IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 14704 of 2007(A)
1. C.M.BINDU, W/O.RAJEEVAN,AGED 30 YEARS,
... Petitioner
Vs
1. THE STATE OF KERALA REPRESENTED BY ITS
... Respondent
2. THE DIRECTOR OF PUBLIC INSTRICTION,
3. THE DISTRICT EDUCATIONAL OFFICER,
4. THE MANAGER,
5. THE HEADMASTER, MATTANNUR HIGHER
6. K.REJITHA, UPPER PRIMARY SCHOOL
7. K.BINDU,UPPER PRIMARY SCHOOL ASSISTANT,
8. A.K.BHAYALAKSHMI,
9. C.SUJITH KUMAR,
10. K.JEEJA,UPPER PRIMARY SCHOOL ASSISTANT,
11. PADMARAJAN,ASSISTANT PRIVATE
For Petitioner :SRI.V.A.MUHAMMED
For Respondent :SRI.KRB.KAIMAL (SR.)
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :16/12/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 14704 OF 2007 (A)
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Dated this the 16th day of December, 2008
J U D G M E N T
Petitioner was appointed as HSA(Physical Science) in the school of
which the 4th respondent is the Manager, during the period 18/9/2000 to
30/10/2000. The said appointment was approved by the educational
authorities. Respondents 9 and 10 entered service as UPSA on 2/6/2003
and 10/11/2003 and were retrenched from service w.e.f. 15/7/05.
2. Ext.P1 is the Government order dated 25/6/05 whereby Rule
51A of Chapter XIV A KER was amended providing that claimants have
right for higher or lower posts also. Ext.P4 is a Government order, to the
effect that teacher student ratio of 1:40 ratio, would apply only for
avoiding retrenchment. Petitioner also refers to Exts. P6 Government
order and Ext.P5 affidavit filed by the 1st respondent before this Court
taking the view that teacher student ratio is applicable only to avoid
retrenchment.
3. In 2005-06, four posts of HSAs in the school were reduced
due to division fall and respondents 6, 7 and 8 were reverted as UPSAs
and consequently respondents 9 and 10, who were UPSAs, were
retrenched as stated above w.e.f. 15/7/05. Ext.P9 was challenged by the
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party respondents before the DPI and by Ext.R6(i) order dated 1/2/06, the
same was rejected. In a further revision filed before the Government,
Ext.P8 order was passed by the 1st respondent on 24/6/06, rejecting the
revision.
4. Petitioner states that in 2006-07, two posts of UPSAs occurred
in the school and consequently Government passed Ext.P7 order dated
17/4/2007 setting aside Ext.R6(i) order passed by the DPI, ordering that
respondents 6,7 and 8 be retained as HSAs applying the ratio of 1:40 in
the 4th respondent school for the year 2005-06 and to accommodate
respondents 9 and 10 in the UPSA vacancies which occurred in 2006-07,
as a special case.
5. Petitioner submits that she having approved prior service, is
entitled to claim accommodation in one of the UPSA vacancies. The
contentions raised by the counsel for the petitioner are that when the
Government rejected the revision filed by the party respondents against
Ext.R6(i) order, the Government having exercised and exhausted its
revisional power provided under Rule 92 of Chapter XIV A KER, it was
impermissible for the Government to have taken it upon itself the issue
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once again and passed Ext.P7 order. Therefore, it is contended that Ext.P7
is without jurisdiction. It is also contended that in the subsequent
vacancies which arose in the academic year 2006-07, petitioner had a
rightful claim particularly in the light of Ext.P1 Government order
amending Rule 51A, Chapter XIV A KER. It is also his contention that the
stand regarding the application of teacher student ratio 1:40 as reflected
in Ext.P8, is in substantial variance with the stand taken in Exts. P4 and P6
Government orders and Ext.P5 affidavit filed before this Court. Finally, it is
contended that Ext.P7 order was passed without issuing notice to the
petitioner and for that reason also Ext.P7 Government order is illegal.
6. On the other hand, on behalf of the party respondents,
learned Senior Counsel Sri.KRB.Kaimal contended that Ext.P8 is not an
order that is contemplated under Rule 92 of Chapter XIV A KER and it was
therefore that the Government issued Ext.P8, complying with the
requirements of the said rule. According to the counsel, until Ext.P8 order
was issued, the revision filed by them against Ext.R6(i) was pending
before the Government and therefore the Government was well within its
jurisdiction in passing Ext.P7 order. Learned Senior Counsel also invited
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my attention to Ext.R6(g) and Ext.R6(m) where in similar circumstances,
the teacher student ratio 1:40 was applied by the Director. Counsel also
disputed the locus standi of the petitioner to challenge Ext.P7, as
according to the counsel, the purport of Ext.P7 is to avoid reversion of
HSAs and that so long as the petitioner has no claim against HSA post, it is
not open to her to challenge Ext.P7. He also canvassed for the position
that in the absence of one year service for the petitioner, she cannot claim
the benefit of Rule 51A.
7. From the rival contentions that are raised by both sides, it can
be seen that the petitioner had several contentions to be urged against the
conclusions in Ext.P7 order passed by the Government setting aside Ext.R6
(i) order passed by the DPI. In my view, so long as Ext.R6(i) order holds
the field, certain rights accrued in favour of the petitioner and that as a
result of Ext.P7, those rights have been adversely affected. Thus Ext.P7
order has vitally affected the rights of the petitioner and such an order
could not have been passed without putting the petitioner on notice and
hearing her. Admittedly, Ext.P7 is passed without notice and therefore, I
hold that Ext.P7 order has been passed by the Government in violation of
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the principles of natural justice. For that reason, I am inclined to quash
Ext.P7 and I do so. The Government is directed to reconsider the matter
with notice to the petitioner and respondents 4 and 6 to 10 and take a
decision dealing with the contentions raised by both sides, within two
months of receipt of a copy of this judgment. It is clarified that the
contentions of both sides have been left open.
Writ petition is disposed of as above.
ANTONY DOMINIC, JUDGE
Rp
