IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 WA.No. 1712 of 2007() --------------------- AGAINST THE JUDGEMENT IN OP.27404/2001 Dated 21/03/2007 .................... APPELLANT(S): -------------- S.SINDHU,MUSIC TEACHER, VICTORY GIRLS HIGH SCHOOL,NEMOM, THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENT(S): --------------- 1. STATE OF KERALA,REPRESENTED BY ITS CHIEF SECRETARY,SECRETARIAT,THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, DIRECTORATE OF PUBLIC INSTRUCTION, JAGATHY,THIRUVANANTHAPURAM-14. 3. THE DEPUTY DIRECTOR (EDUCATION), KILLIPPALAM,THIRUVANANTHAPURAM-36. 4. THE DISTRICT EDUCATIONAL OFFICER, NEYYATTINKARA,THIRUVANANTHAPURAM. 5. THE MANAGER,VICTORY BOYS' HIGH SCHOOL, NEMOM,THIRUVANANTHAPURAM. R1 TO 4 BY GOVT. PLEADER SMT. R. BINDU R5 BY ADV. SRI.P. GOPAKUMARAN NAIR THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20.3.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 1712 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of March, 2009 JUDGMENT Balakrishnan Nair, J. The writ petitioner is the appellant. The respondents herein were the respondents in the writ petition. 2. The brief facts of the case are the following. The appellant was appointed as Music teacher in the High School wing of the 5th respondent's school, in a newly sanctioned post, during the academic year 1992 - 93. The said appointment was approved also. But the said post was abolished as per the staff fixation order of the year 1993 - 94, a copy of which is produced as Ext.P3. The reason given is that there were not sufficient number of periods, justifying the sanction of the post of Music teacher. 3. The appellant points out that during the years 1992 -93 and 1993 - 94, there were five divisions for Standard VIII and six W.A.No. 1712 of 2007 2 divisions for Standard IX. As per the distribution of periods for Music and Art (Drawing), there will be one period for one division in Standard VIII. For Standard IX, one period is set apart for Music, Art, Sewing and Craft. The said distribution of periods is available at page 957 of the Kerala Education Rules (for short 'the KE.R.'), published by K.E. Hamza, Advocate. 4. Going by the above distribution of periods, there will be five periods for Music and Art (Drawing) for Standard VII and six periods for Music, Drawing, Sewing and Craft for Standard IX. As per the practice followed by the Department, out of the six periods in Standard IX, only three periods can be reckoned as periods available for Drawing and Music. So, the total periods available for Music and Drawing were only 9. If that be so, in view of the second proviso to Rule 6(4) of Chapter XXIII of the K.E.R., the sanction of a post of Music teacher is not permissible, when there is already a Music teacher. The appellant points out that there is no Sewing teacher or Craft teacher in the school. So, the three periods available for the post can also be allotted to Music and Drawing. It is a matter within the W.A.No. 1712 of 2007 3 jurisdiction of the Headmaster. It has been so held by this Court as per Ext.P16 judgment also. 5. To get over the said judgment, the Government issued G.O. (Ms) No.525/95/G.Edn. dated 28.9.1995, which is available at page 931 of the above said book. Later, Rule 6(4) has been amended, in tune with the said government order, with effect from 28.10.1995. In view of the said position, from the academic year 1995 - 96 creation of a second post in Art subjects is permissible, if only there are 26 total periods for the Arts subjects (Music and Drawing). 6. The appellant's claims for reckoning the three periods set apart for Sewing and Craft to Music and Drawing was not accepted by the authorities. So, the appeal filed against Ext.P3 staff fixation order, for the year 1993 - 94, was rejected by all the Statutory Authorities. The appeal filed against the staff fixation order, Ext.P6, for the academic year 1994 -95 was also rejected by the Statutory Authorities. Challenging those orders, the writ petition was filed. 7. The learned Single Judge concurred with the view taken by the respondents, in the absence of an express order, permitting W.A.No. 1712 of 2007 4 counting of the periods set apart for Craft and Sewing for sanctioning the post of Music teacher. Based on the said finding, the writ petition was dismissed. Hence this appeal. 8. We heard the learned counsel for the appellant and also the learned Government Pleader for the respondents. 9. Even in the absence of any express Government order, issued by the Government or Circular, issued by the Director of Public Instructions, we feel that the view taken by the learned Single Judge of this Court in Ext.P16 is a just and proper view. In the third respondent's school, there is no Craft or Sewing teacher. Therefore, the three periods available for those subjects in Standard IX for the year 1993 -94 and 1994 - 95 can be reckoned for sanctioning the post of a Music teacher. The appellant is entitled to get the benefit of Ext.P16 judgment, for revising the staff fixation orders for the years 1993 -94 and 1994 -95 only. Thereafter statutory amendments were introduced to the Rules. So, a second post in the cadre is permissible for the year 1995 - 96, if only there are 26 periods for Arts subjects (Music and Drawing). W.A.No. 1712 of 2007 5 10. In the result, the Writ Appeal is allowed. The post of Music teacher shall be sanctioned for the school for the academic years 1993 -94 and 1994 -95. If the appellant has actually worked during those years, her appointment shall be approved and salary shall be paid to her. The decision in this regard shall be taken by the 4th respondent, District Educational Officer, within three months from the date of receipt of a copy of this judgment. (K. BALAKRISHNAN NAIR) Judge (M.L. JOSEPH FRANCIS) Judge tm