IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 WA.No. 1182 of 2009 ----------------------------- (JUDGEMENT IN W.P.(C).NO.19360/2008 DATED 10/02/2009) .................... APPELLANT/ PETITIONER: -------------------------------------- BABURAJAN.N.P., HSA (RETRENCHED) RNM HIGH SCHOOL, NARIPPATTA, CHEERAKKUNNU WEST P.O., KOZHIKODE, RESIDING AT NELLIYULLA PARAMBATHU HOUSE, CHEEKKONNU P.O., KOZHIKODE. BY ADVS. MR.R.RAJASEKHARAN PILLAI, MR.SABINA JAYAN. RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. 4. THE DISTRICT EDUCATIONAL OFFICER, VADAKARA, KOZHIKODE. 5. THE MANAGER, RNM HIGH SCHOOL, NARIPPATTA, CHEERAKKUNNU WEST P.O., KOZHIKODE. R1 TO R4 BY SR. GOVT. PLEADER MR. BENNY GERVACIS. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ----------------------------------------- W.A.NO.1182 OF 2009 ----------------------------------------- Dated this the 9th day of June, 2009 JUDGMENT Balakrishnan Nair, J. The appellant is the writ petitioner. He was working as H.S.A (Social Science) under the fifth respondent's School. During the staff fixation for the academic year 2004-2005, three class divisions were reduced in the High School wing, which resulted in rendering three High School Assistants surplus. The appellant was the juniormost among them. But, he was qualified to be appointed as H.S.A (English). His immediate senior, Smt.T.N.Sanila, was also facing retrenchment. Though she was a H.S.A (Social Science), she was also having qualification for appointment as H.S.A (English). The case of the appellant is that they should be adjusted against the post of H.S.A (English) available in the School, though the same shall result in retrenchment of seniors in the cadre of H.S.A (Social Science). The learned Single Judge declined the above claim of the appellant relying on Rule 6-I of W.A.1182/09 2 Chapter XXIII of K.E.R. Feeling aggrieved by the decision of the learned Single Judge, this appeal is filed. 2. The petitioner submits that Rule 6-I was introduced only on 6.6.2003. The Rule was introduced as per G.O.(P)149/03/G.Edn dated 6.6.2003 published in Gazette dated 9.6.2003 with retrospective effect from 7.1.2002. According to the appellant, at the time of his retrenchment, G.O(MS)No.187/03/G.Edn. dated 16.7.2003 was holding the field. The said order permitted accommodation of existing High School Assistants having required qualifications to be posted as H.S.A(English) against the newly created post of H.S.A (English). The appellant also relies on G.O.(MS)11/2002/G.Edn dated 7.1.2002, as per which a new cadre of H.S.A(English) was created. According to the appellant, the Rules were amended after his retrenchment. At that time G.O(MS) No.187/03/G.Edn. dated 16.7.2003 mentioned above was holding the field. The said submission is plainly untenable as it is factually incorrect. The Rules were introduced as per notification dated 9.6.2003 with retrospective effect from 7.1.2002. The said Rules cannot be modified by any executive order and further the order relied on by the appellant is providing how the existing vacancies W.A.1182/09 3 in the newly created post of H.S.A can be filled up. So, the Government Order dated 16.7.2003 does not have any application in the case of the appellant. Therefore, Rule 6-I was governing the field. The appellant's seniors are entitled to protection. Displacing them appellant cannot continue in service on the ground that he can be accommodated in the post of H.S.A. (English). Accordingly, the Writ Appeal fails and it is dismissed. K.BALAKRISHNAN NAIR, JUDGE C.T.RAVIKUMAR, JUDGE vgs.