Anu John A vs State Of Kerala
2021 Latest Caselaw 14384 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
            THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
        TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943
                        WP(C) NO. 8747 OF 2015
PETITIONER:

            ANU JOHN A, W/O.THOMAS, ALUNKAL HOUSE,
            NEAR INDIA SEA FOODS, KANNAMALY, KOCHI-682008.

            BY ADVS.
            SRI.V.M.KURIAN
            SRI.MATHEW B. KURIAN
            SRI.K.T.THOMAS



RESPONDENTS:

    1       STATE OF KERALA
            REPRESENTED BY SECRETARY TO GOVERNMENT,
            GOVERNMENT OF KERALA, SECRETARIAT ANNEXE,
            THIRUVANANTHAPURAM - 695001.

    2       THE DEPUTY DIRECTOR OF EDUCATION,
            ERNAKULAM - 682 025.

    3       THE DISTRICT EDUCATIONAL OFFICER,
            ERNAKULAM - 682025.

    4       THE MANAGER,
            ST. MARY'S HIGH SCHOOL, KANNAMALY,
            KOCHI - 682 008.

            BY ADVS. SRI. P.M.MANOJ - SR.GP
                     SRI.RAJESH VIJAYENDRAN



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 8747 OF 2015
                                  -2-

                                JUDGMENT

At the time when this writ petition was filed,

petitioner had been thrown out from the services

of "St.Mary's High School", Kannamaly, after being

appointed as a High School Teacher (HST) in

Physical Science.

2. The petitioner says that, she was

appointed to one of the available vacancies of HST

in Physical Science with effect from 16.07.2012;

but that her approval was granted, through Ext.P3,

by the Deputy Director of Education (DDE),

Ernakulam only on daily wage basis, saying that in

the next academic year, namely 2013-14, there was

a reduction in the number of posts of High School

Teachers and consequently that she had to be

retrenched from service.

3. The petitioner says that Ext.P3

proceedings of the DDE is based on fallacious

reasoning because, as is evident from the Staff WP(C) NO. 8747 OF 2015

Fixation Order of the School, there were two posts

of Physical Science Teacher for the academic year

2012-13; and that she was accommodated to one such

vacancy, validly.

4. She says that, however, when it came to

the academic year 2013-14, there was a reduction

in the posts of HST in Social Science and that

obviously, therefore, one of such teachers ought

to have been retrenched. She says that contrary to

this, merely citing the reason that since she was

the junior most HST at that time, she has to be

retrenched, though she was admittedly working as

an HST in Physical Science. The petitioner

contends that the stand of the Manager of the

School, as approved by the DDE through Ext.P3, is

contrary to law and is in violation of the

declarations made by the Hon'ble Supreme Court in

Deepa Augustine v. Geetha Alex [2008 (2) KLT 771

(SC)] WP(C) NO. 8747 OF 2015

5. I have heard Sri.K.T.Thomas - learned

counsel for the petitioner; Sri.Rajesh Vijayendran

- learned counsel appearing for the 4th respondent

- Manager and the learned Senior Government

Pleader - Sri.P.M.Manoj appearing for the official

respondents.

6. Sri.P.M.Manoj submitted that Ext.P3 order

has been issued by the DDE noticing that in the

academic year 2013-14 there was a reduction of

posts of High School Teacher in core subjects; and

consequently, that the junior most among them,

namely the petitioner, was liable to be

retrenched. He then pointed out that, admittedly,

the petitioner was appointed only on 16.07.2012

and therefore, that when the vacancy did not exist

in the next academic year, her approval could have

been granted only on daily wage basis, leading to

her retrenchment, when the post itself became non-

available.

WP(C) NO. 8747 OF 2015

7. The learned Senior Government Pleader then

added to his submissions by relying on the

averments in the counter affidavit filed by the 3 rd

respondent, that the petitioner does not have any

case as at present, because she left the service

on 12.08.2014 due to reduction of posts of HST in

Physical Science in the academic year 2014-15. He

thus prayed that Ext.P3 order be not interdicted

and that this writ petition be dismissed.

8. Sri.Rajesh Vijayendran - learned counsel

appearing for the 4th respondent - Manager,

supported the learned Senior Government Pleader,

but submitted that when there was reduction of

posts in HST (core subject), the junior most among

the teachers ought to have been retrenched; and

that this has been rightly done in the case of the

petitioner. He pointed out that, since the

petitioner admittedly joined the service only on

16.07.2012 and that since the vacancy available to WP(C) NO. 8747 OF 2015

her became nonexistent in the academic year 2013-

14, she could not make a claim for being approved

substantively, since the period during which she

worked was less than a year; and further that, for

the same reason, she cannot plead that she should

have been allowed to continue, with another

teacher being retrenched. He thus prayed that this

writ petition be dismissed.

9. I must say upfront that the submissions of

the respondents, as recorded above, do not appeal

to me immediately because petitioner is alleged to

have left the service only on 12.08.2014, when the

number of posts in HST (Physical Science) was

reduced during the academic year 2014-15. Then the

argument in favour of the petitioner's

retrenchment in the academic year 2013-14 cannot

be convincing, because as is clear from the

counter affidavit of the 3rd respondent itself,

there were two posts of HST in Physical Science WP(C) NO. 8747 OF 2015

available for the academic years 2012-13 and 2013-

14. In the latter academic year, the reduction was

to the post of Social Science and, therefore, the

petitioner was justified in asserting that she

could not have been retrenched, relying on the

judgment of the Hon'ble Supreme Court in Deepa

Augustine (supra).

10. However, this aspect has not been

considered in Ext.P3 order of the DDE, but he has

proceeded to deny approval to the petitioner

substantively with effect from 16.07.2012, saying

that her period of service can only be seen to be

less than one year, because the post in which she

was accommodated became not available in the

academic year 2013-14.

11. This finding in Ext.P3 certainly has been

entered into without adverting to the judgment of

the Hon'ble Supreme Court in Deepa Augustine

(supra) and am thus certain that said Authority WP(C) NO. 8747 OF 2015

must reconsider the whole matter, after hearing

the petitioner and the Manager of the School.

In the afore circumstances, I order this writ

petition and set aside Ext.P3; with a

consequential direction to the DDE to hear the

petitioner, as also the Manager of the School -

either physically or through video conferencing -

thus leading to an appropriate order on the appeal

preferred before the DDE by the petitioner on

07.10.2014, as expeditiously as is possible, but

not later than three months from the date of

receipt of a copy of this judgment.

It is needless to say that, while completing

the afore exercise, the DDE will specifically keep

in mind the contention of the petitioner that in

the academic year 2013-14, there was a post to

accommodate her as per the Staff Fixation Order;

and that she was thrown out from service only in

the next academic year, when the vacancy in the WP(C) NO. 8747 OF 2015

post of HST (Physical Science) was reduced.

Sd/-

DEVAN RAMACHANDRAN JUDGE akv WP(C) NO. 8747 OF 2015

APPENDIX OF WP(C) 8747/2015

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ORDER DATED 22.09.2014 PASSED BY THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM

EXHIBIT P2 TRUE COPY OF THE APPEAL PETITION FILED BY THE PETITIONER

EXHIBIT P3 TRUE COPY OF THE ORDER DATED 18.02.2015 PASSED BY THE SECOND RESPONDENT

RESPONDENT'S/S EXHIBITS : NIL.

//TRUE COPY// P.A. TO JUDGE