IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 WP(C).No. 14474 of 2006(W) -------------------------- PETITIONER(S): --------------- HYDROSE K.K., THE MANAGER, M.L.P.SCHOOL, ARATTUPUZHA P.O., ALAPPUZHA. BY ADV. SRI.P.ALI RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION (H) DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR (EDUCATION), ALAPPUZHA. 4. THE A.E.O., AMBALAPPUZHA. GOVT. PLEADER SHRI.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1.9.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 14474/2006 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE DEO, AMBALAPUZHA FOR THE YEAR 2005-06. P2. COPY OF THE ORDER DTD.6.1.03. P3. COPY OF THE ORDER OF THE DPI DTD.3.12.03. P4. COPY OF THE GOVT. ORDER DTD.20.2.04. P5. COPY OF THE ORDERS OF JT. DPI DTD.19.7.03. P6. COPY OF THE JUDGMENT IN W.A.NO.32296/04 DTD.5.11.05. P7. COPY OF THE CIRCULAR DTD.5.6.85. P8. COPY OF THE GOVT. ORDER DTD.6.7.85. P9. COPY OF THE PETITION DTD.6.3.06. RESPONDENT(S)' EXHIBITS: R2A. COPY OF THE GOVT. ORDER DTD.17.11.99. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 14474 of 2006 ================== Dated this the 1st day of September, 2011 J U D G M E N T The petitioner is the manager of an aided L.P. School. It is a pre- KER school. Std.I of the school is run on shift system. The petitioner requested for abolition of shift system in Std.I. That was rejected by the authorities by orders impugned in this writ petition. The petitioner challenges the same seeking the following reliefs; “(i) Call for the records leading to issue Ext.P2, P3 and P4 and quash the same by issuing a writ of certiorari or any other writ order or direction. (ii) issue a writ of mandamus or any other writ order or direction, commanding the 1st respondent to abolish the shift in standard I of the petitioner's school and sanction required number of post of LPSAS. (iii) direct the 1st respondent to dispose of Ext.P9 representation within a reasonable period.” 2. The contention of the petitioner is that insofar as undisputedly there is sufficient accommodation in the school to abolish shift system, there is no rhyme or reason in rejecting the request of the petitioner for abolition of the shift system. 3. The learned Government Pleader submits that the question of abolition of shift system in a school is governed by Exts.P7 and P8 orders, as per which, three conditions are to be satisfied for abolition of shift system. First is that there should be sufficient accommodation. The second is that additional posts will have to be filled up by w.p.c.14474/06 2 protected teachers available under the same educational agency and the third is that no additional appointment will be made in the school on account of abolition of shift system. According to the respondents, as is evident from the two counter affidavits filed by respondents 1 and 2, if the shift system is abolished in the petitioner's school, there would be additional financial burden to the Government and, therefore, the same is against Ext.R2(a) Government order which stipulates that new posts in Government and Government aided schools and colleges should not be created. In such circumstances, the petitioner is not entitled to have the shift system abolished in his school is the contention raised. 4. In answer to the same, the petitioner would contend that in a similar case, by Ext.P6 judgment, this Court has held that the condition of appointment of protected teachers cannot be sustained. He further points out that Ext.R2(a) order, which is the one referred to in the counter affidavit, cannot now be pressed into service in view of the subsequent orders, latest of which is G.O(P)No.317/2005/G.Edn. dated 17.8.2005. The petitioner also contends that in the case of similar school, Ext.P5 order has been passed by the Joint Director of Public Instructions sanctioning additional post. 5. I have considered the rival contentions in detail. 6. The question of abolition of shift system in the aided w.p.c.14474/06 3 schools and Government schools is covered by Exts.P7 and P8 Government orders. The petitioner has not chosen to challenge the same. Therefore sanction for abolition of shift system can be given to the petitioner only in accordance with Exts.P7 and P8 orders, of which Ext.P8 order is the later one, which reads thus: “Sanction is accorded for the abolition of shift system in aided schools, subject to the following conditions: 1. There should be sufficient accommodation. 2. The additional posts will have to be filled up by protected teachers available under the same educational agency. 3. No additional appointment will be made in the school on account of the abolition of shift system.” Going by that order, sanction for abolition of shift system can be granted in an aided school only if all the three conditions are satisfied. Admittedly, the petitioner has sufficient accommodation and admittedly there are no protected teachers available under the same educational agency. Therefore, obviously without additional appointments, the petitioner cannot run the school, if the shift system is abolished. Therefore, the third condition is not satisfied. As such, the petitioner cannot be given sanction for abolition of shift system. As far as Ext.P6 judgment is concerned, that is a case where the abolition was already granted, but a subsequent appointment was made conditionally on appointing a protected teacher in the next arising vacancy. Here abolition has not yet been sanctioned. That was the w.p.c.14474/06 4 same with Ext.P5 also. Ext.P5 order is not an order sanctioning abolition of shift system. Ext.P5 order relates to sanction of additional posts in a school where abolition of shift system was sanctioned. But that can only be subject to the conditions in Ext.P8. Insofar as the third condition in Ext.P8 cannot be satisfied in the petitioner's case, I do not find anything wrong with the impugned orders. But at the same time if the petitioner undertakes to appoint protected teachers of other schools available in the districts in the vacancies which may arise on abolition of shift system and approaches the authorities with the said undertaking, it would be open to the respondents to consider the same. The writ petition is disposed of as above. Interlocutory applications stand closed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge