IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 WA.No. 352 of 2008() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.18037/2006 Dated 19/10/2007 .................... APPELLANT(S): RESPONDENTS 1 TO 5: --------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE JOINT DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR (EDUCATION), ERNAKULAM, CIVIL STATION, KAKKANAD. 4. THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM. 5. THE ASSISTANT EDUCATIONAL OFFICER, ERNAKULAM. BY GOVERNMENT PLEADER SMT.R.BINDU RESPONDENT(S): PETITIONER AND RESPONDENTS 6 AND 7: -------------------------------------------------- 1. K.B.RAJESHWARI, PART-TIME MUSIC TEACHER, S.R.V.S.M.G.L.P.SCHOOL, KUMBALAM. 2. THE MANAGER, S.R.V.S.M.G.L.P.SCHOOL, KUMBALAM. KUMBALAM P.O., ERNAKULAM DISTRICT. 3. THE MANAGER, VOCATIONAL HIGHER SECONDARY SCHOOL, PANANGAD, PANANGAD P.O., ERNAKULAM DISTRICT. ADV. SRI.S.P.ARAVINDAKSHAN PILLAY FOR R1 SMT.N.SANTHA FOR R1 SRI.P.N.MOHANAN FOR R2 AND R3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15.10.2009, THE COURT ON 15/10/2009 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ WA No.352 of 2008 ------------------------------------------------------------------ Dated 15th October 2009 Judgment Balakrishnan Nair, J. Respondents 1 to 5 in the Writ Petition are the appellants and the writ petitioner is the 1st respondent. The brief facts of the case are the following : 2. The first respondent's mother was a Music Teacher in the 2nd respondent's school. On the death of her mother on 07.1.1994, the 1st respondent was appointed in that vacancy under the Dying-in- harness scheme on 27.01.1994. But, the Department took the stand that the said post stood abolished with the death of the incumbent by virtue of Circular No.114-119952/89/DPI dated 15.5.1990. But, a Division Bench of this Court, by Ext.P1 judgment, directed to approve the appointment of the 1st respondent. Even then, the appellants continued to maintain the position that there is no post for appointing the 1st respondent. But, in order to comply with the directions in the Division Bench judgment, a part-time post was created and her appointment in that post was approved with effect from 27.01.1994 as per proceedings dated 18.11.1999. Thereafter, the 2nd WA 352/08 2 respondent moved for sanctioning a Full-time post of Music Teacher by clubbing arrangement with the third respondent's school. The said claim was rejected and finally, this Court by Ext.P16 judgment, directed reconsideration of the said claim. The claim was rejected mainly for the reason that there is already a Music Teacher under protection in the third respondent's school and therefore, no periods are available for clubbing arrangement under Rule 2 of Chapter XXIII KER, as it stood then. But the learned Government Pleader submitted before this Court that there was no such protected Music Teacher in the LP Wing of the third respondent's school. So, recording that submission, the matter was remitted for fresh consideration by the Government, by this Court as per Ext.P16 judgment. But, while the matter was reconsidered as per Ext.P18 order, the Government did not consider the 2nd respondent's claim for clubbing arrangment with the third respondent's school, but rejected that claim on other grounds as evident from Ext.P18. The Writ Petition was filed, challenging Ext.P18 and seeking consequential reliefs. 3. In the Writ Petition, the respondents filed a counter affidavit, raising the very same point that there is a protected Music Teacher in WA 352/08 3 the third respondent's school. The learned Single Judge rightly overruled the said objection and directed approval of appointment of the 1st respondent as a Full-time Music Teacher with clubbing arrangement with the third respondent's school. Feeling aggrieved by the said direction, this Writ Appeal is filed. 4. We heard the learned counsel on both sides. The learned Government Pleader reiterated the very same contention regarding the existence of a protected Teacher in the third respondent's school for attacking the judgment under appeal. But, we feel that the said contention is no longer available, in view of the submission made on behalf of the appellants before this Court, which is recorded in Ext.P16 judgment. In view of the above position, if there are sufficient periods in the LP wing of the second respondent's school, when clubbed with the periods available in the LP Wing of the third respondent's school, justifying the sanction of a Full-time Music Teacher, the 1st respondent is entitled to get the benefit of the same. So, we find no reason to interfere with the conclusions reached by the learned Single judge. But the appellants are given liberty to assess whether the periods in the schools of respondents 2 and 3 in the LP wing are sufficient for granting a Full-time post of Music WA 352/08 4 Teacher on clubbing arrangement. The same shall be done by the Deputy Director of Education, Ernakulam, within two months from the date of receipt/production of a copy of this judgment. If the claim of the 1st respondent is found sustainable, having regard to the number of periods in the schools of respondents 2 and 3, her claim for approval of appointment as Full-time Music Teacher shall be granted with effect from the academic year 1999-2000 and arrears of salary shall be released to her without any further delay. Subject to the above direction, the judgment under appeal is affirmed. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta WA 352/08 5