IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 WA.No. 1771 of 2003(C) -------------------------------------- JUDGMENT IN OP.21114/2000 DATED 3.4.2003 ............. APPELLANT(S): PETITIONER IN OP: R.ASHALATHA, H.S.A., NATIONAL HIGH SCHOOL, VALLAMKULAM, THIRUVALLA. BY ADV. SMT.V.P.SEEMANDINI (SR.) RESPONDENTS/RESPONDENTS: 1. STATE OF KERALA REP.BY SECRETARY TO GOVT., GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM-695 001. 2. THE DISTRICT EDUCATIONAL OFFICER, THIRUVALLA. 3. THE MANAGER, NATIONAL HIGH SCHOOL, VALLAMKULAM, THIRUVALLA. 4. RADHAMMA, H.S.A. (S.S.), (RETIRED) NATIONAL HIGH SCHOOL, VALLAMKULAM, THIRUVALLA, NOW RESIDING AT 'INDUSADAN;, VALLAMKULAM P.O., THIRUVALLA. 5. SIVASANKARA PILLAI, HEADMASTER (RETIRED) NATIONAL HIGH SCHOOL, VALLAMKULAM, THIRUVALLA, NOW RESIDING AT MATTAPPALLI HOUSE, VAZHAPPALLI P.O., CHANGANASSERI. SR.GOVT. PLEADER SRI.BEENY GERVACIS FOR R1 & R2 SRI.K.A.ABRAHAM SRI.BIJU MATHEW SRI.V.B.HARINARAYANAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 31/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- W.A.No.1771 of 2003 --------------------------------- JUDGMENT Koshy, J. Appellant/petitioner was appointed as Upper Primary School Assistant (UPSA) in the school managed by the third respondent in the year 1992- 93. The writ petitioner being a trained graduate with Mathematics as her main subject she was appointed by the Manager as High School Assistant (Maths) in a retirement vacancy with effect from 15.7.1994. The fourth respondent was appointed as HSA (Science) on 15.7.1972. The fifth respondent was appointed as early as on 3.6.1968 as HSA (Science) and later he was promoted as Headmaster. Both, respondents 4 and 5 retired from service in March 2002. Even though the writ petitioner was appointed as HSA (Maths) on 15.7.1994, approval of her appointment was declined by the educational authorities. Writ petitioner challenged non- approval of her appointment, which resulted in WA 1771/03 2 Exhibit P5 judgment. In Exhibit P5 judgment, the learned single Judge directed the first respondent to pass fresh orders with regard to the right of the petitioner to get approval of her appointment at least from 1996-97 onwards. It was further observed by the learned single Judge in Exhibit P5 judgment at paragraphs 5 and 6 as follows: “5. The petitioner has got a specific case in ground E of the Original Petition that on 31.3.1996, one among the 3 HSAs (Maths) working in the school, viz., Smt.Saramma retired from service thus reducing the number of existing Maths teachers from 3 to 2. In the subsequent year also, two posts of HSA (Maths) were sanctioned to the school and the petitioner and another were the only Maths teachers available. Therefore, at least from 1996-97 onwards the petitioner is entitled to get her appointment approved as HSA (Maths) in accordance with the staff fixation. In Exhibit P4, the petitioner's appointment was approved as UPSA from 1994 to 1997. There was no answer to this specific averment contained in ground E in the counter affidavit.Under these circumstances, the first respondent is directed to review and reconsider Exhibit P4 WA 1771/03 3 order taking into account the specific case put forward by the petitioner as detailed above. The first respondent is directed to pass fresh orders with regard to the right of the petitioner to get approval of her appointment at least from 1996-97 onwards. 6. Though the petitioner was pursuing her claim for earlier years, I do not think that it is possible for this Court to give any such direction to the first respondent. In case the petitioner's appointment is to be approved, then it is likely that a senior hand was to be deployed as excess hand. Since neither that person, nor any other affected party is before me in this original petition, it is not possible to give any such direction. Therefore, the first respondent is directed to reconsider the matter as held above, after giving necessary notice to the Manager as well as any other teacher who is likely to be affected. Orders in this respect must be passed by the first respondent within two months from the date of receipt of a copy of this judgment.” It was also noticed that appointment of the petitioner as UPSA was approved from 1994. Consequent to the above judgment, Exhibit P6 order WA 1771/03 4 was passed. Therein, it was held that she cannot be appointed as HSA in 1996, as there was no vacancy in the school from 1996-97 to 1998-99 and therefore, her appointment as HSA (Maths) can be approved only from 15.7.1999, when another vacancy arose. Accordingly, her appointment was approved from 15.7.1999. 2. The writ petition was filed challenging Exhibits P4 and P6 orders. The learned single Judge, while disposing of the writ petition, noticed that no direction regarding the claim made by the petitioner prior to 1996 can be given, as in the earlier writ petition affected parties were not impleaded and therefore, the claim with respect to the year 1996-97 can only be considered. The learned single Judge further noticed that respondents 4 and 5 were working in the school much prior to the the appointment of the petitioner even as a UPSA and they cannot be retrenched and an order can be passed appointing the petitioner as HSA, as it will create great injustice and the writ WA 1771/03 5 petition was dismissed. 3. In this writ appeal, it is argued that Exhibit P5 is an open remand order, though the affected parties were not made parties in the writ petition. While passing Exhibit P6 order, they were heard. The reason for not approving the appointment of the petitioner from 1994 onwards is that senior teachers were working in the school. It is also argued that while granting promotions or making appointments as HSA, the subject requirement has to be taken into consideration. Now, we will consider the Rules concerning to subject requirement. 4. Rule 1(1) of Chapter XIV-A of KER reads as follows: “Managers of Private Schools shall appoint only candidates who possess the prescribed qualification. As far as High School classes are concerned, the appointment shall be made with due regard to the requirement of subjects as determined by Director of Public Instruction with reference to the curricula of studies. Whenever vacancy occurs, the manager shall follow the directions issued by WA 1771/03 6 Government from time to time, for ascertaining the availability of qualified hand (and for filling up vacancy).” So, the subject requirement has to be satisfied by the Director of Public Instruction. Of course, it should not be contrary to the Rules provided. In this connection, we also refer to Rule 43 of Chapter XIV-A of KER, which reads as follows: “[Subject to rules 44, 45 and 51A] and considerations of efficiency and any general order that may be issued by the Government, vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority, if such hands are available: Provided that in the case of promotion to the post of High School Assistant (Subject), the minimum subject requirements alone need be satisfied, to safeguard the interests of trained graduates who are awaiting promotions as High School Assistants.” WA 1771/03 7 Earlier, subject requirement was 3:4:5. Same was changed vide circular dated 13.5.1985, in which, 1:1:1 was fixed as the ratio for Science, Mathematics and Social Studies. Clause (1) of the said circular reads as follows: “It is decided that from the school year 1985-86 onwards, the distribution of posts of HSAs in core subjects namely Social Studies, Mathematics and Science will be in the proportion of 1:1:1 in Government and Aided High Schools. This ratio shall also be followed in unaided recognised High Schools in the State. The break up for Physical and Natural Science will be in the ratio of 3:2.” Clause (10) of the said circular reads as follows: “The existing staff should not, however, be retrenched for satisfying the subject ratio if they are otherwise eligible to continue. The excess hands in a school in any of the core subject may be distributed among the schools under the same management by suitable adjustment. If there is only one school under a management, the excess hands in any WA 1771/03 8 one of the core subjects, may be retained in the school, if they are otherwise eligible to be adjusted against future vacancies.” 5. It is apparent from the circular that even though subject requirement has to be followed while giving appointments or while effecting promotions from UPSAs to HSAs under Rule 43 or giving accommodation to the retrenched teachers under Rule 51A, subject requirement should be taken into consideration. But, existing teachers should be allowed to continue, especially when there is only one school under the management. Respondents 4 and 5 were appointed even prior to 1972. It was argued that G.O.(MS)No.37/94/G.Edn. dated 16.3.1994 specifically mentions that subject ratio on core subjects, Social Studies, Mathematics and Science as 1:1:1 should be strictly maintained. Clause(C) of the above Government Order reads as follows: “C. Future promotions/appointments of HSAs (core subjects) WA 1771/03 9 (i) Future promotions/appointments to the posts of HSA (Core subjects) shall be confined strictly in accordance with the subject ratio of 1:1:1 for each category of HSAs (Core Subjects, namely, Social Studies, Mathematics, Science with internal ratio of 3:2 between Physical Science and Natural Science), and that appointment shall be made with due regard to the qualifications prescribed for each post, i.e. the candidate should be duly qualified for that particular post, under Chapter XXXI of KER. (ii) When retrenchment or reversion of teachers is necessary as a consequence of reduction of posts according to the annual fixation of staff retrenchment or reversion will be done on the principle: last to come, first to go, in each category of HSAs (Core subjects). In other words, the subject ratio of 1:1:1 (between the core subjects with internal ratio of 3:2 between Physical Science and Natural Science) in the matter of retrenchment or reversion of teachers as a consequence of reduction of posts in annual fixation of staff will be followed.” But, it also very specifically mentions about the future promotions or appointments as HSAs and not the promotions or appointments effected before WA 1771/03 10 19.3.1994. Further, it was clarified again by circular dated 10.2.1995 that 1:1:1 ratio should be considered with respect to the minimum subject requirement. In Clause (6) of the said circular, it is stated that persons already appointed shall not be affected. They cannot be terminated. But, it should be adjusted in the future vacancies. 6. Learned counsel for the appellant relied on the decision of the Supreme Court in Deepa Augustine v. Geetha Alex (2008 (2) KLT 771), wherein, the Honourable Supreme Court observed as follows: “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 recruited and not a person who belongs to Social Studies. This WA 1771/03 11 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.” It is true that whenever a vacancy arose in a particular core subject, teacher with specialisation in that subject should be appointed. But, that is different from saying that the teachers, who were appointed earlier to the fixation of the ratio and the Rules, should be retrenched especially when there is one teacher in the subject to teach the particular subject. Respondents 4 and 5 were appointed in 1972 and 1968 respectively and they were working as HSAs prior to the appointment of the petitioner. When the fifth respondent was appointed, petitioner was only one year old infant. After deploying those teachers, petitioner cannot be promoted, as it will create unjust consequences. Writ petition is an equitable remedy and the learned single Judge, therefore, WA 1771/03 12 dismissed the writ petition. 7. On the facts of this case, petitioner was an approved UPSA and she can be promoted only with effect from 15.7.1999, as mentioned in Exhibit P6. But, it is submitted that even after Exhibit P6, petitioner was not paid salary as HSA after 1997. On the basis of the interim order salary was paid from 15.7.1999 only. It is further stated that grade promotions and other benefits were also not granted as UPSA till 14.7.1999 and as HSA thereafter. We make it clear that her salary as an UPSA should be paid to her till 14.7.1999 and from 15.7.1999 onwards she should be paid all the benefits, including all consequential benefits, as an HSA. In Exhibit P4, approval of her appointment is granted only up to 14.7.1997. For the reasons stated her appointment as UPSA should be approved till 14.7.1999, as her promotion as HSA was approved only with effect from that date. The judgment should be implemented within two months from the date of receipt of a copy of this WA 1771/03 13 judgment. Appeal is disposed of as above. (J.B.Koshy, Judge) 31st October, 2008 (K.P.Balachandran, Judge) tkv