Kerala High Court
The Manager vs The State Of Kerala on 17 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 17TH DAY OF FEBRUARY 2021 / 28TH MAGHA,1942
WA.No.474 OF 2020
AGAINST THE ORDER/JUDGMENT DATED 26.11.2019 IN WP(C)
23712/2019(L) OF HIGH COURT OF KERALA
APPELLANT(PETITIONER):
THE MANAGER
CFD HIGH SCHOOL, MATHUR, PALAKKAD 679 584.
BY ADV. SRI.P.RAMAKRISHNAN
RESPONDENTS(RESPONDENTS):
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT GENERAL
EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
2 THE DIRECTOR OF PUBLIC INSTRUCTIONS,
NOW DIRECTOR OF GENERAL EDUCATION), THE DIRECTOR
OF PUBLIC INSTRUCTIONS,
THIRUVANANTHAPURAM 695 014.
3 THE DISTRICT EDUCATIONAL OFFICER,
OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,
PALAKKAD 678 014.
4 ASWATHI.A,
W/O. PRAMOD KUMAR, WEST HOUSE, VENMAKARA, NURANI
P.O. PALAKKAD 678 004.
BY GOVERNMENT PLEADER SMT.RAJI T BHASKAR,
ADV.SRI.ELVIN PETER P J
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
17.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. No. 474 of 2020 :2:
JUDGMENT
A.K.Jayasankaran Nambiar, J
The Manager of the CFD High School, Mathur, Palakkad, who was
the petitioner in the writ petition, is the appellant before us, aggrieved
by the judgment dated 26.11.2019 of the learned Single Judge. The
challenge in the Writ Petition was to Ext.P12 order dated 22.07.2019 of
the 1st respondent State Government that found that a vacancy that
arose in a post of H.S.A (Natural Science) in the school on 01.06.2015,
consequent to the retirement of an earlier incumbent to the post,
Smt.Krishnamani, had to be filled by appointing Smt.Aswathi, the 4 th
respondent in the Writ Petition. The brief facts necessary for the
disposal of the Writ Appeal are as follows:
2. Consequent to the retirement of an H.S.A (Natural Science) in
the school on 31.05.2015, Smt.Aswathi was appointed as an H.S.A
(Natural Science) with effect from 01.06.2015 as is evident from
Ext.R4(a) produced along with the counter affidavit of the 4 th
respondent. In the Writ Petition, the petitioner Manager disputes the
said appointment and points to the fact that there was no order passed
by the District Educational Officer either approving or rejecting the said
appointment of Smt.Aswathi. Presumably proceeding on the said
assumption, when pursuant to the staff fixation order for the academic
year 2015-2016, two posts of H.S.A (Physical Science) were reduced in
the school, the Manager appointed one Rejitha, who was working as
H.S.A (Physical Science), and who would under normal circumstances
have had to be retrenched owing to her being the junior most HSA
(Physical Science) in the school, to the vacant post of H.S.A (Natural
Science). Thereafter, pursuant to the staff fixation for the year 2016-
2017, when an additional post of H.S.A (Physical Science) was
sanctioned to the school, the Manager re-adjusted the appointment of
Smt.Rejitha to the said additional post inasmuch as that was the subject
in which Smt.Rejitha was competent to be appointed as H.S.A. To the
resultant vacancy arising in the post of H.S.A (Natural Science) the
Manager appointed Smt.Aswathi as H.S.A (Natural Science) with effect
from 01.06.2016 and forwarded the proposal to the educational authority
for approval.
3. It is relevant to note that in the interregnum, ie. between the
academic years 2015-2016 and 2016-2017, the Government came out
with an order sanctioning the teachers package and making it mandatory
for aided schools to appoint protected teachers in additional posts
resulting from staff fixation orders. Taking note of the said Government
Order, the approval to the appointment of Smt.Aswathi with effect from
01.06.2016 was denied by the educational authority. The Manager
preferred an appeal against the order of rejection dated 07.06.2017
before the Deputy Director of Education but without any success, as the
same also came to be rejected by an order dated 20.10.2017. Although a
further revision was filed by the Manager before the Director of Public
Instructions, no orders were passed in the said Revision Petition. In the
meanwhile, however, through a representation dated 28.11.2017,
Smt.Aswathi approached the Government claiming an approval of her
service as H.S.A (Natural Science) with effect from 01.06.2015 by
maintaining that she was appointed as such in the school with effect
from 01.06.2015, and hence, in the absence of any Government Order
similar to GO(P).No.199/2016 G.EDN dated 03.12.2016, the approval to
the said appointment could not have been denied. In particular, it was
contended that the bar stipulated in the Government order
aforementioned would apply only to appointments effected to vacancies
arising after 29.01.2016 and her appointment was with effect from
01.06.2015. The Government, by order dated 22.07.2019 impugned in
the Writ Petition, upheld the contention of Smt.Aswathi and found that
she was rightly entitled to an approval of her appointment as H.S.A
(Natural Science) in the school with effect from 01.06.2015.
4. The challenge to the Government Order dated 22.07.2019 in the
Writ Petition was premised essentially on the contention that
Smt.Aswathi had not been appointed by the Manager as H.S.A (Natural
Science) in the school with effect from 01.06.2015 and that her first
appointment as H.S.A (Natural Science) was only with effect from
01.06.2016, and the latter appointment had not been approved by the
educational authorities. The original appointment of Smt.Rejitha in 2015
through her adjustment to an existing vacancy in the post of H.S.A
(Natural Science) and the subsequent adjustment in 2016-2017 to the
additional post of H.S.A (Physical Science) sanctioned for that year is
cited as a reason as to why the appointment of Smt.Aswathi to the post
of H.S.A (Natural Science) with effect from 01.06.2015 could not be
approved.
5. The learned Single Judge, who considered the rival submissions
found that it was incumbent upon the Manager to appoint a teacher
qualified in Natural Science to the vacancy that resulted consequent to
the retirement of Smt.Krishnamani as H.S.A (Natural Science) with
effect from 01.06.2015. The judgment of the Division Bench in Rakhee
v. State of Kerala [2007 (1) KLT 766] was relied upon for holding
that, pursuant to a division fall and reduction in the posts sanctioned of
H.S.A in any particular subject, the incumbent to be retrenched should
be the junior most teacher in the category concerned. Placing reliance
on Rule 51 of Chapter XIV A K.E.R, it was held that H.S.As in different
subjects could not be categorised as a single category for the purposes of
the said retrenchment or for consequent filling up of vacancies to the
post of H.S.A. Applying the said ratio, the learned Single Judge found,
and in our view rightly so, that to the vacancy that resulted consequent
to the retirement of Smt.Krishnamani, who was an H.S.A (Natural
Science), the appointment of Smt.Aswathi as H.S.A (Natural Science)
with effect from 01.06.2015 had to be necessarily upheld. Admittedly,
between Smt.Aswathi, who was an H.S.A in Natural Science and
Smt.Rejitha, who was an H.S.A in Physical Science, Smt.Aswathi had a
better claim for appointment to the vacancy that resulted in the post of
H.S.A (Natural Science). It is also significant that on the date of her
appointment as HSA (Natural Science) on 01.06.2015, there was no
Government Order mandating that the post had to be filled by protected
teachers. There was, therefore, no impediment for granting approval to
the said appointment. We are therefore, of the view that the impugned
judgment does not call for any interference. The Writ appeal fails and is
accordingly dismissed.
Sd/-
A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
GOPINATH P.
JUDGE
mns/17.02.2021
