IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 23RD OCTOBER 2009 / 1ST KARTHIKA 1931 WP(C).No. 37945 of 2008(P) -------------------------------------- PETITIONER(S): ---------------------- G. SREEKUMAR, S/O.R. GOPALAKRISHNAN NAIR (LATE), AGED 33 YEARS, DRAWING TEACHER, MAHATMA HIGH SCHOOL FOR BOYS CHENNITHALA, MAVELIKKARA, ALAPPUZHA DISTRICT. BY ADV. MR.V.A.MUHAMMED MR.K.E.HAMZA RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA DISTRICT. 4. THE DISTRICT EDUCATIONAL OFFICER, MAVELIKKARA, ALAPPUZHA DISTRICT. 5. THE MANAGER, MAHATMA HIGH SCHOOL FOR BOYS, CHENNITHALA, MAVELIKKARA, ALAPPUZHA DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER SMT.M.R. SREELATHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 37945/2008-P APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE G.O.(RT)NO.807/91/G.EDN. OF THE GOVERNMENT. EXT.P2: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN O.P. NO. 6518/1997-A. EXT.P3: COPY OF THE STAFF FIXATION ORDER NO.B4/4964/D.DIS 2006 OF THE DIST. EDL. OFFICER. EXT.P4: COPY OF THE ORDER NO.B3/26750/06/K.DIS. OF THE DEPUTY DIRECTOR OF EDUCATION. EXT.P5: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN O.P. NO. 11107/1994. EXT.P6: COPY OF THE ORDER NO.D.DIS.19646/07/RA(1)/DPI OF THE 2ND RESPONDENT. EXT.P7: COPY OF THE ORDER NO.40847/K1/07/G.EDN. OF THE GOVERNMENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.37945/2008-P ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 23rd day of October, 2009 J U D G M E N T The petitioner herein was appointed as a drawing teacher from 19/12/2002 in the Mahatma High School for Boys, Chennithala in Mavelikkara. The said appointment was approved by the Department. He is aggrieved by the orders Exts.P4, P6 and P7 which resulted in denial of continuance of the post and payment of salary and allowances from 01/03/2007. 2. In 2005-06, while fixing the staff strength the petitioner was allowed to continue by application of 1:40 teacher-students ratio. In 2006- 07 academic year, the District Educational Officer sanctioned 3 divisions in Std.VIII, 4 in Std.IX and 3 in Std.X and as per the proceedings dated 30/09/2006, the District Educational Officer sanctioned one post of drawing teacher as was sanctioned in the previous year. This is evident by Ext.P3. But by Ext.P4, the Deputy Director of Education, abolished the post of Drawing Teacher stating that no higher level verification was requested by the Assistant Educational Officer. Even though the Manager filed an appeal, that was also rejected by Ext.P7. W.P.(C). No.37945/2008 -:2:- 3. The learned counsel for the petitioner raised two contentions. Mainly it is pointed out that as per the staff fixation order for the academic year 2006-07, there is no additional division or additional post, therefore, no higher level verification is necessary in view of the dictum laid down in Ext.P4 judgment. The petitioner had been working in the school with a valid order of appointment which was never cancelled. Therefore, merely on the basis of the fact that no higher level verification was done, the petitioner cannot be denied salary also. 4. Apart from the same, reliance is also placed on the decision in Satheesh Kumar P. v. State of Kerala and others [2009 (3) KLT 439], wherein this Court has held while interpreting Rule 6(4)(a) of chapter XXIII KER that one post of Drawing Teacher has to be sanctioned irrespective of the number of periods of work per week in the subject. 5. The question is whether the view taken in Ext.P4 could be sustained. Rule 12 of Chapter XXIII K.E.R provides for fixation of strength of teaching staff. With regard to higher level verification, the relevant portion of the said rule states that “a further verification of strength at higher level by the District Educational Officer, in the case of fixation of strength in Lower Primary and Upper Primary Schools and by the Deputy W.P.(C). No.37945/2008 -:3:- Director (Education) in the case of High Schools shall be done wherever additional divisions or additional staff are found necessary, after the one day verification conducted by the Educational Officers or Officers authorised by the Director, in this regard”. As far as the respective years are concerned, it is evident that during 2005-06, the District Educational Officer sanctioned 10 divisions and one post of Drawing Teacher as per Ext.P1 and during the year 2006-07, the D.E.O sanctioned 10 divisions and one post of Drawing Teacher as per Ext.P3. One division was abolished in Std.X and one division sanctioned in Std.IX. Hence effectively there are no additional divisions. 6. I find much force in the above contention. The said position is supported by the dictum laid down in Ext.P5 judgment of this Court in O.P.No.11107/1994. Therein, it was noticed that as there was no increase in the total number of divisions sanctioned for the school for the years 1991-92 and 1992-93, by allowing the prayer of the petitioner therein for additional division for Std.VIII for the year 1992-93, held that there was no justification for the issuance of the impugned orders therein. 7. The further question is whether in the light of Rule 6(4) of Chapter XXIII K.E.R, there can be any objection for continuance of the post W.P.(C). No.37945/2008 -:4:- of Drawing Teacher. In Satheeshkumar's case [2009 (3) KLT 439], after examining the legal position, it has been held thus:- “17. Plainly, the said interpretation cannot be accepted for more reasons than one as indicated already. Going by sub-rule 4(a), one full time post of Drawing Teacher “irrespective of the number of periods of the work” has to be there. Therefore, the said argument cannot be accepted. Secondly, as already indicated, the third proviso concerns only sanctioning of a specific post of Music Teacher or a post in the Craft Group. Therefore, it is clear that the rule making authority was clearly bearing in mind the effect of sub-rules 4(a) and 4 (b) wherein one full time post of Drawing Teacher and that of Music Teacher has to be there irrespective of the number of periods. 8. Therefore, the post of drawing teacher is one which should be sanctioned in the school irrespective of the number of periods. If that be so, the entire exercise done by the Educational Officers as per Ext.P4, P6 and P7 orders cannot be supported. W.P.(C). No.37945/2008 -:5:- 9. Hence, the writ petition is allowed. Exts.P4, P6 and P7 are quashed. The staff fixation order Ext.P3 passed by the District Educational Officer will be treated as legal and valid. 10. Consequently, there will be a direction to the fourth respondent to sanction the salary and allowances to the petitioner from 01/03/2007 onwards and the arrears as on today shall be disbursed within a period of six weeks from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) ms