IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 WA.No. 352 of 2006(A) -------------------- AGAINST THE JUDGEMENT IN WPC.10902/2004 Dated 03/08/2005 .................... APPELLANT/PETITIONER: -------------- AJITHA KUMARY P.L., MUSIC TEACHER, NSS HIGH SCHOOL, MADAVOOR P.O., MADAVOOR, THIRUVANANTHAPURAM. BY ADV. SRI.S.RAMESH BABU RESPONDENT(S)/RESPONDENTS: --------------- 1. GOVERNMENT OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. DISTRICT EDUCATIONAL OFFICER, ATTINGAL. 4. THE MANAGER, NSS HIGH SCHOOL, MADAVOOR. 5. J.SANTHAKUMARA KURUP, DRAWING TEACHER, NSS HIGH SCHOOL, MADAVOOR, ATTINGAL, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.NOBLE MATHEW FOR R1-3 ADV. SRI.B.MOHANLAL - R5 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ----------------------------------------- W.A. NO.352 OF 2006-A ----------------------------------------- Dated 30th January, 2009. JUDGMENT Balakrishnan Nair, J. The writ petitioner is the appellant. She approached this Court, challenging Exts.P12 and P15 orders passed respectively by the Director of Public Instruction and the Government. 2. The brief facts of the case are the following: Smt.Kanakamma Amma, a Music Teacher working in the 4th respondent's school retired from service on 30.5.2000. In the resultant vacancy the appellant was appointed as Music Teacher by Ext.P1 order dated 12.7.2000. The same was duly approved by the D.E.O also. Her approval continued for the next academic year also. At the relevant time, the 5th respondent, a Drawing Teacher, was being retained in the school as a protected teacher, though, there was no post to accommodate him. Since he was directed to work in a neighbouring school under the clubbing arrangement during the academic year 2002-03, he represented before the D.P.I., claiming that he should have been WA 352/2006 2 accommodated in the post, which fell vacant as a result of the retirement of Smt.Kanakamma Amma. The D.P.I considered the matter with notice to all affected persons, including the appellant, reviewed the staff fixation order for the year 2000-01 and recalled the sanctioning of the post of Music Teacher. The D.P.I also directed to accommodate the 5th respondent in the regular post of Drawing Teacher, by Ext.P12 order. The aggrieved appellant moved the Government in revision. The Government affirmed the view taken by the D.P.I., by Ext.P15 order. Challenging those orders, the writ petition was filed. The learned Single Judge, who heard the matter, dismissed the writ petition. 3. The learned counsel for the appellant canvassed two points before us. According to him,the 5th respondent could have been accommodated, if only the vacancy available was that of a Drawing Teacher. In this case, on retirement of Smt.Kanakamma Amma, a vacancy arose in the post of Music Teacher. So, the claim of the 5th respondent to that post is unsustainable. Secondly, it is contended that the D.P.I has no power to review the staff fixation order issued by the D.E.O. 4. In support of his submission regarding the first contention mentioned above, the learned counsel for the appellant relied on various decisions of this Court under Rule 51A of Chapter XIV-A of the K.E.R., WA 352/2006 3 dealing with identity of posts, while considering the claim for re- appointment. If there is a vacancy in the post of Hindi Teacher, only a Hindi Teacher thrown out alone can be re-appointed under Rule 51A and not a Teacher belonging to some other language. The same is the position in relation to H.S.As in various subjects. The said principle will squarely apply in this case also, it is submitted. 5. But, we notice that the rule making authority itself has clubbed various posts like Music Teacher, Drawing Teacher, Craft Teacher etc., and called the incumbents holding those posts as Specialist Teachers. The third proviso to Rule 6(4) of Chapter XXIII of the K.E.R specifically provides that when there is already a post of Drawing Teacher under the Art Group, a second post in the Art Group, namely, a post of Music Teacher will be sanctioned only when the periods under the Art group exceed 25 periods per week. In this case, no one has a case that the number of periods for Art group subjects exceeded 25 in a week. Since there is already a Drawing Teacher, a post of Music Teacher could not have been allowed, in view of the above statutory provision. So, we find nothing wrong with the direction of the D.P.I and the Government to accommodate the 5th respondent in the post, which fell vacant on the retirement of a Music Teacher. The concept of identity of posts cannot be applied mechanically while dealing with re- WA 352/2006 4 appointment of Specialist Teachers. 6. The second contention regarding lack of jurisdiction also cannot be accepted, in view of the provisions contained in Rule 12E of Chapter XXIII of the K.E.R. Sub-rule (3) of the said Rule confers specific power on the D.P.I to suo motu review any staff fixation order, after affording an opportunity of being heard to the affected persons. In this case, admittedly, the appellant was heard before Ext.P12 order was issued. In view of the above position, the Writ Appeal fails and it is accordingly dismissed. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. nm/