IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 WP(C).No. 25479 of 2006(G) -------------------------- PETITIONER(S): -------------------- 1. THE ST.JOHN DE-BRITTO'S ANGLO INDIAN BOYS HIGH SCHOOL, FORT COCHIN, COCHIN-1, REPRESENTED BY ITS MANAGER. 2. CYRIL, HEADMASTER, THE ST.JOHN DE-BRITTO'S ANGLO INDIAN BOYS HIGH SCHOOL, FORT COCHIN, COCHIN-1. BY ADV. SRI.S.SREEKUMAR SRI.P.K.SOYUZ RESPONDENT(S): ------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY (EDUCATION DEPARTMENT GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE DEPUTY DIRECTOR (EDUCATION), ERNAKULAM. 3. THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM. 4. HELEN K.J., W/O.V.J.GEORGE, XXIII/286A, VELIPARAMBIL HOUSE, EDACOCHIN, ERNAKULAM DIST. 5. SHERLY FERNANDEZ, W/O.THOMAS FELIX GEORGE, 10/1684, SOUTH THAMARAPARAMBU, COCHIN-1. ADV. SRI.THOMAS ABRAHAM FOR R4 & R5 SRI.DIPU.R FOR R4 & R5 GOVT.PLEADER SRI.T.T.MOHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.25479/06 APPENDIX PETITIONERS EXHIBITS EXT.P1: TRUE COPY OF THE RULES CALLED “THE RULES FOR ANGLO INDIAN SCHOOLS, KERALA” FRAMED BY THE 1ST RESPONDENT. EXT.P2: TRUE COPY OF THE ORDER NO.B3/5685/05 DT 15.7.05 OF CLASS DIVISIONS FOR THE YEAR 2005-06. EXT.P3: TRUE COPY OF THE ORDER NO.B3-6133/06/K.DIS DT 6/7/06 OF THE 3RD RESPONDENT. EXT.P4: TRUE COPY OF THE APPEAL FILED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT CHALLENGING EXT.P3 ORDER DT 31.7.06. EXT.P5: TRUE COPY OF THE JUDGMENT DT 25.8.06. EXT.P6: TRUE COPY OF THE ORDER DT 28.8.06 OF THE 2ND RESPONDENT. //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. ============== W.P.(C) NO. 25479 OF 2006 (G) ==================== Dated this the 2nd day of December, 2008 J U D G M E N T The prayer in this writ petition is to quash Exts.P3 and P6. According to the petitioners, respondents 4 and 5 were appointed as Primary School Assistants and were deployed for teaching in both UP and LP Sections of the school. It is stated further that they insisted that they should be deployed only in the UP Section and took up this complaint before the 3rd respondent. It is stated that the 3rd respondent by Ext.P3 order directed that in terms of the provisions contained in the Kerala Education Act and the Rules, respondents 4 and 5 should be deployed for work only in the UP Section. Against Ext.P3 order, Manager moved the 2nd respondent by filing Ext.P5. However, the Deputy Director-the 2nd respondent, confirmed Ext.P3 order by Ext.P6 proceedings and it is in these circumstances the writ petition has been filed. 2. The main contention raised by the learned counsel for the petitioners is that the school is an Anglo Indian School governed by Ext.P1, the Rules for Anglo Indian Schools in Kerala State, issued by the Government of Kerala on 26th of July 1974. It is stated that the status of the school was considered by this court in Syed v. DEO, Ernakulam WPC 25479/06 :2 : (1991(2) KLT 452) and this court has held that the school is an Anglo Indian School governed by Ext.P1, the Special Rules. Proceeding further, it was also held that the school is not a private school under the Kerala Education Act or the Rules. According to the petitioners, since inception respondents 4 and 5, like every other Primary School Assistant, were deployed in both LP and UP School and therefore their grievance which led to the issuance of Ext.P3 as confirmed by Ext.P6, is totally baseless. 3. On the other hand, counsel for the respondents 4 and 5 has produced before me their order of appointment, in terms of which they have been appointed as Primary School Assistant (UP) in the petitioner school. According to them, they were working in the UP Section alone. It is stated that following the judgment of this Court in Jayanand v. A.E.O (2001(1) KLT 115) as confirmed by the Apex Court in Latha v. State of Kerala (2003(1) KLT 949), only teachers having TTC can teach in the LP Section of the school and therefore the petitioner can be deployed for work only in the UP Section. It is stated that it was realising this limitation that they were appointed as Primary School Assistants (UP). 4. According to the petitioners, there are only 5 B.Ed holders in the school and there are about 16 TTC holders in the school, who alone WPC 25479/06 :3 : were looking after the duties in the primary section. On these grounds they want to sustain Exts.P3 and P6. 5. Learned Government Pleader also supports the contention raised by respondents 4 and 5 and contends that though rules in the KER in its totality may not be applicable to the school in question, still the orders governing qualification etc are applicable to the school. It is contended that the judgments referred to above applies in full force to the school in question and if that be so, Exts.P3 and P6 are unassailable. It is also his contention that salary is being paid by the 1st respondent. 6. I have considered the submissions made by both sides. 7. A reading of Exts.P3 and P6 shows that these orders have been issued by the DEO and Deputy Director on the footing that KER in toto is applicable to the school in question. It is the contention of the petitioner that the school is an Anglo Indian School, to which Ext.P1, the rules for Anglo Indian Schools Kerala State alone applies. The fact that the school is an Anglo Indian School has already been recognised by this Court in Syed v. DEO, Ernakulam (1991(2) KLT 452). If the school in question is an Anglo Indian School, necessarily therefore Ext.P1 is what governs the school and its teachers. WPC 25479/06 :4 : 8. Once that issue is resolved, the question that arises for consideration is to what extent the other provisions in the KER are applicable, and if so, what is the relevance of the judgments relied on by the respondents 4 and 5 about which reference has been made in the earlier paragraphs of this judgment. 9. Apart from holding that KER in its totality applies to the school, respondents 2 and 3 have not considered the applicability or otherwise of Ext.P1 rule. Now that this Court has held Ext.P1 to be applicable, necessarily therefore Exts.P3 and P6 to the extent it holds that KER in its totality applies to the school is erroneous. Therefore, Exts. P3 and P6 will have to be set aside and I do so . 10. But then, that is not the end of the matter. Even if Ext.P1 applies, the question whether B.Ed holders can be permitted to teach in the LP Section and to what extent the law laid down by this Court in the judgment reported in Jayanand v. A.E.O (2001(1) KLT 115), which has been confirmed by the Apex Court in Latha v. State of Kerala (2003(1) KLT 949) applies to the school, needs to be considered. In my view, the entire controversy in this case will depend upon such reconsideration. This necessarily is a matter for the 3rd respondent to WPC 25479/06 :5 : consider. 11. Therefore, I direct the 3rd respondent to consider the grievance of respondents 4 and 5 on the footing that Ext.P1 rule applies to the petitioner school and decide the matter afresh with notice to the petitioners and respondents 4 and 5. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp