IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 16TH DECEMBER 2008 / 25TH AGRAHAYANA 1930 WP(C).No. 14704 of 2007(A) -------------------------- PETITIONER(S): ------------------ C.M.BINDU, W/O.RAJEEVAN,AGED 30 YEARS, (FORMER HIGH SCHOOL ASSISTANT,(PHYSICAL SCIENCE), MATTANNUR HIGHER SECONDARY SCHOOL,(RESIDING AT LAKSHMI NIVAS, KAYALOOR, CHAVASSERY, KANNUR DISTRICT). BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): ------------------- 1. THE STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT,SECRETRIAT ANNEX, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRICTION, JAGATHY,TRIVANDRUM-14. 3. THE DISTRICT EDUCATIONAL OFFICER, TELLICHERRY.P.O.,TELICHERRY, KANNUR DISTRICT. 4. THE MANAGER, MATTANNUR HIGHER SECONDARY SCHOOL, MATTANNUR, KANNUR DISTRICT. 5. THE HEADMASTER, MATTANNUR HIGHER SECONDARY SCHOOL,MATTANNUR, KANNUR DISTRICT. 6. K.REJITHA, UPPER PRIMARY SCHOOL ASSISTANT,MATTANNUR HIGHER SECONDARY SCHOOL, MATTANNUR, KANNUR DISTRICT. WPC NO.14704/07 -2- 7. K.BINDU,UPPER PRIMARY SCHOOL ASSISTANT, MATTANNUR HIGHER SECONDARY SCHOOL, MATTANNUR, KANNUR DISTRICT. 8. A.K.BHAYALAKSHMI, UPPER PRIMARY SCHOOL ASSISTANT, MATTANNUR HIGHER SECONDARY SCHOOL, MATTANNUR, KANNUR DISTRICT. 9. C.SUJITH KUMAR, UPPER PRIMARY SCHOOL ASSISTANT,(THROWN OUT), MATTANNUR HIGHER SECONDARY SCHOOL, MATTANNUR, KANNUR DISTRICT. 10. K.JEEJA,UPPER PRIMARY SCHOOL ASSISTANT, (THROWN OUT),MATTANNUR HIGHER SECONDARY SCHOOL, MATTANNUR, KANNUR DISTRICT. 11. PADMARAJAN,ASSISTANT PRIVATE SECRETARY TO HOME MINISTER, OFFICE OF THE HOME MINISTER, SECRETRIAT,TRIVANDRUM. ADV. SRI.KRB.KAIMAL (SR.) FOR R6TO 11 SRI.B.UNNIKRISHNA KAIMAL FOR R6 TO 11 GOVERNMENT PLEADER SMT.T.B.REMANI SMT.VIDHYA. A.C FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.14704/07 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE G.O(P) NO.187/2005/G.EDN. OF THE GOVERNMENT. EXT.P2: TRUE COPY OF THE JUDGMNT OF THIS HON'BLE COURT IN WPC NO.32819/06-F. EXT.P3: TRUE COPY OF THE ORDER NO.B4-9718/2006/K.DIS OF THE DIST.EDL.OFFICER. EXT.P4: TRUE COPY OF THE GO(P) NO.4/2005/G.EDN. OF THE GOVERNMENT. EXT.P5: TRUE COPY OF THE AFFIDAVIT FILED IN CONC.CASE(C) NO.162/2006. EXT.P6: TRUE COPY OF THE G.O(RT) NO.789/06/G1.EDN. OF THE GOVERNMENT. EXT.P7: TRUE COPY OF THE GO(RT) NO.1701/07/G.EDN. OF THE GOVERNMENT. EXT.P8: TRUE COPY OF THE LETTER NO.23296/A2/06/GE OF THE GOVERNMENT. EXT.P9: TRUE COPY OF THE ORDER NO.3/2005 OF THE MANAGER. EXT.P10: TRUE COPY OF THE NOTE FILE FROM THE GOVT. EXT.P11: TRUE COPY OF THENOTE NO.480/M/FIN/06 OF THE PRIVATE SECRETARY. EXT.P12: TRUE COPY OF THE APPOINTMENT ORDER. EXT.P13: TRUE COPY OF THE ORDER NO.B1/3711/07/K.DIS.OF THE DY.DIRECTOR OF EDN. EXT.P14: TRUE COPY OF THE PETITION FILED BEFORE THE DIRECTOR OF PUBLIC INSTRUCTION. EXT.P15: TRUE COPY OF the JUDMENT OF THIS HON'BLE COURT IN WPC NO.19793/2008 F EXT.P16: TRUE COPY OF the ARGUMENT NOTES OF THE PETITIONER. WPC 14704/07 -2- EXT.P17: TRTUE COPY OF THE ORDER OF THE STATE INFORMATION OFFICER. EXT.P18: TRUE COPY OF THE GO(P) NO.12/08/G.EDN. OF THE GOVERNMENT. EXTS. OF R6 EXT.R6(a): TRUE COPY OF THE APPOINTMENT ORDER DT 13.7.2001 ISSUED BY THE 4TH RESPONDENT TO THE 8TH respondent WITH ENDORSEMENT OF APPROVAL OF DEO ON 5.5.2005. EXT.R6(b): TRUE COPY OF THE APPOINTMENT ORDER DT 18.8.2000 ISSUED BY THE 4TH RESPONDENT TO THE 6TH RESPONDENT WITH ENDORSEMENT OF APPROVAL OF DEO ON 23.11.2002. EXT.R6(c): TRUE COPY OF THE APPOINTMENT ORDER DT 13.7.2001 ISSUED BY THE 4TH RESPONDENT TO THE 7TH RESPONDENT WITH ENDORSEMENT OF APPROVAL OF DEO ON 8.2006. EXT.R6(d): TRUE COPY OF THE APPOINTMENT ORDER DT 2.6.03 ISSUED BY THE 4TH RESPONDENT TO THE 9TH respondent WITH ENDORSEMENT OF APPROVAL OF DEO ON 29.8.2006. EXT.R6(e): TRUE COPY OF THE APPOINTMENT ORDER DT 15.7.2004 ISSUED BY THE 4TH RESPONDENT TO THE 10TH RESPONDENT WITH ENDORSEMENT OF APPROVAL OF DEO ON 29.8.2006. EXT.R6(f): TRUE COPY ORDER NO.B4.8671/2006 DT 31.8.2006 ISSUED BY THE 3RD RESPONDENT. EXT.R6(g): TRUE COPY OF THE ORDER NO.D.DIS/RA.3/50887/05/DPI DT 23.9.2005 ISSUED BY THE 2ND RESPONDENT. EXT.R6(h): TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT INWPC NO.33268/05 DT 29.11.2005. EXT.R6(i): TRUE COPY OF THE ORDER NO.D.DIS89771/05/RA.3/DPI DT 1.2.2006 ISSUED BY THE 2ND RESPONDENT. EXT.R6(j): TRUE COPY OF THE GOVT. ORDER G.O(P) NO.318/2005/G.EDN. DT 17.8.2005. EXT.R6(k): TRUE COPY OF THE REVISION PETITION SUBMITTED BY RESPONDENTS 6 TO 10 AND ANTHER TO THE 1ST RESPONDENT DT 20.2.2006. EXT.R6(l): TRUE COPY OF THE LETTER DT 24.4.2006 OF THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT TO RESPONDENTS 6 TO 10. WPC 14704/07 -2- EXT.R6(m): TRUE COPY OF THE ORDER NO.D.DIS-94327/05/RA(3)/DPI DT 18.8.2006 ISSUED BY THE 2ND RESPONDENT. EXT.R6(n): TRUE COPY OF the ORDER NO.EM(3) 60313/07/DPI/D.DIS DT 9.5.2008 ISSUED BY THE ADDL.DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. ============== W.P.(C) NO. 14704 OF 2007 (A) ==================== Dated this the 16th day of December, 2008 J U D G M E N T Petitioner was appointed as HSA(Physical Science) in the school of which the 4th respondent is the Manager, during the period 18/9/2000 to 30/10/2000. The said appointment was approved by the educational authorities. Respondents 9 and 10 entered service as UPSA on 2/6/2003 and 10/11/2003 and were retrenched from service w.e.f. 15/7/05. 2. Ext.P1 is the Government order dated 25/6/05 whereby Rule 51A of Chapter XIV A KER was amended providing that claimants have right for higher or lower posts also. Ext.P4 is a Government order, to the effect that teacher student ratio of 1:40 ratio, would apply only for avoiding retrenchment. Petitioner also refers to Exts. P6 Government order and Ext.P5 affidavit filed by the 1st respondent before this Court taking the view that teacher student ratio is applicable only to avoid retrenchment. 3. In 2005-06, four posts of HSAs in the school were reduced due to division fall and respondents 6, 7 and 8 were reverted as UPSAs and consequently respondents 9 and 10, who were UPSAs, were retrenched as stated above w.e.f. 15/7/05. Ext.P9 was challenged by the WPC 14704/07 :2 : party respondents before the DPI and by Ext.R6(i) order dated 1/2/06, the same was rejected. In a further revision filed before the Government, Ext.P8 order was passed by the 1st respondent on 24/6/06, rejecting the revision. 4. Petitioner states that in 2006-07, two posts of UPSAs occurred in the school and consequently Government passed Ext.P7 order dated 17/4/2007 setting aside Ext.R6(i) order passed by the DPI, ordering that respondents 6,7 and 8 be retained as HSAs applying the ratio of 1:40 in the 4th respondent school for the year 2005-06 and to accommodate respondents 9 and 10 in the UPSA vacancies which occurred in 2006-07, as a special case. 5. Petitioner submits that she having approved prior service, is entitled to claim accommodation in one of the UPSA vacancies. The contentions raised by the counsel for the petitioner are that when the Government rejected the revision filed by the party respondents against Ext.R6(i) order, the Government having exercised and exhausted its revisional power provided under Rule 92 of Chapter XIV A KER, it was impermissible for the Government to have taken it upon itself the issue WPC 14704/07 :3 : once again and passed Ext.P7 order. Therefore, it is contended that Ext.P7 is without jurisdiction. It is also contended that in the subsequent vacancies which arose in the academic year 2006-07, petitioner had a rightful claim particularly in the light of Ext.P1 Government order amending Rule 51A, Chapter XIV A KER. It is also his contention that the stand regarding the application of teacher student ratio 1:40 as reflected in Ext.P8, is in substantial variance with the stand taken in Exts. P4 and P6 Government orders and Ext.P5 affidavit filed before this Court. Finally, it is contended that Ext.P7 order was passed without issuing notice to the petitioner and for that reason also Ext.P7 Government order is illegal. 6. On the other hand, on behalf of the party respondents, learned Senior Counsel Sri.KRB.Kaimal contended that Ext.P8 is not an order that is contemplated under Rule 92 of Chapter XIV A KER and it was therefore that the Government issued Ext.P8, complying with the requirements of the said rule. According to the counsel, until Ext.P8 order was issued, the revision filed by them against Ext.R6(i) was pending before the Government and therefore the Government was well within its jurisdiction in passing Ext.P7 order. Learned Senior Counsel also invited WPC 14704/07 :4 : my attention to Ext.R6(g) and Ext.R6(m) where in similar circumstances, the teacher student ratio 1:40 was applied by the Director. Counsel also disputed the locus standi of the petitioner to challenge Ext.P7, as according to the counsel, the purport of Ext.P7 is to avoid reversion of HSAs and that so long as the petitioner has no claim against HSA post, it is not open to her to challenge Ext.P7. He also canvassed for the position that in the absence of one year service for the petitioner, she cannot claim the benefit of Rule 51A. 7. From the rival contentions that are raised by both sides, it can be seen that the petitioner had several contentions to be urged against the conclusions in Ext.P7 order passed by the Government setting aside Ext.R6 (i) order passed by the DPI. In my view, so long as Ext.R6(i) order holds the field, certain rights accrued in favour of the petitioner and that as a result of Ext.P7, those rights have been adversely affected. Thus Ext.P7 order has vitally affected the rights of the petitioner and such an order could not have been passed without putting the petitioner on notice and hearing her. Admittedly, Ext.P7 is passed without notice and therefore, I hold that Ext.P7 order has been passed by the Government in violation of WPC 14704/07 :5 : the principles of natural justice. For that reason, I am inclined to quash Ext.P7 and I do so. The Government is directed to reconsider the matter with notice to the petitioner and respondents 4 and 6 to 10 and take a decision dealing with the contentions raised by both sides, within two months of receipt of a copy of this judgment. It is clarified that the contentions of both sides have been left open. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp