Allowed

Ambili P. v. State of Kerala

Kerala HC17 Feb 2023WP(C)/10245/2013

Case brief

AI extract

What is this about?

Court allowed the appeal against the rejection of the petitioner's appointment. It directed that the High School Assistant's appointment be approved with effect from 01.06.2009 and respondents to extend consequential benefits within two months.

What did the court decide?

Appointment approved with effect from 01.06.2009; respondents directed to comply and extend consequential benefits within two months.

Ambili P. Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL

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FRIDAY, THE 17^TH DAY OF FEBRUARY 2023 / 28TH MAGHA, 1944 WP(C) NO. 10245 OF 2013

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PETITIONER:

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AMBILI P. HIGH SCHOOL ASSISTANT (ENGLISH), SREE NARAYANA HIGHER SECONDARY SCHOOL, POOCHAKKAL, CHERTHALA.

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BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SMT.L.AMMU PILLAI SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SMT.N.SANTHA

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. PIN-695 001.

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2 DEPUTY DIRECTOR OF EDUCATION ALAPPUZHA, PIN-688 001.

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3 DISTRICT EDUCATIONAL OFFICER CHERTHALA, ALAPPUZHA DISTRICT, PIN-688 524.

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4 MANAGER SREE NARAYANA HIGHER SECONDARY SCHOOL, POOCHAKKAL, CHERTHALA, PIN-688 526.

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BY ADVS. SRI.JUSTIN JACOB, SR.GOVERNMENT PLEADER SRI.A.N.RAJAN BABU

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C)No.10245/2013

JUDGMENT

Petitioner on 01.06.2009 was appointed as a High School Assistant in English in Sree Narayana Higher Secondary School, Poochakkal, against a vacancy caused due to the death of Sri.N.Raju, HSA (Social Science), as per the appointment letter Ext.P1. As per the staff fixation in the year 2009-10, the number of posts sanctioned in the category of HSA for core subjects was

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31, i.e., in the following manner:

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No. of Posts	Subjects
6	Physical Science
4	Natural Science
7	Mathematics
7	Social Science
7	English

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The number of HSAs in the core subjects in the school as on 01.06.2009 was as follows:

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Physical Science	4
Natural Science	5
Mathematics	10
Social Science	6
English	4

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The petitioner's appointment was as 5^th HSA (English) in the school

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WP(C)No.10245/2013

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against the sanctioned strength of 7. The approval of appointment has been rejected by the 3^rd respondent, the District Educational Officer, against which the petitioner preferred an appeal, which was also dismissed vide Ext.P3 order dated 23.11.2010 and the revision petition preferred before the Government vide Ext.P4 has been disposed of by imposing certain conditions vide Ext.P5 dated 21.02.2011 on the following reasons:

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“Government have examined the case in detail with reference to the arguments at the time of hearing and in the light of the reports received from the District Educational Officer, Cherthala and the Deputy Director of Education, Alappuzha.

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The school come under the purview of G.O. (P)No.46/06/G.Edn. Dated 01.02.2006. As such protected teacher should be appointed before making any fresh appointment in the school. Even if a protected teacher is appointed the petitioner being qualified to be appointed as HSA (English), cannot be appointed against the post of HSA (SS).”

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Mr.Peter Jose Christo, learned counsel appearing on

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behalf of the petitioner submitted that on 07.01.2002, the Government came out with an order Ext.P2 regarding creation of new cadre of HSA (English). Ext.P6 government order dated 1.2.2006 deals with accommodation of protected teachers in the aided schools. On 17.12.2008 one Mrs.Geetha Bai, an HSA

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WP(C)No.10245/2013

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(Malayalam), a protected teacher from another school was appointed in the school and relieved from the service on 10.06.2009. The Government Order envisaged that as and when the protected teacher is appointed, there shall be an appointment of regular teacher in the ratio of 1:1. It is on that account the appointment of the petitioner was also approved with effect from 28.07.2011 vide Ext.P8 dated 07.05.2012. Learned counsel appearing on behalf of the petitioner further submitted that one of the reasons stated by the respondents in approving the appointment with effect from 28.07.2011 and not from 01.06.2009 is that there cannot be any adjustment (compensation) for appointment of HSA (English) vis-a-vis HSA (Social Science). At the relevant point of time, against the sanctioned strength of seven (7) HSA (Mathematics), there were (10) and they were adjusted against the vacancy of HSA (English), who were at the relevant point of time, (4) in number, and thus (3) were adjusted to make it as (7) which resulted in denial of approval to the petitioner. The said reasoning is only fallacious and perverse in as much as that even after adjusting the excess HSA (Mathematics), there are sufficient posts available in HSA(core subjects) to accommodate

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WP(C)No.10245/2013

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the petitioner, particularly in view of Ext.P2 government order describing for sufficient number of HSAs in the English cadre. Even the other reasoning regarding the excess teachers working against the post of HSAs were adjusted against the post of HSA (English) also defies the logic, for, the appointment of the petitioner had been approved with effect from 28.07.2011, where the protected teacher in Malayalam was appointed by taking into consideration the order of Government dated 01.02.2006, Ext.P6, which provided for accommodation of a protected teacher in an aided school.

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On the other hand, Mr.Justin Jacob, the learned counsel appearing on behalf of the respondents, submitted that by appointing the petitioner with effect from 01.06.2009, the sanctioned strength would not be exceeded, and even otherwise, the order Ext.P8 reads that the Manager had already adjusted the appointment of the petitioner against the 7^th post in the year 200910 and against the 8^th post in 2010-11 and 2011-12. Therefore, there was no reason for rejecting the approval of appointment with effect from 01.06.2009.

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Learned counsel appearing on behalf of the respondents, supported the impugned order on the ground that the Government

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WP(C)No.10245/2013

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vide order dated 07.01.2002 (Ext.P2) ordered that a new cadre of HSA (English) will be created in aided and Government Schools by re-allocating the periods of English allocated to the core subjects, Mathematics, Science and Social Studies in a phased manner, without causing any retrenchment of existing HSAs (core subjects). It is also ordered that the new cadre would be created by appointing/promoting qualified hands against the vacancies caused by retirement/addition division/ resignation/leaving observing the minimum subject ratio requirement between Maths, Science and Social studies to achieve the object of distribution of the posts. No doubt, in the year 2009, when there were (29) HSAs against the sanctioned strength of (31) HSAs working under different streams. Three (3)in Mathematics were working in excess during 2009 and seven posts of HSA (English) were sanctioned in the year 2009-10, out of which four HSA (English) were working in excess, three (3)HSA (Mathematics) were adjusted in the remaining posts of HSA (English). There was no established post of HSA (English) in the year 2009-10. The petitioner was provided the 5^th HSA (English) against the death vacancy of Sri.N.Raju – HSA (Social Science). It is on that account, the approval of appointment with effect from

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WP(C)No.10245/2013

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01.06.2009 was rejected. An HSA (Malayalam) was a protected hand worked only after 10.06.2009, and as per paragraph 4(1) of the order dated 01.02.2006 (Ext.P6), will be a protected teacher in a newly opened school and later on absorbed to the parent school, the Manager is empowered to appoint another protected hand based on the sanctioned strength and do not call for any interference.

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I have heard the learned counsel for the parties and appraised the paper book.

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The order finds logic for, in the order dated 07.01.2002, the Government had come out with a package of protecting the teachers who were working in excess of the sanctioned strength. On the basis of the said order in the school in question against the seven sanctioned posts of Mathematics, already ten were working. Once the Government came out with an order in 2011 of not intermingling with the other subjects, the adjustment of Mathematics against the remaining sanctioned post of English, who were working four at the time when they were adjusted; vis-a-vis the Mathematics, was also not justified. But the protection was by

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the order of 2002. Therefore, there was no bar for the

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management of the schools to fill up the sanctioned post against the expected stream, particularly, English, which was promoted vide order Ext.P2, the stream which the petitioner belongs, and his appointment though was against the death of one Raju in Social Science, the sanctioned strength in Social Science in 2009 had become six, after his demise and was adjusted. The said practice thus, vis-a-vis by adjusting the protected employees against the other streams and not employing the fresh candidates was totally anomalous.

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In my view, the orders issued by the Government from time to time did not consider the factum of adjustment by granting protection to the teachers from retrenchment would create such a situation where there would be a meagre chances of appointment for a new candidate and this fact is reiterated from the findings rendered in the impugned order, Ext.P8, whereby the additional HSAs were adjusted to the shortage in HSA core subject for the year 2009-10 and 7^th of HSA (English) for the year 2009-10 and for 2010-11 and 2011-12 in the 8^th sanctioned vacancy of HSA (English) by appointing the petitioner.

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For the reasons aforementioned, I am of the view that

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the order impugned is not sustainable and Ext.P8 is modified. The appointment of the petitioner shall be considered for approval with effect from 01.06.2009 and not from 28.07.2011. The respondents are directed to comply with the order and extend the consequential benefits within a period of two months from the date of receipt of a certified copy of this judgment.

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Writ Petition stands disposed of.

Sd/-

AMIT RAWAL JUDGE

csl

APPENDIX OF WP(C) 10245/2013

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PETITIONER'S EXHIBITS

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EXHIBIT P1	TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.2009 OF THE 4TH RESPONDENT.
EXHIBIT P2	TRUE COPY OF THE G.O.(MS)NO.11/2002/G.EDN. DATED 07.01.2002 ALONG WITH A COPY OF ENDORSEMENT NO.H3/50526/01/DPI/K.DIS OF THE DIRECTOR OF PUBLIC INSTRUCTION.
EXHIBIT P3	TRUE COPY OF THE ORDER NO.B1/9166/2010/L.DIS DATED 29.11.2010 OF THE 2ND RESPONDENT.
EXHIBIT P4	TRUE COPY OF THE REVISION PETITION DATED 02.10.2010 FILED BY THE MANAGER BEFORE THE GOVERNMENT.
EXHIBIT P5	TRUE COPY OF THE G.O.(RT)NO.811/2012/G.EDN DATED 21.02.2011.
EXHIBIT P6	TRUE COPY OF THE G.O.(P)NO.46/06/G.EDN. DATED 01.02.2006.
EXHIBIT P7	TRUE COPY OF THE LIST OF PROTECTED TEACHERS ISSUED BY THE HEADMISTRESS OF THE SCHOOL.
EXHIBIT P8	TRUE COPY OF THE ORDER NO.B2/1442/2012/D.DIS. DATED 07.05.2012 OF THE 3RD RESPONDENT.

Ambili P. v. State of Kerala

Case brief

What is this about?

What did the court decide?

Ambili P. v. State of Kerala

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

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