VIJAYAN v. DY. DIRECTOR — 1988 DIGILAW 393 (KER)

Judgment :- 1. This case was referred to the Division Bench by the learned single judge on the ground that the decision rendered by this Court in 1984 KLT 933 between P.V. George v. D.E.O. Alwaye requires reconsideration. When the matter came up before the Division Bench it was noticed that this judgment of the learned single judge has since been affirmed in writ Appeal No. 230 of 1984 by a Division Bench. As the Division Bench felt that the decision requires reconsideration the case has been referred to the Full Bench. 2. The relevant facts necessary for the disposal of this case may briefly be stated as follows: The Panchayat High School, Pathiyoor, is an aided school governed by the Kerala Education Act and the Kerala Education Rules, (Hereinafter referred to as the Rules). There were three posts of full time menials falling in the non-teaching category sanctioned for the school. In the said three posts, one K. Vijayan was appointed as full-time menial on 5-6-1969 and M. Issakunju was appointed on 10-6-1970 in the second post and in the third post V. P. Janardhanan was appointed on 10-1-1979. When the school thus enjoyed the benefit of three posts of full-time menials M. Issakunju went on long leave for a period of five years from 4-10-1980. In the said leave vacancy the petitioner was appointed as a full-time menial by the order Ext. P1 dated 17-3-1981. For the year 1984-85, the 2nd respondent after visiting the school and collecting relevant information passed an order as per Ext. P2 dated 31-8-1984 re-fixing the staff strength of full-time menials to two posts. This brought about the reduction in the total number of full-time menials from three to two. The very same order states in para 7 that as a result of the reduction in the number of full-time menials from three to two, Vijayan, who was working in the leave vacancy of Issakunju is not eligible for any kind of protection. This direction is clear enough to convey that there is no protection available to him for continuing in the post of full-time menial consequent upon the reduction in the staff strength. The petitioner apprehending that he would be retrenched from service made a representation to the first respondent which having been rejected by Ext. P4 dated 14-1-1985, be came to this Court in this writ petition challenging Exts. The petitioner apprehending that he would be retrenched from service made a representation to the first respondent which having been rejected by Ext. P4 dated 14-1-1985, be came to this Court in this writ petition challenging Exts. P2 and P4. 3. The principal contention of the learned counsel for the petitioner is that one post of full-time menial having been abolished, the person holding the post of full-time menial, namely, Shri Janardhanan should be retrenched from service and not the petitioner. It was submitted that the petitioner was appointed in the leave vacancy of Issakunju. If Issakunju bad not gone on leave, reduction in the staff strength by Ext. P2 would not have affected him and he would be entitled to continue in service. If, therefore, Issakunju could continue in service, notwithstanding the reduction in the staff strength brought about by Ext. P2. it was contended that as petitioner has been appointed in the leave vacancy of Issakunju, he has stepped in his shoes and acquired the same rights and privileges which Issakunju could claim. This contention of the learned counsel for the petitioner receives full support from the judgment of the learned single judge reported in 1984 KLT 933 between P.V. George v. D.E.O. Alwaye, affirmed by the Division Bench in Writ Appeal No. 230 of 1984. 4. The learned High Court Government Pleader however contends that the view taken in these decisions is inconsistent with the express statutory provisions contained in the Kerala Education Rules and that therefore the said decision requires re-consideration. 5. We do not find much discussion in the judgment of the Division Bench. They have only stated that they agree with the judgment of the learned single judge as in their opinion the reasons given therein are quite sound. Only two reasons are given in the judgment of the learned single judge, which stands affirmed by the Division Bench. That was a case of a teacher who was appointed in the leave vacancy. They have only stated that they agree with the judgment of the learned single judge as in their opinion the reasons given therein are quite sound. Only two reasons are given in the judgment of the learned single judge, which stands affirmed by the Division Bench. That was a case of a teacher who was appointed in the leave vacancy. It was held that the person appointed in the leave vacancy stands in the shoes of the person who has gone on leave and that as long as the person who has gone on leave was not liable for retrenchment, a person appointed in his leave vacancy is not liable for retrenchment and is entitled to continue as long as the person in whose shoes he has entered is entitled to continue. The second reason stated is that there is no statutory provision authorising the termination of the services of a person who has been appointed during the leave vacancy consequent upon the reduction in the post flowing from re-fixation of the staff. 6. We find it extremely difficult to agree with the view that there are no statutory provisions dealing with such a situation. We find that there are two provisions bearing on this question contained in R.51 and 55 of Chapter XIV-A of the Rules and they read as follows: "51. When a vacancy in any category of post terminates necessitating the relief of a teacher, senior bands 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 R.1 and to the instructions issued by him under sub-rule (4) of that Rule". "55. Supernumerary and Excess Teachers. "55. Supernumerary and Excess Teachers. The 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 or in that unit as the case may be; and excess hands, if any, based on the strength of the classes fixed in accordance with sub-rule (1) of R.12 of Chapter XXIII will be retrenched by throwing out the junior most hands with due regard however to the requirement of subjects determined by the Director under sub rule (1) of R.1, and to the instructions issued by him under sub-rule (4) of R.1 as far as High Schools are concerned. Provided that a person who was confirmed before the date of commencement of S.12 of the Act under orders of the competent authority shall not be retrenched under this Rules but will be treated as supernumerary and absorbed in the next earliest vacancy in that school or in any other aided or Government school as laid down in S.13." Though both these provisions expressly deal with teachers, it is clear from R.7 of Chapter XXIV-B of the Rules that they are equally applicable to non-teaching staff like the parties in this case such as menials. R.7 of Chapter XXIV B provides that rules regarding appointment etc. under the same Educational Agency contained in Chapter XIV-A and the conduct rules in Chapter XIV-C applicable to teachers of aided schools shall mutatis mutandis apply to non-teaching staff in aided schools subject to modifications provided therein. Though R.51 and 55 deal with relief or retrenchment, they are provisions having a nexus with the power of appointment as the power of appointment includes the power of terminating the appointment The Supreme Court had occasion to observe in the decision reported in AIR. 1977 SC. 2257 between M/s. Heckett Engineering Co. v. Their Workmen that the power to terminate service is a necessary adjunct of the power of appointment and is exercised as an incident to or consequence of that power and that the authority to call such officer into being necessarily implies the authority to terminate his functions. 1977 SC. 2257 between M/s. Heckett Engineering Co. v. Their Workmen that the power to terminate service is a necessary adjunct of the power of appointment and is exercised as an incident to or consequence of that power and that the authority to call such officer into being necessarily implies the authority to terminate his functions. We have, therefore, no hesitation in taking the view that having regard to the context and the provisions of R.7 of Chapter XXIV-B of the Rules, R.51 and 55 of Chapter XIV-A are equally applicable to the non-teaching staff of the aided schools, 7. A bare reading of these two statutory provisions clearly indicates that the mandate of the rule is that when an occasion arises to relieve a teacher from the post held by him or to terminate his services consequent upon reduction in staff strength, it is the senior that should be retained and the junior most among them that should be relieved or retrenched from service. So far as the members of the teaching staff are concerned, the power has to be exercised with due regard to requirements of subjects determined by the Director under sub-rule (1) of R.1 and the instructions issued by him under sub-rule (4) of that rule. Determination of seniority is governed by R.37 of Chapter XIV-A of the rules, which incorporates the general principle that seniority should be determined with reference to length of continuous service. This is applicable to the teaching staff as well as non-teaching staff. 8. Rule Sl in terms provides that when a vacancy in any category of posts gets terminated, necessitating the relief of a teacher, the seniormost among them should ordinarily be retained in preference to the junior incumbent. The rule thus incorporates the well-recognised principle of service law of 'last come first go'. R.51, having regard to the context, obviously deals with a situation where the post continues and only the vacancy in that post terminates for one reason or the other. R.55 provides that the number of permanent teachers in each category in the staff list of the school shall not exceed the aggregate sanctioned posts in that category. If there are persons in excess of the sanctioned strength of posts of a particular category, the rule provides that the excess bands should be retrenched by throwing out the junior most hands. If there are persons in excess of the sanctioned strength of posts of a particular category, the rule provides that the excess bands should be retrenched by throwing out the junior most hands. In other words, rule SS also incorporates the general principle of service law of Mast come first go'. R.55 comes into play when the post itself is abolished. Whereas R.51 applies when the post continues but the vacancy is terminated, R.55 applies when the post itself is abolished for one reason or the other. But the principle flowing from R.51 and R.55 is the same, namely, that it is the junior most who must be chosen for terminating the service of teachers whenever such an occasion arises, either as a result of termination of vacancy or as a result of reduction of the staff strength. Having regard to the express provisions contained in R.51 and 55 of the Rules dealing with such situations, it is not possible to agree with the view taken in the P. V. George's case (1984 KLT. 933) that there are no statutory provisions authorising the retention of the senior in preference to the junior hand. We fail to see bow and on what principle it is stated in the George's case that as long as the person who has gone on leave cannot be retrenched from service, the person appointed in his leave vacancy is entitled to continue to remain in service irrespective of the question as to whether be is the junior most in that category or not. This view is contrary to the principles incorporated in R.51 and 55 of the rules. In the absence of statutory provisions governing such situations, what should govern such cases is the well recognised principle of service law of 'last come first go'. The principle to the contrary enunciated in the George's case has the vice of retaining the junior at the cost of the senior. It brings about an unfortunate situation where a person appointed in leave vacancy has to be preferred and retained in service to a person regularly appointed in service and is also much senior to him. The consequences that flow from the decision in George's case are, in our opinion, clearly inconsistent with the general principles of service law and also inconsistent with the express statutory provisions contained in R.51 and 55 of the Rules. The consequences that flow from the decision in George's case are, in our opinion, clearly inconsistent with the general principles of service law and also inconsistent with the express statutory provisions contained in R.51 and 55 of the Rules. Hence, the decision in Writ Appeal No. 230 of 1984 affirming the decision in 1984 KLT933 between P. V. George v. D.E.O. Alwaye is hereby overruled. 9. So far as the facts of this case are concerned, they are governed by R.55 of the rules. Retrenchment became necessary in this case consequent upon the reduction in the number of posts of full time menials from three to two posts as a result of reflation of the staff strength. As required by R.55 it is the junior most person that has to be retrenched and not the senior one. So far as the petitioner is concerned, be is clearly junior to Janardhanan, for, the petitioner came to be appointed on 6-3-1981 whereas Janardhanan was appointed 10-1-1979. Thus, by application of R.37, Janardhanan is clearly senior to the petitioner. Therefore, the question of retrenching Janardhanan in preference to the petitioner does not arise. Therefore, the view taken by the authorities in Exts. P2 and P4 is sound and does not call for interference. 10. We would like to advert to one more contention of the learned counsel for the petitioner that though the order was passed as per Ext. P2 on 31-8-1984, the same was communicated only on 18-9-1984 and that therefore, he continued to serve as a full-time menial till 18-9-1984. He, therefore, requests that we should give a direction to pay him the salary and emoluments attached to that post till that date. All that we need say is that the second respondent shall examine this aspect of the matter and if in fact the petitioner had worked till that date, be shall make an order directing payment of salary and emoluments to be paid to the petitioner for that period. For the reasons stated above, this writ petition fails and is dismissed. No costs.