IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 29TH JANUARY 2010 / 9TH MAGHA 1931 WA.No. 581 of 2008(D) --------------------- AGAINST THE JUDGEMENT IN OP.28888/2002 Dated 11/09/2007 .................... APPELLANT: PETITIONER IN O.P. -------------------------------- ABDUL BARU M.P.K., S/O. UNNI MOYI, URUDU TEACHER, ST. GEORGE UPPER PRIMARY SCHOOL, PULPALLY, RESIDING AT MUKKATH PULIYAKKODE HOUSE, KUMARANELLOOR P.O., MUKKAM-673 602, KOZHIKODE. BY ADV. SRI.N.SUKUMARAN SRI.S.SHYAM SRI.N.K.KARNIS SRI.BOBBYMATHEW KOOTHATTUKULAM RESPONDENT(S): RESPONDENTS IN O.P. ---------------------------------- 1. THE MANAGER, ST.GEORGE U.P. SCHOOL, PULPALLY, CORPORATE EDUCATIONAL AGENCY, DIOCESE OF BATHERY, BISHOP'S HOUSE, P.B.NO.7, SULTHAN BATHERY, WYNAD. 2. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION (S) DEPARTMENT, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 4. THE DEPUTY DIRECTOR OF EDUCATION, WYNAD. 5. THE ASSISTANT EDUCATIONAL OFFICER, SULTHAN BATHERY, WYNAD. BY SR.GOVT. PLEADER SRI.BENNY GERVASIS FOR R.2 TO 5 SRI.N.K.KARNIS FOR R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ------------------------------ W.A.No.581/2008 ------------------------------ Dated this, the 29th day of January, 2010 JUDGMENT Balakrishnan Nair, J. The petitioner is the appellant. He was appointed as Part- time Urdu Teacher in St. George U.P. School, Pulpally by its Manager on 22.7.1996. Ext.P1 is the order of appointment. Later, he was appointed as Full-time Urdu Teacher with effect from 15.7.1998, as per Ext.P2 order. In fact, there were not 15 periods of Urdu available for conversion of the post as Full-time. But, three periods were available for diversion from Group C subjects, for making the said post Full-time. The said course of action was permissible in the light of the relevant orders issued by the Government. But, Ext.P3 staff fixation order for the year 1998-99 sanctioned only a post of Part-time Urdu Teacher. So, the 1st respondent Manager filed an appeal before the Deputy Director of Education, challenging Ext.P3 order to the extent it did not sanction the Full-time post of Urdu Teacher. But, the WA No.581/2008 - 2 - said appeal was dismissed by the Deputy Director by Ext.P4 order dated 22.4.1999, on the ground of delay. The Manager filed a further appeal before the Director of Public Instruction, a copy of which is produced as Ext.P5. By Ext.P7 proceedings dated 22.9.1999, the Joint Director of the Directorate of Public Instruction, dismissed the said appeal. The said officer held that though there is scope for diversion of periods for making the Part-time post into a Full-time post, since the teacher has not actually worked in the school for 15 periods in a week during the academic year 1998-99, the claim cannot be granted. The Manager filed a revision before the Government. The Government forwarded the same to the Director of Public Instruction for disposal. The Joint Director, after hearing both sides, dismissed that petition by Ext.P12 order dated 27.9.2001. The said officer stuck to the view that the teacher had worked only for 12 periods in a week, in the post of Urdu Teacher. That was the main reason for dismissing the claim of the appellant. A further revision was attempted before the Government. The Government dismissed that petition by WA No.581/2008 - 3 - Ext.P13 communication dated 4.4.2002, holding that the appellant has worked only for 12 periods in a week. Challenging Exts.P3, P4, P7, P12 and P13, the Original Petition was filed. The learned Single Judge, after hearing both sides, dismissed the Original Petition, upholding the contention of the official respondents that the appellant has not worked for 15 periods in a week. It was also held that the diversion of three periods was done without the prior sanction of the Educational Officer. Feeling aggrieved by the said judgment, the petitioner has preferred this appeal. 2. We heard the learned counsel on both sides. Since the appellant asserted that he has worked for 15 periods in a week, we directed the 5th respondent Assistant Educational Officer to file a counter affidavit on that point. In obedience to the said direction, the 5th respondent has filed a counter affidavit, asserting that the appellant has worked only for 12 periods in a week during 1998-99. 3. It is common ground that three periods are available for diversion from other subjects. Therefore, in the light of the WA No.581/2008 - 4 - relevant Government order, the appellant's post can be converted into a Full-time post with 15 periods for Urdu. But, the point in dispute is whether the appellant has actually worked for 15 periods in a week during the academic year 1998-99. In view of the factual dispute regarding the said point, this Court under Article 226 of the Constitution of India cannot decide the issue by taking evidence. We find no reason not to accept the submission of the official respondents that the appellant has worked only for 12 periods for Urdu in a week during the academic year 1998-99. Since the respondents do not dispute that conversion is permissible, we order that the post of the appellant shall be converted into a Full-time post of Urdu by diversion of three periods from Group C subjects with effect from 15.7.1998. But, during the academic year 1998-99 the appellant's service in the Full-time post will be notional. That means, he is not entitled to get any salary in the scale of pay applicable to the Full-time post. We are told that after completion of five years the post has been converted into a Full- time post from the academic year 2002-03. We direct the 5th WA No.581/2008 - 5 - respondent to consider whether the appellant has worked for 15 periods in a week during the subsequent academic years, till the post was converted into a Full-time post. If it is found that he has actually worked, he shall be paid all the benefits, including arrears of salary. Otherwise, the period shall be treated as notional service for the purpose of increment, seniority etc. The Writ Appeal is disposed of as above. K. Balakrishnan Nair, Judge. P.N.Ravindran, Judge. nm.