R VIJAYAN Vs. DEPUTY DIRECTOR OF EDUCATION ALLEPPEY

JUDGEMENT

(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. 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 bis 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.