ANN SUPRIYA JOHNY Vs. STATE OF KERALA

JUDGEMENT

(1.) Common question involved in all these 3 cases is that, whether an appointment approved on the basis of staff fixation for the previous year can be cancelled after a long lapse of time based on subsequent fixation issued relying on a Government Order, which was not published. The petitioners in WP (C) Nos. 23907/2009 and 27579/2012 are Higher Secondary School Teacher (Jr.) in Mathematics and the petitioner in WP (C) No. 28714/2012 is H.S.S.T (Jr.) in Physics. All of them were appointed under the respective managements with effect from 30/06/2003. Their appointments were approved by the Director of Higher Secondary Education. The appointments were approved from the Academic year 2002-03 onwards, on the basis of staff fixation orders finalised with respect to the years 2000-01, 2001-02. Dispute arose when staff fixation orders were issued with respect to subsequent years, after a long lapse of time, in the year 2012. Rule 1(d) and Rule 1(e) of Chapter 32 of KER prescribes that work load of H.S.S.T shall be 15 or more periods per week and workload of H.S.S.T (Jr.) shall be less than 15 periods per week. By virtue of GO (MS) No. 18/91/G.Edn. dated 01/02/1991 the maximum workload of the teachers in the Higher Secondary School was fixed, which in case of H.S.S.T (Jr.) is below 15 and in the case of H.S.S.T is below 26. In the year 2002 the Government issued a further order, GO (MS) No. 398/2002/G.Edn., dated 29/11/2002 (Ext. P6 in WP (C) No. 23907/2009) prescribing norms with respect to sanctioning of post of H.S.S.T (Jr.) stipulating the minimum periods required for sanctioning of posts. It prescribed that minimum number of excess period per week required for appointment of H.S.S.T (Jr.) in the concerned subject shall be 3 when there is one H.S.S.T available and it shall be 6 and 9 respectively when 2 post of H.S.S.T and more than 2 post of H.S.S.T are available. On the basis of the above said Government Order, the Director of Higher Secondary Education issued a Circular on 01/11/2003 directing that no appointments can be made by any Manager/Principal against availability of any excess periods within the prescribed minimum under the said Government Order. When the staff fixation was effected with respect to Academic year 2002-03 onwards, by virtue of orders issued after a long lapse of time, the Regional Deputy Directors concerned had fixed strength following stipulations contained in the Government Order and on the basis of the above said Circular issued by the Director. Consequently, there occurred reduction in the number of posts of H.S.S.T (Jr.) in the Schools concerned where the petitioners are working. The petitioners in WP (C) No. 23907/2009 has challenged the staff fixation order with respect to the subsequent years (Ext. P5) before the Government. Ext. P8 is the order passed by the Government repelling such challenge. Government upheld, orders issued by the Regional Deputy Director abolishing the excess posts of H.S.S.T (Junior) on the basis of Ext. P6 stipulations insisting on availability of minimum required number of periods. It was observed that, the appointments were subject to further review, and the approval will not confer any right to the post. According to the Government, the approval was issued only based on a declaration furnished by the Manager that he had acted as per rules. The approval was subject to condition that the Manager will be responsible for any irregularities noticed in future. Therefore, it is held that the Manager cannot escape from responsibility of making appointment of excess teachers. It is challenging Ext. P8 order of the Government, WP (C) No. 23907/2009 is filed. Inter alia, the petitioners are also challenging validity of Ext. P6 Government Order.

(2.) Contention of the petitioners is mainly on the ground that Ext. P6 Government Order cannot be made applicable to the appointments made before such order is made known and circulated to all concern. The petitioners relied on a subsequent Government Order, GO (Rt) No. 2358/2009/G.Edn., dated 12/06/2009 (Ext. P10 in WP (C) No. 23907/2009). In the said order it is clarified that, in cases where appointments were made prior to Ext. P6 Government Order, against sanctioned posts which are already approved, termination of service is not proper. In such case, the Government is directed to treat those posts of H.S.S.T (Junior) as supernumerary posts and the incumbents were allowed to continue.

(3.) Learned counsel for the petitioners contended that since the Government took a stand that Ext. P6 cannot be made applicable with respect to appointments made earlier, the same yardstick is to be adopted in similar situation. It is contended that even though Ext. P6 order was issued on 29/11/2002 it was not published in the Government Gazette, nor it was circulated among the authorities concerned. It was only through Ext. P11 dated 01/11/2003 that instructions were issued to the authorities concerned to comply with stipulations contained in Ext. P6. Therefore, it has to be presumed that Ext. P6 order was implemented only with effect from 01/11/2003. Since the petitioners were appointed with effect from 30/06/2003 and since their appointments were approved, abolition of the post on the basis of Ext. P6 cannot be sustained, is the contention.