Allowed

P.C.Supriya v. State of Kerala

Kerala HC27 May 2016WP(C)/7204/2011

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a writ petition against the rejection of a petitioner's request for retention as a High School Assistant. The court held that the 1:40 ratio benefit, extended to promotees retroactively, mandated her retention during 2006-07 and 2007-08, quashing orders that reverted her to a lower cadre.

What did the court decide?

Quashed orders of respondents; directed granting retention as HSA (Maths) for 2006-07 and 2007-08 applying 1:40 ratio with consequential benefits within 3 months.

P.C.Supriya Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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FRIDAY, THE 27TH DAY OF MAY 2016/6TH JYAISHTA, 1938

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WP(C).No. 7204 of 2011 (A)

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PETITIONER(S):

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P.C. SUPRIYA, W/O. RAJAN BABU, THACHTHUMANNIL HOUSE, VALLAMKULAM EAST, THIRUVALLA (MASTER TRAINER, IT SCHOOL PROJECT, DISTRICT RECOURCE CENTRE DIET, THIRUVALLA/ SREEVIVEKANANDA HIGH SCHOOL, PULLAD).

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BY ADVS.SRI.S.SUBHASH CHAND

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SRI.T.NIKLAVU

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARAT, THIRUVANANTHAPURAM - 695 001.

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2. DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM - 695 001.

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3. DEPUTY DIRECTOR (EDUCATION), OFFICE OF THE DEPUTY DIRECTOR (EDUCATION), PATHANAMTHITTA AT THIRUVALLA-689101.

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4. DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER THIRUVALLA - 689 101.

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5. MANAGER, SREE VIVEKANANDA HIGH SCHOOL, PULLAD - 689 548.

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R1-4 BY GOVERNMENT PLEADER SRI.ABIJITH LASLIE R5 BY ADV. SRI.P.VIJAYARAGHAVAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 7204 of 2011 (A)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1: COPY OF THE APPOINTMENT ORDER DATED 5/6/95 ISSUED BY R5

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P2: COPY OF THE ORDER APPOINTING THE PETITIONER AS HSA (MATHS) WITH EFFECT FROM 3/6/96 TO 25/3/99 ISSUED BY R5 AND APPROVED BY R4

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P3: COPY OF THE ORDER DATED 5/6/2000 APPOINTING THE PETITIONER IN A REGULAR CAVANCY OF HSA (MATHS) BY R5 AND APPROVED BY R4

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P4: COPY OF THE STAFF FIXATION ORDER DATED 20/7/2006 PERTAINING TO SVHS, PULLAD, FOR THE ACADEMIC YEAR 2006-07

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P5: COPY OF THE ORDER DATED 27/4/2007 PASSED BY R4 RETAINING THE PETITIONER AS HSA (MATHS)

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P6: COPY OF THE STAFF FIXATION ORDER DATED 4/8/2007 FOR THE ACADEMIC YEAR 2007-08 PERTAINING TO SVHS, PULLAD ISSUED BY R4

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P7: COPY OF THE GOVERNMENT ORDER BEARING GO(P)NO.12/08/G.EDN.DATED 9/1/2008

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P8: COPY OF THE APPELLATE ORDER DATED 8/2/2008 PASSED BY R3

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P9: COPY OF THE STATUTORY REVISION PETITION UNDER RULE 12(E) CHAPTER XXIII KER SUBMITTED BEFORE R2

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P10: COPY OF THE SHOW CAUSE NOTICE DATED 4/9/2008 ISSUED BY R3 TO R5

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P11: COPY OF GOVERNMENT ORDER BEARING GO(P)NO.338/04/G.EDN DATED 10/11/2004

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P12: COPY OF THE GOVERNMENT ORDER BEARING GO(P)NO.4/05/G.EDN DATED 4/1/2005

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P12(A): COPY OF THE GOVERNMENT ORDER DATED 16/9/2006 INTRODUCING 1:40 RATIO BY R1

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P13: COPY OF THE ORDER DATED 17/2/2009PASSED BY R3

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P14: COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE HON.MINISTER FOR EDUCATION AT THE TIME OF EDUCATIONAL ADALATH HELD ON 25/10/2008 IN THE OFFICE OF RESPONDENT NO.33

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P15: COPY OF THE ORDER DATED 27/3/2009 ISSUED BY R1

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P16: COPY OF THE GOVERNMENT ORDER BEARING GO(P)NO.41/10/G.EDN DATED 20/3/2010

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WP(C).No. 7204 of 2011 (A)

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P17: COPY OF THE JUDGMENT DATED 9/6/10 PASSED BY THIS HON'BLE COURT IN WPC.15437/2009

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P18: COPY OF THE GOVERNMENT ORDER BEARING GO(RT) NO.401/2011/G.EDN. DATED 29/1/2011.

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RESPONDENT(S)' EXHIBITS

NIL.

/ TRUE COPY /

P.S. TO JUDGE

P.V.ASHA, J.

W.P.(C) No.7204 of 2011

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Dated this the 27^th day of May, 2016

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JUDGMENT

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The petitioner is a High School Assistant (HSA for short) in Mathematics, who was rendered surplus in the staff fixation for the years 2006-07 and 2007-08 and had to face reversion as Upper Primary School Assistant (UPSA for short). Her request for retention as HSA was rejected by the Government as per Ext.P18.

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The petitioner was initially appointed as UPSA in Sree Vivekananda High School which is an aided school, as per Ext.P1 order with effect from 5.6.1995. She was promoted as HSA (Mathematics) in a regular vacancy with effect from 5.6.2000. In Ext.P6 staff fixation for the year 2006-2007 there occurred a division fall in the school. The 12^th division was sanctioned applying the ratio of 1:40. Accordingly the petitioner who was rendered surplus on account of the division fall was retained in the school, as evident from the appendix to the staff fixation proceedings. Thereafter in the staff fixation for the year 2007-08 also there occurred division fall reducing the admissible posts to

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ten. The petitioner who had originally worked as UPSA and was promoted as HSA on promotion, was thereupon ordered to be reverted. The Manager filed an appeal against the staff fixation. That appeal was rejected as per Ext.P8 order dated 8.2.2008 by the Deputy Director of Education on the grounds: Smt.P.S.Geetha Devi Senior HSA (Mathematics) had been deployed; as per subject ratio it was not possible to retain HSA (Social Studies) and the petitioner was not eligible for protection and for promotion from the cadre of UPSA; therefore, she had to be reverted for want of vacancy. It was stated that 1:40 ratio can be applied only for accommodating teachers facing retrenchment and not for facing reversion.

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A revision petition was filed before the Director of Public Instruction. When that revision petition was pending, the Deputy Director of Education issued a show cause notice Ext.P10 to the Manager directing him to show cause why the petitioner's retention as HSA in the ratio of 1:40 should not be cancelled from 15.7.2008. It was stated that the petitioner was not entitled to be retained applying the ratio of 1:40, since she was liable to be

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W.P.(C) No.7204 of 2011

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reverted as UPSA. The Deputy Director of Education thereafter passed Ext.P13 order, wherein it was held that the petitioner's retention during 2006-07 applying 1:40 ratio was against G.O. (MS)/148/98/G.Edn. dated 8.5.1998, G.O.(Ms)/125/01/G.Edn dated 2.4.2001, G.O.(Ms)/11/02/G.Edn. dated 7.1.2002, G.O.(P) 4/05/G.Edn. dated 4.1.2005, G.O.(P) 187/05/G.Edn dated 17.6.2005 and GO(P) 12/08/G.Edn dated 9.1.2008 and therefore

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she cannot be retained as HSA Mathematics during 2006-07 by applying 1:40 ratio and the order passed by the District Educational Officer, Thiruvalla was thereupon cancelled. Aggrieved by the order passed by the Deputy Director of Education, the petitioner approached the Government. The Government thereupon based on Ext.P15 order dated 27.3.2009 rejected her request saying that as against three posts of HSA (Mathematics) five HSAs were working and one extra post of HSA (Physical Science) was allowed by the District Educational Officer applying 1:40 ratio and therefore there was no need to apply the ratio. It was further stated that the benefit of 1:40 ratio cannot be extended to a Rule 43 promotee. The petitioner had also

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W.P.(C) No.7204 of 2011

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claimed the benefit of another Government order-G.O.(P) No.12/08/G.Edn dated 9.1.2008 by which the restriction on Rule 43 promotees for application of 1:40 ratio was taken away. Regarding this order, the Government said that the said order does not have any retrospective effect.

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But immediately thereafter the Government as per Ext.P16 order dated 20.3.2010 issued clarification to the effect

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that the benefit of Ext.P7 order dated 9.1.2008 would be applicable to the years 2004-05, 2005-06 and 2006-07 also. On account of this order, the liability of reversion on rule 43 hands was taken away and they were also entitled to the benefits of retention applying 1:40 ratio.

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In the meanwhile the petitioner again approached this Court in W.P.(C) No.15437 of 2009 and this Court had by Ext.P17 judgment directed the Government to reconsider the revision petition in the light of the changing circumstances on account of Ext.P16. The Government thereafter passed Ext.P18 order again

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rejecting claim of petitioner for retention. It is as against this order that the petitioner has approached this Court. In Ext.P18

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W.P.(C) No.7204 of 2011

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Government held as follows:

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As per 1:45 ratio 11 divisions can be sanctioned for the academic year 2006-2007 in S.V.HSS, Pullad. Applying 1.40 ratio the divisions in High school Section of the school for the year 20062007 comes to 12. As per Circular No.43743/J2/98/G.Edn dated 18.03.1999 Government clarified that 1:40 ratio can be applied only to retain the existing teachers who have approved service during the previous year. As per G.O(Ms) No. 125/2001/G.Edn dated 02.04.2001, it was clarified that it is mandatory to follow subject ratio in applying teacher student ratio 1:40 or giving protection or in recalling protected teachers to parent school. As per G.O (Ms) No. 11/2002/G.Edn dated 07-01- 2002, the 12^th post sanctioned is H.S.A (Physical Science). There was already 4 H.S.A (Maths) against the sanctioned strength of 3. Hence Smt.P.C.Supriya H.S.A (Maths) is not eligible for retention under 1:40 ratio as the post sanctioned under 1:40 ratio is of H.S.A (Physical science). During 2007-2008, though a post of H.S.A (Maths) can be allowed she could not be retained as H.S.A because, that vacancy has to be filled up with, Smt.P.S.Geetha Devi, H.S.A (Maths) who is eligible for protection and 1:40 can be applied to teachers who was in service in the previous year. As Smt.P.C.Supriya was not retained as H.S.A in the previous year she cannot be benefited with 1:40 ratio. During 2008-2009 also there was scope for two divisions under 1:40 ratio and the posts shall be

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W.P.(C) No.7204 of 2011

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H.S.A (Physical Science and Maths). But Smt.P.S.Geetha Devi should have been retained in that post as per GO(Ms) No. 125/2001/G.Edn dated 02.04.2001. As Smt.P.C.Supriya was not in service as H.S.A in the previous year the benefit of 1:40 cannot be extended to her. As she is not in service as H.S.A during 2008-2009, she cannot be retained as H.S.A in a division under 1:40 ratio for the year 2009-2010 as per circular No.43743/J2/98/G.Ecfn dated 18.03.99.

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The petitioner submits that order passed by the Government is illegal and without considering the very intention of its own order to apply 1:40 ratio between teacher and pupil.

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The 4^th respondent has filed a counter affidavit justifying their action in reverting the petitioner as UPSA and stating that the petitioner is not eligible for the benefit of retention in the ratio of 1:40.

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I heard Sri.Subhash Chand, learned counsel appearing for the petitioner and the learned Government Pleader. In order to decide the question whether the petitioner is entitled to retention on application of 1:40 ratio, first of all it is necessary to examine Ext.P18 order by which the request of the petitioner has been rejected. According to the Government, 11 divisions were

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W.P.(C) No.7204 of 2011

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admissible for the year 2006-07 applying 1:45 ratio and it would come to 12 if 1:40 ratio is applied. But the Government finds that the said ratio can be applied observing the subject ratio on core subjects. And thereupon after observing 1:1:1:1 ratio as per the Government order dated 7.1.02, thus set apart the 12^th post for Physical Science. But all the respondents failed to see that 1:40 ratio was introduced in order to retain the teachers working in

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the School i.e to protect the teachers from retrenchment. Therefore when one post became available on application of 1:40 ratio and there is no Physical Science hand in excess and the only one rendered surplus was the petitioner, petitioner should have been retained against that post instead of setting apart the same for the subject Physical Science and denying the benefit to petitioner.

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In this context it is necessary to have a look at Ext.P12 - G.O(P) No.4/2005/G.Edn dated 4.1.2005, from which the purpose behind the application of 1:40 can be granted. Paragraph 1 of Ext.P12 reads as follows:

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“ In the Government order read as 1^st

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W.P.(C) No.7204 of 2011

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paper above Government have ordered that the teacher student ratio will be revised from 1:45 to 1:40 in the schools affected by the specific problem of division fall during the staff fixation for the academic year 1997-98 for the limited purpose of accommodating the teachers rendered surplus subject to the condition that no post will be created on this account. By Government order read as third paper above the above said benefit was extended during the fixation 1998-99 also. As per Government Order read as 4^th and 5^th paper above Government have ordered that all aided school teachers who were in service as on 14.7.1996 will be given protection subject to the condition that the protection will not be granted to teachers appointed during 1997-98 and thereafter Government have further ordered as per Government order read as 6^th paper above that the teacher student ratio 1:40 shall be continued for the academic year 2002-03 also for the limited purpose of retaining the teachers who are enjoying the same benefit during the previous year instead of treating them as protected teachers”.

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Subsequently the benefit was made applicable to promotees also with retrospective effect as per Exts.P7 and P16. In Ext.P18 itself Government says that the ratio of 1:40 has to be applied only to retain the existing teachers. Therefore, the

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W.P.(C) No.7204 of 2011

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respondents erred in not accommodating the petitioner against the 12^th post instead of setting apart it for an HSA Physical Science a non-existent teacher, when there is no excess hand in Physical Science and there is no dearth of Physical Science hands. It is admitted that there will be a 12^th post in case 1:40 ratio is applied. Since the Government have already issued orders extending the benefit of 1:40 ratio to cases of Rule 43 promotees

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also with retrospective effect as per Exts.P7 and P16 orders, the petitioner was entitled to be retained in the school for the year 2006-07.

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Now coming to the staff fixation for the next year 200708, the Government had found that a post of HSA (Mathematics) could be allowed that year, but 1:40 ratio can be applied only in the case of teachers who were in service in the previous year. It

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was stated that since the petitioner was not retained in the previous year, she was not entitled to the benefit of 1:40 ratio. Since I have already found that the petitioner who was the only teacher who was rendered surplus in the staff fixation for 200607, she is entitled to retention under 1:40 ratio and hence she

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W.P.(C) No.7204 of 2011

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would have been a teacher who continued in the previous year. Therefore, she is entitled to be retained on application of 1:40 ratio in the year 2007-08 also. The Government order refers to the subsequent staff fixation also. I am not considering the subsequent staff fixation, since the contentions raised in this writ petition are with respect to the staff fixation proceedings for 2006-07 and 2007-08. Thus it can be seen that there was post

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available for the petitioner in both these academic years.

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In the above circumstances, the orders Exts.P8, P13 and P18 shall stand quashed. The respondents shall issue revised orders granting the benefit of retention to the petitioner applying 1:40 ratio for the years 2006-07 and 2007-08 and to grant all consequential benefits to her within a period of 3 months from the date of receipt of a copy of the judgment.

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The writ petition is allowed accordingly.

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Sd/-

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P.V.ASHA JUDGE

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rkc

P.C.Supriya v. State of Kerala

Case brief

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P.C.Supriya v. State of Kerala

Case brief

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