the situation has changed. We have been informed that N.K.Thressiamma has since been superannuated and the appellant is still working as a Physical Science Teacher. Therefore, no useful purpose will be served by examining the effect of Full Bench judgment. However, the Full Bench has already observed that the Government should re-examine the matter in the light of the deciswion given by the Full Bench. However, we may observe that whenever the question of promotion arises, the first question which is to be examined is the subject requirement of that vacancy and the person should be appointed who has the minimum qualification for teaching that subject. To illustrate the point : in case a vacancy arises for a subject of Physical Science against that person who possess minimum qualification for teaching the Physical Science should be recruited and not a person who belongs to Social Studies. This will be doing a great harm to the interest of the students. The paramount consideration should be the interest of the students that the person who is being appointed to teach subject should possess minimum qualification of that subject.” (emphasis supplied) 11. It is to be noted that it was after noting the Full Bench WP(C).No.17077/2008 & connected cases 16 observation that Government should re-examine the matter in the light of the said decision that the Hon'ble Apex Court made the observation that whenever the question of promotion arises, the first question which is to be examined is the subject requirement of that vacancy and the person should be appointed who has the minimum qualification for teaching that subject. In my considered view it cannot be treated as a mere obiter dictum. True that the Hon'ble Apex Court observed that no useful purpose would be served by examining the effect of Full Bench decision. However, it is after making such observation and taking note of the observations of the Full Bench regarding the requirement of re-examination of the matter by the Government that the Hon'ble Apex Court made the above extracted observation in paragraph 4. More over, after making such an observation the Hon'ble Apex Court went on to illustrate the point. Therefore, according to me, in the light of the decision of the Hon'ble Apex Court in Director of Settlements, A.P. and others v. M.R. Apparao and another (AIR 2002 SC 1598) the law which will be binding under Article 141, could, therefore, extend to all observations of points raised and decided by the court in a given case. Going by the