IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 WP(C).No. 21655 of 2008(C) -------------------------------------- PETITIONERS: -------------------- 1. R.SUNIL KUMAR, PHYSICAL EDUCATION TEACHER HSS FOR BOYS, PUNALUR BY ADV. SRI.B.GOPAKUMAR SMT.CHINCY GOPAKUMAR RESPONDENTS: ---------------------- 1. THE DISTRICT EDUCATIONAL OFFICER, PUNALUR. 2. PATHANAPURAM TALUK SAMAJAM CORPORATE MANAGEMENT SCHOOLS, REP. BY ITS MANAGER,PUNALUR 3. JACOB P.GEORGE, PHYSICAL EDUCATION TEACHER, CHEMANTHUR HIGH SCHOOL, PUNALUR. 4. R.SUJADEVI, HSA (HINDI), GIRLS HIGH SCHOOL, PUNALUR. * ADDL. R5 TO R7 ARE IMPLEADED ADDL. R5: DIRECTOR GENERAL, NATIONAL CADET CORPS (NCC) NEW DELHI. ADDL. R6: COMMANDER, 7TH KERALA BN, NCC (NATIONAL CADET CORPS), KOTTARAKKARA. ADDL. R7: STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. * ADDL. R5 TO R7 ARE IMPLEADED, VIDE ORDER DATED 14/08/2008 IN I.A. NO.10445/2008. GOVERNMENT PLEADER SRI.A.J.VARGHESE FOR R1 & ADDL. R7 ADV. SRI.N.SUGATHAN FOR R2 SMT.VARSHA BHASKAR FOR R2 SRI.S.PRASANTH (AYYAPPANKAVU) FOR R2 SMT.P.V.ASHA FOR R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.21655/2008 ----------------------------------------------------------- Dated this the 16th day of October, 2008 JUDGMENT The prayer in this writ petition is to quash Ext.P2 retrenching the petitioner and the transfer of the 3rd respondent to the post in which petitioner was working in the B.H.S.S, Punalur. There is also a prayer to quash the order putting the 4th respondent in charge of the NCC. Petitioner also seeks a direction to the first respondent to take up and consider Ext.P1. 2. The petitioner and the 3rd respondent are physical Education Teachers employed under the second respondent Corporate Education Agency. The petitioner submits that, while he was working in the B.H.S.S, Punalur he suspected a possibility of being retrenched and therefore filed Ext.P1 representation to the DEO, requesting him to WP(C).No.21655/2008 2 take steps to prevent the same. It is stated that while the representation was pending, Ext.P2 order was issued on 14.7.2008 and by that order, the 3rd respondent who was working as Physical Education Teacher at Chemmanthur High School was transferred and posted to the Boys Higher Secondary School, Punalur, where the petitioner was working, consequent on a division fall in the school where the 3rd respondent was working. It is stated that as a result of this, the petitioner was retrenched and the 4th respondent was also ordered to be in additional charge of the NCC unit of the Boys Higher Secondary School, Punalur B.H.S.S, Punalur. 3. According to the Manager, the petitioner was relieved from his duties on 15.7.2008 and the 3rd respondent has joined the post on 15.7.2008. It is in this background the petitioner has filed this writ petition praying to quash Ext.P2 order. It is contended that, in terms of the provisions contained in Chapter XXIII Rule 12, the staff fixation order has not been issued so far and that it is despite that, the petitioner has been retrenched by Ext.P2 WP(C).No.21655/2008 3 order. It is contended that the petitioner is entitled to protection as per Clause(2)(vi) of Annexure R2(e) order dated 4.12.2002, which reads as follows; "Close relatives of Jawans, teachers having 25 years of service, handicapped persons with 40% permanent disability and Teachers holding the charge of NCC/Scouts and guides in the schools shall be permitted to continue in the same schools under protection." Petitioner contended that such protection is extended in pursuance to the statutory obligations to have NCC in the school, as provided in Rule 10 of Chapter VIII KER. 4. Learned Government Pleader and the counsel for the second respondent would contend that the petitioner is not entitled to the benefit of Ext.R2(e). It is stated that, Ext.R2(e) is an order issued governing the protected teacher that the petitioner is not a protected teacher for claiming the benefit of Ext.R2(e). The Manager would submit that the petitioner joined the post as a Physical Education Teacher on 23.8.2007 and that the 3rd respondent, on 28.7.1978 and there is yet another Physical Education Teacher, who has commenced service from 5.6.2000. It is WP(C).No.21655/2008 4 therefore stated that the petitioner is the junior most Physical Education Teacher. According to the Manager, physical verification was conducted on 9.7.2008 and as in the School where the 3rd respondent was working, there was a Division Fall. Petitioner being the junior had to be retrenched and the 3rd respondent was accordingly transferred to his place. The Manager also would support the plea of the contention of the Government Pleader that the petitioner is not entitled to the benefit of Ext.R2(e). 5. What arises for consideration is whether the petitioner is entitled to the benefit of Ext.R2(e). The very subject of Ext.R2(e) is the redeployment of protected teachers. However, by clause 2(vi) of Ext.R2(e), a category of persons including the teachers holding charge of NCC are permitted to continue in the same school though under protection. Therefore, it only exempts protected teachers who are in charge of NCC from the re-deployment ordered in Ext.R2(e). But that does not mean that every teacher incharge of NCC is exempted from the provisions of retrenchment. Therefore, in my view Ext.R2(e) is applicable WP(C).No.21655/2008 5 only to protected teachers. 6. Admittedly, the petitioner is not a protected teacher. If that be so, he is not eligible for the benefit of Ext.R2(e) order. Resultantly, the claim raised is unsustainable. 7. It is clarified that I have not dealt with the correctness or otherwise of the staff fixation order and if the petitioner is aggrieved by the same. This judgment will not stand this way to challenge the same. Writ Petition is dismissed. ANTONY DOMINIC JUDGE vi. WP(C).No.21655/2008 6