C. Cherian vs State of Kerala and Others

U.L. Bhat, J.—Petitioner challenges the direction in Ext. P5 government order to the effect that when retrenchment/reversion is necessary consequent on reduction of posts in a school, satisfaction of 1:1:1 ratio in the core subjects is not necessary and if minimum subject ratio is satisfied retrenchment/reversion will be done on the principle of last to come; first to go as illegal and without jurisdiction. Petitioner also seeks consequential reliefs. Learned Government Pleader takes notice for respondents 1 to 3. I find it unnecessary to issue notice to the fourth respondent, Manager of the aided high school. Petitioner was appointed High School Assistant (Mathematics) in the fourth respondent''s school in a regular vacancy with arose on 25-6-1984.

The appointment has been approved. In 1987-88 there was reduction in number of divisions from 31 to 28. Petitioner was retrenched, but treated as protected teacher and allowed to continue in the school (and not deployed to government school) on the basis of the government order which allowed one protected teacher to be retained for every ten teachers. Petitioner therefore states that he was not actually aggrieved by the former retrenchment and granting of protection since he was not disturbed from the school.

For the year 1988-89 also only 28 divisions have been sanctioned (Ext. P2). But this year protection of allowing one protected teacher to be retained for every ten teachers has been cancelled. Therefore petitioner would have to be deployed in a government school. Apprehending deployment he gave a representation to the Deputy Director of Education as seen in Ext. P3. He asked third respondent to pass orders. Third respondent passed Ext. P4 order stating that petitioner is not liable to be retrenched or protected since according to the prescribed subject ratio there should be 9 H.S. As (Mathematics) and the petitioner is 9th. He also indicated that the excess hand, going by the subject requirement, is the H S.A. in Natural Science and declared the Natural Science teacher as protected. It is thereafter that the Government passed Ext. P5 government order dated 11-10-1988 laying down that when retrenchment is necessary, if minimum subject ratio is satisfied, retrenchment will be done on the principle of last to come first to go. Petitioner is the junior molt among all the H.S. As Minimum subject ratio is also satisfied. Therefore he apprehends being treated as protected and deployed to a government school. Therefore he challenges the direction in Ext. P5 government order.

The Kerala Education Rules have been made by virtue of the power conferred on the State Government u/s 36 of the Kerala Education Act, 1958. Chapter XIV-A of the Rules deals with conditions of service of aided school teachers. Sub rule (1) of Rule 1 states that Managers of private schools shall appoint only candidates who possess the prescribed qualification. As far as High School classes are concerned the appointment shall be made with due regard to the requirement of subjects as determined by the. Director of Public Instruction with reference to the curricular of studies. Sub rule (4) states that in determining the requirement of subjects the Director shall also issue such instructions as he may deem necessary for giving protection to teachers who are in service And would have continued in service and who stand relieved as per rule 49 or 52 or on account of termination of vacancies and who would have been eligible for reappointment under rule 51A had there been no change in the requirement of Subject. The Director of Public Instruction has issued orders regarding subject ratio. In supersession of earlier orders?, Director of Public Instruction has issued Circular dated 13-3-1985 laying down the subject ratio from 1985-86 onwards. Distribution of core subjects, namely Social Studies, Mathematics and Science will be in the proportion of 1:1:1. The break up for Physical Science and Natural Science will be in the ratio of 3:2. It also states that District Educational Officer should invariably indicate in the staff fixation order distribution of posts in the above ratio. However, existing staff should not be retrenched for satisfying subject ratio if they are otherwise eligible to continue. Excess hands in a school in any of the core subjects may be distributed among the schools under the same management. If there is only one school under the management, excess hand may be retained in the school against future vacancy. Government have issued various orders for protection of such excess hands and the criteria for protection has undergone change from time to time As the latest government order stands, protected teachers have to be deployed to government schools in the State.

The dispute is on the question as to who among the teachers are to be treated as protected teachers. Going by the Circular of the Director of Public Instruction, posts of H.S.A., sanctioned have to be distributed in the core subjects in the ratio of 1:1:1 in Social Studies Mathematics and Science. With fall in division strength leading to reduction in number of posts of H.S. As, ratio has to be worked out and the excess determined accordingly. In the present case it is stated that going by the subject ratio excess would be in the post of H.S.A. Natural Science. If that be so, petitioner, who is H.S.A. (Mathematics) is not liable to be retrenched or deployed. So contends the petitioner.

4A. Ext. P5 government order, which makes a departure from the principle, laid down by the Director of Public Instruction, inter alia, states that when retrenchment or reversion is necessary consequent on reduction of posts in the annual fixation of staff if the minimum subject ratio is satisfied, retrenchment/reversion will be done on the principles of last to come first to go. By minimum subject ratio is meant ratio to be obtained by assigning 25 periods for each H.S.A. and calculation of number of periods available in each core subject in the high school classes. This need not necessarily coincide with the subject ratio of 1:1:1 prescribed by the Director. That is because in a particular subject total number of periods may be less then total number of periods in other subjects though broad ratio prescribed by the Director is 1:1:1. That is why it is called minimum subject ratio as against subject ratio prescribed by the Director. Learned Counsel for the petitioner would contend that the statutory authority to prescribe subject ratio is the Director and the State Government have no authority to interfere with the same.

Rule 51 of Chapter XIV-A deals with retrenchment. It states that when a vacancy in any category of post terminates necessitating the relief of a teacher, senior hands shall ordinarily be retained in preference to junior hands with due regard to the requirement of subjects determined by the Director under sub rule (1) of rule 1 and to the instructions issued by him under sub rule (4) of that rule. From this it would appear that when retrenchment has to be made on account of reduction in number of posts, it shall be done with due regard to the requirement of subjects determined by the Director, namely, 1:1:1 and internal ratio 3:2 in Science. The government order when it prescribes retrenchment on the basis of juniority subject to satisfaction of minimum subject requirement is obviously a departure from the subject requirement determined by the Director. Rule 55 states that number of permanent teachers under each category in the staff list of any school or in all the schools under one educational agency shall, not exceed the aggregate number of sanctioned posts under that category in that school and the hands if any based on the strength of the classes fixed in accordance with rule 12(1) of Chapter XXIII will be retrenched by throwing out the juniormost hand, with due regard to the requirement of subjects determined by the Director under rule 1 (1) and to the instructions issued by him under rule 1(4) as far as high schools are concerned. The government order involves a departure from this rule also.

Going by sub rules (1) and (4) of rule 1 of Chapter XIV-A power to lay down subject requirement vests in the Director, Rule regarding retrenchment of excess teachers states that senior excess hands shall ordinarily be retained in preference to junior hands though with due regard to the requirement of subjects determined by the Director and his instructions. Does it mean that the State Government have no power to interfere in this matter? Answer lies in Section 12 of the Kerala Education. Act. Sub section,(1) states that conditions of service of teachers in aided school including condition, relating to Pay, Pension, Provident Fund and Age of Retirement shall be such as may be prescribed by the Government. There can be no-dispute that retrenchment is one of the conditions of service. That being so-State Government have over-riding power to prescribe conditions of service. That is the power vested in the State Government under'' the : statutes. State Government, the rule making authority, have given the Director power to prescribe subject requirement by rule 1(4) of Chapter. XIV-A. That power appears to be subordinate to the over-riding statutory power of the State Government to prescribe conditions of service, It is argued that the expression "prescribed" is defined in Section 2(6) as "prescribed by rules made under the Act" and since Ext. P5 is an executive order and not an amendment to the rules, it cannot be regarded as "prescribed" as defined in Section 2(6). Section 2 opens with the words "In this Act, unless the context otherwise requires". Therefore when the expression "prescribed" is used in a provision Whether it means prescribed only by the rules or otherwise depends on the context. Section 12(1) does not contain any indication to the effect that the expression "prescribed" is used therein subject to any such limitation: See Radha v. Dist. Edl. Officer Badagara (1975 KLT 617). I therefore, hold that the State Government have over-riding statutory power to prescribe conditions of serving and the direction in Ext. P5 has been issued in exercise of that power.

It is argued that direction in Ext. P5 is arbitrary and violative of Article 14 of the Constitution. I am not able to agree. It is a generally accepted principle that when retrenchment is effected, senior most is to be retained and the junior most ousted. The impugned direction in Ext. P5 is consistent with that general principle. It is further argued that if the impugned direction in Ext. P5 is implemented some subjects may have more teachers and some other subjects may have less number of teachers and that would effect educational standards. No material has been placed before me to sustain this argument. As I can understand, the implementation of the impugned direction in Ext. P5 may involve marginal reduction in number of posts to a particular subject and that should not lead to any apprehension of reduction in standards. In the result, I dismiss the original petition, but without costs.