IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 14TH JANUARY 2008 / 24TH POUSHA 1929 OP.No. 28186 of 1999(E) ------------------------------ PETITIONER: --------------- THE MANAGER DON BOSCO HIGH SCHOOL MANNUTHY, THRISSUR. BY ADV. SRI.MATHAI M PAIKADAY(SR.) SRI.K.B.GANGESH SRI.ALEX JOSE PAIKADA RESPONDENTS: ------------------ 1. THE D.E.O. THRISSUR. 2. THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM. 3. SHALLET K. MANUEL, KADANKAVIL HOUSE, MANNUTHY P.O., THRISSUR BY ADV. SRI.MATHEW SEBASTIAN GOVERNMENT PLEADER SMT. M.R. SREELATHA. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 14/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.28186/99 ORDER ON C.M.P.NO.47888/99 IN O.P.NO.28186/99 DISMISSED. 14.1.2008. SD/- S. SIRI JAGAN, JUDGE. APPENDIX EXT.P1: TRUE COPY OF THE ORDER OF R1 DATED 28.10.1999. EXT.P2: TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 7.12.1985. EXT.P3: TRUE COPY OF COMMUNICATION FROM THE 2ND RESPONDENT TO THE PETITIONER DATED 4.6.1992. EXT.P4: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.A. NO.1506 OF 1996 DATED 13.7.1999. EXT.R3(a): TRUE COPY OF THE APPOINTMENT ORDER DT.9.8.1982. EXT.R3(b): TRUE COPY OF THE CERTIFICATE DT. 29.5.1990 ISSUED BY THE HEADMASTER OF THE DON BOSCO SCHOOL. 3 rd RESPONDENT'S EXHIBITS EXT.R3(c): TRUE COPY OF THE G.O. DT.15.9.92. EXT.R3(d): TRUE COPY OF THE TELEGRAM DT. 31.5.96. EXT.R3(e): TRUE COPY OF THE ORDER DT. 24.4.96. EXT.R3(f): TRUE COPY OF THE ORDER OF THE DPI DT.20.10.97. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No.28186 OF 1999 ---------------------------------------- Dated this the 14th day of January, 2008 JUDGMENT The petitioner is the manager of an unaided private school. He appointed the 3rd respondent as U.P. School Assistant on 6.7.1982. By Government order dated 11.12.1985, training was prescribed as an essential qualification for appointment of teachers in Schools. This qualification was incorporated into the Kerala Education Rules in respect of unaided private schools by introducing Chapter XIVA with effect from 30.3.1990. The question of necessity for the existing teachers, who were appointed prior to 11.12.1985, for acquiring this qualification was considered by the Government in various Government Orders and by Ext.R3(c) order, the Government provided that the time limit for acquiring training qualification, granted as per earlier Government Orders, would be extended till 1.6.1996. The petitioner manager terminated the service of the 3rd respondent on 1.5.1996 for want of training qualification. This was challenged by the 3rd respondent by filing W.P.(C) No.8570/96, in O.P.No.28186/99 2 which a learned Single Judge of this Court directed reinstatement of the 3rd respondent in service. In W.A. No.1506/96 filed against that judgment, a Division Bench of this Court directed the 1st respondent to consider whether training qualification should be insisted upon in respect of a post-graduate candidate for appointment as teacher in the light of the representation filed by the 3rd respondent. Pursuant to the said decision, the DEO passed Ext.P1 order permitting the petitioner to continue in service, despite his not acquiring training qualification. Ext.P1 order is under challenge before me. 2. The contention of the petitioner is that none of the three reasons stated in Ext.P1 would stand legal scrutiny and therefore Ext.P1 is liable to be quashed and the 3rd respondent is liable to be declared as not eligible for continuing in the service of the petitioner’s School beyond 30.6.1996. The 3rd respondent has filed a counter affidavit supporting Ext.P1 order. 3. I have considered the rival contentions in detail. The three reasons mentioned in Ext.P1 are as follows: “ 1. The teacher was terminated from service with effect from 1.5.96, while government O.P.No.28186/99 3 orders were in force to continue till 30.6.96. 2. Govt. has ordered vide GO (MS) 110/98 Gen. Edn. Dated 6.4.98 that the untrained teachers who were in service in the recognized unaided school as on 9.5.98 and have attained the age of 45 years as on 9.5.88 will be exempted permanently from possessing training qualification. Even though the teacher is not entitled for the benefit, taking his age, service, etc., this is a sympathetic case. 3. Chapter XIV (AA) – conditions of service of teaching and non-teaching staff of recognized unaided schools – were introduced by G.O. (P) 55/90 Gen. Edn. Dated 30.3.90. The appointment of the candidate is before the issue of the G.O. So it is presumed that rule (5) of chapter XXXI denotes that the appointment of language teachers with the general educational qualification prescribed before 30.6.90 if any made before 16.8.82 shall be approved as fully qualified. In the light of the rule (5) of chapter XXXI of KER it is presumed that the teacher can be continued”. Admittedly, the petitioner terminated the services of the 3rd respondent on 1.5.96, when the Government Order granted to the 3rd respondent time till 30.6.96 to acquire the qualification. Therefore legally the order passed by the petitioner terminating the services of the 3rd respondent on 1.5.96 is clearly unsustainable. 4. Further, Sub Rules 5 and 6 of Rule 1 of Chapter XXXI read thus: O.P.No.28186/99 4 “(5) The appointment of language teachers with the minimum general educational qualification prescribed before 30.6.1980, if any, made before 16.8.1982 shall also be approved as fully qualified. (6) Nothing contained in these rules shall however affect the entertainment or continuance of under qualified hands permitted by general or special orders of Government”. Of course, the petitioner would contend that in Rule 3 of Chapter XXXI, among language teachers, Malayalam teacher is not included as a language teacher. But in so far as Malayalam is a language taught in the Schools and for the purpose of High School service Malayalam teachers are considered as language teachers, I am not inclined to accept the contention of the petitioner. In the above circumstances, I am not inclined to exercise my discretionary jurisdiction in favour of the petitioner to interfere with Ext.P1 order and to permit him to terminate the services of the 3rd respondent. Accordingly the original petition is dismissed. S. SIRI JAGAN, JUDGE Acd O.P.No.28186/99 5