IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 WP(C).No. 21722 of 2005(J) ------------------------------------- PETITIONER(S): ------------------------ 1. C.K. BALAN, MANAGER, RAMAVILASOM HIGHER SECONDARY SCHOOL, CHOKLI, KANNUR. 2. RANJINI. A.V., MUSIC TEACHER, PARASSANIKADAVU H.S., KANNUR. 3. CICILIAMMA THOMAS, MUSIC TEACHER, ST. JOSEPH'S H.S.S., KALLODI, MANANTHAVADY, WYANAD DISTRICT. 4. MARY T.I., DRAWING TEACHER, FR.G.K.M.H.S. KANIYARAM P.O. MANANTHAVADY, WYANAD DISTRICT. BY ADV. MR.M.VIJAYAKUMAR RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. DISTRICT EDUCATIONAL OFFICER, THALASSERY. 3. DISTRICT EDUCATIONAL OFFICER, KANNUR. 4. DISTRICT EDUCATIONAL OFFICER, WAYANAD. R1 TO R4 SR. GOVERNMENT PLEADER SMT.T.B.REMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.21722/2005 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE GOVERNMENT ORDER DTD. 28.10.95 OF IST RESPONDENT. P2:- COPY OF THE JUDGMENT IN OP. 7177/99 DTD. 16TH DAY OF JUNE 2003 HIGH COURT OF KERALA. P3:- COPY OF THE JUDGMENT IN WA. 276/04 DTD. 11.2.04 HIGH COURT OF KERALA. P4:- COPY OF THE JUDGMENT IN OP. 6331/99 DTD. 16.6.03 HIGH COURT OF KERALA. P5:- COPY OF THE JUDGMENT IN WP. 25424/03 DTD. 8.8.03 HIGH COURT OF KERALA. P6:- COPY OF THE JUDGMENT IN WPC. 27415/03 DT. 27.8.03 HIGH COURT OF KERALA. P7:- COPY OF THE JUDGMENT IN CCC. 994/04 DTD. 25.8.04 HIGH COURT OF KERALA. P8:- COPY OF THE ORDER OF IST RESPONDENT DTD. 6.8.04. P8(a):- COPY OF THE ORDER G.O.(RT) 3559/04 DTD. 13.8.04. P9:- COPY OF THE ORDER OF IST RESPONDENT. P10:- COPY OF THE ORDER OF IST RESPONDENT. P11:- COPY OF THE ORDER OF IST RESPONDENT. P12:- COPY OF THE ORDER IN G.O.(P) 253/04/G.EDN. DTD. 6.8.04 OF IST RESPONDENT. P13:- COPY OF THE ORDER OF IST RESPONDENT. P14:- COPY OF THE ORDER OF IST RESPONDENT . RESPONDENT'S EXHIBITS :- NIL. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 21722 of 2005-J - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of November, 2009. JUDGMENT The petitioners are respectively the manager and teachers working in different schools. They are aggrieved by the decisions taken by the respondents to abolish the post of music teacher in the first petitioner’s school and denial of approval to the appointments of second and third petitioners as music teachers and the 4th petitioner as drawing teacher. 2. In the school managed by the first petitioner, a post of music teacher existed which was abolished by the District Educational Officer stating that as per G.O.(MS) No.525/95/G.Edn. dated 28.10.1995, the periods available are not sufficient to sanction the music post in the school. 3. The second petitioner was appointed as Music Teacher in Parassinikadavu High School from 2.6.1997 against a retirement vacancy. But the said post was abolished stating the above reason. The third petitioner was appointed as a music teacher at St. Joseph’s H.S.S., Kallodi from 15.1.1981. The appointment was approved, but the post was abolished on 15.7.2002. The 4th petitioner was appointed as drawing teacher in another school from 2.6.1986 and the said appointment was wpc 21722/2005 2 approved also. But later the post was abolished by the 4th respondent. 4. The respondents relied upon clause 5(ii) of the Govt. Order dated 28.10.1995 to the effect that “if there is already a post of drawing teacher under the Art Group in the High School section, the second post in Art Group or a post in Craft group will be sanctioned only when the periods under each group become 26 periods and above” in abolishing these posts. The contention is that the same goes against the express provisions of Rule 6(4) of Chapter XXIII K.E.R. 5. The first petitioner had earlier approached this court by filing O.P. No.7177/1999 wherein this Court directed the Government to reconsider the matter. A writ appeal was filed against the judgment in O.P. No.7177/1999 which was dismissed by Ext.P3 judgment. The other petitioners have also filed O.P. No.6331/1999, W.P.(C) No.25424/2003 and 27415/2003 wherein also the Government was directed to reconsider the matter. Exts.P8 to P11 are the orders passed by the Government rejecting the claim of the petitioners. The orders were passed relying upon the amendment by introducing third proviso to Rule 6(4) of Chapter XXIII KER. 6. The petitioners have raised various grounds to challenge the orders in question. The petitioners are relying upon a recent decision of this Court in Satheeshkumar v. State of Kerala (2009 (3) KLT 439) wherein wpc 21722/2005 3 the same question was examined in detail. Regarding the sanctioning of posts of drawing and music teachers, it was held in para 13 thus: “Therefore, a High School is entitled to have one full time post each in these three different subjects irrespective of the number of periods. The same cannot be denied by resort to the third proviso.” The scope of the three provisos have also been examined in detail in paragraphs 14 and 15. It was held that what is envisaged under the proviso is only sanctioning of a second post in the Art Group, i.e. Music Teacher or a post in the Craft Group. 7. Learned Govt. Pleader relied upon an unreported decision in W.A. No.908/1994 and connected case to contend that the sanctioning of post is dependent upon the number of periods. That was a case where the post of music teacher was abolished on the ground that sufficient number of periods were not available. For music post, there were only nine periods in standards VIII and IX and accordingly the post was abolished. The Division Bench was of the view that since there is already one post of drawing teacher in the Art Group in high school section, the periods available do not require sanction of post of music teacher in addition to the post. 8. The petitioners are relying upon a decision of an earlier Division wpc 21722/2005 4 Bench in Ext.P3 regarding the interpretation of Rule 6(4) of Chapter XXIII KER. The clause introduced as per the Govt. Order dated 28.10.1995 and the third proviso are the same. While considering the effect of Rule 6(4), it was held thus by the Division Bench in Ext.P3 judgment: “Rule 6(4) mandates that in every high school there shall be one full time post of music teacher irrespective of the number of periods of work per week for music. In the light of this statutory provision the Govt. Order which runs counter to it could not be given effect to.” In W.A. No.908/1994 the effect of the statutory provisions has not been considered in detail. In fact in the decision in Satheeshkumar's case (2009 (3) KLT 439) the entire statutory scheme has been considered and the effect of the provisos was also considered. Ext.P3 judgment of the Division Bench gives an interpretation of Rule 6(4) of Chapter XXIII K.E.R. Since those aspects have not been considered in W.A. No.908/1994, the same is distinguishable especially as the decision turned upon the facts of the said case. Therefore, the contention of the learned Govt. Pleader is rejected. The view taken in Satheeshkumar's case (2009 (3) KLT 439) is in tune with Ext.P3 judgment of the Division Bench. 9. The writ petition is therefore allowed. Exts.P8 to P12 are quashed. wpc 21722/2005 5 There will be a direction to the second respondent to pass appropriate orders regarding the posts claimed by the petitioners in the light of the findings rendered above and such orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. Depending upon the orders of approval the respective parties will be entitled for consequential monetary benefits also which are to be disbursed within a further period of three months. No costs. (T.R. Ramachandran Nair, Judge.) kav/