IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 WP(C).No. 26797 of 2008(M) --------------------------------------- PETITIONER: ------------------- P.V.MURALI DRAWING TEACHER, GANAPATHY VILASAM H.S.S, KOOVAPPADY, ERNAKULAM DISTRICT. BY MR.ABRAHAM VAKKANAL, SENIOR ADVOCATE, ADVS.MR.PAUL ABRAHAM VAKKANAL, MR.DIJO SEBASTIAN. RESPONDENTS: ------------------------ 1. STATE OF KERALA,REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPT., SECRETARIAT, THIRUVANANTHAPURAM, PIN- 695 001. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM PIN- 695 001. 3. THE DISTRICT EDUCATIONAL OFFICER, KOTHAMANGALAM, PIN- 686 691. 4. THE MANAGER, GANAPATHY VILASAM H.S.S, KOOVAPPADY, ERNAKULAM DISTRICT, PIN -683 544. R1 TO R3 BY GOVERNMENT PLEADER MR. MUHAMOOD.T.T, R4 BY ADVS. MR.N.K.KARNIS, MR.LATHEESH SEBASTIAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/02/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.26797/2008-M: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPOINTMENT ORDER WITH APPROVAL ORDER DTD. 05/11/2001. EXT.P.2: COPY OF THE LETTER ISSUED BY THE R.2. DTD. 24/07/2007. EXT.P.3: COPY OF THE REPLY DTD. 27/07/2007. EXT.P.4: COPY OF THE HEARING NOTES DTD. 15/09/2007. EXT.P.5: COPY OF THE ORDER NO. 11025/07/B4 OF THE DY. DIRECTOR (EDN.) DTD. 26/09/2007. EXT.P.6: COPY OF THE ORDER NO. B1-3158/07 OF THE R.2. DTD. 31/07/2007. EXT.P.7: COPY OF THE REVISION PETITION DTD. 18/10/2007. EXT.P.8: COPY OF THE JUDGMENT IN W.P.(C).NO.31563/07 DTD. 24/10/2007. EXT.P.9: COPY OF THE ORDER OF THE DPI NO.D.DIS.72627/07/RA (2)/DPI DTD. 13/12/2007. EXT.P.10: COPY OF THE REVISION PETITION DTD. 13/12/2007. EXT.P.11: COPY OF THE G.O.RT.NO.3932/08/G. EDN. DTD. 29/08/2008. EXT.P.12: COPY OF THE COMMON JUDGMENT IN W.P.(C).NO.26941/05 & C.C.(C). NO.1508/06 DTD. 06/08/2007. EXT.P.13: COPY OF THE G.O.(RT).NO.2328/04/G. EDN. DTD. 08/06/2004. EXT.P.14: COPY OF THE G.O.(RT).NO.5926/2005/G. EDN. DTD. 22/12/2005. EXT.P.15: COPY OF THE GOVERNMENT ORDER G.O.(RT).NO.95/2009/G. EDN. DTD. 05/01/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. P.N.RAVINDRAN, J. ----------------------------------- W.P.(C) No. 26797 of 2008 M ----------------------------------- Dated 17th February, 2009 Judgment The petitioner was appointed as Drawing Teacher in the High School section of GVHS, Koovappady, managed by the fourth respondent in a retirement vacancy that arose on 18.9.2001 by Ext.P1 appointment order dated 18.9.200. The vacancy of Drawing Teacher arose in the High School section on the voluntary retirement of the incumbent Sri.T.S.Mohanan with effect from 18.9.2001. The petitioner's appointment as Drawing Teacher in the High School section of GVHS, Koovappady was approved by the District Educational Officer, Kothamangalam by order passed on 5.11.2001 with effect from 18.9.2001 till the vacancy exists. Pursuant to Ext.P1 order of appointment as approved by the District Educational Officer, Kothamangalam, the petitioner was working as Drawing Teacher in the High School section of the school without interruption. The post of Drawing Teacher in the High W.P.(C) No.26797/2008 2 School section of the school was sanctioned during the academic years 2002-2003, 2003-2004, 2004-2005, 2005- 2006 and also during the academic year 2006-2007. 2. The staff fixation order for the academic year 2006- 2007 in respect of GVHS, Koovappady was scrutinised by the Deputy Director of Education, Ernakulam during the next academic year. The Deputy Director of Education objected to the petitioner's appointment as Drawing Teacher in the High School section of the school on the ground that Sri.S.K.Jayadhan, Music Teacher in the Upper Primary section of the school who has continuous service with effect from 5.6.1985 is continuing on protection in the UP section itself and that he ought to have been accommodated in the vacant post of Drawing Teacher with effect from 18.9.2001 instead of appointing the petitioner. The Deputy Director of Education also held that the approval given to the petitioner's appointment as Drawing Teacher in the High School section of the school with effect from 18.9.2001 is irregular. He also directed that steps should be taken to cancel the petitioner's W.P.(C) No.26797/2008 3 appointment with effect from 18.9.2001 and the salary paid to the petitioner provisionally fixed as the liability of the persons concerned. 3. The objection raised by the Deputy Director of Education, Ernakulam was forwarded by the District Educational Officer, Kothamangalam to the fourth respondent Manager along with Ext.P2 letter dated 24.7.2007. By the said letter, the District Educational Officer called for the remarks of the fourth respondent Manager. On receipt of Ext.P2 letter, the fourth respondent Manager submitted Ext.P3 reply wherein he inter alia contended that the post of Drawing Teacher in the High School section of the school was sanctioned as per rule 6 (4) of Chapter XXIII of KER and that no statutory rule or Government order stands in the way of vacancies of Drawing Teacher in the High School section from being filled up on the retirement or death of the incumbent. 4. After the fourth respondent Manager submitted Ext.P3 reply, the Deputy Director of Education, Ernakulam issued notice dated 11.9.2007 inviting the petitioner, the W.P.(C) No.26797/2008 4 fourth respondent Manager and the representative of the District Educational Officer to appear for the hearing held on 15.9.2007. The fourth respondent Manager appeared before the Deputy Director of Education, Ernakulam on 15.9.2007 and submitted Ext.P4 note wherein he reiterated his contention that the petitioner's appointment as Drawing Teacher in the High School section was legal and proper. The Deputy Director of Education, Ernakulam thereafter passed Ext.P5 order dated 26.9.2007 directing the District Educational Officer, Kothamangalam to cancel the approval given to the petitioner's appointment as Drawing Teacher in the High School section with effect from 18.9.2001 and to absorb Sri.S.K.Jayadhan, the protected Music Teacher in the said vacancy. The Deputy Director also directed the fourth respondent Manager to terminate the service of the petitioner. The District Educational Officer, Kothamangalam was directed to take steps to obtain refund of the salary and other benefits paid to the petitioner. 5. The District Educational Officer, Kothamangalam W.P.(C) No.26797/2008 5 had, in the meanwhile, issued Ext.P6 staff fixation order dated 31.7.2007 for the academic year 2007-2008 whereby, he abolished the post of Drawing Teacher in the High School section based on the objection raised by the Deputy Director of Education and directed retrenchment of the petitioner from service for the reason that he was not entitled to the benefit of protection. Aggrieved by Exts.P5 and P6 orders, the petitioner filed Ext.P7 revision petition before the Director of Public Instruction under rule 12E of Chapter XXIII of KER. He thereafter filed W.P.(C) No.31563 of 2007 in this Court seeking expeditious disposal of Ext.P7 revision petition. By Ext.P8 judgment delivered on 24.10.2007, this Court disposed of the said writ petition with a direction to the Director of Public Instruction to pass orders on Ext.P7 revision petition within one month from the date of receipt of a copy of the judgment after affording the petitioner and the Manager of the school an opportunity of being heard. This Court also directed that till the disposal of the revision petition, the Manager shall not terminate the service of the petitioner, that his continuance in W.P.(C) No.26797/2008 6 service will be subject to the result of Ext.P7 revision petition, that he will not be entitled to draw salary in the meanwhile and that his right to draw salary will also be subject to the result of the revision petition. 6. Ext.P7 revision petition filed by the petitioner was considered by the Joint Director of Public Instruction who conducted a hearing on 10.12.2007. The Joint Director of Public Instruction heard the petitioner, the Manager and the representative of the District Educational Officer, Ernakulam and thereafter passed Ext.P9 order dated 13.12.2007 rejecting Ext.P7 revision petition and upholding Ext.P5. The Joint Director of Public Instruction held that the Manager ought to have accommodated Sri.S.K.Jayadhan, Music Teacher in the UP section of the school in the vacancy of Drawing Teacher that arose in the High School section on 18.9.2001 on the voluntary retirement of Sri.T.S.Mohanan, instead of appointing the petitioner. Aggrieved by Ext.P9 order, the petitioner filed Ext.P10 revision petition before the State Government under rule 12F of Chapter XXIII of KER. On the W.P.(C) No.26797/2008 7 said revision petition, the Under Secretary to Government, General Education Department heard the petitioner, the fourth respondent Manager and the representative of the Educational Officer on 4.4.2008. The Government thereafter passed Ext.P11 order dated 29.8.2008 rejecting Ext.P10 revision petition and upheld Ext.P9 order passed by the Director of Public Instruction. The Government, however, ordered that the salary paid to the petitioner for the period he has actually worked based on the approval granted by the District Educational Officer need not be recovered from him. Ext.P5 order passed by the Deputy Director of Education, Ernakulam was set aside to that extent. The Government also directed the Director of Public Instruction to initiate disciplinary action against the District Educational Officer, Kothamangalam who approved the petitioner's appointment. The Government also directed the Director of Public Instruction to submit a proposal to recover the salary and allowances paid to the petitioner from the concerned District Educational Officer. This writ petition was thereupon filed on 3.9.2008 challenging Exts.P6, W.P.(C) No.26797/2008 8 P9 and P11 orders and seeking a direction to the respondents not to terminate the service of the petitioner. The petitioner contends that the reasons set out by the official respondents in Exts.P5, P6, P9 and P11 orders are not sustainable in law and that the provisions of Chapter XXIII of the KER or the relevant Government orders do not empower the official respondents to cancel the petitioner's appointment. Relying on rule 6 (4) of Chapter XXIII of the KER, it is contended that the appointment of the petitioner as Drawing Teacher in the High School section of the school on the retirement of the incumbent was perfectly in order and that rules 2 and 6B of Chapter XXIII of the KER do not invalidate the petitioner's appointment. 7. A counter affidavit has been filed on behalf of the third respondent wherein it is contended that the petitioner's appointment as Drawing Teacher in the High School section of the school at a time when Sri.S.K.Jayadhan, Music Teacher in the UP section of the school was continuing on protection was illegal. It is stated that though the post of Drawing Teacher was sanctioned in GVHS, Koovappady during the academic W.P.(C) No.26797/2008 9 years 2001-2002 to 2005-2006 and also during the year 2006- 2007, on review of the staff fixation order for the academic year 2006-2007, the Deputy Director of Education objected to the petitioner's appointment for the reason that his appointment was not in order and that the protected teacher working in the UP section of the school ought to have been accommodated in the vacancy of Drawing Teacher that arose in the High School section on the retirement of the incumbent. The petitioner has filed a reply affidavit reiterating the contentions raised in the writ petition including the contention that no provision in Chapter XXIII of the KER justifies the action taken by the official respondents. 8. I heard Sri.Abraham Vakkanal, the learned Senior Advocate appearing for the petitioner and Sri.T.T.Mahmood, the learned Government Pleader for respondents 1 to 3. It is not in dispute that the post of Drawing Teahcer was sanctioned in GVHS, Koovappady even before the petitioner was appointed and that the said post was held by Sri.T.S.Mohanan whose appointment as Drawing Teacher in the High School W.P.(C) No.26797/2008 10 section had been approved by the official respondents. Sri.T.S.Mohanan voluntarily retired from service on 18.9.2001. In that vacancy, the petitioner was appointed with effect from 18.9.2001 by Ext.P1 order of even date. The said appointment was approved by the District Educational Officer, Kothamangalam by order passed on 5.11.2001. The post of Drawing Teacher was sanctioned in the High School section of GVHS, Koovappady during the succeeding academic years also namely, 2002-2003, 2003-2004, 2004-2005 and 2005-2006. In the staff fixation order for the academic year 2006-2007 also, the District Educational Officer had sanctioned the post of Drawing Teacher in the High School section. However, in the year 2007, the Deputy Director of Education, Ernakulam reviewed the staff fixation order for the year 2006-2007 and raised an objection that the petitioner's appointment during the year 2001 was not in order. According to the Deputy Director of Education, the vacancy of Drawing Teacher that arose in the High School section on 18.9.2001 should not have been filled up by appointing a fresh hand and the Manager W.P.(C) No.26797/2008 11 ought to have accommodated the protected Music Teacher working in the UP section of the school against that vacancy. It was thereafter that the orders impugned in this writ petition were passed. 9. The provisions dealing with fixation of staff strength in departmental and aided schools are those contained in Chapter XXIII of the KER. Rule 2 of Chapter XXIII of the KER stipulates that notwithstanding anything contained in any other rule of Chapter XXIII, no post of Specialist Teacher shall be allowed to continue in any Lower Primary School or Lower Primary Section of Upper Primary or High School, except for the continuance of the qualified teachers who were actually holding the post on the Sixth day of March, 1979. The proviso to rule 2 of Chapter XXIII, however, stipulates that the Specialist Teachers appointed in Lower Primary Schools or Lower Primary Sections of Upper Primary Schools or High Schools after the Sixth day of March, 1979 and whose appointments were approved shall be allowed to continue as such till their retirement, resignation, death or transfer and W.P.(C) No.26797/2008 12 that the posts of such Specialist Teachers shall be allowed to continue for their such continuance till they vacate the posts. Rule 2 of Chapter XXIII of the KER does not in my opinion apply to Specialist Teachers working in the High School sections of schools. It applies only to Specialist Teachers in Lower Primary Schools or Lower Primary sections of Upper Primary Schools and High Schools. Therefore, relying on rule 2 of Chapter XXIII of the KER, the appointment of the petitioner as Drawing Teacher in the High School section of GVHS, Koovappady cannot be said to be illegal. 10. Rule 7 of Chapter XXIII of the KER stipulates that the post of a Language Teacher or High School Assistant -Language, as the case may be or of a Specialist Teacher or Craft Teacher, created for less than 15 periods of work per week in the concerned language or subject shall be part-time. The proviso to sub-rule (1) of rule 7 of Chapter XXIII of the KER however states that no part-time post shall be sanctioned if the number of periods of work per week is less than four in the case of Hindu, Urdu, Sanskrit and Arabic and less than five W.P.(C) No.26797/2008 13 in other cases. The Exception to rule 7 (1) of Chapter XXIII of the KER states that if there is only one post under any of the undermentioned designations in the particular type or grade of school noted there against, such post shall be a full-time post even though the number of periods of work per week is less than 15. As per the stipulations in the Exception, even if the number of periods of work per week is less than 15, a full-time combined post of Drawing and Physical Education Teacher can be sanctioned in any school. 11. The official respondents have no case that the post of Drawing Teacher against which Sri.T.S.Mohanan was appointed was illegally sanctioned in in the High School section of GVHS, Koovappady. They have also no case that the appointment of the petitioner's predecessor was not in order. The only objection raised by the official respondents is that when the incumbent holding the post of Drawing Teacher in the High School section retired from service voluntarily, the Manager ought to have accommodated the Music Teacher in the UP section of the school continuing in the school under protection W.P.(C) No.26797/2008 14 in that vacancy instead of appointing the petitioner. Rule 6 (4) of Chapter XXIII of the KER states that notwithstanding anything contained in rule 7, in the High School section of every complete High School there shall be one full-time post of Physical Education Teacher and one full-time post of Drawing Teacher irrespective of the number of periods of work per week in each of the concerned subjects. The proviso to the said rule however stipulates that if there is already a post of Drawing Teacher under the Art Group, the second post in the Art Group, namely, a post of Music Teacher or a post in the Craft Group will be sanctioned only when the periods under each group exceeds 25 periods per week. Thus, on a reading of rule 7 read with rule 6 (4) of Chapter XXIII of KER one full- time post of Drawing Teacher can be sanctioned in the High School section of every complete High School irrespective of the periods of work. Then, the only question that arises for consideration is whether by virtue of rule 6B of Chapter XXIII of the KER, the petitioner's appointment as Drawing Teacher in the High School section of the school on 18.9.2001 is irregular. W.P.(C) No.26797/2008 15 Rule 6B of Chapter XXIII of the KER as it originally stood reads as follows: “6B.(1) Notwithstanding anything contained in any other rules in this Chapter no posts of specialist teacher or craft teacher shall be created in any upper primary school or upper primary sections of High Schools for a period of 6 years from the school year 1969-70: Provided that the posts sanctioned before 1969-70 against which specialist teachers and craft teachers are appointed and approved and such teachers who are qualified according to the rules then in force may however continue as such. (2) Notwithstanding anything contained in any other rules in this Chapter, no post of Specialist Teacher or Craft Teacher shall be created in any Upper Primary School or Upper Primary Section of High School except as specified herein: (a) One post of Specialist teacher namely Music teacher or Physical Education Teacher or Drawing Teacher or Sewing Teacher as decided by the District Educational Officer concerned during staff fixation in the case of departmental schools and as required by the manager in the case of aided schools will be sanctioned in each Upper Primary School or Upper Primary section of a High School having an effective strength of 500 pupils and above in the complete Upper Primary sections on the 6th working day of each academic year. (b) No post of Specialist teacher shall be sanctioned in any category under clause (a) if a Specialist teacher is already working in the Upper Primary School or Upper Primary section of the High School. W.P.(C) No.26797/2008 16 (c) A post of Sewing Teacher shall be sanctioned only subject to the following conditions also: (i) that there are not less than 200 girl pupils in the complete Upper Primary Section and (ii) that there is no post of Craft Teacher under Needle work in the Upper Primary School or Upper Primary Section of High Schools.” 12. Rule 6B of Chapter XXIII of the KER as amended by G.O(P)No.189/2005/G.Edn. dated 17.6.2005, but with retrospective effect from 6.3.1979 reads as follows: Rule “6B. (1) Notwithstanding anything contained in any other rule in this Chapter except sub-rule (2) hereunder no post of Specialist Teacher or Craft Teacher shall be allowed to continue in any Upper Primary School or Upper Primary Section of a High School except for the continuance of the qualified teachers who were actually holding the said post on the 6th day of March, 1979. Provided that the Specialist Teachers appointed in Upper Primary Schools or Upper Primary Sections of High Schools after the 6th day of March 1979 and whose appointments were approved shall be allowed to continue as such till their retirement, resignation, death or transfer and the post of such Specialist Teachers shall be allowed to continue for their such continuance till they vacate the posts. (2) Notwithstanding anything contained in Rule 7 or any other rule in this Chapter no post of Specialist Teacher shall be allowed to continue in any Upper Primary School or Upper Primary Section of High School except as specified herein.: W.P.(C) No.26797/2008 17 (a) One post of Specialist Teacher namely Music Teacher or Physical Education Teacher or Drawing Teacher or Sewing Teacher as decided by the Educational Officer concerned during staff fixation in the case of Departmental Schools and as required by the Manager in the case of Aided Schools will be sanctioned in each Upper Primary School or Upper Primary Section of a High School having an effective strength of 500 pupils and above in the complete Upper Primary Section on the 6th working day of each academic year. (b) No post of Specialist Teacher shall be sanctioned in any category under Clause (a) if a Specialist Teacher is already working in the Upper Primary School or Upper Primary Section of the High School: Provided that a post of Sewing Teacher shall be sanctioned only subject to the condition that there are not less than 200 girl pupils in the complete Upper Primary Section.” 13. Rule 6B of Chapter XXIII of the KER as it originally stood and as amended does not in my opinion govern appointment of Specialist Teachers in the High School section of a High School. Rule 6B applies only to Upper Primary Schools or Upper Primary sections of High Schools. Rule 6B does not stipulate that no post of Specialist Teacher shall be allowed to continue in a High School except for the continuance of the qualified teachers who were holding the W.P.(C) No.26797/2008 18 post on 6.3.1979. Rule 6B does not at all in my opinion deal with the sanctioning of a post of Specialist Teacher in the High School section of a High School. The stipulations in rules 2 and 6B of Chapter XXIII of KER apply only to Lower Primary Schools or Lower Primary Sections of Upper Primary or High Schools and Upper Primary Schools or Upper Primary sections of High Schools. 14. In the instant case, the petitioner's appointment has been objected to on the short ground that instead of appointing him the Manager ought to have accommodated the protected Music Teacher working in the Upper Primary section of the school against the vacancy of Drawing Teacher that arose when the incumbent voluntarily retired from service with effect from 18.9.2001. On the terms of rules 2 and 6B of Chapter XXIII of the KER, the said stand taken by the respondents cannot be sustained. The official respondents have in the impugned orders referred to and relied on rules 2 and 6B of Chapter XXIII of the KER to hold that the appointment of the petitioner in the vacancy that arose on the W.P.(C) No.26797/2008 19 voluntary retirement of the incumbent Drawing Teacher is illegal. The Deputy Director of Education, the Director of Public Instruction and the Government have in the impugned orders taken the stand that the excess Music Teacher working in the Upper Primary section of the school on protection should have been accommodated in the vacancy that arose on 18.9.2001. The Deputy Director of Education has in Ext.P5 order also referred to and relied on paragraph 6(1) of G.O. (MS)No.154/89/G.Edn. Dated 22.8.1989 and Circular No.H4- 119952/89/DPI dated 15.9.1990 issued by the Director of Public Instruction to hold that the Music Teacher in the Upper Primary section of the school who is continuing on protection should have been accommodated in the vacancy of Drawing Teacher that arose in the High School section on 18.9.2001. Paragraph 6(1) of the Government order dated 22.8.1989 reads as follows: “6. ............................ In the circumstances, Government issue the following order in the matter:- W.P.(C) No.26797/2008 20 (i) In view of the Government decision dated 27.1.1989, the position is that the posts of specialist Teachers in Lower Primary and Upper Primary Schools which were being continued under the proviso to Rule 2 (2) and 6B(1) of Chapter XXIII will terminate with the vacation of the posts by the Specialist Teacher by retirement, resignation, death and like reasons. No request for approval of fresh