Rekha Shriprabha vs The Deputy Director of Education

A.K. Jayasankaran Nambiar, J.—The petitioner was appointed as HSA (Physical Science) in the S.N. High School, Nankicity, Kanhikuzhy with effect from 14.07.1994. Consequent to the staff fixation for the academic year 2003-2004, there was a reduction in the post of HSA (Physical Science) and that led to the petitioner being deployed to the Government High School, Alpara as a protected teacher. He was thereafter transferred to Thodupuzha Boys High School, Mullaringadu Government High School and then to the M.E.S. Higher Secondary School, Vandanmedu. While working as HSA at Vandanmedu, the petitioner found that there was a vacancy of HSA (Physical Science) in the parent School namely S.N.V.H.S.S, Kanhikuzhi. He therefore brought this fact to the notice of the Manager of the said School, who preferred Ext. P3 representation dated 14.07.2010 to the 1st respondent to absorb the petitioner as HSA (Physical Science) in the S.N.V.H.S.S, Kanhikuzhi. The request was made by placing reliance on Ext. P2 Government order dated 28.06.2002. When there was no consideration of the representation by the 1st respondent, the petitioner preferred Ext. P4 representation to the 1st respondent. On finding that there was no action forthcoming from the 1st respondent despite the representations of both the Manager and the petitioner, the petitioner approached this Court, which by Ext. P5 judgment directed the 1st respondent to consider Exts. P3 and P4 representations and pass orders thereon. This led to Ext. P8 order dated 12.01.2011 whereby the petitioners claim for absorption to the S.N.V.H.S.S, Kanhikuzhi came to be rejected. In Ext. P8 order, it is stated that although there is a vacancy of HSA (Physical Science) in the School in question, as per Ext. P6 Government order, a Rule 51 A claimant had to be accommodated in the School by applying the 1:1:1 ratio which existed prior to 07.01.2002. In that view of the matter, it was found that inasmuch as the 4th respondent was a Rule 51 A claimant and an HSA in (Maths), and the vacancy in question was to be filled taking all the core subjects together, it was the 4th respondent who had to be accommodated to the vacancy subsisting in the School and hence, the claim of the petitioner for accommodation thereto could not be considered. Ext. P8 order is impugned in the writ petition inter alia on the ground that it ignores the provisions of Rule 51A of Chapter 14A of the KER which clearly indicate that, as between Rule 51A claimants and protected teachers, the protected teacher is to be given preference while considering their candidature for appointment to the post of teacher in a School. It is also contended that insofar as the vacancy in question in the School occurred to the post of HSA (Physical Science) and not to the post of HSA (Maths), it was the petitioner that had to be appointed in the vacancy by redeployment and not the 4th respondent.

Per contra, the 4th respondent would contend that the decision in Ext. P8 was correctly arrived insofar as it takes into account the Government order dated 17.06.2009 passed by the State Government. Accordingly, the appointment of the 4th respondent to the vacancy that arose in the School, based on her superior claim as a Rule 51A claimant and on application of the ratio that existed prior to 07.01.2002, had been correctly appreciated by the 1st respondent while passing Ext. P8 order.

I have heard Sri. M. Sasindran, learned counsel appearing on behalf of the petitioner, Smt. Sheela Devi, learned counsel appearing on behalf of the 4th respondent and the learned Government Pleader appearing on behalf of the 1st and 3rd respondents.

On a consideration of the facts and circumstances of the case and the submissions made across the Bar, I am of the view that the 1st respondent requires to reconsider the decision taken in Ext. P8 order passed by him. The materials available on record, and noticed in Ext. P8 order of the 1st respondent, would reveal that consequent to the staff fixation order for the year 2010-2011 there were 12 sanctioned post of HSA''s in the core subjects of Physical Science, Natural Science, Maths, Social Studies and also English. Of this, there were 3 sanctioned posts of HSA (Physical Science) against which, it was found, that there were only two HSA''s namely Smt. K. Jayasree and Sri. V.K. Mohanan Pillai who were working in the School as HSA (Physical Science). Further as against the three posts of HSA (Maths), there were three persons namely Sri. Roy John, Smt. K.V. Beena and Smt. K.S. Anitha Kumari who were working as HSA (Maths). It is seen, therefore, that consequent to the staff fixation order, there was a requirement of one HSA (Physical Science) and the vacancy in question arose to the post of HSA in Physical Science. In the ordinary course, this vacancy of HSA ought to have been filled up by deployment of the petitioner, who was an HSA in Physical Science and who was available for deployment in the School by virtue of his claim as a protected teacher. In Ext. P8 order, however, the 1st respondent placed reliance on the Government order dated 17.06.2009 and found that, based on the claim of the 4th respondent under Rule 51A and the vacancy position to the post of HSA as obtaining on 07.01.2002, the 4th respondent had to be appointed against the vacancy that arose in the school. It is now brought to my notice by counsel for the 4th respondent that the issue regarding eligibility of one Smt. Anitha Kumari. K.S., who is the 3rd HSA (Maths) shown in Ext. P8 order as working in the School during the academic year 2010-2011, to the post of HSST in the School had been considered by this Court in the decision reported in Gigimol, N.M. Vs. Director of Higher Secondary Education and Others . Therein this Court, while upholding the order of the Government finding the said Anitha Kumari as having no right to claim the post of Higher Secondary School Teacher in the school, also took note of the fact that the said Anitha Kumari did not have approved service as an HSA in the School. The issue as to whether the said Anitha Kumari has obtained approval in the post of HSA (Maths), to which she was appointed, does not appear to have been considered in Ext. P8 order. This is important because if, as contended by counsel for the 4th respondent, the appointment of Smt. Anitha Kumari was not approved by the educational authorities, then there would have been another vacancy to the post of HSA (Maths) consequent to the staff fixation order for the year 2010-2011. The 4th respondent who is HSA (Maths) could then have legitimately staked a claim for appointment against the said vacancy. In that event, there would be no inter se dispute between the petitioner and the 4th respondent that needed a resolution at the hands of the 1st respondent. That apart, it is also brought to my notice by counsel for the petitioner that another HSA (Physical Science) who has working in the said School namely Sri. Mohana Pillai, has also since retired from service and this would be yet another vacancy that arises to the post of HSA (Physical Science) in the School.

In view of the facts that have been brought to my notice during the course of hearing and considering the fact that the vacancy position with regard to Smt. Anitha Kumari, has not been considered by the 1st respondent in Ext. P8 order and further the express provisions of Rule 51A of Chapter XIV A of the KER, in particular the proviso and Note (1A) thereunder which indicate that vis-�-vis the claim of a candidate under Rule 51A and a protected teacher, the latter should be given preference, have not been considered by the 1st respondent in Ext. P8 order, I feel it would be necessary for the 1st respondent to have a fresh look into the matter. To enable the 1st respondent to do this, I quash Ext. P8 order and issue the following directions:-

The 1st respondent shall consider the staff fixation order applicable to the School for the year 2010-2011 and determine the vacancy position arising against the post of HSA''s in the said School.

On determining the said vacancy position, the 1st respondent shall consider the claims of the petitioner as also the 4th respondent keeping in mind the principles laid down in the various Government Orders as also under the KER for filling up the vacancy to the post of HSA''s by observing the subject ratio in the process.

The 1st respondent shall then consider the provisions of the KER, as also the various Government orders applicable, for the purposes of determining the inter se claims of the petitioner and the 4th respondent, should the need arise and in the event of there being only a single vacancy to the post of HSA in the year under consideration.

The staff fixation orders for the years subsequent to 2010-2011 till date shall be implemented based on the decision arrived at by the 1st respondent for the year 2010-2011.

The 1st respondent shall pass orders in accordance with the directions in this judgment within a period of two months from the date of receipt of a copy of the judgment after affording the petitioner and the 4th respondent an opportunity of being heard in the matter.

The writ petition is disposed as above.