Teachers under the 1:40 ratio can only be adjusted to regular vacancies, distinguishing these from leave vacancies, which should be filled based on prior incumbency rights.

J U D G M E N T

The petitioner was appointed as an Upper Primary School Assistant [UPSA] in the School under the management of the 5th respondent, in various spells from 1997 to 2009, against leave vacancies. It is not in dispute that the appointment of the petitioner in these various spells were also approved by the educational authorities. With effect from 5.6.2010, the petitioner was appointed as an UPSA in a leave vacancy pursuant to the extension of leave by the regular incumbent. The said appointment of the petitioner was not initially approved by the educational authorities, on the ground that in the staff fixation for the academic year 2010-11 against the 21 posts of UPSA that were sanctioned in the earlier academic year, there was a division fall noticed, and accordingly, three posts of UPSA became excess and the teachers concerned liable for retrenchment. By the application of 1:40 ratio, the three posts of UPSA were retained in the School. Thus, there were 18 regular posts of UPSA and 3 posts of UPSA that were retained by application of the 1:40 ratio. It would appear that, during the academic year, two vacancies occurred, namely, one consequent to the promotion of Smt. Jessy Joseph to a leave vacancy in the cadre of HSA, and the second consequent to the removal of Sri. Sajan Davis, who was working as a UPSA. When the petitioner approached the educational authorities for approval of her appointment with effect from 5.6.2010, in the vacancy that arose consequent to the promotion of Smt. Jessy Joseph, the same was initially denied by the educational authorities. In a revision before the Government, however, by Ext.P9 order, it was found that inasmuch as the promotion of Smt. Jessy Joseph had obtained the approval from the educational authorities, and consequent to the removal of Sri. Sajan Davis from service, two teachers from out of the three, who were continued by application of the 1:40 ratio, could be adjusted to the two vacancies aforementioned, the petitioner's case could be considered for retention under the 1:40 ratio if she was otherwise eligible. Pursuant to Ext.P9 order, and consequent to the inaction on the part of the District Educational Officer in complying with the directions in Ext.P9 order, the petitioner approached this Court through W.P.(C).No.22712/2013, wherein, a direction was given to the Government to consider the case of the petitioner again. This time around, by Ext.P12 order, the Government found that while it was permissible to adjust two of the three teachers retained under 1:40 ratio, against the vacancies that arose consequent to the promotion of Smt. Jessy Joseph and the removal of Sri. Sajan Davis, there was yet another UPSA, who was senior to the petitioner, who could claim the benefit of the protection under 1:40 ratio in respect of the third post that was directed to be retained. On this ground, the petitioner's claim for approval of her appointment from 5.6.2010 was rejected. In the writ petition, Ext.P12 order of the Government is impugned.

2. A counter affidavit has been filed on behalf of the 4th respondent, wherein, Ext.P12 order is sought to be justified on the grounds stated therein.

3. I have heard the learned counsel for the petitioner as also the learned Government Pleader for the official respondents.

On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that in the School in question, for the academic year 2010-11, there were 18 regular posts of UPSA that was sanctioned, and over and in addition to this, there were three posts of UPSA that were continued based on the application of 1:40 ratio so as to protect the teachers who otherwise faced retrenchment. During the academic year in question, there arose two vacancies in the School, one, consequent to the promotion of Smt. Jessy Joseph as High School Assistant [HSA] (Physical Science) for the period from 5.6.2010 to 4.1.2014 against a leave vacancy in the cadre