IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 13TH FEBRUARY 2008 / 24TH MAGHA 1929 OP.No. 2115 of 2003(B) ---------------------- PETITIONER: ------------ THE MANAGER, ST.MARY'S H.S.S., MORAKKALA. BY ADV. SRI.ABRAHAM VAKKANAL RESPONDENTS: ------------- 1. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCATIONAL OFFICER, ALUVA. BY GOVERNMENT PLEADER SHRI.T.T.MUHAMOOD THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 13/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.2115/2003 APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE STAFF FIXATION ORDER DTD.31.7.02. P2. COPY OF THE GOVT. ORDER DTD.28.6.02. P3. COPY OF THE PETITION DTD.26.7.02 FROM PRINCIPAL OFST.MARY'S H.S.MORAKKALA. P3. COPY OF THE APPEAL DTD.25.9.02 TO R1. P4. COPY OF THE JUDGMENT IN O.P.NO.30949/02 OF THIS COURT. P5. COPY OF THE ORDER DTD.18.12.02. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No.2115 of 2003 ================== Dated this the 13th day of February, 2008 J U D G M E N T The petitioner is the manager of an aided school. Before 1999, there were 3 specialist teachers in the school; 1 Physical Education, 1 Drawing and 1 Music. Physical Education Teacher retired on 31.3.1996. Drawing Teacher retired on 31.3.2000. The Music teacher being a teacher appointed prior to 1979, was entitled to be continued in service in accordance with the Government orders applicable as a protected teacher. From 1.4.2000 the Music Teacher alone was in the school. From 1999- 2000 onwards, there were more that 500 students in the U.P. section of the school. According to the petitioner, by virtue of Rule 6B(2)(a) of Chapter XXIII of KER, the petitioner's school is entitled to have the post of a specialist teacher. However, in Ext.P1 staff fixation order, it was stated that Music Teacher, Subhalekshmi, has continuous service from 25..7.1974 and she is eligible to draw salary till 30.9.2002 as per G.O(P)195/02/G.Edn. dated 8.7.02. This restriction was challenged both by the o.p.2115/03 2 petitioner as well as the Music Teacher, which ultimately resulted in Ext.P6 order, whereby the Joint Director of Public Instruction sanctioned a regular post of Music Teacher as per G.O(P). No.178/02/Gl.Edn. dated 28.6.2002 subject to the condition that the same should be abolished consequent on the retirement of the Music Teacher. That part of Ext.P6 order, whereby sanctioning of the regular post of Music Teacher only till the date of retirement of Smt.Subhalekshi, is under challenge in this original petition. 2. According to the petitioner, when, as per rules applicable, the school is entitled to have one post of of specialist teacher, there is absolutely no reason why sanctioning of specialist teacher should be confined to the date of retirement of the Music Teacher already in service. The petitioner, therefore, seeks the following reliefs in this original petition. “(i) issue a writ of certiorari or any other appropriate writ, order or direction, quashing/deleting the objectionable portion in the penultimate para in Exhibit P6, viz. “as per G.O.(P). 178/02/Gl. Edn. dated 28.6.2002, subject to the condition that the same should be abolished consequent on the retirement of Smt.S.Subhalakshmi”., it being against Rule 6(B) (2) of Ch.XXIII KER. (ii) to declare that the regular post of music teacher sanctioned in the school as per Ext.P6 is by virtue of Rule 6(B)(2) of Ch.XXIII o.p.2115/03 3 and that so long as the conditions in the said rule is satisfied, the regular post of specialist teacher is to be sanctioned in the petitioner's school.” 3. A counter affidavit has been filed on behalf of the 1st respondent, in which, in paragraph 7 it is stated thus: “7..... Abolition of the post of Music Teacher after retirement of Smt.Subhalakshmy is in no way adversely affects the service benefit of the teacher. A regular post of Music can be sanctioned when the economy ban imposed by Government is lifted.” There is no dispute that, as per Rules the school is entitled to have one post of specialist teacher. The only contention is that it could not be sanctioned only because of the economy ban imposed by the Government. Admittedly that ban is no longer in force. Therefore, there cannot be any difficulty in sanctioning the post of specialist teacher in the school of the petitioner. Accordingly, this original petition is disposed of with a direction to the 2nd respondent to sanction one post of specialist teacher in the petitioner's school with effect from the next academic year, viz., 2008-09, if student strength is sufficient as per rules. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.2115/03 4