Jasna V vs State Of Kerala Represented By The ...
2021 Latest Caselaw 4098 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

    THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                      WP(C).No.17460 OF 2020(F)


PETITIONER:

               JASNA V, SEWING TEACHER,
               PARASSINIKKADAVU HIGHER SECONDARY SCHOOL,
               P.O. PARASSINIKKADAVU, KANNUR DISTRICT-670 563

               BY ADV. SRI.P.M.PAREETH


RESPONDENTS:

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

      2        DIRECTOR OF GENERAL EDUCATION,
               JAGATHY, THIRUVANANTHAPURAM-695014

      3        DEPUTY DIRECTOR OF EDUCATION,
               KANNUR-670 002

      4        DISTRICT EDUCATIONAL OFFICER,
               TALIPARAMBA, KANNUR DISTRICT-670 141

      5        MANAGER, PARASSINIKKADAVU HIGHER SECONDARY SCHOOL,
               P.O. PARASSINIKKADAVU, KANNUR DISTRICT-670 563


               R5 BY ADV. SRI.A.C.VENUGOPAL
               SRI. P.M.MANOJ - SR.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD           ON
04.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 17460/20
                                          2



                                    JUDGMENT

The petitioner says that she entered

regular service as a Sewing Teacher in

"Parassinikkadavu Higher Secondary School",

Kannur - managed by the fifth respondent - on

01.06.2016 and she has produced Ext.P1 in

substantiation thereof.

2. The petitioner asserts that her

appointment was made validly to a sanctioned

post as per Ext.P4 staff fixation order, which

had been approved by the fourth respondent -

District Education Officer (DEO) and that the

same was a full time post. The petitioner

says that another teacher, by name Smt.Divya,

who was working as a Sewing Teacher was

promoted as a High School Teacher in Malayalam

and that the petitioner was thus appointed,

through Ext.P1, to the resultant vacancy.

3. The petitioner says that her

appointment was denied approval by the WPC 17460/20

District Educational Officer (DEO) on the

ground that the Manager ought to have

appointed a protected teacher, but that

subsequently, by order dated 08.06.2017, the

4th respondent abolished the post of Sewing

Teacher sanctioned through Ext.P4 staff

fixation order for the reason that, when the

'accounts audit' was conducted, it was found

that the school had only 193 girl students,

while the minimum statutory requirement is

200.

4. The petitioner says that Ext.P3 order

of the DEO is illegal, since it has been

issued in violation of Rule 12C(2) of Chapter

XIII of the Kerala Education Rules (KER for

short), which mandates that the Deputy

Director must scrutinise all orders passed by

the DEO with regard to the staff fixation of

High School and Training Schools and that he

is at liberty to revise the same, if so WPC 17460/20

necessary. She alleges that, however, what has

been done in this case is that the staff

fixation order has been unilaterally reviewed

by the DEO himself, for which he had no power

under the aforementioned provisions of the

KER. She thus contends that abolishment of the

post through Ext.P3 is illegal and that she

is, therefore, entitled to be reckoned as

working continuously, notwithstanding the said

order.

5. In response, the learned Senior

Government Pleader - Sri.P.M.Manoj, submitted

that the petitioner's claims cannot be

countenanced because, as a matter of fact, the

audit objection shows that the school does not

have 200 girl students, so as to warrant

sanctioning of Full-time Sewing Teacher's post

for the year 2015-2016. He submitted that the

DEO had issued Ext.P4 being not informed of

this vital fact and therefore, that he issued WPC 17460/20

Ext.P3 abolishing the post, based on the

provisions of the KER. He submitted that

since, thereafter, in the year 2016-2017, the

girl student strength exceeded 200, the post

of Sewing Teacher was again sanctioned, but

that since it had been earlier abolished for

the year 2015-2016, it could have been treated

only as an additional post during the next

year, which has been correctly done by the

competent Authorities. He says that it is,

therefore, that the Director of General

Education (DGE) rejected the Revision Petition

filed by the Manager, namely Ext.P7; and

therefore, that order of the Government,

namely Ext.P8, and the consequential order of

the DEO, namely Ext.P9, cannot be found to be

in error. He thus prayed that this Writ

Petition be dismissed.

6. I have examined the pleadings on

record and the available materials produced by WPC 17460/20

the rival parties.

7. There is no doubt that the

petitioner's post had been sanctioned for the

academic year 2015-2016, based on Ext.P4 staff

fixation order which had found approval at the

hands of the 4th respondent. However, the said

respondent reviewed this approval consequent

to the audit objections and issued Ext.P3

abolishing the said post, holding that the

school does not have 200 girl students, which

alone would have allowed sanctioning of the

said post. This led to the petitioner and the

Manager approaching the Government through

Exts.P6 and P7 respectively, which were

disposed of through Ext.P8 order, directing

the DEO to reconsider the petitioner's claim

taking note of Government Orders dated

29.01.2016 and 13.12.2016, relating to

additional vacancies. It is consequent thereto

that Ext.P9 order has been issued by the DEO, WPC 17460/20

wherein, he has stated that he cannot review

the order, namely Ext.P5, which had been, in

the meanwhile, issued by the Joint Director of

General Education.

8. However, the question pertinent in

this case is whether abolishing the post for

the year 2015-2016 is valid in law, since, if

it had not been done, then the post for the

academic year 2016-2017 could not have been

treated as an additional post. In other words,

if this post had been treated as being

regular, then obviously, the petitioner would

not have had any trouble at all and her

Revision would have been allowed.

9. But the authorities have taken the

position that since the staff fixation order,

for the year 2015-2016, namely Ext.P4, was

made without being aware that the number of

girl students had fallen below 200 - the post

of a Sewing Teacher thus being not eligible to WPC 17460/20

be granted - the petitioner cannot claim

continuity based on the fact that this post

was restored in the year 2016-2017, when the

students strength went up. They maintain that,

therefore, once the post had been abolished

for the year 2015-2016, its reinstatement for

the next year can only construe to be an

additional one.

10. As I have said above, the crux of the

controversy in this case is whether

abolishment of the post for the year 2015-2016

was valid or otherwise. This is because, as is

clear from Ext.P4, there can be no doubt that

the staff fixation order was approved and the

post in question was found available.

Normally, therefore, going by the provisions

of Chapter XXIII of the KER, it is only the

Deputy Director who could have revised the

staff fixation order and that too, after

following due procedure. But what has been WPC 17460/20

done in this case is that the DEO reviewed

Ext.P4 on his own and issued Ext.P3 abolishing

the post, saying that the number of girl

students had fallen below 200; however, it is

luculent that this order was passed more than

one year after the staff fixation order had

been earlier approved by him.

11. I am, therefore, of the view that

these aspects ought to have engaged the mind

of the Government and they could not have

relegated the matter to the DEO, as has been

done through Ext.P8 order, especially because

the latter officer could have done nothing

more than to go by the earlier orders of the

Joint Director of General Education, namely

Ext.P5.

12. Resultantly, I am left without doubt

that Government must reconsider Exts.P6 and P7

filed by the petitioner and the Manager

respectively, de hors Ext.P8 and take a WPC 17460/20

decision on the contentions of the petitioner,

that abolishment of the post for year 2015-

2016 was illegal, going by the provisions of

Chapter XXIII of the KER.

In the conspectus of the above, I order

this writ petition and set aside Exts.P8 and

P9 and direct the Government to reconsider

Exts.P6 and P7 representation and revision

filed by the petitioner and the Manager

respectively, after affording them an

opportunity of being heard, - either

physically or through videoconferencing - thus

culminating in an appropriate order thereon as

expeditiously as is possible, but not later

than three months from the date of receipt of

a copy of this judgment.

I make it clear that while completing the

afore exercise, the Government shall not

relegate the matter to any other authority and

shall take a final decision on its own, as to WPC 17460/20

whether abolishment of the post on 08.06.2017

was illegal, particularly because Ext.P4 staff

fixation order had been approved as early as

on 30.04.2016.

Sd/-

                                 DEVAN RAMACHANDRAN
       RR                              JUDGE
 WPC 17460/20




                            APPENDIX
       PETITIONER'S/S EXHIBITS:

       EXHIBIT P1        A TRUE COPY OF THE APPOINTMENT ORDER

DATED 01.06.2016 ISSUED BY THE 5TH RESPONDENT.

EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 19.11.2016 ISSUED BY THE 4TH RESPONDENT REJECTING THE APPROVAL OF APPOINTMENT OF THE PETITIONER.

EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 08.06.2017 ISSUED BY THE 4TH RESPONDENT ABOLISHING THE POST OF SEWING TEACHER IN THE SCHOOL.

EXHIBIT P4 A TRUE COPY OF THE STAFF FIXATION ORDER DATED 30.04.2016 FOR 2015-16.

EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 20.10.2017 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P6 A TRUE COPY OF THE REVISION DATED 13.11.2017 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P7 A TRUE COPY OF THE REVISION DATED 14.11.2017 SUBMITTED BY THE MANAGER BEFORE THE 2ND RESPONDENT.

EXHIBIT P8 A TRUE PHOTO COPY OF THE GOVERNMENT LETTER DATED 13.08.2018 ISSUED TO THE 4TH RESPONDENT.

EXHIBIT P9 A TRUE COPY OF THE LETTER DATED 10.10.2018 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.

EXHIBIT P10 A TRUE COPY OF THE G.O(P) NO.

29/2016 DATED 29.01.2016.

EXHIBIT P11 A TRUE COPY OF THE G.O.(P) NO.199/2016/G.EDN. DATED 03.12.2016. WPC 17460/20

EXHIBIT P12 A TRUE PHOTO COPY OF THE ORDER NO.

B3/7846/17(2)/KDIS DATED 08.12.2017 ISSUED BY THE 4TH RESPONDENT