IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 25TH NOVEMBER 2011 / 4TH AGRAHAYANA 1933 WP(C).No. 17600 of 2006(T) --------------------------------- PETITIONER(S): ------------------- RAFI, S/O. K.T.SAIDALAVI, KARATTUKADAVATH THOTTIYIL HOUSE, (PO) MANGALAM, TIRUR, MALAPPURAM DISTRICT. (PHISICAL EDUCATION TEACHER, S.H.M.U.P. SCHOOL, KOOTTAYI, TIRUR). BY ADV. SRI.P.CHANDRASEKHAR RESPONDENT(S): --------------------- 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM. 3. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 4. THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD. 5. THE ASSISTANT EDUCATIONAL OFFICER, TIRUR. BY GOVT. PLEADER SMT. KOCHUMOL KODUVATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 17600/2006 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER NO..DIS.28571/89/G2/DPI DATED 30/05/1991 OF THE 2ND RESPONDENT. P2: COPY OF THE APPOINTMENT ORDER IN RESPECT OF RENNA KUMARI DATED 09/07/1979. P3: COPY OF THE ORDER DATED 01/06/1982 BY THE 5TH RESPONDENT. P4: COPY OF THE ORDER NO.K.DIS.28571/89/G2/DPI DATED 30/05/1991 ORDER NO.K.DIS.B1-13202/85 DATED 16/01/1986 OF THE 4TH RESPONDENT. P5: COPY OF THE LETTER NO.C1/3571/01 DATED 01/10/2002 FROM THE 5TH RESPONDENT TO THE 2ND RESPONDENT. P6: COPY OF THE ORDER NO.2236/K2/04/G.EDN. DATED 09/03/2004 OF THE 1ST RESPONDENT. P7: COPY OF THE JUDGMENT DATED 16/06/2005 IN WPC.NO.17881/04 ISSUED BY THIS HONOURABLE COURT. P8: COPY OF THE G.O.(Rt)NO.2097/2006/G.EDN. DATED 23/05/2006. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.17600 of 2006 ---------------------------------------------- Dated this the 25th day of November, 2011 JUDGMENT The petitioner challenges Ext.P8 order. Since Ext.P8 order contains all relevant facts, the same is extracted below; “1. The Hon'ble High Court in their judgment dated 16.6.2005 in WP (C) No.17881/2004 filed by Sri. K.T. Rafi, Physical Education Teacher, Vallathol AUP School, Mangalam Malappuram, had directed the 1st respondent Government, to take a fresh decision on his representation dated 16.7.2001 on the basis of which Ext.P6 was issued, taking into account all relevant materials including Ext.P5. The High Court had also quashed Ext.P6 i.e. Government letter No.2236/K2/04/G.Edn dated 9.3.04. 2. As authorised the undersigned heard the petitioner on 29.11.05. Representatives of the Assistant Educational Officer, Tirur, the Deputy Director of Education, Malappuram and the Director of Public Instruction, Thiruvananthapuram were present. 3. Sri. K.T. Rafi was appointed as Physical Education Teacher with effect from 8.9.1988 in the vacancy of Sri. K. Jamal Mohammed, who entered on Leave Without Allowances for 3 years from 8.9.1988, at Vallathole AUP School, Mangalam, clubbed with M.I.U.P.School, Kuttayi. The leave of Sri. Jamal Mohammed was subsequently extended till 7.9.1993. (At the time of his appointment S.H.M.U.P.S, Kuttayi was named as MIUPS, Kuttayi. The name of school was changed as SHMUPS Kuttayi during 1993. In short, MIUPS, Kuttayi and SHMUPS, Kuttayi are one and the same school). 4. The Deputy Director (Education), Malappuram had cancelled the clubbing arrangement during 1992- 93, and had sanctioned one independent Physical Education Teacher post in each school during 1992- W.P.(C)No.17600/06 2 93. Hence the appointment of Sri. K.T. Rafi was approved with effect from 16.12.92 to 7.9.1993 in this post at Vallathole AUPS, Mangalam, in the vacancy of Sri. K. Jamal Mohammed, who availed Leave Without Allowances up to 7.9.93. 5. The petitioner was appointed as Physical Education Teacher with effect from 14.10.93 F.N in the newly created Physical Education Teacher post in SHMUPS, Kuttayi, during the year 1993-94, and the appointment was approved with effect from 14.10.93 to 30.4.94 by the Assistant Educational Officer, Tirur. Again he was appointed as Physical Education Teacher from 6.6.94 onwards and the appointment was approved by the Assistant Education Officer, Tirur as the newly Physical Education Teacher post in SHMUPS, Kuttayi during 1993-94 and subsequent years from 1994-95 was allowed as the school is eligible for the same as per Rule 6B (2) of Chapter XXIII, KER. 6. The petitioner's request is to approve his appointment for the period from 8.9.88 to 15.12.92, the period he had worked in the leave vacancy of Sri. K. Jamal Mohammed, who worked under clubbing arrangement. 7. As per rules in force, no appointments can be made in leave vacancies of Specialist Teachers, and no substitutes can be posted in lieu of the Specialist Teachers working under clubbing arrangement. 8. In the circumstance, the request of the petitioner is not permissible as per existing provisions in the KER, and approving such appointments in relaxation of rules/orders will create bad precedents. Hence the request is rejected by Government. 9. The directions of the Hon'ble High Court contained in the judgment read above are thus complied with.” The petitioner contends that the petitioner is entitled to approval of the petitioner's service for the period from 8.9.1988 to 15.12.1992 as well. According to the petitioner, in the very same leave vacancy, in which the petitioner was W.P.(C)No.17600/06 3 appointed, earlier two other Physical Education Teachers were appointed as per Exts.P2 and P3 for the periods from 9.7.1979 to 31.1.1982 and from 1.6.1982 to 31.1.1987, both of which appointments were approved. As such there is no reason whatsoever to deny approval to the appointment of the Petitioner in the same leave vacancy of Sri. Jamal Muhammed for the period from 8.9.1988 to 15.12.1992 is the contention of the petitioner. 2. A counter affidavit has been filed supporting Ext.P8 order. According to the respondents, no appointments can be made in leave vacancies of specialist teachers and no substitutes in lieu of specialist teachers working under clubbing arrangement can also be made, as per rules. The rules referred to is sated to be Rule 6B of Chapter XXIII of Kerala Education Rules. The said rule reads as follows: “6B. (1) Notwithstanding anything contained in any other rule in this Chapter except sub- rule (2) hereunder no post of Specialist Teacher or Craft Teacher shall be allowed to continue in any Upper Primary School or Upper Primary Section of a High School except for the continuance of the qualified teachers who were actually holding the said post on the 6th day of March, 1979. Provided that the Specialist Teachers appointed in Upper Primary Schools or Upper Primary Sections of High Schools after the 6th day of March 1979 and whose appointments were approved shall be allowed to continue as W.P.(C)No.17600/06 4 such till their retirement, resignation, death or transfer and the post of such Specialist Teachers shall be allowed to continue for their such continuance till they vacate the posts. (2) Notwithstanding anything contained in Rule 7 or any other rule in this Chapter no post of Specialist Teacher shall be allowed to continue in any Upper Primary School or Upper Primary Section of High School except as specified herein. (a) One post of Specialist Teacher namely Music Teacher or Physical Education Teacher or Drawing Teacher or Sewing Teacher as decided by the Educational Officer concerned during staff fixation in the case of Departmental Schools and as required by the Manager in the case of Aided Schools will be sanctioned in each Upper Primary School or Upper Primary Section of a High School having an effective strength of 500 pupils and above in the complete Upper Primary Section on the 6th working day of each academic year. (b) No post of Specialist Teacher shall be sanctioned in any category under Clause (a) if a Specialist Teacher is already working in the Upper Primary School or Upper Primary Section of the High School: Provided that a post of Sewing Teacher shall be sanctioned only subject to the condition that there are not less than 200 girl pupils in the complete Upper Primary Section.” That rule does not contain any prohibition of appointment of Specialist Teachers in leave vacancies and substitutes in lieu of Specialist Teachers working under clubbing arrangement. In Ext.P8, it is admitted that the petitioner was later appointed and approved as a regular Physical Education Teacher with effect from 14.10.1993. Earlier two other teachers were appointed in the very same leave vacancy of W.P.(C)No.17600/06 5 Sri. Jamal Muhammed in which the petitioner was also appointed both of which were approved as per Exts.P2 and P3 orders. No reason is forthcoming as to why, if the petitioner's appointment could not have been approved, the earlier appointments were approved. In the above circumstances, I am of opinion that the petitioner is entitled to approval of the petitioner's appointment for the period from 8.9.1988 to 15.12.1992 as well. Accordingly, the writ petition is allowed. Ext.P8 is quashed. The respondents are directed to approve the appointment of the petitioner as Physical Education Teacher for the period from 8.9.1988 to 15.12.1992 in the Vallathole AUP School and SHMUP School, Koottayi. Orders in this regard shall be issued and arrears of pay, paid to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. S. SIRI JAGAN, JUDGE acd W.P.(C)No.17600/06 6 W.P.(C)No.17600/06 7