IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 WP(C).No. 15011 of 2008(K) PETITIONER: N.P.ANTONY, DRAWING TEACHER, ST.SEBASTIAN'S HIGHER SECONDARY SCHOOL, GOTHURUTHY, ERNAKULAM DISTRICT. BY ADV. SRI.ASOK M.CHERIAN RESPONDENTS: 1. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM. 3. THE DISTRICT EDUCATIONAL OFFICER, ALUVA. 4. THE CORPORATE MANAGER, CORPORATE EDUCATIONAL AGENCY, DIOCESE OF KOTTAPURAM, KOTTAPURAM P.O., KODUNGALLUR, PIN-680 667. 5. THE HEADMISTRESS, ST.SEBASTIAN HIGHER SECONDARY SCHOOL, GOTHURUTHY, ERNAKULAM DISTRICT. 6. E.S.SREELATHA, MUSIC TEACHER, ST.MARY'S HIGH SCHOOL, PALLIPORT, ERNAKULAM DISTRICT. ADDITIONAL RESPONDENT IMPLEADED: 7. SMT.K.S.LOTUS SIMON, MUSIC TEACHER, ST.MARY'S HIGH SCHOOL, PALLIPORT, ERNAKULAM DISTRICT. ADDITIONAL R7 IS IMPLEADED AS PER ORDER DATED 11.6.2008 IN I.A.NO.7300 OF 2008. R6 BY ADV. SRI.MVS.NAMBOOTHIRY R4 BY ADV. SRI.L.ALOYSIUS THOMAS AND T.P.SAJAN ADDL.R7 BY ADV. SRI.K.S.MADHUSOODANAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 1/7/2008, ALONG WITH WP(C) NO.14307 OF 2008, THE COURT ON 26/11/2008 DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------- W.P.(C) Nos.15011 & 14307 OF 2008 -------------------------------------------------------- Dated this the 26th November, 2008 JUDGMENT These Writ Petitions are being disposed of by this common judgment as common questions are involved therein. 2. W.P.(C) No.14307 of 2008 is filed by Mrs. Lotus Simon, essentially for the issue of a Writ of Mandamus directing the respondents concerned to implement the order dated 26.2.2008 passed by the Deputy Director of Education, Ernakulam. As per that order, the Deputy Director issued a direction to the Manager of St.Mary's High School, Palliport, Ernakulam, to accommodate Lotus Simon as Music Teacher in the High School Section of the school and to transfer Smt.Sreelatha.E.S. to St.Sebastian's High School, Gothuruth in the place of N.P.Antony, who is a Drawing Teacher and if Antony is entitled to protection, to deploy him in any of the schools under the Corporate Educational Agency. Sri.N.P.Antony has challenged the order dated 26.2.2008 mentioned above, in W.P.(C) No.15011 of 2008. Sreelatha and Lotus Simon are respectively W.P.(C) NOS.15011 & 14307 OF 2008 :: 2 :: respondents 6 and additional respondent No.7 in W.P.(C) No.15011 of 2008. 3. St.Mary's High School, Palliport and St.Sebastian's High School, Gothuruth are under the corporate educational agency, namely, the Diocese of Kottappuram. These schools were originally under the corporate educational agency, Verapoly Diocese. The Diocese of Kottappuram was formed later and it is not disputed that the aforesaid schools come under the said corporate educational agency. 4. Lotus Simon states that she worked as underqualified Music Teacher in St.Mary's High School, Vallarpadam (under the same educational agency) from 6.12.1978 to 27.2.1979 and from 11.6.1979 to 31.3.1980. She was appointed as full time teacher on and from 9.6.1980 in the same school. She states that she has passed S.S.L.C and is a holder of certificate in Indian Music Vocal (Higher) conducted by M.G.T.E. On 30.6.1983, the corporate educational agency transferred Lotus Simon as Music Teacher in St.Mary's High School, Palliport. E.S.Sreelatha entered service as Music Teacher in St.Mary's High School, Palliport initially from 2.1.1986 to 31.3.1986 and thereafter continuously from 2.6.1986. W.P.(C) NOS.15011 & 14307 OF 2008 :: 3 :: Sreelatha is junior in service to Lotus Simon. As per the seniority list, Lotus Simon is Sl.No.28 while Sreelatha is Sl.No.62. Lotus Simon was posted in the Upper Primary Section of St.Mary's High School, Palliport. Sreelatha was posted in the High School section of the same school. 5. It is stated by Lotus Simon that the student strength in the U.P. Section of the school came down to 491 during 2006-07. In 2007-08 also, the number of students in U.P.Section had fallen down. The post of Music Teacher in the Upper Primary Section was abolished. Only in the High School Section, post of Music Teacher was sanctioned. Consequently, salary was denied to Lotus Simon from October, 2007 onwards. 6. Lotus Simon submitted a representation dated 9.11.2007 to the Deputy Director of Education. She also filed a detailed representation dated 26.12.2007 to the Government as well as to the Director of Public Instruction. The Deputy Director of Education, after hearing Lotus Simon, Sreelatha and the Manager, passed the order dated 26.2.2008, referred to above. (Ext.P3 in W.P.(C) No.14307 of 2008). Later, the Director of Public Instruction W.P.(C) NOS.15011 & 14307 OF 2008 :: 4 :: issued letter dated 14.3.2008 (Ext.P4) stating that the issue was already settled by the order dated 26.2.2008 passed by the Deputy Director. Lotus Simon was directed to contact the Deputy Director of Education. The grievance of Lotus Simon is that in spite of the order dated 26.2.2008, the salary due to her from October, 2007 was not disbursed. 7. In W.P.(C) No.15011 of 2008 filed by N.P.Antony, as stated earlier, the order dated 26.2.2008 passed by the Deputy Director is challenged. Antony says that he was appointed as Full Time Drawing Teacher in the High School Section of St.Sebastian's Higher Secondary School, Gothuruth with effect from 2.6.1986. His appointment was duly approved. Antony submits that the order dated 26.2.2008 is illegal. Challenging that order, Antony submitted a representation dated 18.3.2008 before the Director of Public Instruction (Ext.P3 in W.P.(C) No.15011 of 2008), which has not been disposed of by him. The salary bill for the period from April, 2008 was returned by the District Educational Officer, pointing out the order dated 26.2.2008 passed by the Deputy Director. Though the salary for April, 2008 was subsequently sanctioned, the District Educational Officer has directed the Headmistress not to send the W.P.(C) NOS.15011 & 14307 OF 2008 :: 5 :: salary bill of Antony for the period from May, 2008 onwards. According to Antony, Lotus Simon does not have the qualification prescribed under Rule 2(3)(c) of Chapter XXXI of the Kerala Education Rules to hold the post of Music Teacher in the High School. Lotus Simon could only continue in the U.P.Section of the same school, as she is entitled to protection under G.O.(P) No.226/2003.G.Edn. dated 14.6.2003. Antony contends in grounds E to I in the Writ Petition filed by him as follows: “E. Petitioner has a right to continue in service under the 4th respondent Corporate Manager in preference to the 6th respondent as both of them joined service under the 4th respondent on the same day and petitioner is older in age to the 6th respondent, and thus petitioner is senior to the 6th respondent. F. Exhibit P2 order is passed without notice to the petitioner and without verifying the service records of the petitioner and ascertaining interse seniority between him and the 6th respondent. G. A post of Full Time Drawing Teacher was available in St.Sebastian's Higher Secondary School, Gothuruthy sanctioned in accordance with Rule 6(4) of Chapter XXIII of KER even prior to the academic year 2006-2007 and petitioner is working against the said post continuously since the academic year 2002- 2003. Though the post of Drawing Teacher happened to be abolished in the School in the W.P.(C) NOS.15011 & 14307 OF 2008 :: 6 :: Staff Fixation made for the year 2005-2006, it was restored by an order of the 1st respondent dated 11.10.2006 passed in a Revision Petition filed by the Manager of the School. A true copy of the order of the 3rd respondent dated 10.11.2006 showing that the post of Drawing Teacher in St.Sebastian's Higher Secondary School, Gothuruthy was restored in the year 2005-2006 by the orders of the 1st respondent DPI is produced herewith and marked as Exhibit P6. Third proviso to sub-rule (4) of rule 6 of Chapter XXIII KER provides that when there is already a post of Drawing Teacher available in a High School sanctioned under clause (a) of sub-rule (4) of rule 6 of Chapter XXIII KER, post of Music Teacher which is the “second post in the Art Group” can be sanctioned in the school “only when the periods under each group exceeds 25 periods per week. Hence direction in Exhibit P2 to convert the post of Drawing Teacher already available in the school to that of Music Teacher is illegal and arbitrary. H. There is n law permitting any authority to vary a Staff Fixation Order so as to affect prejudicially with retrospective effect the status of an incumbent who rendered services in a School in accordance with the Staff Fixation Order, and that too without notice to the incumbent affected. It is pertinent to note that no proceedings under Rules 12C, 12D or 12E were initiated against the Staff Fixation Orders of the 3rd respondent DEO in respect of St.Sebastian's Higher Secondary School, Gothuruthy for the academic years 2006-2007 and 2007-2008. I. Exhibit P2 order directing to accommodate Smt.K.S.Lotus Simon in the post of Music W.P.(C) NOS.15011 & 14307 OF 2008 :: 7 :: Teacher in High School Section of St.Mary's High School, Palliport is erroneous and illegal in so far as the said Smt.K.S.Lotus Simon does not possess the qualification prescribed in Rule 2(3)(c) Chapter XXXI of KER required for the post of Music Teacher in High School Section.” 8. In the counter affidavit filed by Sreelatha in W.P.(C) No.15011 of 2008, it is stated that she was initially appointed as Music Teacher in the High School section on 2.1.1986 and it was approved upto 31.3.1986. Thereafter, she was again appointed with effect from 2.6.1986 in the same school and it was approved. Antony was appointed as Drawing Teacher only on 24.2.1986 and he continued in service upto 31.3.1986. Antony was re-appointed on 2.6.1986. Sreelatha contends that the dispute regarding seniority between her and Antony was resolved by the order dated 30.11.1999 passed by the Deputy Director of Education, in favour of Sreelatha. That order was not challenged by Antony. The Manager implemented that order and Antony was transferred to St.Sebastian's School, where he is working now. Sreelatha says that if Lotus Simon is to be posted as Music Teacher in the High School Section, she is entitled to be posted as Music Teacher in St.Sebastian's School, Gothuruth. W.P.(C) NOS.15011 & 14307 OF 2008 :: 8 :: 9. In the counter affidavit filed by Lotus Simon, the additional 7th respondent in W.P.(C) No.15011 of 2008, it is stated that she is senior to N.P.Antony as well as Sreelatha. The qualification of Lotus Simon was found to be sufficient for appointment as Music Teacher in the Department schools. No separate qualification was then fixed for High School Section. Lotus Simon relies on G.O. (MS)69/80/General Education dated 30.5.1980. It is pointed out that the Government had approved M.G.T.E. (higher) in music in the case of one V.J.Daleena, who retired in 2001 as Music Teacher in the High School Section of Santa Cruz High School, Ochanthuruth under Verapoly Diocese, as evidenced by Ext.R7(b) certificate. It is also pointed out that the said qualification is approved for the High School Section. 10. The order dated 26.2.2008, passed by the Deputy Director of Education, was challenged by N.P.Antony before the Director of Public Instruction, as evidenced by Ext.P3 in W.P.(C) No.15011 of 2008. It is stated that Ext.P3 is pending disposal. N.P.Antony was not heard before passing the order dated 26.2.2008 by the Deputy Director of Education. Lotus Simon seeks relief for implementing the order dated 26.2.2008 whereas W.P.(C) NOS.15011 & 14307 OF 2008 :: 9 :: N.P.Antony challenges that order. There is dispute between N.P.Antony and Sreelatha in respect of their respective seniority. According to Sreelatha, that issue was settled earlier. Sreelatha has not challenged the order dated 26.2.2008, since apparently, that order does not affect her considerably. For an effective resolution of the dispute, the Director of Public Instruction has to dispose of Ext.P3 representation, dated 18.3.2008, in W.P.(C) No.15011 of 2008, filed by N.P.Antony. It is also necessary to consider the contentions of Lotus Simon, N.P.Antony and Sreelatha while disposing of Ext.P3. The Manager also is to be heard in the matter. Since N.P.Antony has challenged the order dated 26.2.2008 before the Director of Public Instruction, I do not think that the prayer made by him to quash the order dated 26.2.2008, passed by the Deputy Director of Education is sustainable. It is also not feasible to grant the reliefs as prayed for by Lotus Simon for the present, since the representation submitted by N.P.Antony against the order dated 26.2.2008 is pending before the Director of Public Instruction. The grievance of all the parties can be resolved only by an effective consideration and disposal of Ext.P3 dated 18.3.2008, submitted by N.P.Antony before the Director of Public Instruction. W.P.(C) NOS.15011 & 14307 OF 2008 :: 10 :: In the facts and circumstances mentioned above, the Writ Petitions are disposed of as follows: a) The Director of Public Instruction shall dispose of Ext.P3 dated 18.3.2008 (in W.P.(C) No.15011 of 2008) filed by N.P.Antony as expeditiously as possible and at any rate within a period of two months from the date of receipt of a copy of the judgment. b) The Director of Public Instruction shall afford an opportunity of being heard to N.P.Antony, Lotus Simon. K and Sreelatha E.S. The Manager shall also be heard in the matter. c) The aforesaid persons would have every right to put forward their respective contentions before the Director of Public Instruction. They are free to produce such other representations and materials before the Director of Public Instruction in support of their respective contentions. d) N.P.Antony shall produce a copy of W.P.(C) No.15011 of 2008 and certified copy of the judgment before the Director of Public Instruction within a period of two weeks. Likewise, W.P.(C) NOS.15011 & 14307 OF 2008 :: 11 :: Lotus Simon shall produce a copy of W.P.(C) No.14307 of 2008 and certified copy of the judgment before the Director of Public Instruction within two weeks. (K.T.SANKARAN) Judge ahz/