IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 WP(C).No. 33676 of 2009(D) ---------------------------------- PETITIONER(S): -------------------- C.MUHAMMED RASHEED, AGED 27, FULL-TIME URDU TEACHER, N.N.N.M.U.P.SCHOOL, KARALMANNA, VIA CHERPULASSERY, PALAKKAD DISTRICT. BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S): -------------------- 1. THE ASSISTANT EDUCATIONAL OFFICER, CHERPULASSERY. 2. THE DISTRICT EDUCATIONL OFFICER, OTTAPALAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. 4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R-3 BY GOVT. PLEADER SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs WP(C).No. 33676 /2009(D) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF REQUEST DATED 30/07/2005 MADE BY THE MANAGER BEFORE THE EDUCATIONAL AUTHORITIES TO ALLOW A FULL-TIME POST OF URDU TEACHER. P2: COPYOF ORDER DATED 16/12/2005 OF THE ASSISTANT EDUCATIONAL OFFICER, CHERPULASSERY ALLOWING EXHIBIT P1 REQUEST. P3: COPY OF RELEVANT PAGE OF THE SERVICE BOOK OF PETITIONER SHOWING THAT HIS APPOINTMENT AS FULL-TIME URDU TEACHER WAS APPROVED BY THE EDUCATIONAL AUTHORITIES. P4: COPY OF THE STAFF FIXATION ORDER FOR THEACADEMIC YEAR 2009 - 2010 ISSUED BY THE ASSISTANT EDUCATION OFFICER, CHERPULASSERY. P5: COPY OF THE PROCEEDINGS OF THE DEPUTY DIRECTOR OF EDUCATION DATED 13/10/2009. P6: COPY OF ORDER DATED 27/10/2009 ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER, CHERPULASSERY. P7: COPY OF JUDGMENT DATED 18/09/2007 IN WPC.30570/2005. P8: COPY OF THE STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2009 - 2010. P9: COPY OF THE STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2005 - 2006. P10: COPY OF THE STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2006 - 2007. P11: COPY OF THE STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2007 - 2008. P12:COPY OF THE STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2008 - 2009. P13: COPY OF THE STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2009 - 2010. RESPONDENT'S EXHIBITS NIL /TRUE COPY/ P.A. TO JUDGE svs C.T.RAVIKUMAR, J ------------------------------- W.P.(C).NO.33676 OF 2009 ------------------------------------------------- Dated this the 21st day of May, 2010. JUDGMENT The petitioner was appointed as a Part-time Urudu Teacher at N.N.N.M.U.P School, Karalmanna on 20.01.2003. At the time of his appointment there where only 12 periods for Urudu. The Manager of the school thereupon applied for conversion of the part-time post Urudu Teacher as a full-time post in the light of the relevant orders. The request of the Manager as Ext.P1 was allowed as per Ext.P2 order dated 16.12.2005 by the 3rd respondent. On the strength of Ext.P2 the appointment of the petitioner was converted as appointment against full-time post as Urudu Teacher and the said fact was duly recorded in Ext.P3. Ext.P4 is the staff fixation order of 2009-2010. It would reveal that the post of Urudu Teacher in the School was sanctioned as a full-time post. While so, the 3rd respondent issued Ext.P5 dated 13.10.2009 based on an objection raised by the Director of Public Instruction and held that Group-C diversion was impermissible in the case of the petitioner. Consequentially, Ext.P6 order issued by the 1st respondent. It is stated therein that the conversion of the part-time post held by the petitioner as a full-time post is not in order and accordingly it was ordered to recover the salary W.P.(C).NO.33676 OF 2009 2 received by the petitioner in excess from 15.7.2005. It was ordered that the petitioner would be paid only in a part-time scale until further orders from the competent authority. It was in the said circumstances that this Writ petition has been filed by the petitioner. 2. While admitting this Writ petition an interim order staying recovery pursuant to Ext.P5 and P6 was granted by this Court, on 24.11.2009. According to the petitioner immediately on receipt of the copy of the stay order he has handed over the same to the first respondent. However, the first respondent as per Ext.P9 to Ext.P13 revised the staff fixation for the years 2005-2006 to 2009-2010, and in all the said staff fixation orders the post held by the petitioner was shown as part-time. As a consequence of the revision of the said orders he was granted salary only part-time scale. The petitioner has amended the writ petition by incorporating necessary pleadings, grounds and prayers to challenge Ext.P9 to Ext.P13. 3. The learned counsel appearing for petitioner submitted that in the light of GO(MS)G.Edn dated 19.9.1978 and GO(MS) 172/84/G.Edn dated 25.8.1984 Group-C diversion is permissible. It is further submitted that a bare perusal of the said order W.P.(C).NO.33676 OF 2009 3 would reveal that it restrict applicability of Group-C diversion only to a part-time Teacher who had completed 5 years service. So long as, there is no prohibition for extension of the benefit to a newly appointed teacher Ext.P2 order is in order and there was no reason to interfere with the same, it is contended. According to the petitioner Exts.P5 and P6 cannot be sustained at all. The 1st respondent had, taking note of the Government Orders on the subject sanctioned Ext.P1 application submitted by the Manager of the School for Group-C diversion and allowed the same as per Ext.P2. The subsequent staff fixation orders would reveal that in terms of Ext.P2 the post held by the petitioner was treated as full-time in all the subsequent staff fixation orders. No power is vested with the first respondent to review Ext.P2 order dated 16.12.2005 by passing Ext.P5 order dated 13.10.2009 and further contended that being a consequential order Ext.P6 is also unsustainable. Ext.P9 to Ext.P13 staff fixation orders are also liable to be interfered with since they were issued after the interim order on 24.11.2009 of this Court. According to the learned counsel is only nullify the effect of the interim order with Ext.P9 to P13 are passed by the first respondent. It is a fact that despite the order passed by this Court after 21.12.2009 onwards W.P.(C).NO.33676 OF 2009 4 the petitioner is getting only the salary of a part-time teacher. 4. A counter affidavit has been filed by respondent No.3 in this Writ petition. Paragraph 4 thereunder would reveal that the the request of the Manager of the School made as per Ext.P1 was allowed as per Ext.P2 in terms of Government Order dated 19.9.1978 and 25.8.1984. It would further show that taking into account the said Government Orders the 3rd respondent directed the first respondent to sanction full-time post of Urudu by diverting periods from Group-C subjects. Paragraph 5 thereunder reveal that the above said orders were virtually revised on account of the objection raised by the Director of Public Instructions. The said objection was raised considering the fact that the petitioner was appointed as a part-time Urudu teacher only on 20.1.2003 and therefore, he is not eligible form Group-C diversion. Further it is stated therein for full time benefit is admissible to a teacher only on completion of 5 years of continuous service as part-time teacher. In the said circumstances, it is contended that in order to recoup the salary paid in excess to the petitioner for the period from 15.7.2005 on account of payment at the higher rate applicable a full-time teacher it is liable to be recovered and Ext.P5 and P6 are issued W.P.(C).NO.33676 OF 2009 5 for the said purpose. 5. In fact, a careful readings of the averments in the counter affidavit especially in paragraphs 4 and 5 would undoubtedly reveal the illegality committed in the matter. When a part-time post is converted by diverting period from Group-C subjects strictly adhering to the relevant Government orders on the subject a lower authority has no power to direct for reducing the post to that of a part-time post. There is no finding in Ext.P5 order or in Ext.P6 to the effect that the Government Orders relied on granting Group-C diversion contained a condition restricting the benefits thereunder only to a part-time teacher who completed 5 years service pursuant to his appointment as part-time teacher. In the absence of such a condition in the said Government Orders and in the absence of any legally sustainable subsequent orders issued requiring a review by the Government a lower authority is justified in interfering nothing with an order passed relying on relevant Government Orders. The contentions raised in paragraph 5 of the counter affidavit must have been based on GO(MS) No.371/2000/G. Edn dated, 13.11.2000. Para 2 thereunder reads thus:- “In Government Order read as fifth paper W.P.(C).NO.33676 OF 2009 6 above, it was ordered among other things that Part Time language teachers who put in more than 5 years of service and have 8 period of work shall be made Full Time. In Circular read as sixth paper above, it was clarified that whenever Full Time teachers having 15 periods of work by virtue of Group-C diversion take leave, the resultant vacancies can be filled up by Full Time teachers”. 6. A scanning of the above extracted portion from the said Government Order would reveal that there is no ban for appointing a new incumbent as a full-time teacher when ever full time teachers having 15 period of work by virtue of Group-C diversion take leave. In short there is no restriction for granting the benefit of Group-C diversion to a newly appointed teacher. A careful reading of the aforesaid three Government Orders would reveal that the Government Order dated 19.9.1978 and 25.8.1984 deals with the subject of Group-C diversion and the Government Order dated 13.11.2000 is issued as a clarification to the same. It is pertinent to note that even the said clarification issued as per Government Order dated 13.11.2000 did not provide for reducing a post which was made full-time by virtue of Group-C diversion to that to part-time. In fact, it is W.P.(C).NO.33676 OF 2009 7 specifically provided therein that even a newly appointed teacher is also entitled to get the benefit of the Group-C diversion in the circumstances mentioned thereunder. Since the post held by the petitioner was converted into a full-time post by relying the Government Orders dated 19.9.1978 and 25.8.1984 without the cancellation of that conversion in accordance with law, there is no justification to deny the petitioner the benefit of full-time post. At any rate, there is no justification for depriving him those benefits extended on the strength of Ext.P2 order after a lapse of 4 years, that too, in the manner expatiated earlier. With respect to the action on the part of the first respondent in issuing Ext.P9 to P13 orders it is relevant to note the following aspects. Though the petitioner assailed the said orders the respondent did not care to controvert the contentions in the counter affidavit reply to the averments made in the Writ petition. There is no attempt to sustain or support the said orders. Therefore, I am unable to find the source of power that enabled the first respondent to revise staff fixation orders starting from 2005-2006 to 2009-2010 that too, after the interim order passed by this Court on 24.11.2009. As per the order stay was granted for recovery from the petitioner pursuant to Exts.P5 and P6. Though first W.P.(C).NO.33676 OF 2009 8 respondent is a party to the Writ petition no counter affidavit was filed by the first respondent justifying his action in issuing Exts.P9 to P13. The 3rd respondent who filed counter affidavit in this Writ petition also did not care to reply to the specific averments made against Exts.P9 to P13. 7. As noticed herein before, in paragraph 4 of the counter affidavit filed by the 3rd respondent it is specifically admitted that he has directed the first respondent to sanction to one full-time Urudu post by diverting periods from Group-C subjects in terms of Government Order dated 19.9.1978 and 25.8.1984. There is not even a whisper in the said counter affidavit as to how Ext.P2 order issued by the first respondent pursuant to the specific direction by the 3rd respondent would become illegal or merely because of the objection of the Director of Public Instruction. According to me, the petitioner is entitled to get the benefits flowing from Ext.P2. I am fortified in view by the decision of this Court in Ext.P7 judgment. During the course of argument the learned counsel for the petitioner brought to my attention Ext.P7 judgment has been confirmed a Division Bench of this Court in Writ Appeal No.333/2008. After referring to Government letter No.50/64/J2/91/G.Edn dated, 27.12.1991. It was held by the W.P.(C).NO.33676 OF 2009 9 Division bench as thereunder: 3. It is further clarified that: (a) If there is post and teacher in a particular subject under Group C and the period available are not more than 15 and above for the subject, diversion of periods from that subject cannot be permitted. (b) If there is no post of Specialist/Craft Teacher in the School, the period for the Group-C subject, for which there is no Specialist/Craft Teacher, can be diverted to: Arabic 1 period maximum per each standard Sanskrit 1 period -do- Urudu 1 period -do- Hindi 1 period -do Going by para 3(b) of the above said Government letter, for Sanskrit one period can be diverted per each Standard from the periods available for physical Education, even if there is no Physical Education Teacher. So, the claim of the manager to convert the part-time post of Sanskrit Teacher into Full-time post, diverting three periods available for physical Education, is justified. Therefore, we find no reason to interfere with the judgment under appeal and accordingly, the Writ W.P.(C).NO.33676 OF 2009 10 Appeal is dismissed. 8. On going by the dictum laid by the Division Bench in the said decision even in the absence of an incumbent in the part- time post a part-time post can be converted into a full-time post by Group-C diversion if conversion of a part-time post into full- time post is possible in the given situation. Therefore, there is no reason for holding that the conversion of the part-time post sanctioned to the N.N.N.M.U.P School, Karalmanna as full time post by Group -C diversion is illegal solely because the petitioner is holding the said post. If conversion of the part-time post in the school as full-time post is in order a fresh appointment will be dis-entitle the appointee to get the benefits attached to a full- time post. The long and short of the long discussion is that there is no justification for the respondents to revise the earlier staff fixation orders commencing to 2005-2006 to 2009-2010 and to show the post held by the petitioner as part-time with a view to deny the benefits especially in the light of Ext.P2. As already noticed, no explanation is forthcoming from the part of the respondents as to the reasons and also as to the source of under which they issued Exts.P9 to P13 orders. For all these reasons, I am of the considered view that Exts.P5,P6 and P9 to P13 are W.P.(C).NO.33676 OF 2009 11 unsustainable and consequentially the said orders are set aside. As a result, it is declared that the petitioner is entitled to get all the benefits arising out of Ext.P2 and consequently, he is entitled salary attached to the post of full-time Urudu teacher, sanctioned to the school from the date of the approval of the appointment with effect from 15.7.2005. The consequential benefits arising out of this judgment shall be disbursed to the petitioner expeditiously, at any rate, within a period of three months from the date of receipt of a copy of this judgment. C.T.RAVIKUMAR, JUDGE pm