MALATHY AMMA Vs. DIRECTOR OF PUBLIC INSTRUCTION
HIGH COURT OF KERALA
DIRECTOR OF PUBLIC INSTRUCTION
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(1.) THE question that arises for consideration in the Original Petition is whether the 1st respondent -Director of Public Instruction after determining the requirements of subject in the matter of appointment of High School Assistants under rule 1(1)of Chapter XIV(A)of the Kerala Education Rules,1959,has the power to,issue circulars which in effect vary the subject requirements determined by him for all the schools having the same curricula of studies.The petitioner is a High School Assistant in the A.T.High School,Mankombu.The petitioner is a fully qualified High School Assistant with Chemistry and Physics as her subjects and was appointed in the school on 1st June 1966.The 3rd respondent is another High School Assistant of the same school with Botany and Zoology as her subjects and was appointed in the school on 1st July 1965.While both the petitioner and the 3rd respondent were continuing in the staff,the 2nd respondent -District Educational Officer by Ext.P -1 order dated 11th July 1972 fixed the establishment of the school for the year 1972 -73.As per Ext.P -1,only 11 posts of High School Assistants were sanctioned for the school for the year 1972 -73 in the place of 12 posts of High School Assistants that were there in the year 1971 -72.The 2nd respondent in Ext.P -1 staff fixation classified the 11 posts of High School Assistants according to subject requirements as follows: General Mathematics:4
General Science:4(Phy.Sc.2,Nat Sc.2)
In Ext.P -1,under the heading Details of Protected Staff the 2nd respondent included the name of the 3rd respondent as a High School Assistant who is to be given protection under G.O.MS.No.104/69/Edn .,dated 6th March 1969,But the grievance of the petitioner is that on 19th July 1972,the 2nd respondent issued Ext.P -3 proceedings as an erratum to Ext.P -1,staff fixation order,dated 11th July 1972.By Ext.P -3 erratum,the 2nd respondent -District Educational Officer directed to substitute the petitioner in the place of the 3rd respondent in the ˜˜details of protected staff appended to Ext.P -1 staff fixation order.
(2.) AS per Ext.P -2,circular instructions,dated 22nd April 1972 the 1st respondent insisted on new ˜subject distribution of posts ™of High School Assistants under Mathematics,Science and Social Studies.Till then,the subject requirement that was in practice was the minimum subject requirement rule by which the minimum staff required for the three core subjects of Mathematics,Science and Social Studies will be determined on the basis of the number of periods for these subjects and after satisfying the minimum subject requirements in the remaining posts of High School Assistants,teachers belonging to any of the three categories,namely,Social Studies,Mathematics and Science can be appointed.This was changed from the year 1972 -73 by Ext.P -2 circular instructions and in Ext.P -2 the Educational Officers were directed to fix the establishment for the year 1972 -73 on the basis of the new subject requirements of 3:4:5 insisted upon in Ext.P -2.It is not disputed in this Original Petition that Ext.P -1 staff fixation was issued and the subject -wise break -up of the posts of High School Assistants in the petitioner's school was given in Ext.P -1 on the basis of the subject requirements insisted upon in Ext.P -2 circular.
As,including the petitioner,there are only two High School Assistants(Physical Science)and as per Ext.P -1 there is provision for two High School Assistants(Physical Science ),the contention of the petitioner is that she cannot but be given a post in the staff for the year 1972 -73 and that it was the 3rd respondent who should be relieved because of the reduction in the number of posts of High School Assistants by one in the year 1972 -73.As per Ext.P -1 also the petitioner cannot be sent out.But the mischief was really created by Ext.R -1 circular of the 1st respondent dated 31st July 1972.In Ext.R -1 the 1st respondent has laid down that in High Schools where there was reduction in the number of divisions and consequent reduction of staff,the senior High School Assistants shall ordinarily be retained in preference to junior High School Assistants with due regard to the subject requirement that was in force previous to the introduction of the new ratio.No doubt,it is the minimum subject requirement rule that was in force till the year 1972 -73 that the 1st respondent is referring to in Ext.R -1 and as per that minimum subject requirement rule the 3rd respondent could continue in the staff in spite of the fact that in 1972 -73 only 11 posts of High School Assistants were sanctioned in the place of 12 posts that were there in the year 1971 -72.Admittedly,the 3rd respondent is senior to the petitioner in the staff of the school.The 3rd respondent has not filed any counter -affidavit in this case.The contention in the counter -affidavit filed on behalf of the 1st respondent is based on Ext.R -1 circular,dated 31st July 1972.Though it is stated in paragraph 4 of the counter -affidavit that Ext.P -3 erratum was issued by the 2nd respondent because of Ext.R -1,it may not be correct because Ext.R -1 is dated 31st July 1972 whereas Ext.P -3 erratum is dated 19th July 1972.
(3.) UNDER rule 12,Chapter XXIII of the Kerala Education Rules,1959 the 2nd respondent should finalise the staff fixation not later than the 15th of July of the year in question.So,it is doubtful whether the 2nd respondent has power to vary Ext.P -1 staff fixation by Ext.P -3 even though Ext.P -3 is styled as an erratum.But for the purpose of deciding this case I do not think it necessary to go into this question.;
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