IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.S. GOPINATHAN TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 W.A. No. 2731 of 2007 ------------------------------------- AGAINST THE JUDGEMENT IN OP.38418/2002 Dated 11/09/2007 .................... APPELLANT(S): RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, CHERTHALA. BY GOVERNMENT PLEADER SMT. R. BINDU. RESPONDENTS//PETITIONERS & 4TH RESPONDENT: ---------------------- 1. J. RADHAKRISHNA NAIK, CORPORATE MANAGER, T.D. SHCOOLS, ALAPPUZHA, RESIDING AT "REVATHI NIVAS", C.M.C.-2, CHERTHALA. 2. K.S. BINDHUMOL, PHYSICAL EDUCATION TEACHER, T.D. HIGHER SECONDARY SCHOOL, THURAVOOR, ALAPPUZHA. 3. A.S. PRADEEPKUMAR, PHYSICAL EDUCATION TEACHER, TDTTI, THURAVOOR, ALAPPUZHA. R1 & R2 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY & SMT.N.SANTHA R3 BY ADV. SRI. M.A. FIROZ. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.S. GOPINATHAN, JJ. ------------------------------ W.A. No.2731 of 2007 ------------------------------ Dated this, the 25th day of August, 2009 JUDGMENT Balakrishnan Nair, J. The respondents 1 to 3 in the writ petition are the appellants. The respondents 1 and 2 herein were the writ petitioners. The brief facts of the case are the following:- The first respondent is the Corporate Manager of Thirumala Devaswom Schools, Alappuzha. The first respondent is managing three schools, viz., T.D.Teachers' Training Institute, Thuravoor, T.D.Higher Secondary School, Thuravoor and T.D. Higher Secondary School, Alappuzha. A Physical Education Teacher working in T.D. Higher Secondary School, Thuravoor under the first respondent retired on 31.3.2000. In that vacancy, the second respondent was appointed by the first respondent on 26.6.2000, by Ext.P1 order. The proposal for approving the said appointment was forwarded by the first W.A. No.2731 of 2007 - 2 - respondent to the third appellant, District Educational Officer, Cherthala. But, by Ext.P2 order dated 27.11.2000, approval was declined, for the reason, that, the third respondent herein was a protected Physical Education Teacher working in the T.D.Teachers' Training Institute, Thuravoor, and so, he has to be absorbed in the regular vacancy before making appointment from outside. As per Ext.P4 Staff Fixation Order for the year 2000-01, the post against which the third respondent, Pradeep Kumar, was working was abolished and it was ordered to adjust him against the aforementioned retirement vacancy, in which the second respondent was appointed. Challenging Ext.P4, the Manager preferred an appeal before the Director of Public Instruction. The appeal was dismissed by Ext.P5 order. Against that order, the manager filed a Revision before the Government. That petition was dismissed by Ext.P13 Government Order dated 13.11.2002. Challenging Exts.P2 and P13 orders, the writ petition was filed. The appellants did not file any counter affidavit in the writ petition. The learned Single Judge took the view that the third respondent herein cannot be W.A. No.2731 of 2007 - 3 - treated as a protected teacher as the said term is understood in the Kerala Education Rules and therefore, the direction to accommodate him against the retirement vacancy was not justified. If that be so, the appointment of the second respondent in the retirement vacancy was valid. On the above ground, the writ petition was allowed and the D.E.O. was directed to approve the appointment of the second respondent. The learned counsel for respondents 1 and 2 submitted that the direction of the learned Single Judge has already been implemented. 2. Feeling aggrieved by the said judgment, this Writ Appeal is filed. Along with the Writ Appeal, the appellants have produced Annexures 1 and 2 orders. Owing to reduction in the periods of teaching in the High Schools for Physical Education and also reduction of student strength in the U.P. Schools during the year 1991-92, there was massive retrenchment of Physical Education teachers. So, on the representation of the affected teachers, the Government issued Annexure 1 order dated W.A. No.2731 of 2007 - 4 - 27.12.1991 providing that the Physical Education teachers who were in existence during 1990-91 will be allowed to continue during 1991-92 also. Orders similar to Annexure I were issued during every academic year. The order issued on 25.7.2000 extending the above benefit for the year 2000-01 is Annexure 2. Relying on the above orders, the appellants contended that going by the periods/student strength, there was no justification for sanctioning the post of Physical Education Teacher in the third respondent's school. But, the same was retained based on Annexures 1 and 2. But for those orders, teachers like third respondent would have been retrenched and even if they are continuing, they would be treated as protected teachers. In view of the presence of such a teacher, the appointment of a fresh hand from the open market is not justified, it is submitted. Therefore, the appellants prayed for reversing the judgment of the learned Single Judge. 3. There are no materials before us to hold that there were not five periods per week for Physical Education W.A. No.2731 of 2007 - 5 - justifying the retention of the third respondent, who was attached to the High School and therefore, he was allowed to continue without retrenchment, only on the basis of Annexures 1 and 2 orders. In the absence of any materials placed before us, on the above point, we are not able to hold that, the view taken by the learned Single Judge is unsustainable. Therefore, we decline to interfere with the judgment. We clarify that this judgment is rendered by us based on the absence of materials and pleadings to support the case of the appellants. So, this judgment will not be treated as a precedent in other cases. 4. We are told that the third respondent has also retired from service. If the first respondent attempts to appoint a fresh hand in that vacancy, the appellants will be free to deal with the case in accordance with law, untrammelled by anything in this judgment or in the judgment of the learned Single Judge. But, the continuance of the post held by the second respondent, like any other post, will depend upon the staff fixation orders issued from time to time, as also the relevant government orders governing the same. W.A. No.2731 of 2007 - 6 - Subject to the above observations, the writ appeal is dismissed. Sd/- K. Balakrishnan Nair, Judge. Sd/- P.S. Gopinathan, Judge. DK. (True copy)