IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 WP(C).No. 18390 of 2005(L) -------------------------- PETITIONER(S): --------------- M.P.PRASANTH, S/O.M.S.PRABHAKARAN, AGED 28 YEARS, FORMERLY PHYSICAL EDUCATION TEACHER V.P.M. S.N.D.P. HIGHER SECONDARY SCHOOL, KAZHIMBRAM (RESIDING AT MENOTH HOUSE, KANNAMPULLIPURAM, CHENTRAPPINNI). BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA SRI.T.V.VIJAYARAJAN SRI.M.SAJJAD RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. THE DEPUTY DIRECTOR OF EDUCATION, AYYANTHOLE, THRISSUR. 4. THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD, THRISSUR DISTRICT. 5. THE GENERAL MANAGER, CORPORATE MANAGEMENT OF S.N.D.P. YOGAM SCHOOLS, P.B.NO. 512, KOLLAM. 6. THE HEADMASTER, V.P.M. S.N.D.P. HIGHER SECONDARY SCHOOL, KAZHIMBRAM, THRISSUR DISTRICT. GOVERNMENT PLEADER FOR R1 TO 4 BY SMT. T.B. REMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Ext.P1.True copy of the order NO.E.112/2001 of Manager, Ext.P2. True copy of the Order No.D.Dis.B5/7334/01 of the Dist. Edl. Officer, Chavakkad. Ext.P3. True copy of the Argument Notes submitted by the petitioner. Ext.P4. True copy of the order NO.B4/26100/01/D.Dis of the 3rd respondent. Ext.P5. True copy of the Appeal of the Manager. Ext.P6. True copy of the Order No.D.Dis.18980/02/RA(2)/DPI of the 2nd respondent. Ext.P7. True copy of the Notice No.66910/02/k1/G.Edn. of the Government. Ext.P8. True copy of the Argument Notes of the petitioner. Ext.P9. True copy of the G.O(Rt) nO.2511/03/G.E.dn of the Government. Ext.P10. True copy of the order NO.54928/k1/03/G.Edn of the Government Ext.P11. True copy of the Order No.B5-4815/2002/D .Dis of the 4t respondent. // true copy // P.A to Judge. ANTONY DOMINIC,J. ----------------------- W.P.(C).No.18390/2005 ------------------------ Dated this the 1st day of January, 2009. JUDGMENT Exts.P2, P4, P6, P9 and P10 orders, to the extent the post of Physical Education Teachers in the U.P. section of V.P.M SNDP Higher Secondary School, Kazhimbram, was not sanctioned for the academic year 2001-02 and 2002-03, are sought to be quashed. The petitioner also seeks an order requiring the 4th respondent to approve his appointment covered by Ext.P1 and to grant consequential benefits. 2. By Ext.P1 order, the petitioner was appointed in the V.P.M S.N.D.P Higher Secondary School, Kazhimbram with effect from 26.1.2001, as Physical Education Teacher. Such appointment was made against the retirement vacancy of a Drawing Teacher, who retired with effect from 31.3.2001. On the retirement of the Drawing Teacher, who was the petitioner, based on Ext.P2 staff fixation order for the year 2001-02, the 4th respondent abolished the post of Drawing Teacher and also turned down the request of the Manager to sanction the post of WP(c).No.18390/05 2 Physical Education Teacher. Against Ext.P2 staff fixation order, the Manager filed an appeal to the Deputy Director and that was rejected by Ext.P4. The Manager again filed an appeal before the 2nd respondent and that was also rejected by Ext.P6 order. Ext.P6, in so far as it is relevant reads as under. “On examining the case in detail, it is seen that the effective strength of pupils in the U.P Section of the School during the year 2001-02 is 737 and the school is therefore eligible for one regular post of specialist teacher. Since already there is a regular post of specialist teacher existed in the previous year there is no need to conduct Higher Level verification during this year. But the fact is that there exists a protected specialist teacher in H.S. section. The school come under the corporate Management and as such the teacher enjoying protected post in H.S(Music) is to be absorbed in the vacancy created in the U.P Section on retirement of the existing specialist teacher since the scale of pay of teachers both in U.P and H.S are identical. Further protected teachers working in the WP(c).No.18390/05 3 Corporation Management have to be absorbed in arising vacancies in the schools under the Management. In this case a vacancy arose in the U.P section of the same school itself. As such a post of Music teacher is sanctioned in the U.P section only to absorb the protected Music teacher in the High School Section. In the above circumstances the request for the sanction of a post of Physical Education teacher in U.P. section of the school is hereby rejected.” 3. A further revision was filed before the Government and that was also rejected by Ext.P9. Petitioner as the affected teacher also moved the Government and that was also turned down by Ext.P10. It is in these circumstances the writ petition is filed. 4. Counsel for the petitioner relied on Rule 6-B(2) of Chapter XXIII KER. According to the counsel, in an U.P. School having an effective strength of 500 pupils, the Manager is entitled to demand appointment of a Specialist Teacher and it is entirely within the Manager's discretion to choose and make appointment from among any of the categories. It is stated that, it was in WP(c).No.18390/05 4 exercise of the discretionary power so conferred that the manager sought sanction of Physical Education Teachers post and in anticipation there of, appointed the petitioner. Counsel contends that so long as the discretion is available to the Manger, the Educational officers are obliged to sanction the post sought for and the rejection and its confirmation by the impugned orders is erroneous. 5. A reading of the impugned proceedings would show that although, pupil strength for the academic year 2001-02 is 737, the fact remains that, there existed a protected specialist teacher in the High School Section of the very same school. It is stated in Ext.P6 that the teacher enjoying the protected post was already available in the High School Section, has to be absorbed in the vacancy created in the U.P. School on the retirement of the existing specialist teacher. The aforesaid order also reveals that it was to absorb specialist protected teacher, the post of Music Teacher was sanctioned in the U.P.School. 6. Therefore, it is evident that a protected Music Teacher was available in the High School Section of the very same school. At the same time, a post of Music Teacher was sanctioned in the WP(c).No.18390/05 5 U.P. School and it was intended for the absorption of the protected teacher. It is in that background that the sanction sought for by the Manager for creation of the post of Physical Education Teacher was turned down by the Educational Authorities. In my view, this stand consistantly adopted by the respondents, is to be upheld. 7. True, under Rule 6-B(2) of Chapter XXIII KER, a Manager is given a discretion to choose the Specialist Teacher in the subject. However, such discretion and the choice that is available to the Manager, is available only in the event of non-availability of protected teachers. On the other hand, when protected teachers are available within the same unit, there is nothing illegal in sanctioning a post in the U.P section, to which the protected teacher can be absorbed. On the other hand if the contrary position canvassed by the counsel for the petitioner is accepted, that will lead to a situation wherein the Government will be saddled with the financial liability. This cannot be the intent of the freedom that is given to the Manager, in terms of the provisions contained in rule 6-B(2) of Chapter XXIII KER. In addition to this, the respondents are also relying on the WP(c).No.18390/05 6 provisions of the G.O(Ms)No.123/99 Gen. Edn. dated 5.8.1989, as per which the Government has specifically ordered that fresh appointments should not be made in the case of specialist teachers and that vacancies of specialist teachers will be filled up only by appointing protected teachers and this order is not under challenge. In the light of the above I do not find any reason to interfere with the impugned orders. Writ Petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi. WP(c).No.18390/05 7