IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933 WP(C).No. 6455 of 2011(F) ------------------------- PETITIONER(S): -------------- P.N. JAYASREE, UPPER PRIMARY SCHOOL ASSISTANT (UPSA), K.T.M. HIGH SCHOOL, MANNARKKAD, PALAKKAD DISTRICT. BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S): -------------- 1. DISTRICT EDUCATIONAL OFFICER AND EX-OFFICIO MANAGER OF K.T.M HIGH SCHOOL, MANNARKKAD, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD - 678 582. 2. DISTRICT EDUCATIONAL OFFICER, PALAKKAD - 678 001. 3. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM - 695 001 4. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001 5. SANKARANARAYANAN, HIGH SCHOOL ASSISTNAT - SOCIAL STUDIES, (NOW REVERTED TO U.P.S.A), K.T.M HIGH SCHOOL, MANNARKKAD, PALAKKAD DISTRICT - 678 582 R1 TO R4 BY GOVT. PLEADER SMT. NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/10/2011 ALONG WITH WPC NO. 9413 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BKA WP(C).No. 6455 of 2011(F) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF STAFF FIXATION ORDER DATED 26.12.2009 FOR ACADEMIC YEAR 2009-10 ISSUED BY THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD. EXT.P2: COPY OF ORDER OF THE DIRECTOR OF PUBLIC INSTRUCTIONS DATED 12.04.2010. EXT.P3: COPY OF ORDER DATED 13.12.2010 ISSUED BY THE GOVERNMENT. EXT.P4: COPY OF REVISION FILED BY THE PETITIONER BEFORE THE GOVERNMENT ON 28.07.2010. EXT.P5: COPY OF GOVERNMENT ORDER, GO(MS)109/1998 DATED 06.04.1998. EXT.P6: COPY OF GOVERNMENT ORDER, GO(MS)352/2000/G.EDN DATED 25.10.2000. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// PA TO JUDGE BKA T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). Nos.6455/2011-F & 9413/2011-B ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 10 th day of October, 2011 J U D G M E N T Both these writ petitions concern a common challenge against Ext.P5 order passed by the Government on a revision petition filed by the petitioner in W.P. (C).No.9413/2011, a copy of which is produced as Ext.P3 in W.P.(C).No.6455/2011. 2. The matter concerns the staff fixation for the year 2009-10. As per the staff fixation order produced as Ext.P1 in W.P.(C).No.6455/2011, one post of High Schoo1 Assistant (Social Science) was reduced resulting in reversion of the petitioner in W.P.(C).No.9413/2011 as Upper Primary Schoo1 Assistant. Consequently, the petitioner in W.P.(C).No.6455/2011 who was working as U.P.S.A has been thrown out from service. 3. Learned counsel for the petitioners submitted that the petitioner in W.P.(C).No.9413/2011 is entitled for grant of protection and, therefore, the order of reversion cannot be supported. W.P.(C). Nos.9413/2011 & 6455/2011 -:2:- 4. A reading of the order passed by the Government produced as Ext.P5 in W.P.(C).No.9413/2011 shows that the petitioner in the said writ petition had relied upon G.O.(P).No.175/99/G.Edn., dated 26/07/1999 and G.O.(MS).No.109/98/G.Edn., dated 06/04/1998 in support of his plea for grant of protection before the Government. Those Government Orders are produced as Ext.P6 in W.P.(C).No.9413/2011 and Ext.P5 in W.P.(C). No.6455/2011 respectively. The reason adopted by the Government in Ext.P5 is that the petitioner is a promotee under Rule 43 of Chapter XIV A Kerala Education Rules. He was the junior-most in the excess High Schoo1 Assistant (Social Science) category and he was not entitled for the benefit of 1:40 ratio. Since his reversion is possible as per existing rules, he is not entitled to be protected as High Schoo1 Assistant (Social Science) in the schoo1. It is further ordered that the petitioner is eligible for pay protection as per Rule 52 (1) of Chapter XIV A K.E.R and para.(iii) of G.O.(P).No.178/02/G.Edn., dated 28/06/2002. W.P.(C). Nos.9413/2011 & 6455/2011 -:3:- 5. A discussion of the various aspects will show the following:- Ext.P6 Government Order produced in W.P.(C). No.9413/2011 provides that all aided school teachers who were in service as on 14/07/1996 will be given protection by retaining them in the respective schoo1s subject to the conditions provided in the order. By G.O.(MS).No.240/2000/G.Edn., dated 24/07/2000 produced as Ext.P7 in the said writ petition, it was further clarified that all aided schoo1 teachers who were appointed against regular vacancies during 1996-97 upto 14/07/1997 will also be given protection. The petitioner in W.P.(C).No.9413/2011 was appointed as U.P.S.A on 15/12/1993 and by order dated 10/07/1996 he was promoted as H.S.A. Both the appointments have been approved as per Exts.P1 and P2 orders produced in the said writ petition. My attention was invited to second proviso to Rule 43 of Chapter XIV A K.E.R. Going by the second proviso, when a person who has been promoted under the said Rule faces retrenchment for want of W.P.(C). Nos.9413/2011 & 6455/2011 -:4:- vacancy, he shall be reverted to the category of post from which he has been promoted provided he is not eligible for protection in the retrenched post as per the orders issued by the Government from time to time. Therefore, evidently, reversion will have to be resorted to in a case where promotee is not eligible for protection in the retrenched post. Herein, the petitioner is reverted from the post of H.S.A (Social Science). The reversion is possible only if it is found that he is not eligible for protection under Exts.P6 and P7 Government Orders produced in W.P.(C). No.9413/2011 and Ext.P5 produced in W.P.(C). No.6455/2011. But the said aspect has not been examined by the Government even though in para.1 of Ext.P5 impugned order, his contention, based on Exts.P5 and P6 Government Orders, has been mentioned. The view taken apparently is that he is not entitled for the benefit of 1:40 ratio. 6. Since the said claim of the petitioner in W.P. (C).No.9413/2011 for protection under Exts.P5 (in W.P. W.P.(C). Nos.9413/2011 & 6455/2011 -:5:- (C).No.6455/2011) and Exts.P6 and P7 orders (in W.P. (C).No.9413/2011) has not been considered by the Government, the entire aspects will have to be reconsidered. Accordingly, Ext.P5 produced in W.P.(C). No.9413/2011(the copy of which is produced as Ext.P3 in W.P.(C).No.6455/2011) is quashed. The Government will reconsider the matter with notice to both the petitioners, since it is pointed out that if the petitioner in W.P.(C).No.9413/2011 is found eligible for protection, the petitioner in W.P.(C).No.6455/2011 need not be thrown out from service. Appropriate orders will be passed after hearing the petitioners and the Manager (it is pointed out that the ex officio Manager is the District Educational Officer) within a period of four months from the date of receipt of a copy of this Judgment. The writ petition is disposed of as above. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms