IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 WA.No. 2730 of 2007() --------------------- AGAINST THE JUDGEMENT/ORDER IN OP.25617/1999 Dated 25/06/2007 .................... APPELLANTS/1-3 RESPONDENTS IN O.P: --------------------- 1. THE STATE OF KERALA REPRESENTED BY ITS UNDER SECRETARY, GENERAL EDUCATION, THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCATIONAL OFFICE, THRISSUR. 3. THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR. BY GOVERNMENT PLEADER, SRI.BENNY GERVASIS RESPONDENTS/PETITIONER & 4TH RESPONDENT IN OP: ----------------------- 1. C.C.KOCHUTHRESSIA, W/O.JOHN K.P., KURUTHUKULANGARA HOUSE, THANAPADAM, KANDASSAMKADAVU P.O., THRISSUR. 2. THE MANAGER, K.G.M.L.P SCHOOL, ANTHIKAD, THRISSUR. ADV. SRI.P.RAMACHANDRAN FOR R2 SRI.S.MUHAMMED HANEEFF FOR R1 SRI.JOMMY THARIAN FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24/07/2009, THE COURT ON DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ---------------------------------- W.A. No. 2730 OF 2007 ---------------------------------- Dated this the 24th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The respondents in the Writ Petition are the appellants. The writ petitioner is the 1st respondent. 2. The brief facts of the case are the following: A vacancy arose in the 2nd respondent's school in the post of Music Teacher on 26.7.1984. The 1st respondent was appointed to that post on 1.8.1984. The appointment was approved by the Assistant Educational Officer on 2.11.1984 with effect from 1.8.1984. Later, at the time of review of staff fixation order for the year 1987-88, the District Educational Officer (D.E.O) by Ex.P1order dated 16.10.1987 abolished the said post. The D.E.O took the view that the post of specialist teacher even if it is in the Lower Primary School will stand abolished on the death or retirement of the existing incumbent. According to him, the predecessor in office of the 1st respondent W.A.No.2730/2007 2 was wrongly appointed in 1974. Based on the above view, Ext.P1 order was issued. The said order was challenged before the departmental authorities and finally carried in revision before the Government and the Government by order dated 16.10.1992 rejected the claim of the 1st respondent for retention of the post and for restoration of approval of her appointment. The said order was challenged by filing O.P.No.149/1993, which was allowed by Ext.P2 judgment dated 17.2.1999 and the Government was directed to reconsider the matter. Mainly two points were remanded for the decision of the Government. i) Whether the post of specialist teacher in the LP section will stand abolished on the retirement or death of the existing incumbent. ii) Even if the post survives, whether there was sufficient strength of students in the 2nd respondent's school justifying the sanction of a post of Music Teacher. 3. The Government by Ext.P3 order considered only the first point. The said point was held against the 1st respondent. W.A.No.2730/2007 3 According to the Government, once the existing incumbent retires or dies, the post will be abolished and there cannot be any fresh appointment to that post. Challenging Ext.P3, the Writ Petition was filed. 4. The respondents filed a counter affidavit resisting the prayers in the Original Petition. In paragraph 6 thereof it was specifically contended that there was not sufficient strength of girl students in the schools during the relevant years justifying the sanction of a post of Music Teacher. The learned Single Judge, after hearing both sides, followed the Division Bench judgment of this Court in Joji v. Joint Director of Public Instructions [2001(2) KLT 393] and the Full Bench decision of this Court in Jolly v. State of Kerala [2003(2) KLT 192] and held that in a L.P. School, the post of specialist teacher will survive even after the death or retirement of the existing hand. The learned Judge therefore allowed the Original Petition and directed the reinstatement of the 1st respondent in service with continuity of service, but, without backwages up to the date of judgment. The official respondents in the Writ Petition filed the W.A.No.2730/2007 4 present appeal raising two contentions. The first contention was that the post of specialist teacher in the L.P.School will also be abolished with the retirement or death of the existing incumbent. Secondly, it was contended that there were not sufficient girls students in the school for sanction or continuance of the post of the Music Teacher. The 1st point raised by the appellant is covered against them by the aforementioned decisions of this Court in “Joji” and “Jolly”. Regarding the 2nd point, we directed the learned Government Pleader to file a statement, specifically dealing with the averments of the petitioner in ground (E) of the Writ Petition. In Ground (E) of the Writ Petition it was stated as follows: “E. The petitioner was appointed in a full time post of Music teacher in K.G.M.L.P.School, Anthikad and the post was under clubbing arrangement with S.N.C.S.H.S., Karamukku for two days in a week. there were more than 400 students combining the above schools for the purpose of retention of the post. Moreover, now there is no specialist teacher working in the school and hence the petitioner is entitled to continue in the post.” W.A.No.2730/2007 5 5. Dealing with the above averments, the 3rd appellant filed a statement as directed by us accepting the contention that the post of Music Teacher was sanctioned and continued by clubbing arrangement with the S.N.G.S. U.P School, Karamukku. The 1st respondent/writ petitioner has filed a reply affidavit dealing with the averments in the statement filed by the 3rd respondent. 6. In view of the facts disclosed from the statement, the sanctioning and continuance of the post, at the relevant time, was valid, as the same was done under a clubbing arrangement with a nearby U.P.School. In view of the above position, we find no merit in the Writ Appeal. The 2nd ground urged by the appellants also is liable to be rejected and we do so. 7. Pursuant to the judgment under appeal, the 1st respondent/petitioner was reinstated in service on 2.7.2007. Later, pursuant to the interim order granted by this Court in this Writ Appeal, she was again terminated on 5.1.2009. In view of the above position, it is ordered that the 1st respondent shall be W.A.No.2730/2007 6 reinstated in service with continuity of service and backwages from 25.6.2007. The amount payable to the 1st respondent in the light of this judgment shall be released to her by the appellants, within three months from the date of production/receipt of a copy of this judgment. The 2nd respondent shall reinstate the 1st respondent, immediately, on production/receipt of a copy of this judgment. The Writ Appeal is disposed of the above. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps