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2007 DIGILAW 605 (KER)

Lisha Sara Jacob v. State of Kerala

2007-09-13

S.SIRI JAGAN

body2007
JUDGMENT S. Siri Jagan, J. 1. These three writ petitions relate to the same issue namely, validity of retrenchment of teachers on account of division fall in schools managed by the same educational agency. WP (C) No. 27887 of 2006 is filed by one Lisha Sara Jacob challenging the Government Order by which for the purpose of retaining retrenched teachers on division fall, the teacher student ratio is reduced to 1:40 instead of 1:45 and her retrenchment which resulted on implementation of the Government Order in the school in which she was working. WP (C) No. 27253 of 2006 is filed by the same person seeking direction to the educational authority to disburse the salary and allowance of the petitioner from 15/07/2006 onwards and for related reliefs. WP (C) No. 27046 of 2006 is filed by Smt. Bindu Varghese, the teacher on whose reversion as Part time Hindi Teacher, the petitioner in the other two writ petitions happened to be retrenched for salary and allowances. Since a decision in WP (C) No. 27887 of 2006 would dispose of all the three writ petitions, I would refer to the parties, facts and documents as available in that writ petition. 2. The dispute is among the petitioner, the sixth respondent and the seventh respondent. The petitioner challenges Ext. P9 Government Order whereby it has been ordered that the benefit of 1:40 teacher student ratio as prescribed in GO (P) No. 175/99/G.Edn. dated 26/07/1999 as against the ratio of 1:45 prescribed by the Kerala Education Rules (for short 'KER') would be extended to the academic year 2006-2007 also as a special case in the schools affected by the specific problem of division fall for the limited purpose of accommodating the teachers rendered surplus, subject to the condition that no post would be created on this account. In Ext. P9, the Educational Officers were also directed to revise the staff fixation orders accordingly wherever found necessary. On implementation of Ext. P9, the petitioner was rendered surplus and retrenched from service, which fate would have fallen on the sixth respondent if the staff fixation had been done on the basis of the teacher student ratio of 1:45 as prescribed in the Kerala Education Rules. The situation arises in the following factual scenario. 3. St. Mary's Upper Primary Girls' School, Eraviperoor and St. The situation arises in the following factual scenario. 3. St. Mary's Upper Primary Girls' School, Eraviperoor and St. John's Higher Secondary School, Eraviperoor are two schools managed by the same educational agency which runs several aided educational institutions. The petitioner was working as Part Time Hindi Teacher in the St. Mary's U. P. Girls' School. The seventh respondent was originally Part Time Hindi Teacher in that school who was later promoted and posted as Lower Grade Hindi Teacher (Full Time) in the St. John's Higher Secondary School. The sixth respondent was recruited as H.S.A. (Hindi) in the St. John's Higher Secondary School without any prior service in the U. P. Section. These three persons were so working in the two respective schools during the academic year 2005-2006. While so, for the academic year 2006-2007, there was a division fall in the St. John's Higher Secondary School and consequent reduction of a post of H.S.A. (Hindi). As per Ext. P4 staff fixation order dated 29/07/2006, the sixth respondent was directed to be retrenched with effect from 15/07/2006. Later on, by Ext. P9 Government Order, it was directed that for the purpose of accommodating teachers rendered surplus the teacher student ratio would be taken as 1:40 for 2006-2007 also. Consequent to such order, on refixation of staff strength, the sixth respondent was retained as H.S.A. (Hindi), but the seventh respondent had to be reverted as Part Time Hindi Teacher and posted at St. Mary's U. P. Girls' School for accommodating whom the petitioner had to be retrenched from service. Therefore, the petitioner is challenging Ext. P9 Government Order, refixation of the staff strength applying the teacher student ratio of 1:40 and consequent retrenchment of the petitioner. 4. The petitioner raises two contentions. The first is that Ext. P9 is only an executive order and therefore, by the same, the teacher student ratio of 1:45 prescribed in R.23 of Chapter VI of KER read with R.12 of Chapter XXIII of KER, could not have been validly altered by that order. The second is that the object of Ext. The petitioner raises two contentions. The first is that Ext. P9 is only an executive order and therefore, by the same, the teacher student ratio of 1:45 prescribed in R.23 of Chapter VI of KER read with R.12 of Chapter XXIII of KER, could not have been validly altered by that order. The second is that the object of Ext. P9 is to avoid retrenchment of a teacher rendered surplus and if the application of the same results in retrenchment of another teacher, that too a teacher who is entitled to continue on staff fixation in accordance with the Kerala Education Rules, the same is counter productive and therefore, in such cases, it should not be applied. 5. The Government Pleader and respondents 6 and 7 would contend that Ext. P9 has been issued in exercise of powers of the Government to relax the requirements of any rule in the KER if it causes undue hardship, as provided under R.3 of Chapter I of the KER and therefore is valid and proper. Regarding the second contention, they would contend that Ext. P9 is of general application to all aided schools in Kerala and simply because its application results in retrenchment of another teacher in one particular situation peculiar to one school, its application cannot be avoided. 6. I have considered the rival contentions in detail. At the outset, I must state that this is a hard case since relaxation in rule for protecting one teacher from retrenchment has resulted in retrenchment of another teacher who was entitled to be retained if the rule is applied as such. 7. I shall first examine the question of validity of Ext. P9 raised by the petitioner. Certainly going by R.23 of Chapter VI read with R.12 of Chapter XXIII, the teacher student ratio to be applied for staff fixation is 1:45. This is varied as 1:40 for the limited purpose of accommodating teachers rendered surplus on account of division fall by Ext. P9. Government do have power to relax requirements of any of the rules in the KER, which power is conferred by R.3 of Chapter I of KER which reads thus: "3. This is varied as 1:40 for the limited purpose of accommodating teachers rendered surplus on account of division fall by Ext. P9. Government do have power to relax requirements of any of the rules in the KER, which power is conferred by R.3 of Chapter I of KER which reads thus: "3. Where the Government are satisfied that the operation of any rule under these Rules causes undue hardship in any particular case, the Government may dispense with or relax the requirements of that rule to such extent and subject to such conditions as they may consider necessary for dealing with the case in a just and equitable manner." Although the counsel for the petitioner would point out that Ext. P9 does not refer to the said rule, I am satisfied that the power of the Government to issue Ext. P9 can be traced to R.3 of Chapter I of KER. It cannot be disputed that on account of various reasons, the student strength of aided Schools in Kerala are constantly declining and that retrenchment of teachers on account of fall in student strength would cause undue hardship to many teachers. It is to save some of them that Ext. P9 has been issued. Therefore, I am satisfied that the condition precedent for invoking R.3 of Chapter I of KER by the Government is certainly existing and therefore the issue of Ext. P9 by the Government invoking the said rule cannot be faulted. That being so, the attack on Ext. P9 on the ground that a Government Order cannot amend a statutory rule cannot be countenanced since this Government Order has been issued in valid exercise of powers vested with the Government in the statutory provisions themselves. Therefore, the reliance of the Supreme Court decisions referred to in paragraph 13 of the writ petition in support of the proposition that an executive order cannot override a statutory provision in support of the challenge against Ext. P9 is also misplaced. Therefore, I hold that Ext. P9 has been validly issued in exercise of the powers of the Government under R.3 of Chapter I of the KER. 8. But the second contention cannot be easily brushed aside simply relying on Ext. P9 and holding that the natural consequence of applying Ext. P9 cannot be avoided. P9 is also misplaced. Therefore, I hold that Ext. P9 has been validly issued in exercise of the powers of the Government under R.3 of Chapter I of the KER. 8. But the second contention cannot be easily brushed aside simply relying on Ext. P9 and holding that the natural consequence of applying Ext. P9 cannot be avoided. In this case, relaxation of a rule by a Government Order to save retrenchment of teachers rendered surplus has resulted in retrenchment of a teacher otherwise entitled to continue in accordance with Rules, which is certainly not the object or intention of Ext. P9. This certainly is an anomalous situation which was not contemplated by the Government while issuing Ext. P9. Therefore, while the benefit of Ext. P9 validly issued by the Government cannot be denied to the sixth respondent, at the same time, the Government should certainly find a way to accommodate the petitioner since she is being retrenched for no fault of hers when going by the Rules, legally she is entitled to continue in service. This is especially so when the object of Ext. P9 is expressly stated to be to protect teachers rendered surplus on account of division fall from retrenchment, and if the same results in another teacher entitled to continue as per rules in force being retrenched that would be manifest injustice to the teacher who is entitled to continue in service as per the Rules themselves. I am of opinion that the application of Ext. P9 to a particular factual situation should not lead to such patently unjust results. The Government has therefore a duty to save the situation by passing appropriate orders to avoid such anomalous results without affecting the general application of Ext. P9, by retaining all the three teachers. The Government has to apply their mind to this imbroglio and pass appropriate orders to effectuate the above. Orders in this regard shall be passed as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The writ petitions are disposed of accordingly.