IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30841 of 2008(V)
1. SURENDRAN.P.M, HSA(SS),GHSS,VADAKARA,
... Petitioner
Vs
1. STATE OF KERALA REP.BY SECRETARY,
... Respondent
2. THE DEPUTY DIRECTOR OF EDUCATION,
3. K.P.NANU, HSA(SS), GHSS, PAYYOLI.
For Petitioner :SRI.R.K.MURALEEDHARAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :04/03/2009
O R D E R
P.N.Ravindran, J.
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W.P.(C) No.30841 of 2008
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Dated this the 4th day of March, 2009.
JUDGMENT
Heard Sri. R.K.Muralidharan, the learned counsel appearing for the
petitioner and Smt. T.B.Remani, the learned Government Pleader
appearing for respondents 1 and 2. Though notice has been served on
the third respondent, there was no representation for the third
respondent when the case was called on for hearing today.
2. The petitioner is an aided school teacher presently on
protection. He was appointed as Upper Primary School Assistant in
Rehmania High School, Ayyancheri, Vadakara in the year 1983. He was
promoted as H.S.A. (Social Science) on 29.7.1993. While the petitioner
was thus continuing in service during the academic year 2003-2004 there
was fall in the student strength which necessitated his retrenchment
from service. Thereupon, as a teacher entitled to protection under the
Government orders governing the field, he was deployed to Balussery
Boys G.H.S.S. Later during the academic year 2007-2008, he was
transferred and posted in four schools namely, Iringallur H.S.,
Government Ganapath V.H.S.S., Feroke, Ganapath Boys High School,
Chalappuram and Cheruvannur G.H.S.S.
3. While matters stood thus, a vacancy of H.S.A. (Social Science)
WP(C) 30841/08 -: 2 :-
arose in G.H.S.S., Vadakara when the incumbent Sri. T.Sreedharan was
deputed as Block Project Officer, Thodannur. That vacancy was filled up
by posting Sri. O.P. Mohanan, a protected teacher. Sri. O.P. Mohanan,
was repatriated to his parent school in the year 2008. Thereupon, by
Ext.P1 order dated 16.6.2008, the petitioner was transferred from
Cheruvannur and posted in G.H.S.S., Vadakara in the vacancy that arose
on the deputation of Sri. T. Sreedharan as Block Project Officer,
Thodannur. Nearly four months thereafter, by Ext.P2 order passed on
12.10.2008, the Deputy Director of Education posted the third
respondent, a Government School Teacher as H.S.A. in the vacancy that
arose on deputation of Sri. T.Sreedharan as Block Project Officer. The
Deputy Director of Education also directed that if protected teachers are
continuing in the post, such teachers shall be relieved. In this Writ
Petition, the petitioner challenges Ext.P2 and seeks a direction to
respondents 1 and 2 not to transfer him from G.H.S.S., Vadakara to
accommodate the third respondent. The petitioner relies on the
stipulations in paragraph 2 (i) of Ext.P3 Government order to contend
that the vacancy of H.S.A., which arose as a result of the deputation of a
Government School Teacher as Block Project Officer can be filled up only
by appointing a protected teacher.
4. The learned Government Pleader appearing for respondents 1
and 2 contends that the petitioner cannot claim continuance in the
G.H.S.S.,Vadakara and cannot object to the posting of the third
WP(C) 30841/08 -: 3 :-
respondent in that school. Relying on Ext.P3, the learned Government
Pleader submits that the deployment on protection is only a concession
extended to the petitioner and that he has no right to continue in a
particular school.
5. I have considered the submissions made at the Bar by the
learned counsel appearing on either side. The official respondents do
not have a case that Ext.P3 Government order has been modified or
withdrawn. Paragraph 2(i) of Ext.P3 reads as follows:
“2. The Guidelines issued as per the G.O. read as 1st
paper above could not be implemented in toto for various
reasons. Therefore Govt. after having reconsidered the
matter in detail in consultation with DPI, are pleased to
modify the G.O. read as 1st paper above, adding the
following guidelines thereto.
(i) 50% of the vacancies of 1030 BRC trainers required
in the 8 non-DPEP Districts for the implementation of SSA
(Sarva Siksha Abhiyan) Programme shall be filled up by
selection process from among qualified and competent
protected teachers. The remaining 50% vacancies shall be
filled up by Government School teachers, and protected
teachers in the respective districts shall be deployed in the
resultant vacancies. The vacancies which arise as a result of
the posting of 103 Block Project Officers from among
Government school teachers shall also be filled up by
protected teachers. If the number of protected teachers is
not sufficient to fill up the resultant vacancies in a
particular District, such teachers of neighbouring districts
shall be considered for deployment.” (emphasis supplied)
WP(C) 30841/08 -: 4 :-
6. It is evident from paragraph 2(i) of Ext.P3 quoted above that
vacancies which arise as a result of the posting of a Government School
Teacher as Block Project Officer shall be filled up by protected teacher.
In fact, the Government order referred to above stipulates that if the
number of protected teacher in a particular district is not sufficient to fill
up such vacancies, protected teachers in the neighbouring districts shall
be considered for deployment against the remaining vacancies.
Therefore, on a plain reading of paragraph 2(i) of Ext.P3, it is evident that
vacancies which have arisen on account of posting of Government School
Teachers as Block Project Officers can be filled up only by posting
protected teachers. It is not in dispute that the vacancy of H.S.A. (Social
Science) arose in G.H.S.S., Vadakara when Sri. T.Sreedharan, H.S.A. (Social
Science) of that school was deputed as Block Project Officer, Thodannur.
The vacancy was initially filled up by deploying Sri. O.P. Mohanan, a
protected teacher. Later, Sri. O.P.Mohanan was repatriated to his parent
school and therefore a vacancy of H.S.A. again arose in the G.H.S.S.,
Vadakara, which was filled up by appointing the petitioner in terms of the
stipulation in Ext.P3 by Ext.P1 order dated 16.6.2008. By Ext.P2 the third
respondent has been posted in the petitioner’s place, with the result, the
petitioner will be relieved without a posting.
7. In my considered opinion, as Ext.P3 is still governing the field,
the transfer and posting of the third respondent as H.S.A. (Social Science)
in the G.H.S.S., Vadakara in the vacancy that arose on the deputation of
WP(C) 30841/08 -: 5 :-
Sri. T.Sreedharan as Block Project Officer cannot be sustained. Ext.P3
Government order is binding on the Deputy Director of Education,
Kozhikode. Paragraph 2(i) of Ext.P3 categorically states that vacancies of
Government School Teachers arising as a result of their posting as Block
Project Officers shall be filled up by protected teachers. Therefore,
Ext.P2 in so far as it transfers the third respondent and posts him as
H.S.A. (Social Science) in G.H.S.S., Vadakara cannot be sustained.
In the result, this Writ Petition is allowed, Ext.P2 in so far as it
relates to the petitioner and the third respondent is quashed and the
respondents are directed to retain the petitioner as protected teacher in
G.H.S.S.,Vadakara so long as Sri. T.Sreedharan continues on deputation
as Block Project Officer.
P.N.Ravindran,
Judge.
ess 16/3
