Kerala High Court
Manager vs State Of Kerala on 18 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942
WP(C).No.19185 OF 2020(W)
PETITIONERS:
1 MANAGER, CAPTAIN N.P. PILLAI MEMORIAL VOCATIONAL
HIGHER SECONDARY SCHOOL , KATTACHIRA, PALLICKAL P.O.,
ALAPPUZHA DISTRICT-690 503.
2 HAJIRA BEEVI A, PART-TIME ARABIC TEACHER,
CAPTAIN N.P PILLAI, MEMORIAL VOCATIONAL HIGHER
SECONDARY SCHOOL, KATTACHIRA, PALLICKAL
P.O.,ALAPPUZHA DISTRICT-690 503.
SRI.M.R.ANISON
SMT.V.BHARGAVI (PANANGAD)
SMT.P.A.RINUSA
RESPONDENTS:
1 STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE DIRECTOR OF GENERAL EDUCATION,
DIRECTORATE OF GENERAL EDUCATION, JAGATHY,
THIRUVANANTHAPURAM-695 014.
3 THE DEPUTY DIRECTOR OF EDUCATION ALAPPUZHA,
OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, NEAR
CIVIL STATION, ALAPPUZHA-688 001.
4 THE DISTRICT EDUCATIONAL OFFICER ALAPPUZHA,
NEAR TALUK OFFICE, MAVELIKKARA-690 101.
SRI-P.M.MANOJ - SR. GP.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.19185 OF 2020(W)
2
JUDGMENT
Dated this the 18th day of February 2021
The first petitioner is stated to be the Manager of the
"Captain N.P.Pillai Memorial Vocational Higher Secondary
School", Alappuzha and the second petitioner to be a Part-time
Arabic Teacher working therein.
2. According to the petitioners, a post of High School
Teacher (HST) in Arabic was available in the school from the
academic year 1986-87 onwards and that the second among
them was appointed as Part-time High School Teacher in
Arabic, which was granted approval with effect from
19.06.2017. They assert that in the staff fixation orders for the
academic years 2017-18 to 2019-20, one post of High School
Teacher in Arabic was sanctioned to the School but that
through Exts.P5 to P8 orders, the said staff fixation has been
revised for the year 2018-19, leading to the abolition of a post
of Part-time HST (Arabic). The petitioners say that this has
been done by wrongly applying the provisions of Rule 6E of
Chapter XXIII of the Kerala Education Rules (KER) and they
contend so on the basis that this provision is not applicable to
a post which had already been sanctioned and against which a
WP(C).No.19185 OF 2020(W)
qualified teacher is working.
3. The petitioners further contend that the relevant Rule
to have been applied is Rule 6F of Chapter XXIII of the KER
and that if this had been done, there would have been one post
of HST (Arabic) in the school during the academic year 2019-
20; but that this aspect has not been considered while Exts.P5
to P8 orders have been issued. They say that on account of
this wrong action on the part of the Educational Authorities,
the 4th respondent has issued Ext.P9 order asking the second
among them to refund the salary paid to her for the period
between 15.07.2018 and 30.09.2018. They says that,
therefore, they are constrained to challenge Exts.P5 to P9
before this Court.
4. In response to the above submissions made on behalf
of the petitioners by their learned counsel - Sri.M.R.Anison,
the learned Senior Government Pleader - Sri.P.M.Manoj,
submitted that the petitioners' contentions have been
answered by the second respondent in the counter affidavit
dated 02.02.2021. He asserted that even though the post of
HST (Arabic) was in existence from 1986-87 onwards, the
second petitioner had been working as a Part-time HST only
WP(C).No.19185 OF 2020(W)
from 19.06.2017. He submitted that there is no established
vacancy to provide for the appointment of the second
petitioner as HST (Arabic) with effect from 15.07.2018, due to
the reduction of the strength of students and that even though,
in the meanwhile, the Government had issued an order dated
26.12.2016 reducing the minimum required number of
students learning the Arabic to 20, instead of 25, in the High
School section, in order to retain the regular teachers eligible
for protection, the second petitioner, having been approved in
service only from 19.06.2017, was found not entitled to
protection. He says that it is, solely therefore, that Exts.P5 to
P9 have been issued and prays that this writ petition be
dismissed.
5. When I analyse the contentions of the rival parties as
afore, it is indubitable that the abolition of the post in question
has been done by the Authorities applying Rule 6E of Chapter
XXIII of the KER. This is, in fact, admitted in the counter
affidavit filed on behalf of the second respondent, wherein,
they say that the minimum number of students required in the
High school section was not available in the school and that,
therefore, the post required to be abolished.
WP(C).No.19185 OF 2020(W)
6. However, what is important in this case is the
interplay of Rules 6E and 6F of Chapter XXIII of the KER. It is
clearly stipulated in Rule 6E of Chapter XXIII of the KER that
nothing contained therein will apply to posts which are already
sanctioned and against which qualified teachers are working.
The petitioners assert that the post in question was available
in the school as early as from the year 1986-87 and that staff
fixation order for the years 2017-18 to 2019-20 provided for
one post of HST (Arabic). They say that it is only through
Exts.P5 to P8 orders that the staff fixation was thereafter
revised for the year 2018-19, thus abolishing this post and they
contend that this has been done by wrongly not applying Rule
6E of Chapter XXIII of the KER.
7. When I go through Exts.P5 to P9 orders, it is evident
that this aspect has not been considered by any of the
Authorities and they have proceeded on the basis that, by the
revision of the staff fixation of the year 2018-19, one post of
HST (Arabic) stood abolished and therefore, that the second
petitioner - being a person who had been approved only on
19.06.2017 - is not entitled to protection, even when the
student strength is revised to 20.
WP(C).No.19185 OF 2020(W)
8. I am of the firm view that the specific stipulations in
Rule 6E being to the afore effect, the competent Authorities
could have issued Exts.P5 to P9 orders only after properly
analysing the petitioners' contention, that nothing contained in
the said Rule would apply to a post which had been already
sanctioned and against which a qualified teacher is working.
The fact that this post was sanctioned and that the petitioner's
appointment to the same being approved remaining
undisputed, I am of the view that the entire matter requires to
be reconsidered by the Government, particularly within the
ambit of Rule 6E, read with Rule 6F of Chapter XXIII of the
KER.
9. In the afore circumstances, I order this writ petition
and set aside Ext.P8 order of the Government as also the
consequential Ext.P9 order of the District Educational Officer
Mavelikkara; with a resultant direction to the Government to
reconsider the abolishment of the post as also the proposal for
approval of the appointment of the second petitioner, after
affording an opportunity of being heard to her and the
Manager of the School - either physically or through video
conferencing - thus culminating in an appropriate order
WP(C).No.19185 OF 2020(W)
thereon, as expeditiously as is possible, but not later than
three months from the date of receipt of a copy of this
judgment.
Needless to say, while the afore exercise is completed,
the competent Authority will specifically analyse the provisions
of Rule 6E and Rule 6F of Chapter XXIII of the KER and decide
the contention of the petitioners that, going by its terms, the
reduction of the post, as has been now done, was
impermissible.
Sd/- DEVAN RAMACHANDRAN
Stu JUDGE
WP(C).No.19185 OF 2020(W)
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE
2ND PETITIONER DATED 19.6.2017
EXHIBIT P2 TRUE COPY OF THE STAFF FIXATION ORDER
DATED 12.7.2017 FOR THE ACADEMIC YEAR
2017-18
EXHIBIT P3 TRUE COPY OF THE STAFF FIXATION ORDER
DATED 29.6.2018 FOR THE ACADEMIC YEAR
2018-2019
EXHIBIT P4 TRUE COPY OF THE STAFF FIXATION ORDER
DATED 17.7.2019 FOR THE ACADEMIC YEAR
2019-2020
EXHIBIT P5 TRUE COPY OF ORDER DATED 28.11.2018 ISSUED
BY THE 3RD RESPONDENT
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 29.3.2019
ISSUED BY THE 4TH RESPONDENT
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 20.3.2019
ISSUED BY THE 2ND RESPONDENT
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 21.12.2019
ISSUED BY THE 1ST RESPONDENT
EXHIBIT P9 TRUE COPY OF THE ORDER DATED 31.12.2018
ISSUED BY THE 4TH RESPONDENT
