IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 22ND SEPTEMBER 2009 / 31ST BHADRA 1931 WA.No. 2787 of 2007() --------------------- AGAINST THE JUDGEMENT IN WPC.12222/2007 Dated 30/10/2007 .................... APPELLANT(S): 5TH RESPONDENT ---------------------------- S.KRISHNA KUMARI, AGED 45 YEARS, W/O.RAJAGOPALAN NAIR, HIGH SCHOOL ASSISTANT, (PHYSICAL SCIENCE), S.K.V.HIGH SCHOOL, KUTTAMPEROOR, ALAPPUZHA DISTRICT. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): PETITIONER AND RESPONDENTS 1 TO 4 ------------------------------------------------ 1. SMT.V.BEENA, HIGH SCHOOL ASSISTANT (SOCIAL SCIENCE), S.K.V.HIGH SCHOOL, KUTTAMPEROOR, ALAPPUZHA DISTRICT. ON DEPLOYMENT AS HIGH SCHOOL ASSISTANT (SOCIAL SCIENCE) V.R.V.M.H. SCHOOL (GOVERNMENT SCHOOL, VAYALAR, ALAPPUZHA DISTRICT). 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA. 4. THE DISTRICT EDUCATIONAL OFFICER, MAVELIKKARA. 5. THE HEADMASTER, S.K.V. HIGH SCHOOL, KUTTAMPEROOR, ALAPPUZHA DISTRICT. BY SENIOR ADVOCATE SRI.K.R.B.KAIMAL FOR R1 SRI.UNNIKRISHNA KAIMAL FOR R1 GOVT. PLEADER SMT.R.BINDU THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2009 ALONG WITH WA NO. 260 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - W.A.Nos. 2787/2007 & 260/2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of September, 2009 JUDGMENT Balakrishnan Nair, J. W.A.No.260/2008 Respondents 1 to 3 in the writ petition are the appellants. First respondent herein was the writ petitioner. The brief facts of the case are as follows : A.S.K.V. High School, Kuttamperoor, Alappuzha is an aided school governed by the provisions of the Kerala Education Act and the Rules framed thereunder. As per the Staff Fixation Order issued under Chapter XXIII of the Kerala Education Rules for the year 2005-2006, there were 12 class divisions in the High school and as a result, 12 posts of High School Assistant were sanctioned by the District Educational Officer. But during the year 2006-2007, there was reduction of two class divisions . Ext.P1 dated 31-07-2006 is the staff fixation order issued by the third respondent -District Educational Officer for the said year. As per the said staff fixation order, there were WA.Nos.260/08 & 2787/2007 Page numbers only 10 class divisions and consequently only 10 posts of High School Assistant were sanctioned. The break up of posts for the year 2005- 2006 was as follows : H.S.A (physical Science) H.S.A (Natural Science) H.S.A. ( Maths) H.S.A. (Social Studies) H.S.A. (English) Total Sanctioned posts 3 2 3 2 2 12 Teachers working 3 2 4 3 Nil 12 The break up of posts during the year 2006-2007 was as follows H.S.A (physical Science) H.S.A (Natural Science) H.S.A. ( Maths) H.S.A. (Social Studies) H.S.A. (English) Total Sanctioned posts 2 2 2 2 2 10 Teachers working 3 2 4 3 Nil 12 2. The District Educational Officer identified the third respondent and Smt.C.N.Chandralekha as surplus hands to be deployed as protected teachers. Later, the Deputy Director took steps suo motu to revise the staff fixation order by issuing Ext.P2 notice. The proposal contained in the said notice was to retain the third WA.Nos.260/08 & 2787/2007 Page numbers respondent herein who is a High School Assistant ( Physical Science) and to retrench first respondent who is a High School Assistant ( Social Studies). The first respondent filed Ext.P3 objections. The Deputy Director by Ext.P4 order dated 25-11-2006 revised Ext.P1 and ordered to deploy Smt.C.N.Chandralekha and the first respondent as protected teachers. The direction to deploy the third respondent was cancelled. The first respondent filed Ext.P5 revision before the Director of Public Instructions challenging Ext.P4. In the meantime, the Deputy Director issued consequential order - Ext.P6 implementing Ext.P4. Pursuant to the direction of this court in Ext.P7 judgment, the DPI considered Ext.P5 revision and dismissed it by Ext.P9 order. Challenging Exts.P4, P6 and P9, the writ petition was filed. The learned Single Judge accepted the contention of the first respondent that for retrenchment, each subject should be treated as a separate unit and allowed the writ petition. Reliance was also placed by the learned Single Judge on the decision of a Division Bench of this court in Rakhee v. State of Kerala ( 2007(1) KLT 766). Feeling aggrieved by the said directions, the official respondents have now preferred this WA.Nos.260/08 & 2787/2007 Page numbers appeal. Connected writ appeal ( W.A.No.2787/2007) has been filed by the third respondent herein. 3. We heard the learned counsel on both sides. The appellants would submit that the third respondent being senior to the first respondent, the former should have been retained and the first respondent should have been retrenched. Going by the new subject ratio introduced as per Appendix to GO(MS)11/2002/G.EDN. dated 07-01-2002 in a school having 10 class divisions, there is only two posts of Social Studies and therefore the direction to retrench the first respondent was valid. It is also pointed out that the DPI has issued a circular dated 31-1-2007 directing the officers passing staff fixation orders to follow the above Government Order and its appendix for staff fixation from the academic year 2002-2003 onwards. The learned senior counsel for the contesting respondent on the other hand submitted that as per Rule 6 I of Chapter XXIII KER, no post of High School Assistant ( English) has been created in the school in the absence of the jurisdictional pre-condition for the same. So the circular issued by the DPI on 10-02-1995 even now prevails and for WA.Nos.260/08 & 2787/2007 Page numbers retrenchment, the said circular has to be followed going by Rule 51 of Chapter XIV A KER. 4. We considered the rival submissions made at the Bar. When teachers become surplus as a result of staff fixation order, retrenchment has to be made as provided in Rule 51 of Chapter XIV A KER which reads as follows : “When a vacancy in any category of post terminates necessitating the relief of a teacher, senior hands shall ordinarily be retained in preference to junior hands with due regard 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 the Rule.” 5. The said Rule speaks about the direction issued by the DPI under Sub Rule (1) and Sub Rule (4) of Rule 1 of Chapter XIV A KER. We notice that the latest instructions issued by the DPI under Rule 1 are those contained in Circular No.H2/54419/94/DPI dated 10-02-1995. Paragraph 5 thereof specifically says that as a result of staff fixation order, if retrenchment is necessary, each subject should be treated as a separate unit and the junior most shall be retrenched. WA.Nos.260/08 & 2787/2007 Page numbers The above express provision to treat each subject as a separate unit for the purpose of retrenchment has not been superseded by any circular issued by the DPI subsequently. Therefore, if posts of High School Assistant ( English) are not created, as provided in Rule 6 I of Chapter XXIII KER, in view of the appendix to the aforementioned circular of the DPI dated 10-02-1995, three posts of Social Studies teachers are permissible in a school having ten class divisions. That being so, the first respondent cannot be treated as a surplus hand. Therefore, the decision of the learned Single Judge has to be upheld. The view taken by us is supported by the decision of a Division Bench of this court in Rakhee v. State of Kerala ( 2007(1) KLT 768) wherein it was held as follows : “ Going by R.51 Chapter XIV A K.E.R. also, the incumbent to be retrenched is the junior most teacher in the category concerned. The contention that HSAs in different subjects altogether shall be considered as one single category cannot be countenanced, because teachers are appointed for imparting the lessons in the concerned subjects. Therefore, the category for H.S.A subjects shall be WA.Nos.260/08 & 2787/2007 Page numbers considered against each subject for which sanction has been issued by the District Educational Officer concerned in the Staff Fixation Order for the respective years.” 6. Learned counsel for the appellant in W.A.No.2784/1007 tried to distinguish the said decision by contending that in the school involved in the above decision, there were 7 posts of High School Assistants. So the facts of the case are different. We notice that facts of every case will be different. There is no precedent on facts. The principle laid down in the said decision interpreting Rule 51 binds us also. Therefore, the said contention also cannot be accepted. In the result, the writ appeal fails and it is dismissed. W.A.No.2787/2007 In view of the judgment in W.A.No.260/2008, this writ appeal is also dismissed. K.BALAKRISHNAN NAIR JUDGE P.Q.BARKATH ALI JUDGE sv. WA.Nos.260/08 & 2787/2007 Page numbers WA.Nos.260/08 & 2787/2007 Page numbers