Dismissed

State of Kerala v. Minimole.C.

Kerala HC4 Apr 2012WA/636/2012

Case brief

AI extract

What is this about?

The High Court dismissed the Writ Appeal filed by the State against the single judge order declining approval of the respondent's appointment as an English teacher. While upholding the lower court's decision, the bench expressed anguish at government orders violating rules to benefit influential parties.

What did the court decide?

Writ Appeal dismissed, upholding the single judge order approving the teacher's appointment.

State of Kerala Vs Minimole.C. — Education and Admissions | Kerala HC (2012)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR &

¶4

THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH

¶5

WEDNESDAY, THE 4TH DAY OF APRIL 2012/15TH CHAITHRA 1934

¶6

WA.No. 636 of 2012 () IN WPC/16491/2010

¶7

AGAINST THE ORDER/JUDGMENT IN WPC.16491/2010 DATED 03-11-2011

¶8

APPELLANT(S)/RESPONDENTS 1 TO 4:

¶9

1. STATE OF KERALA,

¶10

REP. BY ITS SECRETARY TO GOVERNMENT

¶11

GENERAL EDUCATION DEPARTMENT, SECRETARIAT

¶12

THIRUVANANTHAPURAM.

¶13

2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM.

¶14

3. THE DEPUTY DIRECTOR OF EDUCATION KOLLAM.

¶15

4. THE DISTRICT EDUCATIONAL OFFICER, PUNALUR.

¶16

BY ADV.GEORGE MECHERIL, SR.GOVERNMENT PLEADER

¶17

RESPONDENT(S)/PETITIONER & 5TH RESPONDENT:

¶18

1. MINIMOLE.C.

¶19

H.S.A.ENGLISH, AKM VHSS, THADICADU P.O. PUNALUR, KOLLAM DISTRICT, PIN - 691 306.

¶20

2. MANAGER

¶21

AKM VHSS, THADICADU P.O., PUNALUR - 691 306.

¶22

BY SMT.P.V.ASHA

¶23

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶24

W.A.NO.636/2012

¶25

APPENDIX APPELLANT'S EXHIBITS ANNEXURE-I : COPY OF GOVERNMENT CIRCULAR NO.74487/J2/09/G.EDN. DATED 06/02/2010. //TRUE COPY// PA TO JUDGE. jg

¶26

C.R.

¶27

C.N.RAMACHANDRAN NAIR & BABU MATHEW P.JOSEPH, JJ.

¶28

W.A. No.636 of 2012

¶29

Dated this the 4^th day of April, 2012.

¶30

J U D G M E N T

¶31

Ramachandran Nair, J.

¶32

At the admission stage, learned counsel for the 1^st respondent took notice and we therefore heard both the

¶33

learned Government Pleader for the appellants and learned

¶34

counsel for the 1^st respondent. Since the Manager is supporting the 1^st respondent, which was done in the original side also, we do not think there is any need to issue notice to the Manager. Accordingly, we proceed to consider and dispose of the case at the admission stage itself.

¶35

When a vacancy arose on account of promotion of a Natural Science teacher as Headmistress, the 2^nd respondent appointed the 1^st respondent, who is an English teacher, following Rule 6.I of Chapter XXIII of KER, which provides for appointment of English teachers in a phased manner without retrenching teachers in core subjects previously teaching

¶36

W.A.No.636/2012

¶37

-2-

¶38

English. When the appointment of the 1^st respondent was considered for approval, the DEO declined the same for the reason that the 2^nd respondent School had two retrenched teachers, one in Mathematics and the other in Social Studies, who are remaining deployed in other Schools. Since the appeal and revision filed against refusal to approve appointment failed, the 1^st respondent filed WP(C) before the learned Single Judge contending that under the GO referred therein (Ext.P14), an English teacher should be appointed by the Management irrespective of whether there is protected teacher in other subjects or not. The 1^st respondent also relied on another Government Order, namely Ext.P14, issued by the Government in another case approving appointment of a teacher appointed in English when that School had two protected teachers in other subjects who were eligible to teach English. The learned Single Judge allowed the WP(C) by vacating orders issued by the statutory authorities and directed approval of appointment of the 1^st respondent with effect from the date of appointment i.e. 04/06/2007. It is

¶39

W.A.No.636/2012

¶40

-3-

¶41

against this judgment, this Writ Appeal is filed by the State.

¶42

The short question to be considered is whether the

¶43

1^st respondent's appointment as an English teacher in the vacancy that arose on 04/06/2007 could be justified with reference to Rule 6.I of Chapter XXIII, which is extracted

¶44

hereunder:-

¶45

“6.I Sanctioning of posts of High School Assistant (English) : Notwithstanding anything contained in any other rule in this Chapter the post of High School Assistant (English) shall be sanctioned on the basis of the periods allocated to English, observing minimum subject requirement.

¶46

Note :- Subject to any general order that may be issued by the Government, the above rule shall be implemented in a phased manner without causing retrenchment of existing High School Assistants (core subjects) as on 7^th January 2002, and observing the minimum subject requirement.”

¶47

Learned Government Pleader submitted that the

¶48

above Rule has to be read along with GO(MS) No.104/69/Edn. dated 06/03/1969, wherein the Government specifically states

¶49

as follows:-

¶50

“The retrenched teacher will be absorbed in the next vacancy arising in any of the aided schools under the management by whom he was appointed. The Controlling Officers will not approve any new appointments in the Schools under these

¶51

W.A.No.636/2012

¶52

-4-

¶53

managements until and unless the retrenched hands are absorbed first.”

¶54

The contention of the learned counsel for the first respondent is that Rule 6.I above referred specifically provides for introducing qualified English teachers in retiring vacancies and the object of the Rule will be achieved only when teachers in other subjects teaching English are substituted on retirement by English teachers. Heavy reliance is also placed on Ext.P14 order issued by the Government, which is in the same context, in which an English teacher's appointment was approved when the School had two retrenched teachers deployed on protection basis in other Schools who were eligible to teach English.

¶55

After hearing both sides, what we notice is that Rule 6.I is not an absolute Rule and it has to be read along with the note, which clearly states that English teachers should be appointed in a phased manner without causing retrenchment of existing High School Assistants in core subjects and by observing minimum subject requirement. The contention raised by the 1^st respondent's counsel is that appointment

¶56

W.A.No.636/2012

¶57

-5-

¶58

should not lead to any more retrenchment and that already retrenched teachers are not covered by Rule 6.I. We are unable to accept this contention because prohibition against retrenchment to accommodate English teachers equally applies to protected teachers retrenched from the School and deployed in other Schools, who should be repatriated against vacancies arising if such teachers are qualified to teach English. The Rules under the KER are not complete or comprehensive and only to make up deficiencies and to prevent distortions Government issues General Orders. GO (MS) No.104/69 relied on by the learned Senior Government Pleader and extracted above is one such Government Order, which specifically provides that retrenched teachers deployed on protection basis in other Schools should be repatriated at the earliest as and when vacancies arise. A circular also was issued by the Government on 06/02/2010 to clarify this position. In our view, the Management, which has retrenched teachers gets a right of appointment to a vacancy arising only after repatriation of the teachers retrenched from the very

¶59

W.A.No.636/2012

¶60

-6-

¶61

same School, if the vacancies that arise are in subjects which the retrenched teachers are qualified to teach. In this case, both the teachers retrenched from the 2^nd respondent School and deployed in other Schools were eligible to teach English and so much so, the action of the 2^nd respondent is contrary to the Rules. In our view, the Educational authorities and the Government rightly declined approval of appointment of the 1^st respondent.

¶62

The remaining question to be considered is whether going by the view taken by the Government vide Ext.P14, which is exactly similar to the one in 1^st respondent's case, we should uphold the judgment of the learned Single Judge. What we notice is that the Government itself violates specific Rules contained in the KER and even General Rules and circulars issued by the Government to show favours which turn out to be precedents for others to claim ineligible benefits. The creator of the Rule turns out to be the destroyer of it. When appointment of English teachers as contemplated under Rule 6.I is only a reform to be achieved in the course of time

¶63

W.A.No.636/2012

¶64

-7-

¶65

without increasing teaching staff strength and without retrenchment, the Government itself encourages violation by approving appointment of an English teacher when two other teachers of the very same School remained retrenched and deployed in other Schools on protection basis, who were eligible to teach English. In fact, the precedents created by the Government by issuing orders like Ext.P14 only gives a licence to Managements to violate Rules and make appointment trapping innocent people, who are said to be paying huge amount for getting employment. Sitting in this jurisdiction, we have noticed that the KER and the orders issued thereunder are only a loose bundle of Rules and norms are more violated than enforced. If education turns as a business in the State, it is done with the patronage of the State and that is what is clear from Ext.P14 order issued approving appointment made in clear violation of the Rules and Government Orders. We therefore, do not think the 1^st respondent should be singled out and declined relief when influential people get orders from Government in exactly same situation though contrary to the

¶66

W.A.No.636/2012

¶67

-8-

¶68

Rules. We, therefore, dismiss the Writ Appeal upholding the view taken by the learned Single Judge but after expressing our anguish at the attitude of the Government which compel us to perpetuate this illegality.

¶69

If Government wants to enforce the KER, then the first thing to be done is to liberate educational authorities from all kind of controls and influences and allow them to pass orders only in accordance with the provisions of the Rules and the Government orders and for failure to take action and not to patronise them for favouring a few and the influential. In our view, the only solution will be to divest Government of the revisional powers and to give the powers to a judicial forum; say the State Administrative Tribunal or even to a District Court.

¶70

(C.N.RAMACHANDRAN NAIR, JUDGE)

¶71

(BABU MATHEW P.JOSEPH, JUDGE)

¶72

State of Kerala v. Minimole.C.

Case brief

What is this about?

What did the court decide?

State of Kerala v. Minimole.C.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Jaseena.P.M. Vs Preethy.M.P.

K.I.Jojo Vs Commercial Tax Inspector

Arun Thomas Vs the Assistant Commissioner of Income Tax

Shylaja K.V. Vs Thankamani K.

Jincy.P.George Vs P.Nisha

Breemi Thomas Vs Smitha T.F.