IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 31ST JANUARY 2008 / 11TH MAGHA 1929 OP.No. 11440 of 2001(J) ----------------------- PETITIONER: ------------ V.A.SUDHA RANI, U.P.S.A., TAGORE MEMORIAL U.P.SCHOOL, MARUTHORVATTOM. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENTS: ------------- 1. THE SECRETARY TO GOVT., GENERAL EDUCATION DEPT., SECRETARIAT, TRIVANDRUM. 2. A.E.O., CHERTHALA. 3. THE MANAGER, TAGORE MEMORIAL U.P.SCHOOL MARUTHORVATTOM. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY GOVERNMENT PLEADER.SMT.M.R.SREELATHA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 31/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.11440/01. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE ATTENDANCE REGISTER FOR JUNE, 95. P2. COPY OF THE -DO- JULY, 95. P3. -DO- AUGUST, 95. P4. -DO- SEPTEMBER, 95. P5. -DO- OCTOBER, 95. P6. -DO- NOVEMBER, 95. P7. -DO- DECEMBER, 95. P8. -DO- JANUARY, 96. P9. -DO- FEB.96. P10. -DO- MARCH, 96. P11. COPY OF THE GOVT. ORDER DTD.14.10.98. P12. COPY OF THE GOVT. ORDER DTD.6.2.2001. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No.11440 of 2001 ================== Dated this the 31st day of January, 2008 J U D G M E N T The petitioner was appointed as an Upper Primary School Assistant in the third respondent's school in a sanctioned post with effect from 8.6.1995. That appointment was approved by the Assistant Educational Officer. Later on, the District Educational Officer, on scrutiny, reduced one division on the ground that there was no sufficient accommodation for one division. The manager challenged that order and ultimately by Ext.P11 order, the Government allowed the request of the manager retaining the 8th division in the school during 1995-96, if it is otherwise in order. Subsequently, for the year 1996-97 again the post was reduced on account of lack of accommodation. In the meanwhile the manager allowed the petitioner to continue in service, but, in view of the fact that there was no post to accommodate the petitioner, no salary was paid to her by the Government. The petitioner staked a claim for payment of salary for the subsequent periods also, viz., 1996-97, 97-98 and 98-99, by filing a petition before the Government, which was rejected by Ext.P12 on the ground that there was no sufficient o.p.11440/01 2 accommodation for a division to accommodate the petitioner and therefore, she is not entitled to salary for the said period. The petitioner is challenging Ext.P12 order in this original petition. 2. The petitioner's contention is that since her appointment with effect from 8.6.1995 was approved and she continued in service without cancellation of that approval, she is entitled to salary for subsequent periods also notwithstanding the reduction of post consequent to staff fixation order. The petitioner relies on the decision of Division Bench in W.A.No.143/1976, that of Full Bench decision in Harikumar v. State of Kerala [2003 (1) KLT 797] and that of a learned Single Judge of this court in W.P(C).No. 37083/04. 3. The learned Government Pleader stoutly opposes the claim. She would submit that Ext.P11 order of the Government enabled the petitioner to continue in the post only for the year 1995-96 and not thereafter. From 1996-97 onwards, for want of accommodation, the eight vacancy was not sanctioned, consequent to which the petitioner did not have a place in the school. Therefore, by operation of Rule 55 of Chapter XIV-A of the KER the petitioner was liable to be retrenched from service. The fact that the manager unauthorizedly allowed the petitioner o.p.11440/01 3 to continue in service does not enable the petitioner to claim salary for the periods subsequent to 1995-96. The learned Government Pleader also relies on the decision in Manager, Mar Sleeba U.P.S. v. State of Kerala [1990 (1) KLT 625]. 4. I have considered the rival contentions in detail. 5. At the outset I must state that if I accept the contention of the petitioner it would enable unscrupulous managers to allow teachers who do not have place in the school and claim salary for that unauthorised continuance in service, which cannot be permitted under law, which is against the provisions of the KER also. 6. Here admittedly, by Ext.P11 order, the eight division was allowed to be continued for 1995-96 alone. Thereafter, the eight division was not sanctioned at all. That being so, the petitioner had no palace to be accommodated in the school. Rule 55 of Chapter XIV-A of the KER reads thus: “55. Supernumerary and Excess Teachers:- The number of permanent teachers under each category in the staff list of any school or in all the schools under one Educational Agency shall not exceed the aggregate number of sanctioned posts under that category in that school or in that unit as the case may be: and excess hands, if any based on the strength of the classes fixed in accordance with sub-rule (1) of rule 12 of Chapter XXIII will be retrenched by throwing out the juniormost hands with due regard however to the requirement of subjects determined by the Director under sub rule (1) of rule 1 and to the instructions issued by him under sub rule (4) of rule 1 as far as o.p.11440/01 4 High Schools are concerned.” Going by this rule, as soon as the staff fixation orders are passed, excess hands, if any, based on the strength of pupils have to be retrenched by sending out the junior most hand in the school. Therefore, it is the duty cast upon the manager under the KER to retrench the excess teacher as soon as staff fixation orders are received. Here as per the staff fixation orders subsequent to the year 1995-96, there was no post available to accommodate the petitioner. Therefore, it was the duty of the manager to retrench the petitioner from service, which apparently had not been done by the manager. For failure on the part of the manager to perform his statutory duty under the KER, the Government cannot be saddled with the liability to pay salary to the teacher. My view is supported by the decision of Manager, Mar Sleeba U.P.S. v. State of Kerala [1990 (1) 625]. In that decision, in paragraph 6, a learned Single Judge of this court held thus: “6. ......... Rule 55, chapter XIV-A states that excess hand based on the strength of class will be retrenched by throwing out the junior most hand. The word “retrench” as per Chambers 20th Century Dictionary means “to cut off, or down”. It means that excess hand based on the strength of class should be cut off from the staff of the school. If he is so cut off from the staff of the school he cannot there- after be considered as a member of the staff of the school. The teacher so thrown out there-after is entitled to a preferential claim for appointment to future vacancy in the school as provided under R.51-A of Chapter XIV-A. He has no other right in the parent school.” o.p.11440/01 5 Therefore, I do not find any merit in the contention of the petitioner in this regard. 7. As far as the decisions relied on by the petitioner are concerned, according to me, the same are not applicable to the case at hand at all. In W.A.No.143/76 there was an order by the DEO in favour of the teacher in that case recognising her right as a protected teacher and there was a further direction to post her in recognition of the teacher's right for protection. It is on that basis that the teacher continued in service. Taking into account that fact only it was held that the teacher was eligible for salary for the periods she continued on the strength of those orders. Here that is not the situation. There was no order by any educational authority recognising the right of the petitioner to continue in service beyond 1995-96. 8. As far as the Full Bench decision in Harikumar's case (supra) is concerned, that was a case in which interpretation of Rule 6B of Chapter XXIII-E of the KER was is in question. The position of law in respect thereof was in doubt for quite some time. The very fact that the matter had to be referred to a Full Bench itself shows that there was a very genuine dispute regarding interpretation of that section. It is only recognizing that o.p.11440/01 6 fact, the Full Bench held that the teachers involved in the case having continued in the post denial of salary to them is arbitrary and unfair. That decision cannot apply to the facts of this case. 9. As far as other Single Bench decision in W.P(C). No.37083/2004 is concerned, a teacher was appointed overlooking the claim of a Rule 43 claimant, which appointment was approved by the educational authorities and the teacher continued in service. Subsequently it was held that the appointment was bad. In such circumstances, the learned Single Judge held that since the petitioner had approved service, he cannot be blamed for the action of the manager in appointing him overlooking a Rule 43 claimant and therefore, he is eligible for salary. That case also cannot have application in the present case. In the above circumstances, I do not find any merit in this original petition and accordingly the same is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE o.p.11440/01 7 S.SIRI JAGAN, J. =============== O.P.No.11440 of 2001-J =============== J U D G M E N T 31st January, 2008 o.p.11440/01 8