IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 23RD OCTOBER 2009 / 1ST KARTHIKA 1931 WP(C).No. 9304 of 2009(G) --------------------------------------- PETITIONER(S): ----------------------- C.RAJI, CHAKKUNGAL HOUSE, KATTUSSERY P.O ALATHUR, PALAKKAD DISTRICT (MUSIC TEACHER, K.T.M.HIGH SCHOOL, MANNARKKAD). BY ADVS.MR.P.K.SURESH KUMAR SMT.P.JAYALAKSHMI RESPONDENT(S): ---------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. 4. THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD. 5. THE MANAGER, K.T.M HIGH SCHOOL, MANNARKKAD, PALAKKAD DISTRICT. R1 TO R4 BY GOVT. PLEADER SMT.T.B.RAMANI R5 BY ADV.MR.KRISHNAKUMAR MANGOT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.9304/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.B1-6951/01/K.DIS DTD. 24.9.01 ISSUED BY THE 4TH RESPONDENT. P2:- COPY OF THE ORDER NO.B4-29573/01/K.DIS. DTD. 27.6.02 ISSUED BY THE 3RD RESPONDENT. P3:- COPY OF THE ORDER NO. EM5/78659/02/DPI D.DIS DTD. 16.12.02 ISSUED BY THE 2ND RESPONDENT. P4:- COPY OF THE GO(RT) NO.4354/03/G.EDN. DTD. 28.10.03 ISSEUD BY THE IST RESPONDENT. P5:- COPY OF THE JUDGMENT DTD. 19.3.03 IN OP. NO.30259/01 PASSED BY THIS HONOURABLE COURT. P6:- COPY OF THE G.O.(MS) NO.525/95/G.EDN. DTD. 28.10.95 PASSED BY GOVT. OF KERALA, GENERAL EDUCATION (J) DEPARTMENT. P7:- COPY OF THE GO(P) NO.253/04/G.EDN. DTD. 6.8.04 ISSUED BY GOVT. OF KERALA, GENERAL EDUCATION (J) DEPARTMENT. P8:- COPY OF THE JUDGMENT DTD. 27.3.07 IN WPC. 33391/04 PASSED BY THIS HONOURABLE COURT. P9:- COPY OF THE ORDER NO.B1-10181/04 DTD. 20.7.07 PASSED BY THE 4TH RESPONDENT. P10:- COPY OF THE REVISION PETITION DTD. 16.8.07 SUBMITTED BY THE PETITIONER BEFORE THE GOVT. P11:- COPY OF THE GO(RT) NO.2581/04/G. EDN. DTD. 24.6.04 ISSUED BY GOT. OF KERALA, GENERAL EDUCATION (K) DEPARTMENT. P12:- COPY OF THE ORDER NO.72803/K.1/06 DTD. 12.11.08 ISSEUD BY THE GOVT. OF KERALA, GENERAL EDUCATION DEPT. P13:- COPY OF THE GO(RT) NO.807/91/G. EDN. DTD. 14.3.91 ISSUED BY GOVT. OF KERALA GENERAL EDUCATION (N) DEPARTMENT. P14:- COPY OF THE STAFF FIXATION ORDER NO. D. DIS. B1-4632/01 DTD. 7.9.01 OF THE 4TH RESPONDENT. P15:- COPY OF THE GO(MS)390/02/GEN. EDN. DTD. 27.11.02 ISSUED BY THE GOVT. OF KERALA, GENERAL EDUCATION, (J) DEPARTMENT. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 9304 of 2009-G - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of October, 2009. JUDGMENT The petitioner herein is a music teacher appointed in the K.T.M. High School, Mannarkad. The main prayer in the writ petition is to quash Exts.P1 to P4, P9 and P12 and for a direction commanding the respondents to approve the appointment of the petitioner as Music Teacher with effect from 20.8.2001. 2. The appointment of the petitioner was in a retirement vacancy and in terms of Rule 6(4) of Chapter XXIII K.E.R. The District Educational Officer refused to approve the appointment of the petitioner which is evident from Ext.P1. The stand taken therein is that as per the staff fixation order 2000-2001 the Music post in High School Section has been abolished consequent on the retirement of Smt. N.R. Rajalakshmi in terms of G.O. (Ms) No.525/1995. This was taken up in appeal before the Deputy Director of Education and the appeal was rejected as per Ext.P2. Further appeal to the Director of Public Instruction also faced the same fate as evident from Ext.P3. Finally, the Government as per Ext.P4, was of the view that a specialist teacher, viz. a drawing teacher is already working in the school wpc 9304/2009 2 and as per the existing rules, a second post in Art group can be sanctioned only if there are 26 periods under the Art Group. 3. The petitioner challenged Exts.P1 to P4 in W.P.(C) No.33391/2004. The said writ petition was disposed of by Ext.P8 judgment directing the District Educational Officer to take a decision on Ext.P8 produced therein. Again, the request was rejected by Ext.P10. In fact, one of the issues therein was that there were actually enough number of periods allotted for the sanctioning of the post of the petitioner. Ext.P12 is the final order passed by the Government. 4. Mainly, it is contended that going by the relevant rules. viz. Rule 6 (4)(b) of Chapter XXIII K.E.R., one full time post of Music Teacher irrespective of the number of periods of work per week, has to be sanctioned. It is the contention that the sanctioning of the post of Music Teacher is not dependent upon the number of periods. Reliance is placed on a decision of this court in Satheesh Kumar v. State of Kerala (2009 (3) KLT 439). 5. In the counter affidavit, the stand taken is that the number of periods for each art group and craft group per week is less than 25 and so it is not possible to sanction a post of Music Teacher as per the existing rules. wpc 9304/2009 3 Reliance is placed on G.O.(MS) No.525/1995 also. In Satheesh Kumar's case (2009 (3) KLT 439), the very same issue was considered by this court. It was held thus in para 17: “Plainly, the said interpretation cannot be accepted for more reasons than one as indicated already. Going by sub-rule 4(a), one full time post of Drawing Teacher “irrespective of the number of periods of the work” has to be there. Therefore, the said argument cannot be accepted. Secondly, as already indicated, the third proviso concerns only sanctioning of a specific post of Music Teacher or a post in the Craft Group. Therefore, it is clear that the rule making authority was clearly bearing in mind the effect of sub-rules 4(a) and 4(b) wherein one full time post of Drawing Teacher and that of Music Teacher has to be there irrespective of the number of periods.” 6. Herein also, the vacancy arose due to retirement of a Music Teacher which was a sanctioned post. Therefore, being a High School, irrespective of the number of periods, one post of Music Teacher has to be sanctioned. In that view of the matter, the stand taken by the respondents in Exts.P1 to P4 cannot be sustained. The writ petition is therefor allowed. Exts.P1 to P4, P9 and P12 are quashed. There will be a direction to the 4th respondent to grant approval of appointment of the petitioner with effect from 20.8.2001 and appropriate orders shall be passed within a period of six weeks from the date of wpc 9304/2009 4 production of a copy of this judgment. The petitioner will be entitled for the monetary benefits on the grant of such approval which shall be disbursed within a further period of one month thereafter. No costs. (T.R. Ramachandran Nair, Judge.) kav/