IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 WP(C).No. 36177 of 2005(F) -------------------------------- PETITIONER: -------------- SUNIL.T., PHYSICAL EDUCATION TEACHER, KARUNA U.P.SCHOOL, POST THENNILAPURAM, PALAKKAD DISTRICT. BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P SRI.M.V.BIPIN RESPONDENTS: ------------------ 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (K) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM 2. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. 3. THE ASSISTANT EDUCATIONAL OFFICER, ALATHUR, PALAKKAD DISTRICT. 4. THE HEADMASTER, KARUNA U.P.SCHOOL, POST THENNILAPURAM, PALAKKAD DISTRICT. 5. THE MANAGER, KARUNA U.P.SCHOOL, POST THENNILAPURAM, PALAKKAD DISTRICT. BY SMT. NISHA BOSE, GOVERNMENT PLEADER FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.36177/2005 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF APPOINTMENT ORDER DTD. 13.12.99 ISSUED TO PETITIONER. EXT. P2 : COPY OF JUDGMENT DTD. 9.10.01 PASSED IN O.P.30025/01 ON THE FILE OF THIS COURT. EXT. P3 : COPY OF G.O.(MS) No.307/04/G.EDN DTD. 4.10.04 ISSUED BY GOVT. EXT. P4 : COPY OF ORDER DTD. 23.12.04 No.C.4369/04(1)/K.DIS PASSED BY R3. EXT. P5 : COPY OF AUDIT REPORT/OBJECTION AND THE REPORT OF RESPONDENTS 4 AND 5. EXT. P6 : COPY OF NOTICE DTD. 22.9.05 ISSUED BY R3. EXT. P7 : COPY OF ATTENDANCE REGISTERS FOR THE MONTH OF FEBRUARY 2000, MARCH 2000, JUNE 2004 AND SEPTEMBER 2004 OF KARUNA U.P. SCHOOL, THENNILAPURAM. 2ND RESPONDENT'S EXHIBITS: EXT. R2(a) : COPY OF LETTER OF R5 TO R3 MAKING THIS APPOINTMENT. EXT. R2(b) : COPY OF APPOINTMENT ORDER OF R5. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.36177 OF 2005 --------------------------------------- Dated this the 25th day of August, 2011. J U D G M E N T The audit objection raised against the approval of appointment of the petitioner is the subject matter of this writ petition. The petitioner was appointed as Physical Education Teacher in the Karuna U.P. School, Thennilapuram in Palakkad District. One Sri.G.Gopalakrishnan was working as Physical Education Teacher in the school and he retired on 30.04.1999. Anticipating sanction of the post of Physical Education Teacher, the petitioner was appointed on 13.12.1999. The post held by Sri.Gopalakrishnan itself was abolished as per Rule 6B(2) of Chapter XXIII of Kerala Education Rules. The appointment of the petitioner was not approved as no sanctioned post was there. 2. It appears that the Government by order dated 06.04.2000 namely, G.O.(MS) No.113/2000/G.Edn. regularised the appointment of 54 Physical Education Teachers of different schools on compassionate grounds after relaxing the rules. This W.P.(C) No.36177/2005 2 prompted the petitioner and several other similarly placed teachers to approach the Government and later this Court and the representations filed by them were directed to be disposed of. Ext.P2 is the copy of the judgment in O.P.No.30025/2001. Finally, the Government by Ext.P3 order passed a comprehensive order by which 46 supernumerary posts were created in different schools and accordingly, the petitioner was granted approval. Ext.P4 is the revised staff pattern fixed in the school wherein the post of Physical Education Teacher is included. He was drawing salary after the approval. 3. The audit objection raised by 2nd respondent is evident from Ext.P5. What is raised therein as an objection is that the former appointee was holding the post as part time. Accordingly, it is pointed out that the approval of appointment of the petitioner as full time Physical Education Teacher is held under objection. Subsequently, a communication was issued by the Assistant Educational Officer withholding the salary of the petitioner from 01.09.2005. 4. The respondents 2 and 3 have filed counter affidavits and the petitioner has filed a reply affidavit. Apparently, in W.P.(C) No.36177/2005 3 support of the audit objection, it is pointed out in the counter affidavit that initially the appointment of the petitioner as part time Physical Education Teacher was rejected by the 3rd respondent stating that there is no sanctioned post of part time Physical Education Teacher to appoint the appointee. It is averred that later the Government by G.O.(MS) No.307/04/G.Edn dated 04.10.2004 relaxed the rules and directed to create supernumerary posts and approve the 46 Physical Education Teachers who continued in service without any authority. 5. The question therefore turns on the scope of Ext.P3 itself. A reading of Ext.P3 order in terms of the statutory rules under Chapter XXIII KER is therefore required. First I will consider the relevant rules namely, Rules 6B(1), 6B(2) and 7 of Chapter XXIII KER. Going by Rule 6B(1), no post of Specialist Teacher or Craft Teacher shall be allowed to continue in any Upper Primary School or Upper Primary Section of a High School except for the continuance of the qualified teachers who were actually holding the said post on the 6th day of March, 1979. Rule 6B(2) reads as follows: W.P.(C) No.36177/2005 4 “Notwithstanding anything contained in Rule 7 or any other rule in this Chapter no post of Specialist Teacher shall be allowed to continue in any Upper Primary School or Upper Primary Section of High School except as specified herein: (a) One post of Specialist Teacher namely Music Teacher or Physical Education Teacher or Drawing Teacher or Sewing Teacher as decided by the Educational Officer concerned during staff fixation in the case of Departmental Schools and as required by the Manager in the case of Aided Schools will be sanctioned in each Upper Primary School or Upper Primary Section of a High School having an effective strength of 500 pupils and above in the complete Upper Primary Section on the 6th working day of each academic year. (b) No post of Specialist Teacher shall be sanctioned in any category under Clause (a) if a Specialist Teacher is already working in the Upper Primary School or Upper Primary Section of the High School: Provided that a post of Sewing Teacher shall be sanctioned only subject to the condition that there are not less than 200 girl pupils in the complete Upper Primary Section”. 6. Rule 7 provides the method by which a full time or part time post can be created. If it is less than 15 period of work per week, it will be a part time post. 7. A reading of Ext.P3 shows that the order was passed in W.P.(C) No.36177/2005 5 relaxation of the rules to create the required number of posts namely, 46. It is mentioned in paragraph 1 therein that the appointments were irregular without any scope for approval as per Rule 6B(2) of Kerala Education Rules. Teachers had filed declarations that they will not claim any retrospective effect for approval. Paragraph 2 states as follows: “The Government examined their request in consultation with the Director of Public Instruction and for complying the directions contained in the High Court judgments and considering the importance of Physical Education in schools, Government are pleased to approve the appointment of 46 Physical Education Teachers as per details given in the Annexure to the Government Order prospectively”. 8. The conditions have also been provided in the order and finally it is provided in paragraph 3 which is extracted below. “The supernumerary posts are created purely to accommodate these persons and the posts will cease to exit when vacated by the incumbents for whom the posts are created. AS the creation of posts is in relaxation of rules and purely to comply with the Court directions in the various Writ Petitions read above, this order will not be quoted as a precedent”. W.P.(C) No.36177/2005 6 9. Significantly the creation of the 46 posts is not conditioned by the number of periods to make any of them part time since it is ordered in relaxation of the Rules. Evidently, the Government has created the posts in relaxation of Rule 6B(2) quoted above. In that view of the matter, the creation of the post is by relaxation of the conditions provided in Rule 6B(2) read with Rule 7. The non obstante clause in sub rule 2 is also important to be noticed. 10. What is argued by the learned Government Pleader is that the former teacher was only a part time Physical Education Teacher and therefore, the appointment of the petitioner is in continuation of it. Evidently, going by Rule 6B(1), the retiree got protection to continue till his date of retirement. There was a statutory bar for appointing anybody. The right of the petitioner for appointment emanates by creation of post as per Ext.P3 itself. 11. It is not a case where the Government has restored the earlier post i.e. part time post in which Sri.Gopalakrishnan was working. Only prospective effect was given as a one time measure, and not to treat it as a precedent. It can be seen that the audit objection was in the light of the nature of the post held W.P.(C) No.36177/2005 7 by Sri.Gopalakrishnan. The same was relevant only if the approval ordered was in the retirement vacancy. Consequent on his retirement, the post held by him was abolished already. 12. Whatever rights the petitioner has procured under Ext.P3 cannot be whittled down by the audit objection. The Government is having ample power to create posts in relaxation of the rules and it is general order issued as a one time measure and that also without any retrospective effect for approval of the appointment. (The power under Rule 1(3) of Chapter I KER is evidently exercised). The said benefit alone has been granted to the petitioner also and the appointment was already approved before the audit objection was raised. The audit objection cannot survive at all in the light of the plain terms of Ext.P3. 13. For all these reasons, I find that the petitioner is entitled to succeed in the writ petition. When the posts have been created as supernumerary, evidently second post of Specialist Teacher has been created, by relaxing the rules. If that be so, it cannot be said to be a revival of the post held by the retiree as noticed already. W.P.(C) No.36177/2005 8 In the light of the above, Exts.P5 and P6 are quashed. The amount of salary and allowances which have been withheld will be released to the petitioner within a period of two months from the date of receipt of a copy of this judgment viz along with all the arrears. This writ petition is allowed as above. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp