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2024 DIGILAW 1591 (KER)

State Of Kerala v. Prejimol P, D/o. Pradeep

2024-12-04

A.MUHAMED MUSTAQUE, P.KRISHNA KUMAR

body2024
JUDGMENT : A.Muhamed Mustaque, J. These original petitions are filed by the State challenging the order of the Tribunal on different original applications. The issue in all these cases is common. The matter is related to reporting 17 vacancies of L.P School Assistant (Malayalam medium) (LPSA) and 21 vacancies of U.P School Assistant (Malayalam medium) (UPSA) to the Kerala Public Service Commission (PSC) in Alappuzha District. The question espoused in this case is whether the Tribunal was justified in holding that there exist 17 substantive vacancies of LPSA and 21 vacancies of UPSA by reckoning Head Teacher vacancies. 2. The applicants before the Tribunal are included in the ranked list for selection to the post of LPSA and UPSA in Malayalam medium in Alappuzha District. The ranked list came into force on 28/12/2018 and expired on 27/12/2021. 3. The case of the applicants before the Tribunal was that in the light of Rule 5 of Chapter XXIII of Kerala Education Rules (KER), there exist 17 vacancies in LPSA and 21 UPSA vacancies in Alappuzha District. 4. Chapter XXIII of KER is related to the fixation of the strength of teachers in departmental and aided schools. It is based on the exercise referred to in the procedure under Chapter XXIII, the staff strength of the Government school as well as the aided school is fixed. It is appropriate to refer to Rule 5, Chapter XXIII KER which reads thus: In every Upper Primary School there may be- (i) One post of Headmaster. (ii) As many posts of Upper Primary School Assistants as the number of class divisions, reduced by one. (iii) As many posts of Lower Primary School Assistants as there are divisions in the Lower Primary School classes. (iv) Subject to item (i) and (ii), if the strength of pupils in an Upper Primary School having Standards V to VII exceeds 100 or in a school having Standards I to VII, if the strength of the pupils exceeds either 150 from Standards I to V or 100 from Standard V to VII, one post of Upper Primary School Assistant shall be sanctioned additionally by exempting the Headmaster from class charge. 5. The last limb of Rule 5(iv) Chapter XXIII KER refers to sanctioning additional posts based on the pupil strength. This additional post is called Head Teacher Vacancy. 5. The last limb of Rule 5(iv) Chapter XXIII KER refers to sanctioning additional posts based on the pupil strength. This additional post is called Head Teacher Vacancy. That means, if a Headmaster is relieved from taking classes based on pupil strength, an additional post will be created to meet the requirements. 6. The applicants before the Tribunal, based on the strength of pupils of various schools in Alappuzha District, argued before the Tribunal that 17 LPSA posts and 21 UPSA posts will have to be sanctioned by exempting the Headmaster from class charge. That has been accepted by the Tribunal. Assailing this order, the learned Government Pleader submits that these vacancies are created for protected teachers and if protected teachers are not available, the same will have to be filled by engaging teachers on daily wages. Protected Teachers are teachers who are retrenched from the aided schools. 7. On the other hand, the learned counsel for the respondents who are applicants before the Tribunal placed reliance on an unreported judgment of this Court in the Deputy Director of Education v. Shyni K. and Others [O.P.(KAT).No.36/2019, dated 17/7/2019] and would submit that the issue is concluded against the State. 8. First, we shall examine whether the issue has been concluded or not. 9. We have gone through the judgment in Shyni’s case (supra). Therein, this Court had no occasion to consider whether the Government can be compelled to appoint teachers from the ranked list. The Division Bench had not adverted to the rule and its impact. Further, the Division Bench noted that the Government order referred therein only indicates the engagement of protected teachers in the absence of a ranked list from the PSC. Therefore, we are of the view that the matter has to be considered in the light of Rule 5, Chapter XXIII KER. 10. As we noted earlier, the provision as such referred under Chapter XXIII, Rule 5, KER is the enabling provision to sanction a new post after exempting Headmaster from taking classes. Once the pupil strength exceeds as referred to in the rule, it does not state in what manner the additional post has to be managed. It is to be noted that the student strength is not a constant figure; they may vary from time to time. The posts of teachers are sanctioned in accordance with the student strength. Once the pupil strength exceeds as referred to in the rule, it does not state in what manner the additional post has to be managed. It is to be noted that the student strength is not a constant figure; they may vary from time to time. The posts of teachers are sanctioned in accordance with the student strength. There is a correlation between teacher strength and student strength in a school. Due to the declining student strength in schools, teachers in aided schools are being retrenched and are being treated as protected teachers. 11. A learned Single Judge of this Court in Kerala Aided L.P. and U.P. School, Kollam v. State of Kerala and Another ( 2016 KHC 118 ) had the occasion to consider the purport of the rule, and observed as follows: The Head Teacher referred in the schedule to the RTE Act is with respect to the class and the Head Master in the KER, is for a school. Viewed in that context, the minute the student strength falls below the prescribed limit [150 in Class I to class V and 200 in Class VI to Class VIII], the head teacher would have to be accommodated in accordance with the divisional strength of the School, with teaching duties. Hence the same is also a temporary vacancy, the continuance of which would depend on the student strength. 12. In what manner a vacancy in Government school will have to be managed, involves the policy decision of the Government. It is always open for the Government to engage regular hands or temporary hands. If the Government had justifiable reasons for filling any vacancies by temporary hands, the Court cannot frown upon such a policy of the Government merely for the reason that ranked list candidates are waiting for such appointments. The respondent applicants relied upon a Government Order dated 01/10/2011 wherein the Government directed the Deputy Director of Education to report vacancies arising in Government schools consequent upon the promotion of Head Teachers to the PSC. However, we see that by government order dated 29/11/2013 the Government has taken a conscious policy as above. The respondent applicants relied upon a Government Order dated 01/10/2011 wherein the Government directed the Deputy Director of Education to report vacancies arising in Government schools consequent upon the promotion of Head Teachers to the PSC. However, we see that by government order dated 29/11/2013 the Government has taken a conscious policy as above. It is apposite to quote the relevant portion of the government order dated 29/11/2013, which reads thus: X. Filling up of Head Teacher vacancy As per G.O read as 3rd and 5th papers above, Government have accorded sanction to fill up resultant vacancies in Government schools due to exemption from class charges of Head Teachers in Government schools having more than 150 students in LP schools and more than 100 students in U.P schools on daily wage basis and in the case of alded schools, to fill up such vacancies from Teachers Bank as per G.O read as 1" paper above. Considering the prevailing educational structure in Kerala. (i) the Head Teacher shall be exempted from class charge in Government and aided schools having 1. More than 150 students - I to IV 2. More than 100 students - V to VII 3. More than 250 students - I to VII 4. More than 250 students - I to VIII (in schools having classes from I to X) (ii) The resultant vacancies In Government schools shall be hereafter filled up with the excess teachers retrenched if any from Government schools or otherwise on daily wages. If in any aided schools, teachers are found excess even after rearranging as per clause IX above and is eligible for the Head teacher, the resultant vacancy shall be filled up with the teachers found excess in that school. No new appointments other than as stated above shall be allowed in such vacancies. 13. We also note the order of the Director of General Education, dated 29/04/2017, produced as Annexure R4(e) wherein a direction has been issued to all Educational Officers to engage daily wage teachers in consequent vacancies arising on disengagement of Head Masters from taking classes. The above fact shows that there is a well-crafted policy of the Government in place not to engage regular hands in consequent Head Teacher vacancies vacancies. 14. The Tribunal or this Court cannot compel an appointing authority to fill up vacancies from a ranked list. The above fact shows that there is a well-crafted policy of the Government in place not to engage regular hands in consequent Head Teacher vacancies vacancies. 14. The Tribunal or this Court cannot compel an appointing authority to fill up vacancies from a ranked list. {See the decision of the Full Bench of this Court in Kerala Public Service Commission and Another v. Sheejamol M.C. and Others [2020 (5) KHC 555] and the Division Bench in Jaseena C.K. v. State of Kerala (2023 KHC 504)}. If the policy decision of the Government is well-founded not to fill up such vacancies, the Tribunal or this Court cannot compel the Government to fill those vacancies from a ranked list. The candidates included in the ranked list have no right to insist the appointing authority to fill those vacancies by regular hands. In the light of the policies of the Government, we are of the view that the Tribunal erred in finding that those substantive vacancies which are available, have to be filled by the candidates included in the ranked list. This would amount to overreaching the Government policies. In the absence of any finding that these vacancies were withheld arbitrarily by the Deputy Director of Education, from reporting to the PSC, the Tribunal could not have ordered reporting of those vacancies. Accordingly, we set aside the impugned order. The original petitions are disposed of as above.