K.R. Lini vs State of Kerala

A.K. Jayasankaran Nambiar, J.—The petitioner entered service as High School Assistant (Maths) on 3.6.1992 against a leave vacancy of Smt. Lekha Sahadevan. Thereafter she was again appointed against the extension of her earlier leave vacancy, for a period from 4.8.2000 to 3.8.2003. When the appointment was sent for approval before the departmental authority, the approval was granted only for the period from 4.8.2000 to 14.7.2001. Thereafter, the petitioner continued in the post, without being retrenched, on application of the 1:40 ratio envisaged under the various Government Orders issued to protect teachers, including those appointed against leave vacancies from retrenchment consequent to division fall. The petitioner was again appointed against the extension of leave vacancy for the period from 4.8.2003 to 3.8.2006. Once again, in terms of Ext. P2 Government Order, the second respondent approved the appointment of the petitioner from 15.7.2001 to 31.3.2006.

It is relevant to note that the Government had, through various Government orders, directed that the teacher-student ratio should be revised from 1:45 to 1:40 in the schools affected by the specific problem of division fall, for the limited purpose of accommodating the teachers rendered surplus. The benefit has been extended on a yearly basis by specific orders to cover the period up to and inclusive of the year 2006-07 as well. Ext. P3 is the Government Order, extending the benefit of 1:40 teacher-student ratio for the academic year 2006-07. It was directed in Ext. P3 Government Order that Educational Officers should revise the staff fixation order wherever it was necessary. It is in this factual background that the issue with regard to approval of the petitioner''s appointment for the period from 31.3.2006 to 3.8.2011 came up for consideration before the authorities.

As already noted, the petitioner had been appointed against the extension of leave vacancy for the period up to 3.8.2011 and approval was sought for this appointment. The approval sought for by the petitioner was rejected by the second respondent by Ext. P5 order. Aggrieved by the said order, the petitioner preferred a Revision petition before the first respondent which also was rejected by Ext. P7 order. Ext. P7 order is impugned in the Writ Petition, inter alia, on the ground that there is no reason forthcoming from the said order which would indicate as to why the benefit of the 1:40 ratio was not extended so as to retain the petitioner in service in the academic year 2006-07, as also for the purpose of approving her appointment for the period for which she was appointed.

A counter affidavit has been filed on behalf of the second respondent wherein, at paragraphs 7,8 and 10 it is stated as follows:

"7. It is submitted that, Smt. Lekha Sahadevan has extended the leave from 4.8.2006 to 3.8.2011, and the Manager appointed the petitioner in the same vacancy with effect from 4.8.2006 to 3.8.2011 in continuation of the earlier appointment. The District Educational Officer, Chavakkad has rejected the same vide Proceedings No. B3-6838/06 dated 28.2.2007 for the reason that there were no vacancy to provide Smt. Lini V.R as HAS (Maths). During 2006-07 there were 23 divisions and subsequent posts were sanctioned in AIHS, Padoor by applying 1:45 Teacher-Pupil ratio. As per that order two HAS(SS) and 1 HAS(Maths) has to be retrenched. To avoid the retrenchment of the above teachers the staff strength have been revised by applying 1:40 Teacher-Pupil ratio as per the provisions in G.O.(P) No. 244/06 G. Edn. dated 16.9.2006. The staff strength revised by adopting 1:40 Teacher-Pupil ratio only for avoiding the retrenchment of the approved teachers and not to approve the appointment of a new appointee even she is a claimant vide K.E.R.

During the 2006-07, the school was allowed 26 divisions and 26 posts by adopting 1:40 Teacher-Pupil ratio to retain Smt. C. Philomina, Sri. T.C. Sebastian and Smt. K.R. Rema. This respondent''s office was not able to comprehend the averments made in para 9, hence not in a position to give a proper reply to the averments made therein.

None of the grounds taken by the petitioner in support of her case is sustainable either in law or on facts of the case. The appointment of the petitioner with effect from 3.6.1992 onwards in different spells made in different vacancies have been approved by the District Educational Officer, Chavakkad. They are as follows:

From 3.6.1992 to 2.8.1994 vide No. B3-5344/92 K. Dis dated 16.4.1993.

From 3.8.1994 to 2.8.1997 vide no. B3-8804/94 K. dis dated 10.3.1995.

From 3.8.1997 to 3.8.2000 vide B3-7868/97 dated 22.12.1997.

From 4.8.2000 to 14.7.2001 vide B3-6885/01 dated 27.5.2004.

From 15.7.2001 to 31.3.2006 vide B3-3955/06 dated 14.7.2006.

During 2006-07 the staff fixation of the school is revised by adopting 1:40 Teacher-Pupil ratio only to retain the protected teachers including Sri. T.C. Sebastian, HSA (Maths). So there was no established vacancy to provide Smt. K.R. Lini in the post of HSA(Maths)"

I have heard the learned counsel appearing on behalf of the petitioner as also the Government Pleader.

On a consideration of the facts and circumstances of the case, I find that this is a case where the petitioner has been rendering continuous service as HSA in Maths for the period from 4.8.2000 to 31.3.2006. The appointment of the petitioner for the said period also received the approval from the departmental authorities. When it came to granting approval for the period subsequent to 31.3.2006, for which period the petitioner was given appointment against the extension of leave vacancy as in the earlier year, the departmental authorities rejected the claim of the petitioner for approval on the ground that she was not entitled to the benefit of 1:40 ratio as contemplated in various Government Orders issued for the purpose of protecting teachers from retrenchment consequent to division fall noticed in a staff fixation. Both Ext. P5 and P7 orders, passed by the second respondent and first respondent respectively, do not specifically narrate the basis of the exclusion of the petitioner for the benefit of the 1:40 ratio. As a matter of fact, a perusal of Ext. P9 hearing notes, obtained by the petitioner pursuant to a request for information under the Right to Information Act, indicates that there was a recommendation to retain the petitioner as HSA(Maths) from 1.4.2006 to 3.8.2006 and thereafter from 4.8.2006 till such time as vacancy existed under 1:45/1:40 ratio as the situation demanded. This recommendation by the Under Secretary of the General Education Department appears to have not met with the approval of the Additional Secretary to Government, who opined that, in so far as it is not confirmed, whether the student strength permitted the continuance of the petitioner on 1:40 ratio, it was not possible to extend the said benefit to the petitioner. This appears to have been the basis for the passing of Ext. P7 order which is impugned in the Writ Petition.

In view of the lack of clarity emanating from Ext. P7 order as also Ext. P5 order of the second respondent, and in view of the admitted fact that the petitioner has been working as an HSA in the school on approved appointments for the period from 4.8.2000 till 31.3.2006, it would be necessary for a reasoned order to be passed by the first respondent as regards the issue of approval of the appointment of the petitioner for the period from 1.4.2006 to 3.8.2006 and 4.8.2006 to 3.8.2011. The first respondent shall consider the claim of the petitioner for approval of her appointment during the period aforementioned, based on the various Government Orders issued from time to time and, in particular, those Government Orders which extend the benefit of 1:40 ratio to teachers who face the prospect of retrenchment pursuant to division fall. In order to enable the first respondent to pass fresh orders in the matter, I quash Ext. P5 and P7 orders passed by the second and first respondents. The first respondent shall pass fresh orders as directed above within a period of two months from today, after affording the petitioner an opportunity of being heard in the matter.

With the above direction, the Writ Petition is disposed.