Kerala High Court

Selin P.Rini vs State Of Kerala And Others on 28 January, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942

                       WP(C).No.7630 OF 2011(C)

PETITIONER:

               SELIN P.RINI, UPPER PRIMARY SCHOOL ASSISTANT,,
               VICTORY VOCATIONAL HIGHER SECONDARY SCHOOL,,
               OLATHANNI, NEYYATTINKARA,
               THIRUVANATHAPURAM-, 695 121.

               BY ADVS.
               SRI.B.RAGHUNATHAN
               SRI.G.S.MOHANDAS
               SRI.NIKHIL GEORGE (PALAKKAPPILLIL)
               SRI.P.PRASANTH
               SRI.R.SRINATH
               SRI.K.SURENDRAN (PARASSALA)

RESPONDENTS:

      1        STATE OF KERALA AND OTHERS
               BY PRINCIPAL SECRETARY TO GOVERNMENT,,
               GENERAL EDUCATION DEPARTMENT, GOVERNMENT,
               SECRETARIAT, THIRUVANANTHAPURAM-695 001.

      2        DIRECTOR OF PUBLIC INSTRUCTION
               THIRUVANANTHAPURAM-695 014.

      3        JOINT DIRECTOR OF EDUCATION
               OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION,,
               THIRUVANANTHAPURAM-695 014.

      4        DEPUTY DIRECTOR OF EDUCATION
               THIRUVANANTHAPURAM-695 036.

      5        DISTRICT EDUCATIONAL OFFICER
               NEYYATTINKARA, THIRUVANANTHAPURAM-695 121.

      6        MANAGER, VICTORY VOCATIONAL HIGHER SECONDARY
               SCHOOL,, OLATHANNI, NEYYATTINKARA,,
               THIRUVANANTHAPURAM-695 121.

               SRI. P.M.MANOJ, SR.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD        ON
28.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 7630/11
                                          2


                                   JUDGMENT

The petitioner, who is stated to be

working as an Upper Primary School Assistant

in the services of Victory Vocational Higher

Secondary School, Neyyattinkara - which is

managed by the 6th respondent-Manager - has

approached this Court impugning Ext.P10 order

of the Joint Director of Education, under

which, her services for the period from 2010

to 2012, when she was included in the

'Teachers' Package' have been denied approval

on the ground that, during the relevant

period, enough divisions had not been allotted

to the school because of, inter alia, lack of

sufficient infrastructural facilities,

including class rooms.

2. The petitioner says that the staff

fixation order of the school for the year

2009-2010 was issued by the 5th respondent -

District Educational Officer (DEO) on WPC 7630/11

22.08.2009 and that she was ordered to be

retrenched; but that this was done applying

the Teacher-Student ratio 1:45, which was

prevailing then. She says that Government,

thereafter, issued an Order, bearing number

GO(P)No.171/2009/G.Edn. dated 22.08.2009,

modifying the teacher-student ratio from 1:45

to 1:40 for the academic year 2009-2010 and

that an additional division in Standard VI was

sanctioned, thus retaining her. She says that,

however, the 4th respondent, under the pretext

of scrutinising the staff pattern for the

academic year 2009-2010, issued an order dated

31.03.2010, reducing one division of the High

School section and resultantly, a High School

Assistant, Smt.Aleyamma Abraham, was ordered

to be reverted.

3. The petitioner says that this created

a cascading effect since, in the place of

Smt.Aleyamma Abraham, Sri.N.R.S.Vijaya Kumar - WPC 7630/11

who was junior to her - was ordered to be

retrenched and that he was, thereafter,

appointed as a High School Assistant,

overlooking the claims of Smt.Aleyamma Abraham

and three other UPSAs, including her, under

Rules 43 and 51A of Chapter XIVA of the Kerala

Education Rules (KER for short). She adds

that in pursuance to the order of the 4 th

respondent, the 5th respondent on 31.03.2010,

issued an order retrenching her but that the

said respondent, through a subsequent order

dated 21.04.2010, corrected the aforementioned

order and cancelled the 3rd division of

Standard X.

4. The petitioner says that aggrieved by

this, she approached this Court by filing

WP(C)No.14696/2010 and through judgment dated

18.05.2010, implementation of her retrenchment

was stayed and that she was permitted to file

a statutory revision, under the provisions of WPC 7630/11

Rule 12E Chapter XXIII of the KER, along with

an application of stay; with a further

direction that same be considered by the

competent Authority within a time frame fixed

therein.

5. The petitioner says that even though,

subsequently, she and other teachers were

called for a personal hearing by the 2 nd

respondent, they were heard only by the Deputy

Director of Education, who was holding full

additional charge and that this led to her

raising a question of jurisdiction but that

this was never considered, leading to Ext.P10

order being issued, whereby, her appeal has

been rejected. She, therefore, prays that

Ext.P10 be set aside and the Director of

General Education be directed to reconsider

the matter in terms of the directions of this

Court in Ext.P7 judgment.

6. In response to the afore submissions WPC 7630/11

made on behalf of the petitioner by her

learned counsel - Sri.B.Raghunathan, the

learned Senior Government Pleader -

Sri.P.M.Manoj, submitted that Ext.P10 cannot

be found to be in error on account of lack of

jurisdiction because the officer - namely the

Deputy Director of General Education - who

issued it, was holding full additional charge

of the Director of General Education and had

been validly delegated such power by the

former. He submitted that, in any event of the

matter, even if this contention of the

petitioner is taken into account, it would

inure no benefit to her because going by the

orders of staff fixation, the division against

which the petitioner is now making claim could

not have been granted and that this is

particularly because the school did not have

enough class rooms to accommodate more than 11

divisions. He pointed out that, as is evident WPC 7630/11

from Ext.P10, the Manager had let out many of

the class rooms for other purposes and that

only 15 were available for the conduct of the

school and hence not more than 11 divisions

could have been granted. He, therefore, prayed

that this Writ Petition be dismissed and

Ext.P10 be allowed to operate.

              7.   I      have        considered               the    afore

       submissions        and    have       also   gone        through    the

materials available on record.

8. It is ineluctable from Ext.P10 that

the Deputy Director of General Education had

considered the aspects with respect to the

school, including the staff fixation and the

infrastructural facilities, in some detail

while assessing the rival contentions of the

various teachers, who were directly affected

on account of the reduction of number of

divisions in the school.

9. That being said, what is really WPC 7630/11

pertinent in this case is that even though

this Court had directed the Director of

General Education to pass orders on the

statutory revision filed by the petitioner,

Ext.P10 has been issued by the Deputy Director

and this is explained by the learned Senior

Government Pleader saying that he had been

validly delegated. However, even if he had

been so delegated, I am of the view that since

Ext.P7 judgment directed the Director of

General Education to take a decision in all

these matters - he being the authority on the

highest hierarchy available for this purpose -

a decision by the Deputy Director of General

Education cannot be found to be comparable or

commensurate. This is also because the

Director of General Education is the competent

statutory Authority, though the Deputy

Director of Education may be entitled to act

as per delegation. However, the orders of WPC 7630/11

delegation having been not produced before

this Court, I cannot speak affirmatively on it

at this stage.

10. That apart, going by Ext.P10, one of

the primary reasons as to why the imbroglio

faced by the school came to happen is because

the Manager had not provided enough class

rooms for the conduct of more than 11

divisions. The order says that there were 24

divisions functioning in the school from 2004-

2005, but that in the year 2009-2010, only 11

could be allowed because of lack of sufficient

number of school rooms. It also says that the

Manager had used the existing school rooms for

other purposes and had even let it out to

other businesses and enterprises.

11. It is, therefore, luculent that the

teachers, including the petitioner herein,

have been put to unnecessary and avoidable

controversy, solely on account of certain WPC 7630/11

actions of the Manager but this has not been

specifically adverted to by the authority

though passingly referred to in Ext.P10 saying

that the infrastructural facilities of the

school are inadequate.

12. In the afore circumstances, I am

certain that a fresh look on the whole issue

will have to be done by the Director of

General Education and not by any other

officer; and for such purpose, I am certain

that the petitioner and other teachers, as

also the Manager, will have to be heard.

In the afore circumstances, I order this

writ petition and set aside Ext.P10; with a

consequential direction to the 2nd respondent-

Director of General Education (shown in this

Writ Petition as Director of Public

Instructions as he was designated then) to

hear the petitioner and all other affected

teachers, as also the Manager of the School - WPC 7630/11

either physically or through videoconferencing

- and issue a fresh order, taking note of all

relevant aspects including the fact that the

division fall in the school for the academic

year 2009-2010 happened solely on account of

lack of sufficient number of class rooms, for

which the responsibility can normally be fixed

only on the Manager.

The afore exercise shall be completed by

the 2nd respondent as expeditiously as is

possible, but not later than three months from

the date of receipt of a copy of this judgment

and the resultant order will be communicated

to all parties without any further delay

thereafter.

Sd/-

                                      DEVAN RAMACHANDRAN
       RR                                      JUDGE
 WPC 7630/11


                            APPENDIX
       PETITIONER'S/S EXHIBITS:

       EXHIBIT P1        TRUE COPY OF THE ORDER OF 5TH
                         RESPONDENT DATED 4.9.2008

       EXHIBIT P2        TRUE COPY OF THE ORDER OF 5TH
                         RESPONDENT DATED 6.10.2008

       EXHIBIT P3        TRUE COPY OF THE ORDER OF 5TH
                         RESPONDENT DATED 30.11.2008

       EXHIBIT P4        TRUE COPY OF THE ORDER OF 5TH
                         RESPONDENT DATED 1.11.2008

       EXHIBIT P5        TRUE COPY OF THE ORDER OF 5TH
                         RESPONDENT DATED 29.8.2009

       EXHIBIT P6        TRUE COPY OF THE ORDER OF 5TH
                         RESPONDENT DATED 31.3.2010

       EXHIBIT P7        TRUE COPY OF THE JUDGMENT DATED

18.5.2010 IN W.P(C)NO.14696 OF 2010- J

EXHIBIT P8 TRUE COPY OF THE REVISION PETITION DATED 22.5.2010 ALONG WIH THE APPLICATION FOR STAY

EXHIBIT P9 TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 24.6.2010

EXHIBIT P10 TRUE COPY OF THE ORDER DATED 9.7.2010 PASSED BY THE 3RD RESPONDENT