(2012) 261 KLR 131 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN TUESDAY, THE 19TH DAY OF JUNE 2012/29TH JYAISHTA 1934 WP(C).No. 36153 of 2010 (T) --------------------------- PETITIONER(S): ------------- REMA. K., AGED 39 YEARS, KARIATE HOUSE, VATTANATHARA.P.O. THRISSUR DISTRICT. LOWER PRIMARY SCHOOL, ASSISTANT ST.ANTONY'S L.P. SCHOOL, KAVALLUR, MUTTYTHADI THRISSUR-680317. BY ADV. SRI.C.D.DILEEP RESPONDENT(S): -------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM PIN-695001. 2. THE ASSISTANT EDUCATIONAL OFFICER, CHERPU, THRISSUR DISTRICT-680561. 3. DISTRICT EDUCATIONAL OFFICER, AYYANTHOLE, THRISSUR DISTRICT-680003. 4. ST. ANTONY'S L.P. SCHOOL, KAVALLUR, MUTTYTHADI, THRISSUR-680317. 5. SMT. BEENA JOSEPH, W/O. C.R. JOY, LOWER PRIMARY SCHOOL ASSISTANT ST. ANTONY'S L.P. SCHOOL, KAVALLUR, MUTTITHADI THRISSUR-680317. BY ADV. GOVERNMENT PLEADER SMT. P. MAYA BY ADV. SRI.P.K.SAJEEV THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS:
RESPONDENTS EXHIBITS:
"C.R" P.N. RAVINDRAN, J ------------------------------------- W.P.(C) No. 36153 of 2010 ----------------------------------------- Dated this the 19th day of June, 2012 Head Note:- Kerala Education Rules, 1959 - Rule 51 of Chapter XIV(A) - Teacher student ratio - Protected Teachers - Retrenchment - G.O.(P) No.403/2002/G.Edn. dated 4.12.2002 - Purpose. Held:- The teacher student ratio was revised from 1:45 to 1:40 for the purpose of accommodating teachers who are not eligible for protection and are rendered surplus; the intention being to prevent their retrenchment. As far as teachers eligible for protection are concerned, there is no retrenchment, but only deployment to another school in terms of the various Government orders, with the right to come back to the parent school as and when the student strength increases and the post which was abolished is restored or a regular vacancy later arises. On the terms of the Government orders which revised the teacher-student ratio from 1:45 to 1:40, it cannot be said that such revision was effected for the purpose of accommodating protected teachers in their parent schools. If such a view is taken, the purpose for which G.O.(P) No.403/2002/G.Edn. dated 4.12.2002 was issued will be defeated. In the said Government order it is categorically stated that teachers who are retained in service applying the ratio 1:40, should not be treated as protected teachers. J U D G M E N T The petitioner and the fifth respondent are Lower Primary School Assistants of St. Antony's L.P.School, Kavallur in Trichur District. The fifth respondent has continuous approved service with effect from 02.06.1997 and she is senior to the petitioner who has continuous approved service only with effect from 01.06.1999. The staff strength of St. Antony's L.P. School for the academic year 2009-2010 was fixed by Ext.P1 order dated 28.07.2009, issued by the Assistant Educational Officer, Cherpu. There was reduction of one division in Standard II, as a result of which, one post of L.P. School Assistant was abolished. The fifth respondent who has continuous approved service with effect from 02.06.1997 was found eligible for protection and her name was reported to the Deputy Director of Education, Thrissur for deployment. The petitioner, the junior most teacher then in service, was retrenched with effect from 15.07.2009. 2. Shortly thereafter, by Ext.P2 order dated 22.08.2009, the Government directed that the benefit of 1:40 teacher-student ratio will be extended during the academic year 2009-2010 also as a special case in 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 will be created on this account. The Educational Officers were directed to revise the staff fixation orders accordingly wherever found necessary. The Assistant Educational Officer, Cherpu, thereupon issued Ext.P3 proceedings dated 10.09.2009, revising Ext.P1 staff fixation order and sanctioning two divisions in Standard III as against the one division sanctioned by Ext.P1 order, for the purpose of retaining the petitioner in service. Aggrieved by Ext.P3, the fifth respondent filed an appeal before the Deputy Director of Education, Trichur, who rejected the appeal holding that Ext.P2 order was issued for the purpose of retaining those teachers who are not eligible for protection. The decision of the Deputy Director of Education was communicated to the fifth respondent by Ext.P4 letter dated 29.11.2009. 3. The fifth respondent thereupon filed Ext.P5 revision petition before the State Government, wherein she contented that as she is senior to the petitioner, she should not be deployed to a Government school and that retaining her in St. Antony's L.P. School, the petitioner may be deployed in Government schools. In short, she claimed retention in the parent school relying on Ext.P2 Government order. She thereafter filed W.P.(C)No.26053 of 2009 in this Court seeking expeditious disposal of the revision petition. By Ext.P6 judgment delivered on 19.3.2010, this Court directed the Government to dispose of Ext.P5 revision petition expeditiously and in any event within three months from the date of receipt of a copy of the judgment, after affording the petitioner, the manager of the school and the fifth respondent, an opportunity of being heard. The Government accordingly heard the parties on 26.06.2010 and 17.07.2010 and passed Ext.P7 order dated 15.09.2010. The Government directed that the fifth respondent, who is senior to the petitioner shall be retained in St. Antony's L.P. School. Consequently, the Assistant Educational Officer, Cherpu issued Ext.P8 letter dated 12.11.2010 calling upon the Headmaster of the school to take steps to refund the salary and allowances paid to the petitioner during the period from 15.07.2009 to 14.07.2010. Hence, this writ petition challenging Ext.P7 Government order and Ext.P8 letter and seeking the following reliefs:- I. To call for the records leading to Ext.P7 and Ext.P8 orders of the 1st and 2nd respondents and to quash/set aside the same by issuing a writ of certiorari or any other writ or order; II. To declare the service of the petitioner for the academic year 2009-2010; or III. Issue a writ of mandamus or appropriate writ or order or direction directing the 3rd respondent to effectively consider the Ext.P9 in accordance with law after hearing the petitioner or IV. Issue a writ of mandamus or appropriate writ or order or direction, directing the 1st respondent to review the Ext.P7 order in accordance with law after hearing the petitioner. 4. The main contention raised by the petitioner is that Ext.P2 Government order was issued to accommodate teachers like her who are not eligible for protection and not for the purpose of retaining teachers like the fifth respondent who are eligible for protection, in their parent schools. It is contented that the Government misdirected itself when it issued Ext.P7 order, directing retention of the fifth respondent in the parent school. 5. The second respondent has filed a counter affidavit dated 18.10.2011. In paragraph 3 thereof it is stated that the Government directed retrenchment of the petitioner as she was the junior most teacher and the fifth respondent is senior to her. It is also contented that salary and allowances were disbursed to the petitioner, on the petitioner submitting a declaration that in case the decision goes against her, she will refund the salary and allowances paid to her. 6. I heard Sri.C.D.Dileep, learned counsel appearing for the petitioner, Smt.P.Maya, learned Government Pleader appearing for respondents 1 to 3, Sri.P.K.Rajeev, learned counsel appearing for the fourth respondent and Sri.V.A. Mohammed, learned counsel appearing for the fifth respondent. The learned counsel appearing for the petitioner contended that the various Government orders including Ext.P2, revising the teacher-student ratio from 1:45 to 1:40 were issued for the purpose of retaining teachers who are not eligible for protection in service and not to accommodate teachers like the fifth respondent, who are eligible for protection, that in the instant case, the fifth respondent who was eligible for protection was deployed to a Government school pursuant to Ext.P1 staff fixation order and therefore, the Government erred in holding that the fifth respondent, a teacher eligible for protection is entitled to be retained in the parent school applying Ext.P2 Government order. Per contra, Sri.V.A. Mohammed, learned counsel appearing for the fifth respondent contended, relying on rule 51 of Chapter XIV(A) of the Kerala Education Rules that when a vacancy in any category of post terminates necessitating the relief of a teacher, senior hands shall ordinarily be retained in preference to junior hands with due regard to the requirement of subjects and therefore, as the petitioner is admittedly junior to the fifth respondent, she cannot claim retention in the parent school in preference to the fifth respondent. The learned counsel appearing for the fifth respondent also contended that as the fifth respondent was rendered surplus during the academic year 2009- 2010 due to fall in student strength, the Government was perfectly justified in directing retention of the fifth respondent in service and retrenchment of the petitioner from service. 7. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. As per the Government orders issued from time to time, granting protection to aided school teachers, only those teachers who were in service as on 14.7.1996 were eligible for protection. However, by G.O.(P) No.240/99/G.Edn. dated 29.9.1999, the Government clarified that all aided school teachers who were in service as on 14.7.1996 and those who were appointed as aided school teachers against regular vacancies during 1996-1997 up to 14.7.1997, will be eligible for protection. It was also stipulated that the teachers appointed from 15.7.1997 onwards will not be eligible for protection and that teachers who were working against regular division vacancies alone will be eligible for protection. 8. While matters stood thus, the Government issued G.O.(P) No.56/2002/Fin dated 16-1-2002 wherein, inter alia it was stipulated that protected teachers will be paid only 50% of their salary till they are absorbed against vacancies. The Government also directed that the General Education Department will issue further detailed orders. Later, by G.O.(Rt)No.446/2002/G.Edn. dated 5.2.2002, the Government directed that all protected teachers shall be paid salary in full for the month of January, 2002. Later, the Government issued G.O.(P)No.46/2002/G.Edn. dated 20.3.2002 whereby the Government directed that all protected teachers shall be paid full salary up to and inclusive of June, 2002. The Government also ordered that all possible steps will be taken to deploy the maximum number of protected teachers by 30.6.2002 and in case re-deployment cannot be completed before 30.6.2002, the remaining protected teachers shall be paid only 50% of their salary after 30.6.2002. It was also stipulated that orders on the modalities and procedures for deployment of protected teachers will be issued separately. The Government thereafter issued G.O.(P)No.178/2002/G.Edn. dated 28.6.2002, laying down the guidelines for re-deployment of protected teachers. The Government order dated 28.6.2002 is extracted below: "GOVERNMENT OF KERALA Abstract General Edn.-Aided-Protected teachers - Redeployment guidelines - issued. General Education (J) Department G.O.(P) No.178/2002/G.Edn. Thiruvananthapuram, Dated 28.6.2002. Read:- 1. G.O.(P) 56/02/Fin dated 16.1.2002. 2. G.O.(P) 46/2002/G.Edn. dated 30.3.2002. ORDER As per the Government Order read as 1st paper above additional economy measures had been imposed, to overcome the precarious financial condition of the State. As part of these measures, in the G.O. read as 2nd paper above it has been inter alia ordered that Government will take all possible steps to redeploy the maximum number of protected teachers by 30.6.2002 and that orders on the modalities and procedures for deployment of protected teachers will be issued separately. Accordingly Government are now pleased to issue the following guidelines for the redeployment of protected teachers. (i) The management of newly opened/upgraded aided schools shall fill up all the existing/arising vacancies in their schools by appointing protected teachers. The Deputy Director of Education concerned shall make available district- wise and category wise list of protected teachers on the basis of total length of service to be so appointed by the Managers. (ii) The Schools under Corporate Managements shall be treated as a single unit and the protected teachers under them shall be appointed in the existing/arising vacancies in those schools. (iii) Protected teachers under various managements shall be appointed in the schools under the respective managements, against the existing/arising vacancies in the categories of HSA/UPSA/LPSA/Language Teacher by protecting their salary in the original posts. They shall be absorbed in their original post as and when vacancies arise in those categories. Minimum subject requirement should be ensured while accommodating protected teachers in High Schools. (iv) In respect of schools where there are protected teachers, all of them should be absorbed in the existing/arising vacancies as provided in (iii) above. The remaining vacancies shall be filled up in the ratio 1:1 between protected teachers and appointments in accordance with KERs. In schools where there are no protected teachers, the existing/arising vacancies shall be filled up in the ratio 1:1 between protected teachers and appointments in accordance with KERs, first priority being given to appointment of protected teachers. (v) The Protected teachers shall be deployed against the vacancies, if any, under Sarva Siksha Abhiyan/DPEP/IT @ School/State Literacy Mission, subject to the specific condition that such appointment does not involve the creation of any additional post. (vi) Protected teachers shall be deployed in vacancies in schools under local self government institutions. (vii) The existing language/specialist teachers who become protected shall be appointed by creation of posts on clubbing arrangement of nearby schools, subject to the specific condition that such posts shall be abolished as and when they retire from service. (viii) Teachers retained under 1:40 ratio shall also be considered as protected and deployed as per these guidelines. (emphasis supplied) (ix) The protected teachers who are to retire from service on or before 31.5.2003 shall be exempted from deployment and allowed to continue in their parent schools till their retirement. (x) Protected Physical Education teachers in the High School/U.P. Section shall be appointed in the regular vacancies, if any, arising in H.S./U.P. Section, since the qualification of both U.P./H.S. Physical Education teachers are the same. (xi) Full time language teachers having minimum 8 periods and 5 years service need not be treated as protected. However, their service can be utilised by other schools also on clubbing basis. (xii) Language teachers working in Full Time Posts by virtue of 'Group C' diversion need not be treated as protected. (xiii) The excess protected teachers who could not be deployed by the above means shall be retrenched from their parent schools with effect from 1.7.2002 and they shall be paid 50% salary. (xiv) The protected teachers shall be willing to undertake any duty/responsibility as may be entrusted. Unwillingness to undertake the work assigned to them as per re-deployment, will render them ineligible for the benefit of protection and eligibility for salary. By Order of the Governor Secretary to Government." 9. In paragraph (viii) of the Government order dated 28.6.2002, it was stipulated that teachers retained under the 1:40 ratio shall also be considered as protected and deployed. As per the said Government order, re-deployment was to be completed before 30.6.2002. It was also stipulated that excess protected teachers who could not be deployed, shall be retrenched with effect from 1.7.2002 and they shall be paid only 50% salary. Later, by G.O.(P)No.288/ 2002/G.Edn. dated 27.9.2002, the time limit for re-deployment of protected teachers was extended up to 31.12.2002. The Government thereafter issued G.O.(P)No.403/2002/G.Edn. dated 4.12.2002 modifying the Government order dated 28.6.2002. By that order, paragraphs (iv), (v) and (viii) of the Government order dated 28.6.2002 were deleted. The Government order dated 4.12.2002 is extracted below: "GOVERNMENT OF KERALA Abstract General Edn. - Aided - Protected teachers Re-deployment Guidelines Modified- Orders issued. General Education (J) Department G.O.(P) No.403/2002/G.Edn. Thiruvananthapuram, Dated 4.12.2002. Read:- 1. G.O.(P) 178/2002/G.Edn. dated 28.6.2002. 2. Letter No.D6/19592/02 DPI(2) Dated 16.7.2002 from the DPI, Tvpm. 3. Letter No.H1-55318/97/DPI dated 11.9.2002 from the DPI Tvpm. 4. G.O.(P) 288/2002/G.Edn. Dated 27.9.2002. ORDER As per the Government order read as 1st paper above, Government have inter alia issued the following guidelines, for redeployment of protected teachers of aided schools. (iv) In respect of schools where there are protected teachers, all of them should be absorbed in the existing/arising vacancies as provided in (iii) above. The remaining vacancies shall be filled up in the ratio 1:1 between protected teachers and appointments in accordance with KERs. In schools where there are no protected teachers, the existing/arising vacancies shall be filled up in the ratio 1:1 between protected teachers and appointments in accordance with KERs, first priority being given to appointment of protected teachers. (v) The Protected teachers shall be deployed against the vacancies, if any, under Sarva Siksha Abhiyan/DPEP/IT @ School/State Literacy Mission, subject to the specific condition that such appointment does not involve the creation of any additional post. (viii) Teachers retained under 1:40 ratio shall also be considered as protected and deployed as per these guidelines. 2. The Guidelines issued as per the G.O. read as 1st paper above, could not be implemented in toto, for various reasons. Therefore Govt. after having reconsidered the matter in detail in consultation with DPI, are pleased to modify the G.O. read as 1st paper above, adding the following guidelines thereto. (i) 50% of the vacancies of 1030 BRC trainers required in the 8 non-DPEP Districts for the implementation of SSA (Sarva Siksha Abhiyan) Programme shall be filled up by selection process from among qualified and competent protected teachers. The remaining 50% vacancies shall be filled up by Government School teachers, and protected teachers in the respective districts shall be deployed in the resultant vacancies. The vacancies which arise as a result of the posting of 103 Block Project Officers from among Government school teachers shall also be filled up by protected teachers. If the number of protected teachers is not sufficient to fill up the resultant vacancies in a particular District, such teachers of neighbouring districts shall be considered for deployment. Govt. School teachers and the protected teachers thus deployed shall be treated as on working arrangement and allowed to draw salary from their parent school since no new posts are created by this working arrangements. ii) Protected teachers shall be deployed in the places from where the required 200 Government School Teachers are relieved as Master Trainers for the implementation of IT @ School Project. iii) The teacher student ratio of 1:40 shall be continued for this academic year also for the limited purpose of retaining the teachers who were enjoying the same benefit during the last year. (3300 Nos. Approximately) instead of treating them as protected teachers. (emphasis supplied) iv) One protected P.D. Teacher shall also be allowed to each LP / UP School, where the number of teachers is more than 10 to compensate the deficiency of an independent Headmaster in such schools. v) The Junior Language Protected teachers (Arabic, Urdu, Sanskrit, etc.) who can't be re-deployed under clubbing arrangement shall be allowed category change on par with their higher qualification. vi) Close relatives of Jawans, teachers having 25 years of service, handicapped persons with 40% permanent disability and Teachers holding the charge of NCC/Scouts and Guides in the Schools shall be permitted to continue in the same schools under protection. Viii) Protected teachers shall be deployed in Government Schools in the Districts where no live list of PSC is available till lists become available. 3. Following the incorporation of the new guidelines, item (iv), (v) and (viii) of the G.O. read as 1st paper above stand deleted. 4. The process of redeployment of teachers shall be completed by 31.12.2002, as ordered in the G.O. read as 4th paper above. By order of the Governor P. Mara Pandiyan Secretary to Government." In paragraph (iii) of the Government order dated 4.12.2002, it was stipulated that the teacher student ratio of 1:40 shall be continued for the academic year 2002-03 also, for the limited purpose of retaining teachers who were enjoying the same benefit during the last year, instead of treating them as protected teachers. 10. Initially, only those aided school teachers, who had been appointed prior to 1.8.1984, had put in two years continuous service and had drawn two vacation salaries were entitled for protection. Aided school teachers appointed after 1.8.1994 were not entitled for protection (vide G.O.(Ms)No.104/69/Edn. dated 6.3.1969 and related Government orders). Organizations of aided school teachers moved the Government seeking protection benefits to teachers appointed after 1.8.1994 also. The Government thereupon constituted a committee consisting of the Chief Secretary, Commissioner and Secretary, Finance Department and Secretary, General Education Department to make an indepth study of the issue and to make recommendations. The said committee, after conducting a study of the issue, submitted a report. The Government after studying the report of the committee issued G.O.(Ms)No.60/96/G.Edn. dated 15.2.1996 whereby the Government ordered that protection will be given to those aided school teachers who are retrenched due to division fall after completing seven years of service on or before 15.7.1995. The Government also directed that protected teachers will be deployed in the manner indicated therein. The Government order dated 15.2.1996 is extracted below:- "GOVERNMENT OF KERALA Abstract General Education - Aided - Protection to Aided school Teachers retrenched after completion of seven years of service on or before 15th July, 1995 - Granted - Orders issued. General Education (J) Department G.O.(Ms) No.60/96/G.Edn. Dated, Thiruvananthapuram, 15.2.1996. Read: G.O.(Ms)No.104/69/Edn. dated 6.3.1969. ORDER As per the Government Order read above as modified subsequently, protection is available to those Aided School Teachers who were appointed on or before 1.8.1984 and put in two years continuous service and drawn two vacation salaries. The Aided School Teachers who were appointed after 1.8.1984 are not eligible for protection as per the existing orders. 2. The Teachers Organizations have been representing to Government to give protection benefits to those Teachers appointed after 1.8.1984 also; A Committee was constituted consisting of the Chief Secretary, Commissioner & Secretary, Finance Department and Secretary, General Education Department to make an indepth study of the issue and make recommendations. 3. Government have examined the recommendations of the Committee in detail land are pleased to order that protection will be given to those Aided School Teachers who are retrenched due to division fall after completing seven years of service on or before 15.7.1995. The protected teachers will be deployed: (i) As Teachers in Government Schools purely on working arrangement against existing vacancies or absorbed in newly opened Aided Schools, (ii) As Co-Ordinators in Saksharatha Samithies, and (iii) To the Offices of the Deputy Directors of Education to attend the Provident Fund works of Aided School Teachers. 4. Government also make it clear that the teachers who get the benefit of protection as per this Government Order should be willing to perform whatever duties are assigned to them. A teacher who does not accept posting on deployment will lose the benefit of protection. By order of the Governor NEELA GANGADHARAN Secretary to Government 11. The Government thereafter issued G.O.(MS)No.377/96/G. Edn. dated 8.11.1996, wherein it was stipulated that aided school teachers who are rendered surplus consequent on division fall and reduction of posts during the staff fixation for the academic year 1996- 1997 will be retained as such in service provisionally and the status quo as on 14.7.1996 shall be maintained for all purposes till the end of the academic year 1996-97. The Government order dated 8.11.1996 is extracted below: "GOVERNMENT OF KERALA Abstract General Education-Aided-staff fixation 1996-97-Retention of teachers rendered surplus-sanction accorded-orders issued. General Education (J) Department G.O.(MS) 377/96/G.Edn. dated, Thiruvananthapuram, 8.11.1996. Read:- TPM Nos.19174/J2/96/G.Edn. dated, 2.8.1996, 19.9.1996 and 19.10.1996. ORDER Government are pleased to order that all Aided school teachers rendered surplus consequent on the division fall and reduction of posts during the staff fixation of the current academic year will be retained as such in service provisionally and status quo as on 14.7.96 maintained for all purposes till the end of the academic year 1996-97. (By order of the Governor) SECRETARY TO GOVERNMENT." 12. Later, the Government issued G.O.(P) No.219/97/G.Edn. dated 20.6.1997, whereby the Government ordered that the teacher- student ratio shall be revised from 1:45 to 1:40 in the schools affected by the problem of devision fall during the staff fixation for the academic year 1997-98, for the limited purpose of accommodating the teachers rendered surplus, subject to the condition that no post will be created on this account. A few months later, the Government issued G.O.(P)No.423/97/G.Edn. dated 27.10.1997 whereby it was clarified that the Government order dated 20.6.1997 was issued to accommodate teachers retained during the academic year 1996-97 to the extent possible by revising the teacher-student ratio from 1:45 to 1:40, reckoning the status as on 14.7.1996. The Government order dated 27.10.1997, is extracted below:- GOVERNMENT OF KERALA Abstract General Education - Aided - Staff Fixation - Retention of teachers rendered surplus - further clarification - issued. GENERAL EDUCATION (J) DEPARTMENT G.O(P)423/97/G.Edn. Dated, Thiruvananthapuram, 27.10.1997. Read:- 1. G.O.(MS)377/96/G.Edn. dt. 8.11.1996. 2. G.O.(Rt)3860/96/G.Edn. dt. 28.11.1996. 3. G.O.(P)219/97/G.Edn. dt. 20.6.1997. ORDER. In the Government Orders read as first and second papers above, it was ordered among other things that all aided school teachers rendered surplus during staff fixation of 1996-97 will be retained as such in service provisionally maintaining status quo as on 14.7.1996 till the end of academic year 1996- 97. In the G.O., read as third paper above, it was further ordered that the teacher student ratio will be revised from 1:45 to 1:40 in the schools affected by the specific problem of division fall during the staff fixation of the academic year 1997-98 for the limited purpose of accommodating teachers rendered surplus subject to the condition that no post will be created on this account. 2. Government are now pleased to issue the following clarifications to the above Orders. i) The spirit of the G.O., read as third paper above is to accommodate teachers retained during 1996-97 to the extent possible by revising the teacher student ratio from 1:45 to 1:40 reckoning the status as on 14.7.1996. ii) So far as filling up of vacant posts are concerned, the surplus teachers retained on the basis of the G.Os read above will be adjusted first against the vacant posts. Iii) The strength of a class division shall be 40 but excess admission upto 45 will be allowed. When there are more than 45 students a second division shall be opened, when the strength exceeds 85, a third division, and so on, subject to the condition stipulated in para 2 (i) of the G.O., read as third paper above. (By Order of the Governor) K.JAYAKUMAR, SECRETARY TO GOVERNMENT. 13. Later, when doubts regarding implementation of the Government orders dated 20.6.1997 and 27.10.1997 arose, the Government issued G.O.(MS)No.179/98/G.Edn. dated 21.5.1998 clarifying the position. The said order reads as follows:- GOVERNMENT OF KERALA Abstract General Education - Aided - Retention of teachers rendered surplus - further clarification issued. GENERAL EDUCATION (J) DEPARTMENT G.O(P)No.179/98/G.Edn. Dated, Thiruvananthapuram, 21.5.1998 Read:- (1) G.O.Ms.377/96/G.Edn. dated 8.11.1996. (2) G.O.Rt. 3860/96/G.Edn. dt. 28.11.1996. (3) G.O.(P)219/97/G.Edn. dated 20.6.1997. (4) G.O.(P)423/97/G.Edn. dated 27.10.1997. ORDER In the G.O. read as third paper above, it was ordered that the teacher student ratio will be revised from 1:45 to 1:40 in the schools affected by the specific problem of division fall during the staff fixation of the academic year 1997-98 for the limited purpose of accommodating teachers rendered surplus subject to the condition that no post will be created on this account. 2. During the implementation of the said order, certain interpretational problems have arisen which are clarified as follows in supercession of the orders contained in the G.O., read as fourth paper above. i) It is clarified that orders contained in the G.O read as third paper above were issued for the staff fixation during the year 1997-98 in the schools affected by the specific problem of division fall, and not for 1996-97 as wrongly interpreted. ii) Teachers retained during 1996-97 based on the G.O., read as first paper above will also be eligible to be brought under the purview of the G.O., read as third paper above for the staff fixation during the year 1997-98 and given the benefit of the revised ratio of 1:40. iii) It is further clarified that orders issued in the G.Os read as third above will be applicable to the language and specialist teachers also subject to the condition that no additional post will be created on this account. iv) Teachers retained during 1996-97 as per the G.O., read as first paper above and continued in service during 1997-98 against vacancies occurred by way of resignation/retirement/death/leave/additional division or retention are eligible for vacation salary during 1997. v) Teachers retained as per G.O.(P) 219/97/G.Edn. dated 20.6.1997 are eligible for vacation salary during 1998. vi) So far as filling up of vacant posts are concerned, the surplus teachers retained on the basis of the G.Os, read above will be adjusted first against the respective vacant posts. vii) The strength of a class division shall be 40, but excess admission upto 45 will be allowed. When there are more than 45 students a second division shall be opened, when the strength exceeds 85, a third division, and so on subject to the condition stipulated in para 2(i) of the G.O., read as third paper above. All Educational Officers will suo motu review the original staff fixation orders issued by them for the year 1997-98 based on the above clarifications and issue revised orders within a fortnight. (By Order of the Governor) SECRETARY TO GOVERNMENT. 14. By the order dated 21.5.1998, the Government clarified that teachers retained during the year 1996-97 based on the Government order dated 8.11.1996 are also covered by the Government orders dated 20.6.1997 and 27.10.1997. Later, the Government issued G.O. (P)No.286/98/G.Edn., dated 21.7.1998 wherein it was stipulated that the teacher-student ratio will be revised from 1:45 to 1:40 in aided schools affected by the specific problem of division fall during the staff fixation for the year 1998-99, for the limited purpose of accommodating the teachers rendered surplus subject to the condition that no post will be created on this account. The Government also ordered that the clarification issued in the Government order dated 21.5.1998 will mutatis mutandis apply for the year 1998-99 as well. The Government order dated 21.7.1998 is extracted below:- GOVERNMENT OF KERALA Abstract General Education - Aided - Staff Fixation - 1998-99 Retention of teachers rendered surplus - Orders issued. GENERAL EDUCATION (J) DEPARTMENT G.O(P)No.286/98/G.Edn. Dated, Thiruvananthapuram, 21.7.1998 Read:- (1) G.O.(P)219/97/G.Edn. dated 20.6.1997. (2) G.O.(P)179/98/G.Edn. dated 21.5.1998. ORDER Government are pleased to order that the teacher student ratio will be revised from 1:45 to 1:40 in the aided schools affected by the specific problem of division fall during the staff fixation of the year 1998- 99 for the limited purpose of accommodating the teachers rendered surplus subject to the condition that no post will be created on this account. 2. The schools under the corporate managements will be treated as a single unit. 3. Clarification issued in the Government Order read as the 2nd paper above will hold good mutatis mutandis for this year also. (By order of the Governor) K.Jayakumar, Secretary to Government 15. It appears the Deputy Director of Education, Kannur had a doubt regarding the scope of the aforesaid Government orders. The Secretary to Government, General Education Department, thereupon sent a letter dated 10.11.1998 to the Deputy Director of Education, Kannur, informing him that the intention behind the issuance of the Government orders dated 20.6.1997, 21.5.1998 and 21.7.1998 is to avert retrenchment of teachers due to division fall, to the extent possible and reversion or retrenchment of teachers can be resorted to only after exhausting the scope for retention under the revised teacher-student ratio of 1:40. The said letter is extracted below:- GOVERNMENT OF KERALA General Education (J) Department No.56260/J2/98/G.Edn. Thiruvananthapuram, Dated, 10.11.1998. From The Secretary to Government To The Deputy Director of Education, Kannur. Sir, Sub:- General Education - Aided - Application of 1:40 teacher student ratio - regarding. Ref:- 1. G.O(P)219/97/G.Edn. dt. 20.6.97. 2. G.O(MS)179/98/G.Edn. dt. 21.5.98. 3. G.O(P)286/98/G.Edn. dt. 21.7.98. 4. G.O.(MS)148/98/G.Edn. dt. 8.5.98. 5. Your letter No.B4-25013/98 dt. 3.11.98. I am to invite your attention to the references cited and to inform you that the intention behind the issue of G.Os. cited as 1 to 3 is to avert retrenchment of teachers due to division fall to the extent possible. Reversion or retrenchment of the teachers can be resorted to only after exhausting the scope for retention under the revised teacher-student ratio of 1:40. Yours faithfully, Secretary to Government 16. Later, by Circular No.9679/J2/99/G.Edn. dated 24.3.1999, the Government clarified that the benefit of G.O.(P)No.286/98/G.Edn. dated 21.7.1998 revising the teacher student ratio from 1:45 to 1:40 for the academic year 1998-99 will apply to leave substitutes also. The said circular is extracted below:- GOVERNMENT OF KERALA General Education (J) Department No.9679/J2/99/G.Edn. Dated, Thiruvananthapuram, 24.3.1999 CIRCULAR Sub: General Education - aided - application of 1:40 teacher - student ratio - further clarifications - reg. Read:1. G.O.(P)219/97/G.Edn. dt. 20.6.97. 2. G.O.(P)286/98/G.Edn. dt. 21.7.98. In the Government Order read as first paper above, it was ordered that the teacher student ratio will be revised from 1:45 to 1:40 in the aided schools affected by the specific problem of division fall during the staff fixation of the year 1997-98 for the limited purpose of accommodating the teachers rendered surplus subject to the condition that no post will be created on this account. As per the G.O. read as second paper above, Government have extended the benefit for the year 1998-99 also. Government are pleased to clarify that the benefit under the revised teacher-student ratio of 1:40 can be applied in favour of the leave substitutes also. K.Jayakumar, Secretary to Government 17. While matters stood thus, the Government issued G.O.(P) No.175/99/G.Edn. dated 26.7.1999 giving protection to aided school teachers who were in service as on 14.7.1996 subject to the conditions enumerated therein. The Government order dated 26.7.1999 is extracted below:- GOVERNMENT OF KERALA Abstract General Education - Aided - Protection to aided schools teachers - Granted - Orders issued - General Education (J) Department G.O(P)No.175/99/G.Edn. Dated, Thiruvananthapuram, 26.7.1999 Read:- (1) G.O.(MS)60/96/G.Edn. dated 15.2.1996 (2) G.O.(MS)377/96/G.Edn. dated 8.11.1996. (3) G.O.(P)219/97/G.Edn. dated 20.6.1997. (4) G.O.(P)179/98/G.Edn. dated 21.5.1998. (5) G.O(MS)286/98/G.Edn. dated 21.7.1998. ORDER In the Government order read as first paper above orders were issued to protect the aided school teachers who are retrenched due to division fall after completing seven years of service on or before 15.7.1995. In the Government Order read as second paper above read with G.O.(Rt)3860/96/G.Edn. dated 28.11.96 it was ordered to retain in service, all aided school teachers rendered surplus consequent on the division fall and reduction of posts during the staff fixation 1996-97 maintaining the status-quo as on 14.7.1996. In the G.O. read as third paper above the teacher-student ratio was reduced from 1:45 to 1:40 in the schools affected by the specific problem of division fall during the staff fixation of the academic year 1997-98 for accommodating the teachers rendered surplus subject to the condition that no post will be created on this account. As per the G.O. read as fifth paper above the above benefit was extended during the staff fixation 1998-99 also. 2. Government have further examined the matter in detail and are pleased to order that all aided school teachers who were in service as on 14.7.1996 will be given protection by retaining them in the respective schools subject to the following conditions:- i) The teachers to whom this benefit of protection is granted will be absorbed in the future vacancies arising under the respective management. ii) No substitute will be posted in the case of retirement, resignation, death, leave or voluntary relinquishment etc., of the incumbent, if retained by way of protection. iii) Protection will not be granted to teachers appointed during 1997-98 and thereafter. 3. Government further order that the teacher student ratio will be revised from 1:45 to 1:40 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 will be created on this account. 4. The clarifications issued subsequent to the orders read as third to fifth will also prevail mutatis mutandis. 5. The Education Officers will revise the staff fixation orders for the year 1999-2000 accordingly. (By order of the Governor) K.Jayakumar, Secretary to Government 18. In the Government order dated 26.7.1999, it was inter alia stipulated that the protection will not be granted to teachers appointed during the year 1997-98 and thereafter. The Government thereafter issued G.O.(P)No.240/99/G.Edn. dated 29.9.1999 clarifying the Government order dated 26.7.1999. The Government order dated 29.9.1999 is extracted below:- GOVERNMENT OF KERALA Abstract General Education - Aided - Protection to aided schools teachers - clarifications - issued - General Education (J) Department G.O(P)No.240/99/G.Edn. Dated, Thiruvananthapuram, 29.9.1999 Read:- G.O.(P)175/99/G.Edn. dated 26.7.1999. ORDER In the Government Order read above Orders were issued, inter alia, that protection would be granted to all aided school teachers who were in service as on 14.7.1996 by retaining them in respective schools subject to the following conditions:- i) The teachers to whom this benefit of protection is granted will be absorbed in the future vacancies arising under the respective management. ii) No substitute will be posted in the case of retirement, resignation, death, leave or voluntary relinquishment, etc. of the incumbent, if retained by way of protection. iii) Protection will not be granted to teachers appointed during 1997-98 and thereafter. 2. Subsequently certain doubts have arisen regarding implementation of the above Government Orders. Accordingly, Government are pleased to issue the following clarifications: i) All aided school teachers who were in service as on 14.7.1996 and those who are appointed as aided school teachers against regular vacancies during 1996- 97 upto 14.7.97 will be eligible for protection. However, teachers appointed from 15.7.1997 onwards will not be eligible for protection. ii) Teachers who are working against regular division vacancy alone will be eligible for protection. iii) If the aided school teachers who are eligible for protection as per clarification in para 2(i) above are retrenched during the subsequent years due to division fall, they will be reinstated in service in their parent school. The period during which they are out of service will be regularised as eligible leave or leave without allowances. 3. The clarifications issued to the previous orders of protection will mutatis mutandis apply in this case also. 4. The Educational Officers will revise the staff fixation orders for 1999-2000 accordingly. (By order of the Governor) K.Jayakumar Secretary to Government. In the Government order dated 29.9.1999, it was inter alia stipulated that all aided school teachers who are in service as on 14.7.1996 and those who are appointed as aided school teachers against regular vacancies during the year 1996-97 upto 14.7.1997 will be eligible for protection and that teachers appointed from 15.7.1997 onwards will not be eligible for protection. 19. After the Government order dated 29.9.1999 was issued, the Director of Public Instruction sought a clarification from the Government as to whether the Government orders dated 26.7.1999 and 29.9.1999 have the effect of standing orders. The Government thereupon issued G.O.(MS)No.240/2000/ G.Edn. dated 24.7.2000 whereby the Government clarified that the orders contained in paragraphs 3 and 4 of the Government order dated 26.7.1999 are issued as standing orders. The Government also clarified that by virtue of the Government order dated 26.7.1999, all aided school teachers who were in regular service as on 14.7.1996 will be given protection subject to the conditions specified therein and that all aided school teachers who were appointed against regular vacancies during 1996-97 upto 14.7.1997 will also be given protection. The Government order dated 24.7.2000 is extracted below:- GOVERNMENT OF KERALA Abstract General Education - Aided - Protection - Clarification issued. GENERAL EDUCATION (J) DEPARTMENT G.O.(MS)240/2000/G.Edn. Dated, Thiruvananthapuram, 24.7.2000. Read:- 1. GO(P) 175/99/G.Edn. dated 26.7.1999. 2. G.O(MS) 240/99/G.Edn; dated 29.9.1999 3. Letter No.RA(4)/51056/2000 dated 19.7.2000 from the Director of Public Instruction, Thiruvananthapuram. ORDER 1. In the G.O. read as first paper above Government have issued orders inter alia that the teacher student ratio would be revised from 1:45 to 1:40 in the schools affected by the specific problem of division fall for the limited purpose of accommodating the teacher rendered surplus subject to the condition that no post will be created on this account. The Director of Public Instruction in his letter read as third paper has raised a doubt whether the above orders have the effect of standing orders. 1. i) In this context Government are pleased to clarify that the orders contained in paras 3 and 4 of the G.O. read as first paper above are issued as standing orders. 2. In para 2(i) of the G.O. read as second paper above it was clarified that all aided school teachers who were in service as on 14.7.1996 and those who were appointed as aided school teachers against regular vacancies during 1996- 97 upto 14.7.1997 will be eligible for protection. The Director of Public Instruction has raised a doubt with regard to the cut-off date for the eligibility of granting protection. 2(i) Government hereby clarify that by virtue of orders in the G.O. read as first paper above all aided school teachers who were in regular service as on 14.7.1996 will be given protection subject to the conditions specified therein. Besides all aided school teachers who were appointed against regular vacancies during 1996-97 upto 14.7.1997 will also be given protection. 2(ii) Orders in para 2 (1) of the G.O. read as second paper above stands modified to the above extent. By order of the Governor, K.Nalini Additional Secretary to Government 20. By the Government order dated 26.7.1999, which was clarified by Government order dated 29.9.1999, the teacher-student ratio was revised from 1:45 to 1:40 for the academic year 1999-2000 also. This state of affairs continued in the succeeding academic years also and it was in the meanwhile that G.O.(P)No.178/2002/G.Edn. dated 28.6.2002 was issued inter alia stipulating that teachers retained under the 1:40 ratio shall also be considered as protected and deployed as per the guidelines stated therein. Later, the Government issued G.O(P)No.403/2002/G.Edn. dated 4.12.2002 modifying the Government order dated 28.6.2002 and it was stipulated that the teacher-student ratio 1:40 shall be continued for the academic year 2002-03 also for the limited purpose of retaining teachers who are enjoying the same benefits during the last year instead of treating them as protected teachers. The revision of the teacher student ratio from 1:45 to 1:40 was not extended for the year 2003-04 and beyond and the Government also issued G.O.(P)No.338/04/G.Edn. dated 10.11.2004 to the effect that the benefit of the ratio need not be granted as a never ending one, as a matter of policy. The Government accordingly ordered that the Government order dated 26.7.1999 cannot be treated as a standing order. G.O.(P)No.338/04/ G.Edn. dated 10.11.2004 is extracted below:- GOVERNMENT OF KERALA Abstract General Education - Aided - Protection to Aided School Teachers - Clarification - Further orders issued. GENERAL EDUCATION (J) DEPARTMENT G.O.(P)338/04/G.Edn. Thiruvananthapuram, Dated 10.11.04 Read:- 1. GO(P) 175/99/G.Edn. dated 26.7.1999. 2. G.O(MS) 240/00/G.Edn; dated 24.7.2000. ORDER In para 3 of the Government Order read as first paper above Government have further ordered that the teacher student ratio would be revised from 1:45 to 1:40 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 will be created on this account. In para 4 of the Government Order it was also ordered that the clarifications issued subsequent to the Government Orders No.G.O(P)219/97/G.Edn. dated 20.6.97, G.O.(P)179/ 98/G.Edn. dated 4.5.98 and G.O.(MS)286/98/G.Edn. dated 21.7.98 would also prevail mutatis mutandis. In para 1(i) of the Government Order read as second paper above Government clarified inter alia that the orders contained in para 3 and 4 of G.O.(P)175/99/G.Edn. dated 26.7.99 are issued as Standing orders. 1:40 teacher student ratio was permitted during 2002- 2003 only for the retention of those teachers who enjoyed the benefits during the academic year 2001-2002. It was not extended for the year 2003.2004 and beyond. This ratio was introduced as a matter of policy only to retain those who were affected by specific problems of division fall during the limited period, as a concession granted in addition to the benefit of protection envisaged in the existing Government Orders. On detailed examination Government now feel that the benefit of the ratio need not be granted as a never ending one as a matter of policy and as such the order contained in para 3 & 4 of G.O(P)175/99/G.Edn. dated 26.7.99 cannot be treated as standing orders. Hence Government order that para 1(i) of G.O.(MS)No.240/2000/ G.Edn. dated 24.7.2000 is deleted with prospective effect. The Educational Officers will revise the staff fixation accordingly. By Order of the Governor Secretary to Government." 21. It appears the Director of Public Instruction entertained a doubt as to whether teachers who are rendered surplus on account of fall in division as on 15.7.2004 can be accommodated and retained in their parent schools applying the 1:40 ratio in view of the stipulations in G.O.(P)No.240/2000/G.Edn. dated 24.7.2000. The Government thereupon issued circular No.1/J2/2005/G.Edn. dated 27.1.2005 clarifying that teachers rendered surplus due to fall in division as on 15.7.2004 shall also be accommodated and retained in their parent aided schools applying the 1:40 teacher-student ratio. The circular dated 27.1.2005 is extracted below:- "GOVERNMENT OF KERALA General Education (J) Department. No.1/J2/2005/G.Edn. Thiruvananthapuram, Dated 27.1.2005 Sub: General Education - Aided Schools - Protection to Aided School Teachers - Clarification issued - Reg. Ref: (1) G.O(P)No.175/99/G.Edn. dated 26.7.1999 (2) G.O.(MS)No.240/2000/G.Edn. dated 24.7.2000 (3) G.O.(P)No.338/2004/G.Edn. dated 10.11.2004. (4) Letter No.H1/99505/04/DPI dated 15.12.2004 from the Director of Public Instruction, Tvpm. In para 3 of the Government Order read as first paper above, Government have ordered that the teacher student ratio would be revised from 1:45 to 1:40 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 will be created on this account. In para 1(i) of the Government Order read as second paper above, Government clarified inter alia that the orders contained in paras 3 and 4 of G.O.(P)175/99/G.Edn. dated 26.7.1999 are issued as standing orders. As per G.O. read as third paper above, Government ordered that para 1(i) of G.O.(MS)No.240/2000/G.Edn. dated 24.7.2000 is deleted with prospective effect since the benefit of the 1:40 teacher student ratio was introduced only to retain those who were affected by specific problems f division fall during the limited period and hence need not be granted as a never ending one as a matter of policy. In the letter read as fourth paper above, the DPI has raised a doubt as to whether "the teachers rendered surplus due to fall in division as on 15.7.2004, shall be accommodated and retained in their parent Aided School applying 1:40 ratio, since the para 1(1) of G.O. dated 24.7.2000 has effect upto 9.11.2004". In the circumstances, Government hereby clarify that the teachers rendered surplus due to fall in division as on 15.7.2004 shall be accommodated and retained in their parent Aided School applying 1:40 teacher student ratio. Additional Secretary to Govt." 22. While matters stood thus, a question arose before this Court as to whether only those teachers who were retained in their parent schools applying the teacher-student ratio of 1:40 during the academic year 2001-02 will be entitled to the benefit of retention applying the ratio during the academic year 2002-03 and thereafter. Interpreting the provisions contained in G.O.(P)No.175/99/G.Edn. dated 26.7.1999 and G.O.(MS)No.240/2000/G.Edn. dated 24.7.2000, a learned single Judge of this Court held in Praveen v. State of Kerala, 2004 (3) KLT 68 that so long as the said Government orders are in force, for the purpose of accommodating teachers in aided schools every year, who will be rendered surplus if the 1:45 ratio is applied, the 1:40 ratio has to be applied. The learned single Judge held that so long as standing orders are in force, the invocation of 1:40 ratio every year for the purpose of accommodating the surplus teachers cannot be restricted to a particular group. Pursuant to the said judgment, the Government issued circular No.11/J2/2005/G.Edn. dated 2.5.2005 clarifying that the benefit of the 1:40 ratio may be given in eligible cases during the year 2002-03 without observing the restriction imposed in para 2(iii) of G.O.(Ms)No.403/02/G.Edn. dated 4.12.2002, that the benefit may be given in eligible cases during the year 2003-04, that in respect of cases relating to the year 2004-05, the clarification issued in the circular dated 27.1.2005 will be followed and that the benefit of the 1:40 ratio will not be available from the year 2005-06 onwards under any circumstance. The circular dated 2.5.2005 is extracted below:- GOVERNMENT OF KERALA No.11/J2/2005/G.Edn. General Education (J) Department Thiruvananthapuram, Dated: 2.5.2005 CIRCULAR Sub:General Education - Aided Schools - Protection to Aided School Teachers - 1:40 ratio - Clarification issued - reg. Ref:1. G.O.(P)No.175/99/G.Edn. dated 26.7.99. 2. G.O.(MS)No.240/2000/G.Edn. dated 24.7.2000. 3. G.O.(P)No.403/2002/G.Edn. dated 4.12.2002. 4. Common judgment dated 30.7.2004 in W.P.(C)Nos. 25631, 38080 of 2003 and 17209 of 2004 in the Hon'ble High Court. 5. G.O.(P)No.338/2004/G.Edn. dated 10.11.2004. 6. Circular No.1/J2/2005/G.Edn. dated 27.1.2005. As per the Government Order first cited, Government have ordered that the teacher student ratio would be revised from 1:45 to 1:40 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 will be created on this account. Later, as per para 1(i) of the Government Order second cited, Government inter alia clarified that the orders contained in paras 3 and 4 of the Government Order first cited are issued as standing orders. However, as per the G.O. third cited, orders were issued restricting the above benefit to only those who had enjoyed the benefit during the previous year. As a result, in certain cases, seniors were thrown out while juniors benefited and a series of Writ Petitions were filed in the High Court in the matter. One of the cardinal observations of the Hon'ble High Court in its common judgment fourth cited is that "so long as the standing orders are in force, the invocation of 1:40 ratio every year for the purpose of accommodating the surplus teachers cannot be restricted to a particular group. Subsequently as per G.O. fifth cited, Government ordered that para 1(i) of G.O.(MS)No.240/2000/G.Edn. dated 24.7.2000 was deleted with prospective effect since the benefit of the 1:40 teacher student ratio was introduced only to retain those who were affected by specific problems of division fall during the limited period and hence need not be granted as a never ending one as a matter of policy. In the Circular 6th cited Government have clarified that the teachers rendered surplus due to fall in division as on 15.7.2004 shall be accommodated and retained in their parent Aided School applying 1:40 teacher student ratio. In the light of the above, Government reviewed the entire issue in detail and have found that a further clarification is necessary in certain aspects. Government therefore, issue the following clarification. 1. The benefit of 1:40 ratio may be given in eligible cases during the year 2002-03 without observing the restriction imposed in para 2(iii) of G.O.(MS) 403/02/G.Edn. dtd. 4.12.2002. 2. The benefit may be given in eligible cases during the year 2003-04. 3. In respect of cases relating to the year 2004-05, the clarification issued in circular sixth cited will be followed. 4. The benefit of 1:40 ratio will not be available from the year 2005-06 onwards under any circumstances. Sajen Peter Secretary to Government. 23. Though the Government had in the circular dated 2.5.2005 extracted above ordered that the benefit of the revised teacher- student ratio of 1:40 will not be available from the year 2005-06 onwards under any circumstance, by G.O.(P) No.318/05/G.Edn. dated 17.8.2005 the Government ordered that the benefit of the 1:40 teacher student ratio will be extended to the academic year 2005-06 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 will be sanctioned. The Government order dated 17.8.2005 is extracted below: GOVERNMENT OF KERALA Abstract General Education - Aided Schools - Benefit of 1:40 teacher- student ratio-Extended to the academic year 2005-06- Orders issued. General Education (J) Department G.O.(P)No.318/2005/G.Edn. Dated, Thiruvananthapuram, 17.8.2005 Read:- 1. G.O.(P)No.175/99/G.Edn. Dated 26.7.1999 2. G.O.(P)No.403/2002/G.Edn. Dated 4.12.2002 3. G.O.(P)No.338/2004/G.Edn. Dated 10.11.2004 4. Circular No.11/J2/2005/G.Edn. Dated 2.5.2005 ORDER In the order read as first paper above, Government had ordered that the teacher-student ratio would be revised from 1:45 to 1:40 in the schools affected by the specific problem of division fall for the limited purpose of accommodating the teachers rendered surplus for the year 1999-2000. Later the benefit was extended up to the academic year 2004-05, with the specific condition that it would not be allowed from the academic year 2005-06 onwards-vide circular read as fourth paper above. 2. But Government have been receiving representations from various quarters to extend the benefit of 1:40 ration to the academic year 2005-06 also. It has also come to the notice of the Government that the pupils strength in schools is in a declining trend due to various reasons including a declining birth rate. As a result, the teachers who are not eligible for protection are being retrenched from service. 3. In the above circumstances, after having examined the various aspects of the issue, Government are pleased to order that the bandit of 1:40 teacher-student ratio will be extended to the academic year 2005-06 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 will be created on this account. (By Order of the Governor) P.J.THOMAS Principal Secretary to Government. 24. Later, by G.O.(P) No.244/2006/G.Edn. dated 16.9.2006 the benefit of the 1:40 teacher student ratio was extended for the academic year 2006-07 also as a special case, in 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 will be sanctioned. G.O.(P) No.244/2006/G.Edn. dated 16.9.2006 is extracted below: GOVERNMENT OF KERALA Abstract General Education - Aided Schools - Benefit of 1:40 Teacher Student Ratio Extended to the academic year 2006-07 Orders issued. General Education (J) Department G.O.(P)No.244/2006/G.Edn. Dated, Thiruvananthapuram, 16.9.2006 Read:- 1. G.O.(P)No.175/99/G.Edn. Dated 26.7.1999 2. G.O.(P)No.338/2004/G.Edn. Dated 10.11.2004 3. Circular No.11/J2/2005/G.Edn. Dated 2.5.2005 4. G.O.(P) No.318/05/G.Edn. Dated 17.8.2005 ORDER In the order read as first paper above, Government had ordered that the teacher student ratio would be revised from 1:45 to 1:40 in the schools affected by the specific problem of division fall for the limited purpose of accommodating the teachers rendered surplus for the year 1999-2000. Since then this benefit has been extended every year by specific orders, the last of such order is read as fourth paper above by which the benefit of 1:40 ratio was allowed for the year 2005-06. 2. Government have been receiving representations from various quarters requesting to extend the benefit of 1:40 ratio to the academic year 2006-07 also. 3. In the above circumstances, Government have examined the request in detail and are pleased to order that the benefit of 1:40 teacher-student ratio will be extended to the academic year 2006-07 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 will be created on this account. The Educational Officers will revise the staff fixation orders accordingly wherever found necessary. 4. The DPI will furnish to Government the details of fixation made under 1:40 ratio in the State for the last three years forth with for scrutiny. (By Order of the Governor) K.J.Mathew Principal Secretary to Government. 25. Later, by G.O.(P) No.176/07/G. Edn dated 4.10.2007, the said benefit was extended to the academic year 2007-08 also as a special case, in 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 will be sanctioned. G.O. (P) No.176/07/G. Edn dated 4.10.2007 is extracted below: GOVERNMENT OF KERALA Abstract General Education - Aided Schools - Benefit of 1:40 teacher- student ratio-Extended to the academic year 2006-07 orders issued. General Education (J) Department G.O.(P)No.176/2007/G.Edn. Dated, Thiruvananthapuram, 4.10.2007 Read:- 1. G.O.(P)No.219/97/G.Edn. Dated 20.6.1997 2. Circular No.9679/J2/99/G.Edn.24.3.1999 3. G.O.(P)No.175/99/G.Edn. Dated 26.7.1999 4. G.O.(MS)No.240/2000/G.Edn.dated 24.7.2000 5. G.O.(P)No.338/2004/G.Edn. Dated 10.11.2004 6. Circular No.11/J2/2005/G.Edn. Dated 2.5.2005 7. G.O.(P) No.318/05/G.Edn. Dated 17.8.2005 8. G.O.(P) No.244/06/G.Edn. Dated 16.9.2006 ORDER In the order read as first paper above, Government had ordered that the teacher-student ratio would be revised from 1:45 to 1:40 in the schools affected by the specific problem of division fall for the limited purpose of accommodating the teachers rendered surplus for the year 1997-98. Since then this benefit has been extended every year by specific orders, the last of such order is read as eighth paper above, by which the benefit of 1:40 ratio was allowed for the year 2006-07. 2. Government have receiving representations from quarters requesting to extend the benefit of 1:40 ratio to the academic year 2007-08 also. 3. In the above circumstances, Government have examining the case in detail and are pleased to order that the benefit of 1:40 teacher-student ratio will be extended to the academic year 2007- 08 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 will be created on this account. The Educational Officers will revise the staff fixation orders accordingly wherever found necessary. (By Order of the Governor) G.P.RAMACHANDRAN Additional Secretary to Government. 26. Later, by G.O.(P) No.167/2008/G.Edn dated 20.9.2008, the benefit of the 1:40 teacher student ratio was extended to the academic year 2008-09 also as a special case, in 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 will be sanctioned. The Government order dated 20.9.2008 is extracted below: GOVERNMENT OF KERALA Abstract General Education - Aided Schools - Staff fixation - Benefit of 1:40 Teacher- Student Ratio extended to the Academic Year 2008- 2009-Orders issued. General Education (J) Department G.O.(P)No.167/2008/G.Edn. Dated, Thiruvananthapuram, 20.9.2008 Read:- 1. G.O.(P)No.219/97/G.Edn. Dated 20.6.1997 2. Circular No.9679/J2/99/G.Edn.24.3.1999 3. G.O.(P)No.175/99/G.Edn. Dated 26.7.1999 4. G.O.(MS)No.240/2000/G.Edn.dated 24.7.2000 5. G.O.(P)No.338/2004/G.Edn. Dated 10.11.2004 6. Circular No.11/J2/2005/G.Edn. Dated 2.5.2005 7. G.O.(P) No.318/05/G.Edn. Dated 17.8.2005 8. G.O.(P) No.244/06/G.Edn. Dated 16.9.2006 9. G.O.(P) No.176/07/G.Edn. Dated 4.10.2007 10. G.O.(P) No.207/07/G.Edn. Dated 10.12.2007 O R D E R In the order read as first paper above, Government had ordered that the teacher-student ratio would be revised from 1:45 to 1:40 in the schools affected by the specific problem of division fall for the limited purpose of accommodating the teachers rendered surplus for the year 1997-98. Since then this benefit has been extended every year by specific orders. As per Government order read as 9th &10th papers above, the above benefit was extended for the year 2007-08 also. 2. Representations from various quarters have been receiving requesting to extend the benefit of 1:40 ratio to the academic year 2008-09 also. 3. Government after examining the case in detail are pleased to order that the benefit of 1:40 teacher-student ratio will be extended to the academic year 2008-09 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 will be created on this account. The Educational Officers will revise the staff fixation orders accordingly wherever found necessary. 4. Government are pleased to extend the benefit of 1:40 teacher-student ratio to the Specialist Teachers also during the Academic year 2008-09 as a special case, for the limited purpose of allowing 10% reduction from the mandatory required number of students, so as to retain those regular Specialist Teachers who are rendered surplus due to division fall, subject to the condition that no posts will be created on this account. (By Order of the Governor) ELSAMMA PHILIP Additional Secretary to Government. 27. Still later, the Government issued Ext.P2 order dated 22.8.2009 extending the benefit of the 1:40 teacher-student ratio for the academic year 2009-10 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 will be sanctioned. It was before Ext.P2 Government order was issued that the Assistant Educational Officer issued Ext.P1 staff fixation order directing deployment of the fifth respondent as a protected teacher to a Government school and retrenchment of the petitioner from service. After Ext.P2 order was passed, in terms of the direction therein, the Assistant Educational Officer revised Ext.P1 staff fixation order and sanctioned an additional devision in Standard III for the purpose of retaining the petitioner in service. On revision filed by the fifth respondent, the Government set aside that order and held that the fifth respondent who is senior to the petitioner is entitled to be retained in the parent school applying the revised teacher student ratio of of 1:40. The short question that arises for consideration in this writ petition is whether the stand taken by the Government is sustainable having regard to the stipulations in the various Government orders and circulars referred to above. 28. It is evident from a reading of the various Government orders and circulars referred to above, especially G.O.(P) No.403/2002/G. Edn dated 4.12.2002 that a surplus teacher who is retained applying the 1:40 ratio, is a teacher who is not entitled to protection. As per the various Government orders issued from time to time, as on the date on which Ext.P2 order was issued, extending the benefit of the revised teacher student ratio of 1:40 to the academic year 2009-10 also, only those aided school teachers who were in service as on 14.7.1996 and those who were appointed as aided school teachers against regular vacancies during the academic year 1996-97 (upto 14.7.1997), were eligible for protection. It is also not in dispute that teachers appointed from 15.7.1997 onwards are not eligible for protection. It was with a view to retain the surplus teachers who are not eligible for protection that the Government issued G.O.(P) No.219/97/G. Edn dated 20.6.1997, revising the teacher-student ratio from 1:45 to 1:40. It is evident from the stipulations in G.O.(P) No.240/99/G. Edn dated 29.9.1999, that the fifth respondent who was appointed against a regular vacancy during the academic year 1996- 97 and has approved continuous service with effect from 2.6.1997 is a teacher who is eligible for protection in terms thereof. Therefore, as a protected teacher the fifth respondent is governed by the Government orders relating to protection including G.O.(P) No.403/2002/G.Edn dated 4.12.2002. On the other hand, the petitioner who has continuous approved service only from 1.6.1999 and is not a protected teacher, cannot claim any benefit under the Government orders granting protection to aided school teachers who are rendered surplus in their parent institution. 29. The various Government orders referred to above make it evident that the teacher student ratio was revised only for the purpose of accommodating in their parent schools, those aided school teachers appointed after 14.7.1997 who are not eligible for protection. When the teacher-student ratio was first revised from 1:45 to 1:40 by G.O. (P) No.219/97/G.Edn dated 20.6.1997, aided school teachers who were in service on 14.7.1996 were not entitled to protection. Initially, only those aided school teachers, who had been appointed prior to 1.8.1984, had put in two years continuous service and had drawn two vacation salaries were entitled for protection. Aided school teachers appointed after 1.8.1994 were not entitled for protection (vide G.O. (Ms)No.104/69/Edn. dated 6.3.1969 and related Government orders). Organizations of aided school teachers moved the Government seeking protection benefits to teachers appointed after 1.8.1994 also. The Government thereupon constituted a committee consisting of the Chief Secretary, Commissioner and Secretary, Finance Department and Secretary, General Education Department to make an indepth study of the issue and to make recommendations. The said committee, after conducting a study of the issue, submitted a report. The Government after studying the report of the committee issued G.O.(Ms) No.60/96/G.Edn. dated 15.2.1996 whereby the Government ordered that protection will be given to those aided school teachers who are retrenched due to division fall after completing seven years of service on or before 15.7.1995. The Government also directed that protected teachers will be deployed in the manner indicated therein. Aided school teachers appointed after 1.8.1984 became eligible for protection only when the Government order dated 15.2.1986 was issued. It was stipulated therein that the benefit of protection will be available only to those teachers who have completed seven years of service on or before 15.7.1995 and are retrenched due to division fall. Thereafter, by order dated 8.11.1996, the Government directed that aided school teachers rendered surplus consequent on division fall during the staff fixation for the academic year 1996-97 will be retained as such in service provisionally and the status quo as on 14.7.1996 maintained for all purposes till the end of the academic year 1996-97. Aided school teachers who were in service as on 14.7.1996 became eligible for protection when G.O.(P)No.175/99/G.Edn dated 26.7.1999 was issued. Aided school teachers appointed upto 14.7.1997 became eligible for protection when G.O.(P) No.240/99/G.Edn. dated 29.9.1999 was issued. Teachers appointed after 14.7.1997 are not eligible for protection. However, even after G.O.(P) No.240/99/G.Edn. dated 29.9.1999 was issued the Government was periodically extending the benefit of the revised teacher-student ratio 1:40 in the succeeding academic years as well. It is thus evident from the Government orders issued after G.O.(P) No.240/99/G.Edn. dated 29.9.1999 that the revised teacher-student ratio was followed for the purpose of accommodating teachers who are not eligible for protection. With the issuance of the Government orders dated 26.7.1999 and 29.9.1999, teachers like the fifth respondent became eligible for the benefit of protection, thereby taking them out of the category of surplus teachers for whose benefit the teacher student ratio was revised from 1:45 to 1:40. The stand taken by the Government in Ext.P7 impugned order that as the fifth respondent is senior to the petitioner, the petitioner is to be retrenched first and the fifth respondent is entitled to be retained in the parent school, cannot in my opinion be sustained having regard to the purpose underlying the revision of the teacher student ratio. 30. In the instant case, though the petitioner was initially thrown out of service in view of Ext.P1 staff fixation order, she being the junior most teacher, by Ext.P3, the petitioner was retained in the parent school applying Ext.P2 Government order. By Ext.P1 order, the fifth respondent who was admittedly senior and is a protected teacher was deployed to a Government school. Therefore, as the fifth respondent was not retrenched, rule 51 of Chapter XIV-A of the KER cannot be said to have been violated. In my opinion, the Government misdirected itself in applying rule 51 of Chapter XIV-A of the KER and allowing the revision petition filed by the fifth respondent, when the real question before it was whether being a teacher eligible for protection, she can claim the benefit of the Government orders revising the teacher-student ratio from 1:45 to 1:40. I am therefore of the considered opinion that Ext.P7 Government order is liable to be set aside and the decision taken by the Deputy Director of Education, evidenced by Ext.P4 is liable to be restored. 31. The view that I have taken finds support in the unreported decision of a learned single Judge of this Court in W.P.(C) No.32381 of 2010. The petitioner in that writ petition was appointed as Lower Primary School Assistant in an aided lower primary school on 13.9.1990. When the staff fixation order for the year 2008-2009 was issued on 29.7.2008 he was found surplus and liable to be deployed in terms of G.O.(P) No.175/99/G.Edn. dated 26.7.1999 as and when the order of deployment is issued by the Deputy Director of Education, Palakkad. He thereupon filed W.P.(C) No.28978 of 2008 in this Court challenging the deployment. He contended that in view of G.O.(P) No.175/99/G.Edn dated 26.7.1999, he is entitled to be retained in the same school. Reliance was placed on paragraph 2 of the aforesaid Government order wherein it was stipulated that all aided school teachers who were in service as on 14.7.1996 will be given protection by retaining them in their respective schools subject to the conditions enumerated therein. The respondents therein contended that in view of the later Government orders, the said claim is untenable. By virtue of the interim orders passed in the writ petition the petitioner was retained in the school during the academic year 2008-09. W.P.(C) No.28978 of 2008 was disposed of on 10.7.2009 with a direction to the Assistant Educational Officer to examine the matter and pass appropriate orders while finalising the staff fixation for the academic year 2009-10. The Assistant Educational Officer thereupon sent a letter dated 19.9.2009 to the Government. The Government in turn sent a letter dated 26.5.2010 to the Deputy Director of Education, Palakkad and the Assistant Educational Officer, Alathur informing them that in view of the subsequent Government orders, G.O.(P) No.175/99/G.Edn. dated 26.7.1999 has no relevance and therefore, the petitioner cannot claim any special consideration. The Government directed the petitioner's deployment if he is found to be surplus when the staff fixation order for the academic year 2010-11 is issued. When the staff fixation order for the academic year 2010-11 was issued on 4.9.2010 the petitioner was found to be surplus and directed to be deployed in terms of the direction contained in the Government letter dated 26.5.2010. He thereupon filed W.P.(C) No.32381 of 2010 in this Court wherein relying on G.O.(P)No.175/1999/G.Edn dated 26.7.1999, he contended that he is entitled to continue in the parent school. Interpreting the aforesaid Government order, a learned single Judge of this Court held that the stipulation in the Government order dated 26.7.1999 regarding retention of surplus teachers by revising the teacher-student ratio from 1:45 to 1:40 does not apply to protected teachers. It was held that the Government order dated 26.7.1999 does not provide for retaining surplus teachers who are entitled to protection, in the same school and that the petitioner, who is a protected teacher cannot be retained in the school applying the teacher student ratio of 1:40. 32. From the Government orders referred to above, it is evident that the teacher student ratio was revised from 1:45 to 1:40 for the purpose of accommodating teachers who are not eligible for protection and are rendered surplus; the intention being to prevent their retrenchment. As far as teachers eligible for protection are concerned, there is no retrenchment, but only deployment to another school in terms of the various Government orders, with the right to come back to the parent school as and when the student strength increases and the post which was abolished is restored or a regular vacancy later arises. On the terms of the Government orders referred to above, which revised the teacher-student ratio from 1:45 to 1:40, it cannot be said that such revision was effected for the purpose of accommodating protected teachers in their parent schools. If such a view is taken, the purpose for which G.O.(P) No.403/2002/G.Edn. dated 4.12.2002 was issued will be defeated. In the said Government order it is categorically stated that teachers who are retained in service applying the ratio 1:40, should not be treated as protected teachers. I accordingly hold that the petitioner was entitled to be retained in the parent school for the year 2009-2010 applying Ext.P2 Government order. I accordingly allow the writ petition, set aside Ext.P7 order dated 15.9.2010 issued by the Government and restore Ext.P3 order passed by the Assistant Educational Officer, Cherpu. Consequently, Ext.P8 letter dated 12.10.2010 sent by the Assistant Educational Officer, Cherpu to the Headmaster of the school calling upon her to recover the salary and allowances paid to the petitioner shall stand quashed. The parties shall bear their respective costs. P.N.RAVINDRAN, JUDGE. ahg/Rkc/vpv/dk. |
W.P. (C) No. 36153 of 2010 - Rema K. Vs. State of Kerala, (2012) 261 KLR 131posted Jul 17, 2012, 11:22 PM by Law Kerala [ updated Jul 17, 2012, 11:22 PM ] |
