IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY WEDNESDAY, THE 19TH JANUARY 2011 / 29TH POUSHA 1932 WP(C).No. 32887 of 2009(E) -------------------------- PETITIONER(S): --------------- K.C. SUMESH, S/O. K.N. CHANDRAN, AGED 28 YEARS, PHYSICAL EDUCATION TEACHER, AL-FAROOKHIYYA HIGH SCHOOL, CHERANELLUR, (VIA) EDAPPALLY, ERNAKULAM DISTRICT, PIN - 682 034. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPT. SECRETARIAT, TRIVANDRUM. 2. THE DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION, KAKKANAD, ERNAKULAM -30. 3. THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM. 4. THE MANAGER, AL-FAROOKHIYYA HIGH SCHOOL, CHERANELLUR EDAPPALLY- 682 034, ERNAKULAM DIST. 5. THE HEADMASTER, AL-FAROOKHIYYA HIGH SCHOOL, CHERANELLUR, EDAPPALLY-682 034, ERNAKULAM DIST. MS.T.B.REMANI, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.32887/2009 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF GO(RT.) NO.5598/05/G.EDN. OF THE GOVERNMENT. P2 : COPY OF APPOINTMENT ORDER AND THE APPROVAL THEREOF. P3 : COPY OF ORDER NO.D.DIS.B5/6032/2008 OF THE DIST. EDUCATIONAL OFFICER. P4 : COPY OF THE APPEAL FILED BEFORE THE DEPUTY DIRECTOR BY THE MANAGER. P5 : COPY OF ORDER NO.B2-20567/08/K.DIS. OF THE DEPUTY DIRECTOR. P6 : COPY OF REVISION FILED BEFORE THE GOVERNMENT. P7 : COPY OF ORDER NO.49169/K.1/09/G.EDN. OF THE GOVERNMENT. P8 : COPY OF ORDER NO.D.DIS.B5.5231/2009 OF THE DIST. EDL. OFFICER. P9 : COPY OF G.O(Rt.) NO.5213/2007/G.EDN. OF THE GOVERNMENT P10 : COPY OF ORDER NO.B5-5231/09 OF THE DIST. EDUCATIONAL OFFICER. //TRUE COPY// PS TO JUDGE. jg C.N.RAMACHANDRAN NAIR & BHABANI PRASAD RAY, JJ. .................................................................... W.P.(C) No.32887 of 2009 .................................................................... Dated this the 19th day of January, 2011. JUDGMENT Ramachandran Nair, J. The petitioner is challenging orders refusing approval of his appointment by the manager as a Physical Education Teacher. The petitioner was appointed in the school in a leave vacancy from 5.6.2006 to 31.12.2010. However, on 29.7.2008 when staff fixation was made for 2008-2009, there were only four periods for the Physical Education Teacher and, therefore, by applying second proviso to Rule 6(4) the temporary post the petitioner was holding was abolished. The petitioner's case is that since his appointment in the leave vacancy was approved, he is entitled to continue, no matter the period of work in Physical Education would have fallen the required minimum under the second proviso to Rule 6(4) subsequently. We have vide judgment in W.A. No.2679/2009 and connected cases today held that the minimum period of work is compulsorily required for appointment of a teacher in the specialist subject under Rule 6(4) of Chapter XXIII of K.E.R. W.P.(C) No.32887/2009 2 Following this judgment we have to necessarily hold that the abolition of post of Physical Education Teacher is perfectly in order. Even though counsel for the petitioner contended that the Educational Authority has recognised only two divisions each in the 8th and 9th standards, whereas the available number of students were divided in three divisions each by the management, we do not think we should consider the same because number of divisions is decided by dividing the total students with the required strength in each division. So much so, we do not think there is any scope for interference with staff fixation vide Ext.P3. Consequent upon staff fixation, the school does not have a vacancy for appointment of Physical Education Teacher and, therefore, petitioner is not entitled to be appointed on regular basis after abolition of the post. 2. Counsel for the petitioner submitted that the school has U.P. Section and if both sections of the school are combined, atleast one post of P.T. Teacher could be provided and in the U.P. Section also there is no P.T. Teacher in the school. We have in the above referred batch case directed the Government to combine U.P. and High School W.P.(C) No.32887/2009 3 Sections under the same management and even to combine different schools under different managements for appointment of specialist teachers so that every student in the State enjoys a facility in physical training, music etc. which are specialist subjects otherwise available in schools with large number of students. Even though petitioner's claim for approval of appointment cannot be upheld, the directions issued in the batch case will squarely apply in this case as well. W.P.(C) is disposed of as above. So far as payment made is concerned, direction to the Government in the batch case to recover the same from the management will apply here also. C.N.RAMACHANDRAN NAIR Judge BHABANI PRASAD RAY Judge pms