IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930 WP(C).No. 5087 of 2007(E) --------------------------------------- PETITIONER(S): ------------------------ REJINA PANAYADAN, H.S.A. ENGLISH, KUTHUPARAMBA HIGH SCHOOL, KUTHUPARAMBA, KANNUR DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR. 4. THE DISTRICT EDUCATIONAL OFFICER, THALASSERY. 5. THE MANAGER, KUTHUPARAMBA HIGH SCHOOL, P.O.THOKKILANGADI, KUTHUPARAMBA, KANNUR DIST. 6. S.R.SREEJITH, H.S.A. (ENGLISH), KUTHUPARAMBA HIGH SCHOOL, P.O.THOKKILANGADI, KUTHUPARAMBA, KANNUR DISTRICT. 7. SHEEBA P., H.S.A. (ENGLISH), KUTHUPARAMBA HIGH SCHOOL, P.O.THOKKILANGADI, KUTHUPARAMBA, KANNUR DIST. Kss ..2/- ..2..... WPC.NO.5087/2007 E 8. K.L.SHYNA, H.S.A.(PHYSICAL SCIENCE), KUTHUPARAMBA HIGH SCHOOL, P.O.THOKKILANGADI, KUTHUPARAMBA, KANNUR DIST. 9. VIPINKUMAR, H.S.A.(ENGLISH), KUTHUPARAMBA HIGH SCHOOL, P.O.THOKKILANGADI, KUTHUPARAMBA, KANNUR DIST. 10. BABITHA RAMACHANDRAN, H.S.A.(ENGLISH), KUTHUPARAMBA HIGH SCHOOL, P.O.THOKKILANGADI, KUTHUPARAMBA, KANNUR DIST. GOVERNMENT PLEADER SRI.T.T.MOHAMMED FOR R1 TO R4 ADV. SRI.K.V.PAVITHRAN FOR R5 SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL FOR R5 SRI.P.P.RAMACHANDRAN FOR R8,R9 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.5087/2007 E APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DTD. 4/07/2005. EXT.P2: COPY OF G.O.(MS) NO.11/2002/G.EDN. DTD. 7/01/2002. EXT.P3: COPY OF G.O.(P) 220/2005/G.EDN. DTD. 19/07/2005. EXT.P4: COPY OF THE ORDER DTD. 23/09/2005. EXT.P6: COPY OF THE APPEAL MEMORANDUM DTD. 8/10/2005 FILED BY THE PETITIONER BEFORE THE DPI. EXT.P7: COPY OF THE ORDER DTD. 22/02/2006. EXT.P8: COPY OF THE STAFF FIXATION ORDER DTD. 16/10/2004. EXT.P9: COPY OF THE ORDER DTD. 1/10/2005. EXT.P10: COPY OF THE ORDER DTD. 15/11/2005. EXT.P11: COPY OF THE LETTER DTD. 27/03/2006. EXT.P12: COPY OF THE REVISION DTD. 1/05/2006 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P13: COPY OF THE JUDGMENT DTD. 8/06/2006 IN WP(C) NO.13485/2006. EXT.P14: COPY OF G.O.(RT) NO.60/07 DTD. 4/01/2007. EXT.P15: COPY OF G.O.(P) 149/2003/G.EDN. DTD.6/06/2003. RESPONDENT'S EXHIBITS: EXT.R5(A): COPY OF THE APPOINTMENT ORDER OF SRI.S.R.SREEJITH, DTD. 16/08/2004. EXT.R5(B): COPY OF THE RE-APPOINTMENT ORDER DTD. 15/06/2005. EXT.R8(A): COPY OF THE ORDER NO.B6/7683/2003 DTD. 5/11/2002. EXT.R8(B): COPY OF THE APPOINTMENT ORDER NO.B6/7569/2005 DTD. 4/06/2003. Kss ..2/- .....2.... WPC.NO.5087/2007 E EXT.R8(C): COPY OF ORDER NO.B6/3497/2005 DTD. 11/07/2005 ISSUED BY THE DISTRICT EDUCATIONAL OFFICER, THALASSERI. EXT.R9(A): COPY OF PROVISIONAL CERTIFICATE ISSUED BY THE PONDICHERY UNIVERSITY DTD. 8/09/2004. EXT.R9(B): COPY OF DEGREE CERTIFICATE ISSUED BY PONDICHERY UNIVERSITY, DTD. 21/01/2006. EXT.R9(C): COPY OF CONDUCT CERTIFICATE ISSUED BY HEADMISTRESS, GOVT.HIGH SCHOOL, MUNDAYAD DTD. 31/03/2005. /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.5087/2007 ----------------------------------------------------------- Dated this the 7th day of November, 2008 JUDGMENT The prayer sought for in this writ petition is to quash Exts.P1,P5,P7, P11 and P14. Petitioner also seeks a declaration that the petitioner is liable to be posted as HSA (English) as on 16.2.2005 and a direction to the first respondent to approve the appointment of the petitioner is also sought for. 2. Ext.P2 Government Order dated 7.1.2001, which inter alia stated that for the post of HSA(English), qualification shall be degree in English language and literature and B. Ed/B.T/L.T with English as optional subject or in the absence of those with qualification of B.Ed etc in the same subject, candidates with B. Ed/B.T/LT in any other subject. In the school of which the 5th respondent is the WP(c).No.5087/2007 2 Manager, there arose a vacancy of HSA(English) with effect from 1.4.2000, consequent on the promotion of one K.V. Kumaran, HSA(Maths) as the Headmaster of the School. It is stated that, though the petitioner is a graduate in English, her B.Ed was in Malayalam, but still she was appointed as HSA (English) with effect from 16.2.2005. 3. Approval of the appointment sought for was rejected by the DEO as per Ext.P1 on the ground that her B. Ed was not in English and therefore she was not qualified. Ext.P4 appeal filed before the Deputy Director was also rejected by Ext.P5. Ext.P6 appeal to the DPI was rejected by Ext.P7 order, in which the reason stated is that there was no post available for appointing the petitioner. It is stated that, as the DPI took the stand that there was no post available, producing Exts.P8 and P9, staff fixation orders for 2004-05, the representation was made before the DEO and that was rejected by Ext.P11 order, again on the ground that the petitioner was not qualified to be appointed as HSA (English), in view of Ext.P2 Govt. Order specifying the WP(c).No.5087/2007 3 qualifications. 4. A revision against Ext.P7 was filed before the Government as per Ext.P12. Complaining of delay in considering Ext.P12 revision, petitioner approached this court and this court by Ext.P13 judgment in WP(c). No.13484/06, directed the Government to consider and pass orders on Ext.P12 revision. It is stated that there upon the Government considered the matter and passed Ext.P14 order. A reading of this order shows that according to the Government also the petitioner was not qualified to be appointed as HSA(English). Thus, while the DPI has taken the view in Ext.P7 that there was no post to accommodate the petitioner, the DEO, Deputy Director and the Government have taken the consistant stand that the petitioner was unqualified. 5. On behalf of the Manager, a counter affidavit has been filed. In the counter affidavit, nothing has been stated about the steps taken by the Manager, to locate a person with the qualification of B. Ed in English. However, WP(c).No.5087/2007 4 manager refers to Ext.P4 and contends that the vacancy against which the petitioner was appointed was notified on 7.1.2005 and that there was no candidate available to be appointed. It is stated that Sreejith, 6th respondent herein, the person who is stated to have been available at the time when the appointment was made was, at that point of time working elsewhere and therefore was not available. 6. The learned Government Pleader, attempted to sustain the impugned orders mainly contending that the petitioner was unqualified and that there was no post available to accommodate the petitioner. In so far as the availability of the post is concerned, the learned Government Pleader refers to Exts.P8 to P10. Ext.P8 is the staff fixation order for 2004-05, in which 34 posts were sanctioned and that the said order was reviewed applying the teacher students ratio of 1:40 and 35 posts were sanctioned to the school. It is stated that, thereafter Ext.P9 order was reviewed and Ext.P10 order was issued, by which number of posts sanctioned to the school for the year 2004- WP(c).No.5087/2007 5 05 was reduced to 34. It is stated that, only if 35 posts were available, could the petitioner have been appointed. In so far as the finding that the Manager did not ascertain the availability of qualified hands before appointing the petitioner, the learned Government Pleader refers to the counter affidavit and contends that, respondents 6 and 7 were appointed in the school as HSA(English) against the vacancies in 2005-06 and that they were fully qualified to be appointed against the vacancy. It is stated that, if the Manager had made bona fide attempts, he would have been in a position to identify and appoint qualified hands and that therefore, the contention that qualified hands were not available is erroneous. 7. As already noticed, two questions arises for consideratiion. One is regarding the correctness of the allegation that the petitioner could not have been appointed as he does not have B. Ed in English. In so far as this question is concerned, Ext.P2 Government Order dated 7.1.2002 specifies the qualification. As per this order the WP(c).No.5087/2007 6 essential qualifications required are Degree in English language and literature and B. Ed/B.T/L.T with teaching of English as optional subject. The rule further provides that in the absence of those having B.Ed/B.T/L.T with teaching in English as optional subject, candidates with B. Ed/B.T/LT in any other subject will be considered. Admittedly the petitioner does not have B. Ed in English and and only in the absence of those having B. Ed with English, can candidates like the petitioner aspire to get appointment as HSA. 8. In this case, it is stated in Ext.P4 appeal that notification dated 7.1.2005 was issued by the Manager inviting application to the post. Along with Ext.P4 appeal filed to the Deputy Director, the Manager had also produced a copy of the advertisement released by him inviting applications. This factual assertion made by the Manager is not seen disputed in Ext.P5 or in the subsequent orders that were issued. Therefore, it is obvious that, the Manager had taken steps to get the candidates having the qualification WP(c).No.5087/2007 7 specified in Ext.P2 but was unsuccessful. If that be so, the Manager cannot be faulted for appointing a candidate like the petitioner. Consequently, the stand taken by the respondent in that behalf cannot be upheld. 9. Now what remains to be considered is the correctness of the finding in Ext.P7 about the availability of the post to accommodate the petitioner. Ext.P7 is the order that is issued by the DPI, rejecting Ext.P6 appeal filed by the Manager. In Ext.P7 order of the DPI it is stated that, during the year 2003-04 34 posts of HSA (core subject) were sanctioned to the School and that during the year 2004-05 one post of HSA (core subject) was reduced. It is stated that as such there was no sanctioned post available int he school for 2004-05 to accommodate the petitioner. In this factual finding thus arrived at by the DPI in Ext.P7 is upheld, necessarily, the appointment of the petitioner will have to be accepted as erroneous one. 10. The correctness of the above finding depends upon the staff fixation orders that were issued for the relevant WP(c).No.5087/2007 8 year. Exts.P8 and P10 are the staff fixation orders and Ext.P10 is the subsequent order issued modifying Ext.P9. Ext.P8 shows that initially 34 posts were sanctioned to the school but however, by Ext.P9 applying the teacher student ratio 1:40, 35 posts were sanctioned. However this order is again reviewed as per Ext.P10 order issued by the DEO. In Ext.P10 order it is stated as follows; "But on scrutiny, it is found that only 34 HSAS under core subjects were on the rolls during 2004-05 including Smt.K.L. Shyna, since Sri. K.V. Kumaran, HSA(Maths) was promoted as HM, with effect from 1.4.2004. In the above circumstances Smt. K.L.Shyna who was retained in the school during 2004-05 under 1:40 ratio, vide order (2) cited, is accommodated against the 34th post of HSA(Core). Smt. Shyna, the 7th HSA under Physical Science, working in the school against the 6 sanctioned posts, became surplus is retained against the post of HSA WP(c).No.5087/2007 9 (English) in terms of G.O.(MS) 11/02/G. Edn dated 7.1.2002. The post of HSA (Core) sanctioned under 1:40 ratio, vide reference (2) cited, is thus canceled and the notes under I(A) of Appendix is deleted. The staff fixation order in respect of Kuthuparamba HS for the year 2004-05 issued under reference (1) &(2) cited is modified to this extent, in terms of G.O(P) No.317/2005/G. Edn dated 17.8.2005." 11. Thus, as a result of Ext.P10, the 35 posts got reduced to 34 and finding of the DPI cannot be said to be erroneous. Admittedly the appointment of the petitioner was possible only if 35 posts were available. If that be so, the appointment cannot be justified. 12. However, the learned counsel for the petitioner relied on the judgment of the Division Bench in W.A. No.1859/06 to contend that consequent on the reduction in WP(c).No.5087/2007 10 the number of posts, if teacher has to be retrenched, and that though it is the junior most who has to go out, the same is consistent in the subject requirements. The contention that retrenchment should be irrespective of subject requirements was declined to be accepted by the Division bench and the Division Bench held that the retrenchment must be of the junior most subject to the subject requirement of the school. However, in that writ appeal this court was concerned with the dispute as to who among the existing teachers should be retrenched following the reduction in the number of posts and in this case this court is concerned with the right of a new entrant to continue in the school. The factual situation being different, the judgment referred to above can not be made use of by the petitioner. Therefore, I am not in a position to apply the judgment of the Division Bench and hold that on that basis, the petitioner should be permitted to continue in the school, although there has been reduction in the number of posts that were available in the school. If that be so, WP(c).No.5087/2007 11 consequent on Ext.P10 order reducing the number of posts which were sanctioned to the school as per Ext.P9, necessarily the appointment of the petitioner against the reduced post cannot be sustained. If that be so, the finding of the DPI in Ext.P7 regarding the non-availability of post needs to be sustained and I do so. Writ Petition fails and is dismissed. ANTONY DOMINIC JUDGE vi. WP(c).No.5087/2007 12