IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 WP(C).No. 27040 of 2007(R) ---------------------------------------- PETITIONER(S): ---------------------- K.K.SATHYAN, HIGH SCHOOL ASSISTANT K.P.E.S. HIGH SCHOOL, KAYAKKODI. BY ADV.MR.M.VIJAYAKUMAR RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. 3. DISTRICT EDUCATIONAL OFFICER, VADAKARA. R1 TO R3 BY GOVERNMENT PLEADER SMT.T.B.REMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/10/2009, THE COURT ON 13/11/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.27040/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.D.DIS. 77485/97/RA(4) DPI DTD. 16.12.97. P2:- COPY OF THE REPRESENTATION TO THE IST RESPONDENT DTD. 6.1.2000. P3:- COPY OF THE ORDER ISSUED BY IST RESPONDENT DTD. 21.10.2000. P4:- COPY OF THE G.O.(RT) NO.4481/2000/G.EDN. DTD. 6.11.2000. P5:- COPY OF THE G.O.(MS) NO.525/95/G.EDN. DTD. 28.10.95. P6:- COPY OF THE JUDGMENT IN WA. 275/04 DTD. 11.2.04. P7:- COPY OF THE JUDGMENT IN OP.13660/2001 DTD. 3.3.06. P8:- COPY OF THE COMMUNICATION OF THE IST RESPONDENT DT.D 19.9.06. P9:- COPY OF THE G.O.(RT) NO.3573/07/G.EDN. DTD. 1.8.07. TRUE COPY P.S . TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.27040 of 2007-R - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the day of November, 2009. JUDGMENT The petitioner was appointed as a music teacher in K.P.E.S. High School, Kayakkodi during 1994-1995 in a post sanctioned by the District Educational Officer in the same year itself. But the approval was rejected on the ground that the post has to be filled up by a protected teacher. This was challenged in O.P. No.5139/1996 and pursuant to the directions issued by this Court, the appointment was approved. 2. In the year 1996-1997 the Deputy Director of Education cancelled the post on the ground that as per the Govt. Orders in force, there should be 26 periods for sanctioning additional posts in the school. The petitioner challenged the same by a representation before the Government. Ext.P4 is the final order passed by the Government. This was challenged by the petitioner before this court and the writ petition was allowed. Ext.P6 is the judgment of the Division Bench in W.A. No.275/2004 dismissing the appeal filed by the respondents. By Ext.P7 judgment in O.P. NO.13660/2001 this Court directed the Government to take a decision on the representation filed by the petitioner and thereafter Ext.P9 order has wpc 27040/2007 2 been passed rejecting the claim which is under challenge in this writ petition. 3. The main ground on which the sanction is refused, is that sufficient periods are not available from 1997-1998 onwards to accommodate the petitioner. 4. The petitioner has raised various grounds to challenge the orders in question. The petitioner is relying upon a recent decision of this Court in Satheeshkumar v. State of Kerala (2009 (3) KLT 439) wherein the same question was examined in detail. Regarding the sanctioning of posts of drawing and music teachers, it was held in para 13 thus: “Therefore, a High School is entitled to have one full time post each in these three different subjects irrespective of the number of periods. The same cannot be denied by resort to the third proviso.” The scope of the three provisos have also been examined in detail in paragraphs 14 and 15. It was held that what is envisaged under the proviso is only sanctioning of a second post in the Art Group, i.e. Music Teacher or a post in the Craft Group. 5. Learned Govt. Pleader relied upon an unreported decision in W.A. No.908/1994 and connected case to contend that the sanctioning of post is dependent upon the number of periods. That was a case where the post of wpc 27040/2007 3 music teacher was abolished on the ground that sufficient number of periods were not available. For music post, there were only nine periods in standards VIII and IX and accordingly the post was abolished. The Division Bench was of the view that since there is already one post of drawing teacher in the Art Group in high school section, the periods available do not require sanction of post of music teacher in addition to the post. 6. The petitioner is relying upon a decision of an earlier Division Bench in Ext.P6 regarding the interpretation of Rule 6(4) of Chapter XXIII KER. The clause introduced as per the Govt. Order dated 28.10.1995 and the third proviso are the same. While considering the effect of Rule 6(4), it was held thus by the Division Bench in Ext.P6 judgment: “Rule 6(4) mandates that in every high school there shall be one full time post of music teacher irrespective of the number of periods of work per week for music. In the light of this statutory provision the Govt. Order which runs counter to it could not be given effect to.” In W.A. No.908/1994 the effect of the statutory provisions has not been considered in detail. In fact in the decision in Satheeshkumar's case 2009 (3) KLT 439) the entire statutory scheme has been considered and the effect of the provisos was also considered. Ext.P6 judgment of the Division wpc 27040/2007 4 Bench gives an interpretation of Rule 6(4) of Chapter XXIII K.E.R. Since those aspects have not been considered in W.A. No.908/1994, the same is distinguishable especially as the decision turned upon the facts of the said case. Therefore, the contention of the learned Govt. Pleader is rejected. The view taken in Satheeshkumar's case (2009 (3) KLT 439) is in tune with Ext.P6 judgment of the Division Bench. 7. Therefore, the writ petition is allowed. Ext.P9 is quashed. Since a post of music teacher is allowable in terms of Rule 6 (4) of Chapter XXIII K.E.R. irrespective of the number of periods, there will be a direction to the respondents to approve the appointment of the petitioner and grant appropriate benefits. Orders in this regard shall be passed within a period of three months from the date of receipt of a copy of this judgment. No costs. ` (T.R. Ramachandran Nair, Judge.) kav/