IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933 WP(C).No. 19278 of 2010(H) ---------------------------------------- PETITIONER(S): ------------------------ NISHA MADAYI VEETTIL, SANSKRIT TEACHER, DESAMITHRAM UP SCHOOL, CHEDICHERRY P.O., PERUVALATHUPARAMBA, KANNUR DISTRICT-670 593. BY ADV. SRI.POOVAMULLE PARAMBIL ABDULKAREEM SEI.M.VARGHESE VARGHESE RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA REPRESENTED BY SECRETARYT TO GOVERNMENT, GENERAL EDUCAITON DEPT. GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, KANNUR 4. THE ASSISTANT EDUCATIONAL OFFICER, IRIKKUR, KANNUR DIST. 5. THE MANAGER, DESAMITHRAM UP SCHOOL, CHEDICHERRY P.O.,PERUVALATHUPARAMBA, KANNUR DIST.670 593. R1 TO R4 BY GOVERNMENT PLEADER SMT.RANI DIOTHIMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.19278/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE APPOINTMENT ORDER ISSUED BY THE 5TH RESPONDENT. P2 COPY OF THE CIRCULAR NO.44680/J2/88 G.EDN DATED 24/11/1988. P3 COPY OF THE GO (MS) NO.43/78/G.EDN DATED 13/4/1978. P4 COPY OF THE GO (MS) NO.371/2000/G.EDN DATED 13/11/2000. P5 COPY OF THE ORDERNO.G4/34083/08 DATED 20/1/1999. P6 COPY OF THE ORDER NO.B/3292/06 DATED 14/7/2006. P7 COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT TO THE DEPUTY DIRECTOR OF EDUCAITON, KANNUR. P8 COPY OF THE STAFF FIXATION ORDER NO.B/3004/07 DATED 13/7/2007. P9 COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT. P10 COPY OF THE JUDGMENT DATED 10/4/2009 IN WP(C)NO.12627/2008 OF THIS HON'BLE COURT. P11 COPY OF THE GO (RT)NO.4903/08/G.EDN DATED 6/11/2008 P12 COPY OF THE GO(RT)NO.2200/2000 DATED 26/5/2010. P13 COPY OF THE ORDER NO.G4/88234/09 DATED 1/7/2009. P14 COPY OF THE GO(P)NO.10/10/G.EDN DATED 12/1/2010. P15 COPY OF THE LETTER DATED 11/2/2010 OF THE 2ND RESPONDENT WITH ENDORSEMENT THEREON NO.B/1417/10/L.DIS DATED 27/3/2010 OF THE 4TH RESPONDENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 19278 of 2010-H - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of July, 2011. JUDGMENT The petitioner who is working as Sanskrit Teacher in the school managed by the fifth respondent, is aggrieved by the non approval of appointment. 2. The petitioner was appointed initially from 13.6.2007 in the vacancy of Smt. K.Jayalakshmi, Sanskrit Teacher who was promoted as Headmistress on 1.4.2007. The petitioner has produced Ext.P2 circular, in terms of which the post of Sanskrit Teacher was sanctioned. Going by the said circular, it can be seen that a minimum of twelve students are required in Standard V, six in Standard VI and three in Standard VII. The post which was sanctioned as part time in the school, was converted as full time by the fourth respondent in terms of Ext.P3 Government Order. Ext.P6 is the staff fixation order for the year 2006-2007 which shows that full time post has been sanctioned for Sanskrit. 3. After the appointment of the petitioner, when staff fixation was finalised as per Ext.P8, only a part time post was sanctioned for the year. This was based on Ext.P7, a communication issued by the Director of Public wpc 19278/2011 2 Instruction. The view taken therein is that Group C diversion has no statutory validity and that it cannot be allowed for conversion of part time post to full time. It is the case of the petitioner that the direction issued by the Director of Public Instruction is against the order Ext.P4 issued by the Government which provides for group C diversion for Sanskrit posts also. After Ext.P8 staff fixation order was issued, by Ext.P9 the District Educational officer cancelled the sanction of part time post of Sanskrit Teacher. The view taken therein is that one Satheesan has been retained in the school for the years 2006-2007 and 2007-2008 applying 1 : 40 ratio and if a full time Sanskrit teacher is posted, it may cause additional financial liability to the Government and that the Headmistress can handle the Sanskrit students. The petitioner filed a representation against the orders concerned and the Government rejected the same as per Ext.P11. Ext.P12 is an order passed by the Government in respect of another Teacher, viz. an Urdu Teacher in Muzhappilangad South U.P. School, wherein the full time post was restored, by applying Group 'C' diversion. 4. In the year 2008 the petitioner was reappointed. The application for approval was forwarded duly and the issue was finally considered by the Additional Director of public Instruction, in the light of the application submitted by the Manager to condone the delay in submitting the proposal. By Ext.P15, the Asst. Educational Officer has been directed to take wpc 19278/2011 3 appropriate action after condoning the delay. Going by the endorsement therein, it can be seen that the Manager has been directed to submit the proposal. It is submitted that the manager has submitted the proposal which is pending. 5. Heard learned counsel for the petitioner and learned Govt. Pleader. 6. Going by the details furnished in para 7 of the writ petition, the number of students studying for Sanskrit in 2007-2008 is 69 and 2008-2009 is 72. Therefore, the total periods allowable is 12. There is no teacher for physical education. Hence, if three periods are diverted by Group 'C' by applying Exts.P3 and P4, the full time post can be sanctioned. It is also pointed out that the reason stated by the Government in Ext.P11 cannot be supported. It is pointed out that the language teachers are appointed under Rule 6 read with Rule 6C of Chapter XXIII K.E.R. and the principle as far as the application of 1 : 40 ratio which was relied upon by the Government cannot have any application here, in the light of the above. It is also pointed out that in U.P. Section, Shri Satheesan was retained by applying 1 : 40 ratio by creating a part time post and therefore it is not a case where he had to be accommodated in the full time post of Sanskrit. It is further pointed out that the staff fixation Ext.P8 wherein only a part time post is sanctioned for Sanskrit, is also not correct, as Ext.P7 could not have been relied upon by the Educational Officer. wpc 19278/2011 4 7. As far as sanctioning of full time post by applying Group 'C' diversion is concerned, the matter is governed by Ext.P4 Govt. Order. Therein, it is stated in para 4 that the posts created by virtue of Group 'C' diversion cannot be treated as protected and that such Full Time posts cannot be converted into part time posts. Learned counsel for the petitioner invited my attention to Circular No.13766/G2/02/G.Edn. Dated 18.4.2002. Therein the Government was of the view not to take any steps to deploy such teachers who have been appointed by Group 'C' diversion. Therefore, it can be seen that the Full Time post of Sanskrit cannot be converted as Part time as directed by the Director in Ext.P7. When the Government itself has specified in Ext.P4 that Group 'C' diversion is permissible and the Full time post cannot be converted as part time, the Director could not have issued an instruction contrary to it as contained in Ext.P7. Therefore, the same could not have been relied upon to deny the Full time post in Ext.P8 staff fixation order. Evidently, going by Rule 6C of Chapter XXIII K.E.R., what is required is only not less than 12 pupils in Standard V for sanctioning the post of Sanskrit. Herein, 12 periods are there for Sanskrit, going by the roll strength and effective strength of students. By diversion of three periods of physical education, a Full Time post could have been sanctioned as done for the year 2006-2007 (Ext.P6 staff fixation order). To that extent, Ext.P8 staff fixation concerning conversion of Full time post of Sanskrit as Part time, wpc 19278/2011 5 cannot be justified. Ext.P12 shows that with regard to the post of Urdu teacher in another school, Government cancelled such a similar conversion of the post as a part time one, with a further direction to restore the full time post in the light of Ext.P4 Government Order. 8. The next question is whether Shri Satheesan, U.P.S.A. has been actually accommodated against the post of Sanskrit. Evidently, he has been retained by applying 1 : 40 ratio. A reference to Exts.P6 and P8 staff fixation orders shows that for retaining him after applying 1 : 40 ratio, one post of U.P.S.A. is shown as temporary. Evidently, the scheme of sanction of language teachers' post is under Rules 6 and 6C of Chapter XXIII K.E.R. Therefore, herein it was not by applying 1 : 40 ratio the full time post of Sanskrit was allowed. It is based on the number of pupils and the periods. If that be so, the view taken in Ext.P9 by the District Educational Officer that the said Satheesan (UPSA) is retained as against the post of Sanskrit, cannot be supported. The Government in Ext.P11 also took the view that 1 : 40 ratio can be applied only to retain the existing teachers who have approved service during the previous year and for making any fresh appointment there should be sufficient posts in accordance with 1 : 45 ratio duly verified by the respective Educational Officer (including higher level verification). The provision for higher level verification under Rule 12 of Chapter XXIII K.E.R. will show that it wpc 19278/2011 6 depends upon the sanction of an additional division after the one day verification is completed. Herein, we are concerned with the sanction of a post of language teacher. The same is dependent upon the number of students who have preferred that language alone and the number of periods as provided under Rules 6(1) and 6-C of Chapter XXIII are applied for creation of post of language teacher. Therefore, obviously, it is not by applying 1 : 40 ratio. 9. In that view of the matter, the stand taken by the Government that the post could have been sanctioned only by higher level verification, as 1 : 40 ratio has to be applied, is not correct. True that the petitioner was appointed on 13.6.2007. But 1 : 40 ratio was not actually applied for retaining the petitioner and it was only for retaining another UPSA and that exercise has nothing to do with the appointment of the petitioner who was appointed in a promotion vacancy. Even otherwise, it can be seen that the number of students studying Sanskrit, required the sanction of a post and a full time post was sanctioned for the previous year, as evident from Ext.P6 by Group 'C' diversion. In the light of Ext.P4, the same cannot be converted as a part time post. Since I have found that Ext.P7 letter of the Director of Public Instruction could not have been considered at all as it is against Ext.P4 Government Order, the view taken in Ext.P11 cannot be upheld. 10. In that view of the matter, the writ petition is allowed. Ext.P8 wpc 19278/2011 7 staff fixation order, to the extent it sanctions only a part time post of Sanskrit Teacher, is quashed. Exts.P9 and P11 are also quashed. For the year 2008-2009 also, the petitioner is awaiting approval of appointment and in the light of Ext.P15 order, further action will have to be taken in the matter. Therefore, the following directions are also issued: There will be a direction to the fourth respondent to revise the staff fixation for the year 2007-2008 by sanctioning a full time post of Sanskrit Teacher under Group 'C' diversion and the proposal for approval of appointment of the petitioner will be considered and appropriate orders will be passed. Steps will be taken to implement the direction contained in Ext.P15 also and the Manager is also directed to submit the required proposals for approving the appointment of the petitioner. Appropriate orders will be passed within a period of two months from the date of receipt of a copy of this judgment. The monetary benefits also will be disbursed to the petitioner, accordingly. No costs. (T.R. Ramachandran Nair, Judge.) kav/