IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 28TH JUNE 2011 / 7TH ASHADHA 1933 WP(C).No. 14760 of 2004(F) ----------------------------------------- PETITIONER(S): ------------------------- INDU. B. PILLAI, HSA (MATHS), S.V. HIGH SCHOOL, THAMARAKUDY VIA. KOTTARAKKARA, KOLLAM DISTRICT. BY ADV. SRI.M.V.THAMBAN RESPONDENT(S): ---------------------------- 1. THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA. 2. DEPUTY DIRECTOR (EDUCATION), KOLLAM. 3. THE DIRECTOR OF PUBLIC INSTRUCTION,THIRUVANANTHAPURAM. 4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 5. THE MANAGER, S.V. HIGH SCHOOL, THAMARAKUDY, VIA. KOTTARAKKARA,KOLLAM DISTRICT. *ADDL.R6 IMPLEADED: R6. K.G.THULASSEDHARAN, HSA (PHYSICAL SCIENCE - ON PROTECTION FROM S.V. HIGH SCHOOL THAMARAKUDY) GOVT. HIGH SCHOOL CHITHARA, KOLLAM DISTRICT.(**DELETED) (*ADDL.R6 IS IMPLEADED AS PER ORDER DTD. 19/05/2004 IN I.A.NO.5904/04) (**ADDL.R6 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DTD. 28/06/2011 IN I.A.NO.9064/2011). R1 TO R4 BY GOVERNMENT PLEADER SMT. RANI DIOTHIMA ADDL.R6 BY ADVS.SRI.LEGY ABRAHAM, SRI.C.N.SIVANKUTTY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.14760/2004 F APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF STAFF FIXATION ORDER DTD. 31/08/2002 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2002-03. P2: COPY OF APPOINTMENT ORDER DTD. 6/01/2003 ISSUED BY THE MANAGER. P3: COPY OF REPORT DTD. 28/03/2003 SUBMITTED BY THE 1ST RESPONDENT. P4: COPY OF HEARING NOTE DTD. 19/12/2003 SUBMITTED TO THE 2ND RESPONDENT. P5: COPY OF LETTER NO.84/6296/02DTD. 24/02/2004 ISSUED BY THE 2ND RESPONDENT. P6: COPY OF LETTER NO.B4/2540/2003 DTD. 31/03/2004 ISSUED BY THE 1ST RESPONDENT. P7: COPY OF GOVT.ORDER G.O.(MS) NO.125/2001/G.EDN. DTD.2/04/2001. P8: (I.A.NO.5903/2004) - COPY OF GOVT. ORDER G.O.(RT) NO.465/2002/G1.EDN. DTD. 31/01/2003. P8: (I.A.NO.8933/2004) - COPY OF ORDER NO.E11/26880/04/D.DIS. DTD. 3/06/2004 ISSUED BY THE 3RD RESPONDENT. P9: NIL P10: COPY OF THE STAFF FIXATION ORDER ISSUED BY THE DEO, KOTTARAKKARA DTD. 5/12/2005. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss WPC.NO.14760/2004 F APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF STAFF FIXATION ORDER DTD. 31/08/2002 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2002-03. P2: COPY OF APPOINTMENT ORDER DTD. 6/01/2003 ISSUED BY THE MANAGER. P3: COPY OF REPORT DTD. 28/03/2003 SUBMITTED BY THE 1ST RESPONDENT. P4: COPY OF HEARING NOTE DTD. 19/12/2003 SUBMITTED TO THE 2ND RESPONDENT. P5: COPY OF LETTER NO.84/6296/02 DTD. 24/02/2004 ISSUED BY THE 2ND RESPONDENT. P6: COPY OF LETTER NO.84/2540/2003 DTD. 31/03/2004 ISSUED BY THE 1ST RESPONDENT. P7: COPY OF GOVT.ORDER G.O.(MS) NO.125/2001/G.EDN. DTD. 2/04/2001. T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.14760 OF 2004 --------------------------------------- Dated this the 28th day of June, 2011. J U D G M E N T The petitioner who was appointed as H.S.A (Maths) is aggrieved by various proceedings which were issued to recall the approval granted to her on the ground that in a different subject, a protected teacher was available. The petitioner was appointed when the senior-most Maths teacher Smt.Padmavathy Amma was promoted as Headmistress by Ext.P2 order from 06.01.2003 and the appointment was approved from 06.01.2003 to 31.03.2003 and from 01.06.2003 onwards. 2. It appears that one Sri.K.G.Thulaseedharan who was impleaded as additional 6th respondent herein and who is no more now was deployed to a Government School on protection. He was a High School Assistant in Physical Science. It appears that he made a request for recalling him to his parent school in one of the posts of H.S.A (Maths). A report was called for by the District W.P.(C) No.14760/2004 2 Educational Officer and thereafter the Deputy Director of Education issued Ext.P5 to revise the approval granted to the petitioner. It is at that stage, this writ petition was filed. 3. Pending the writ petition, the petitioner was allowed to continue by an interim order. Further orders have been passed by the Department which have been produced as Exts.P6 and P8. 4. The whole approach made by the respondents is that Sri.Thulaseedharan, H.S.A(Physical Science) was available and therefore, the said teacher ought to have been recalled. Learned counsel for the petitioner submitted that sanction was there for three H.S.As (Maths) and Ext.P2 order was issued as per the staff fixation for the year 2002-2003. It is submitted that even though a Government Order provides for the creation of the post of H.S.A (English), it permitted continuancy of existing teachers and thereafter the Manager has not appointed any new H.S.A (English). Therefore, it is submitted that the petitioner's appointment and approval as H.S.A (Maths) cannot be disturbed to recall the H.S.A (Physical Science) hand. 5. My attention was invited to Ext.P8 order passed by the W.P.(C) No.14760/2004 3 Government in respect of a High School at Pavumba, Karunagappally. Therein, the Government took the view that it is mandatory to follow the subject ratio 1:1:1. Apart from that, the learned counsel for the petitioner relied upon the decision of a Division Bench of this Court in Writ Appeal No.2787/07. 6. The respondents have filed a counter affidavit justifying the action taken by them. Evidently, the stand taken therein is that while the petitioner was appointed, Sri.K.G.Thulaseedharan, a deployed protected H.S.A (Physical Science) was available and he had been working in a Government School. It is, therefore, contended that since such a protected teacher was available, the petitioner could not have expected any appointment. Evidently, reabsorption of a protected hand arises when a vacancy arises in the parent school in the same subject. The learned Government Pleader justified the orders, by arguing that H.S.A (Physical Science) could have been recalled. The respondents have not relied upon any Government Order which permits redeployment of H.S.A (Physical Science) hand for filling up the vacancy of H.S.A (Maths). W.P.(C) No.14760/2004 4 7. In fact, the insistence of maintaining subject ratio is important. This aspect was considered by the Division Bench in W.A.No.2787/2007. Therein, in paragraph 5, it was held as follows: “.....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.....”. 8. The circular mentioned therein is dated 10.02.1995, the details of which also is given in the same paragraph of the said judgment. In paragraph 5 of the circular, it is provided 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. 9. Learned counsel for the petitioner submitted that what is important is to maintain the subject ratio. Evidently, the posts sanctioned in 2002-03 are three posts of H.S.A (Maths). The only justification sought for in support of the plea that late Sri. Thulaseedharan should have been recalled is that he is a W.P.(C) No.14760/2004 5 protected teacher of the school. At any rate, it cannot be the criteria. The subject ratio also is important. 10. In that view of the matter, the view taken that the approval of appointment of the petitioner is irregular is not correct. Apart from that, in the year 2004, late Sri. Thulaseedharan was recalled by applying 1:40 ratio and after serving for a couple of years, he died while in service. In the light of the above decision, the petitioner is entitled to succeed in the writ petition and the impugned orders Exts.P5 and P6 are quashed. It is submitted by the learned counsel for the petitioner that the petitioner is only drawing basic pay and Dearness Allowance as it stood in 2003 and the benefit of increments and subsequent pay revisions have not been granted. Since the appointment will have to be treated as regular and as the appointments have already been approved, the petitioner is entitled for all the consequential benefits including increments and the benefit of pay revisions. Appropriate orders will be issued for granting the same within a period of two months from the date of receipt of a copy of this judgment and consequential W.P.(C) No.14760/2004 6 benefits will be disbursed within a further period of two months. This writ petition is allowed as above. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp