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2016 DIGILAW 641 (KER)

Bency T. Paul v. State of Kerala

2016-07-25

A.K.JAYASANKARAN NAMBIAR

body2016
JUDGMENT : A.K. Jayasankaran Nambiar, J. The petitioner was appointed as an Upper Primary School Assistant [UPSA] in the School under the management of the 5th respondent, in various spells from 1997 to 2009, against leave vacancies. It is not in dispute that the appointment of the petitioner in these various spells were also approved by the educational authorities. With effect from 5.6.2010, the petitioner was appointed as an UPSA in a leave vacancy pursuant to the extension of leave by the regular incumbent. The said appointment of the petitioner was not initially approved by the educational authorities, on the ground that in the staff fixation for the academic year 2010-11 against the 21 posts of UPSA that were sanctioned in the earlier academic year, there was a division fall noticed, and accordingly, three posts of UPSA became excess and the teachers concerned liable for retrenchment. By the application of 1:40 ratio, the three posts of UPSA were retained in the School. Thus, there were 18 regular posts of UPSA and 3 posts of UPSA that were retained by application of the 1:40 ratio. It would appear that, during the academic year, two vacancies occurred, namely, one consequent to the promotion of Smt. Jessy Joseph to a leave vacancy in the cadre of HSA, and the second consequent to the removal of Sri. Sajan Davis, who was working as a UPSA. When the petitioner approached the educational authorities for approval of her appointment with effect from 5.6.2010, in the vacancy that arose consequent to the promotion of Smt. Jessy Joseph, the same was initially denied by the educational authorities. In a revision before the Government, however, by Ext.P9 order, it was found that inasmuch as the promotion of Smt. Jessy Joseph had obtained the approval from the educational authorities, and consequent to the removal of Sri. Sajan Davis from service, two teachers from out of the three, who were continued by application of the 1:40 ratio, could be adjusted to the two vacancies aforementioned, the petitioner's case could be considered for retention under the 1:40 ratio if she was otherwise eligible. Pursuant to Ext.P9 order, and consequent to the inaction on the part of the District Educational Officer in complying with the directions in Ext.P9 order, the petitioner approached this Court through W.P.(C).No.22712/2013, wherein, a direction was given to the Government to consider the case of the petitioner again. Pursuant to Ext.P9 order, and consequent to the inaction on the part of the District Educational Officer in complying with the directions in Ext.P9 order, the petitioner approached this Court through W.P.(C).No.22712/2013, wherein, a direction was given to the Government to consider the case of the petitioner again. This time around, by Ext.P12 order, the Government found that while it was permissible to adjust two of the three teachers retained under 1:40 ratio, against the vacancies that arose consequent to the promotion of Smt. Jessy Joseph and the removal of Sri. Sajan Davis, there was yet another UPSA, who was senior to the petitioner, who could claim the benefit of the protection under 1:40 ratio in respect of the third post that was directed to be retained. On this ground, the petitioner's claim for approval of her appointment from 5.6.2010 was rejected. In the writ petition, Ext.P12 order of the Government is impugned. 2. A counter affidavit has been filed on behalf of the 4th respondent, wherein, Ext.P12 order is sought to be justified on the grounds stated therein. 3. I have heard the learned counsel for the petitioner as also the learned Government Pleader for the official respondents. 4. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that in the School in question, for the academic year 2010-11, there were 18 regular posts of UPSA that was sanctioned, and over and in addition to this, there were three posts of UPSA that were continued based on the application of 1:40 ratio so as to protect the teachers who otherwise faced retrenchment. During the academic year in question, there arose two vacancies in the School, one, consequent to the promotion of Smt. Jessy Joseph as High School Assistant [HSA] (Physical Science) for the period from 5.6.2010 to 4.1.2014 against a leave vacancy in the cadre of HSA (Physical Science) and the second, on account of the removal from service of Sri. Sajan Davis, who was an UPSA in the School. Sajan Davis, who was an UPSA in the School. It is trite that consequent to the arising of regular vacancies in a School where teachers are retained by application of the 1:40 ratio, the said teachers would have to be adjusted to the regular vacancies that arise in the School, during the academic year in question, and no fresh appointment can be made to the said vacancies. It is also trite that while filling up the regular vacancies, by adjusting the teachers, who have been protected by the application of 1:40 ratio, the filling up of vacancies must be in accordance with the seniority among those who have been extended the protection under the 1:40 ratio. The issue in the instant case, however, is whether the two vacancies that arose consequent to the promotion of Smt. Jessy Joseph and consequent to the removal of Sri. Sajan Davis, could be seen as regular vacancies that arose during the academic year in question. While there cannot be any dispute that the vacancy that resulted from the removal of Sri. Sajan Davis was a regular vacancy that arose in the School, the vacancy that resulted consequent to the promotion of Smt. Jessy Joseph as an HSA (Physical Science) continued to be a leave vacancy and not a regular vacancy. It follows, as a consequence, that the teachers, who were protected by applying the 1:40 ratio, could not have been adjusted against the aforesaid leave vacancy that resulted consequent to the promotion of Smt. Jessy Joseph. Adjusting the protected teacher, to such a vacancy, would have resulted in an anomalous situation where the protected teacher would be adjusted to a vacancy, the term of which would expire on the regular incumbent returning to join service after the leave period. Accordingly, to the said leave vacancy that resulted consequent to the promotion of Smt. Jessy Joseph, it was only the petitioner, who was the earlier incumbent to the said vacancy, that could be appointed with effect from 5.6.2010. Accordingly, to the said leave vacancy that resulted consequent to the promotion of Smt. Jessy Joseph, it was only the petitioner, who was the earlier incumbent to the said vacancy, that could be appointed with effect from 5.6.2010. Inasmuch as in Ext.P12 order, the Government has not recognised the right of the petitioner to seek an appointment to the vacancy that arose on 5.6.2010, in the post of UPSA, I quash Ext.P12 order, and direct the 4th respondent to approve the appointment of the petitioner as UPSA in the leave vacancy that arose with effect from 5.6.2010, within a period of one month from the date of receipt of a copy of this judgment. The petitioner shall also be paid all consequential monetary benefits that flow from such approval, within a further period of three months thereafter. 5. The writ petition is disposed accordingly.