IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 WP(C).No. 16386 of 2009(P) ---------------------------------------- PETITIONER(S): ------------------------ MINIMOL.B., W/O.JAMES VARGHESE, AGED 39 YEARS, NOW WORKING AS ASST.TEACHER, THE SCHOOL FOR DEAF, ENATHU, PATHANAMTHITTA DISTRICT. BY ADVS. SRI.T.V.GEORGE, SRI.JIMMY GEORGE (THADATHIL). RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GENERAL EDUCATION DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, D.P.I. OFFICE, JAGATHY, THIRUVANANTHAPURAM. 3. DISTRICT EDUCATIONAL OFFICER, PATHANAMTHITTA. R1 TO R3 BY GOVERNMENT PLEADER SMT. M.R. SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/06/2010, THE COURT ON 27/10/2010 DELIVERED THE FOLLOWING: Kss WPC.NO.16386/2009 P APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF G.O.(MS) NO.591/95 DTD. 19/12/1995. P2: COPY OF G.O.(MS) NO.338/05 G.EDN. DTD. 27/08/05. P2(A): COPY OF LIST OF POSTS SANCTIONED FOR EACH SCHOOL. P3: COPY OF REPRESENTATION DTD. 10/11/05 PREFERRED BY THE MANAGER OF THE SCHOOL BEFORE THE HON'BLE MINISTER OF EDUCATION. P4: LETTER DTD. 2/11/05 ISSUED BY THE 2ND RESPONDENT TO THE HEADMASTER OF THE SCHOOL. P5: COPY OF PROCEEDINGS OF THE 3RD RESPONDENT DTD. 31/07/06. P5(A): COPY OF APPENDIX CONTAINING THE DETAILS OF POSTS SANCTIONED IN THE SCHOOL FOR THE YEAR 2006-07. P6: COPY OF PROCEEDINGS OF THE 3RD RESPONDENT DTD. 31/07/08. P7: COPY OF JUDGMENT DTD. 29/10/08 IN WP.NO.31660/08 OF THIS HON'BLE COURT. P8: COPY OF REPRESENTATION DTD. 9/11/08 PREFERRED BY THE MANAGER OF THE SCHOOL BEFORE THE 1ST RESPONDENT. P9: COPY OF JUDGMENT DTD. 3/02/09 IN WP(C) NO.3601/09 OF THIS HON'BLE COURT. P10: COPY OF ORDER NO.G.O.(RT) NO.2006/09/G.EDN. DTD. 25/05/09 PASSED BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.16386 OF 2009 -------------------------------------------- Dated this the 27th day of October, 2010 JUDGMENT The petitioner is aggrieved by the non-approval of her appointment as Assistant Teacher in High School for Deaf, Enathu (for short 'the school' only) on account of non-sanctioning of post of Assistant Teacher. This Writ Petition has been filed mainly challenging Exts.P2 and P10 orders. The further prayer of the petitioner is for issuance of a writ of mandamus or any other appropriate wit, direction or order, commanding the 1st respondent to sanction one more post of Asst.Teacher in the U.P section of the High School for Deaf, Enathu in addition to the 2 posts already granted, as contemplated under Rule 4 (iv) of Chapter XXIII of the Kerala Education Rules and as requested by the Manager of the School by Ext.P8 representation and also considering the strength of the students and the staff in the school, at the earliest without any further delay. 2. The School was a recognised, un-aided school for deaf students. While functioning as an un-aided school, Government, vide Ext.P1 G.O dated 19.12.1995, granted aided school status for standard I to IV with effect from 1995-96. Pursuant to the same, 4 posts of Assistant W.P.(C) NO.16386/2009 2 Teachers and one post of Teacher-in-charge were also sanctioned. Subsequently, as per Ext.P2, the school was granted aided status in standard V to X. The petitioner joined the school as a teacher on 1.6.2002 even prior to the sanctioning of the aided school status as per Ext.P1. Pursuant to Ext.P2, the petitioner was appointed Manager of the school as Assistant Teacher with effect from 27.8.2005, anticipating approval from Government. As per Ext.P2(a), 4 posts of High School Assistants and 2 posts of Assistant Teachers alone were sanctioned. The contention of the petitioner is that 3 posts of Assistant Teachers should have been sanctioned taking note of the fact that one division each in class V, VI and VII are available. Raising such objection, the Manager of the school filed Ext.P3 representation before the Minister for Education. In the meanwhile, the District Education Officer, Pathanamthitta directed the Headmaster to put up necessary proposals for getting the benefits pursuant to the granting of aided school status. Accordingly, necessary proposals were submitted before the third respondent and thereupon, Ext.P5 proceedings have been issued by the third respondent. However, as per Ext.P5, the District Education Officer sanctioned only 2 posts of Assistant W.P.(C) NO.16386/2009 3 Teachers for the U.P section and only a total number of 10 divisions for standard I to X (one division in each standard). The contention of the petitioner is that Ext.P5 is unsustainable since the post was sanctioned thereunder without giving due regard to Rule 4(iv) of Chapter XXIII of the Kerala Education Rules. According to the petitioner, taking into account the said provision, one more post of Assistant Teacher should have been sanctioned in U.P section. Later, the petitioner moved this Court by filing W.P.(C).NO.31660/2008. The same was disposed of as per Ext.P7 judgment. Taking note of the fact that the earlier representation submitted by the Manager of the school was addressed to the Minister For Education, liberty was granted to the Manager of the School to make fresh representation to the first respondent and the first respondent was directed to take up, consider and pass orders thereon in case the Manager prefers such a representation. Pursuant to Ext.P7 judgment, the Manager preferred Ext.P8 representation before the first respondent. The delay in the matter of disposal of the same made the petitioner to approach this Court again by filing W.P.(C).NO.3601/2009. The said Writ Petition was disposed of as per Ext.P9 judgment with a direction to dispose of the representation W.P.(C) NO.16386/2009 4 submitted by the Manager dated 9.11.2008 with notice to the petitioner and the Manager. Pursuant to Ext.P9 judgment, the petitioner and the Manager were heard and the first respondent, thereupon, passed Ext.P10 order. As per Ext.P10, Ext.P8 representation submitted by the Manager was rejected. It is in the said circumstances that this Writ Petition has been filed. 3. The contentions of the petitioner would reveal that her consistent case is that the respondents are liable to fix staff strength in respect of the U.P section of the school in terms of Rule 4(iv) of Chapter XXIII of the Kerala Education Rules. True that the said rule provides for as many posts of U.P School Assistants as there are divisions in the U.P classes. Admittedly, there are 3 divisions in the U.P section of the school ie., one division in each standard. The contention of the petitioner is that the action on the part of the respondents in refusing to sanction one more post of Assistant Teacher in the U.P section without following the mandates in Rule 4(iv) of Chapter XXIII of the Kerala Education Rules is unsustainable especially in the light of the admitted position that there are one division in each standard of the U.P section. W.P.(C) NO.16386/2009 5 4. A counter affidavit has been filed in this Writ Petition by the third respondent. Based on Ext.P2 it is stated that the fact that no more posts other than those indicated to the annexure thereto would be sanctioned was specifically made clear therein. That apart, it is stated thereunder that service rendered by teachers prior to the date of Ext.P2 order would not be considered for any service benefits. It is further contended that posts in the school from 1995-96 and from 27.8.2005 were sanctioned based on the directions contained in G.O.(MS) 591/1995/G.Edn. Dated 19.12.1995 and G.O.(MS) 338/G.Edn. Dated 27.8.2005. In short, the contention is that in the light of the said government orders, the request of the petitioner as also the Manager of the school to sanction additional posts of Assistant Teachers in excess of the posts already sanctioned is unsustainable and impermissible in terms of Ext.P2. That apart, it is stated in the counter affidavit that the appointment of the petitioner as Assistant Teacher was declined to be approved on account of the non-availability of the sanctioned post and also that the petitioner did not have TTC/B.Ed qualification at the time of appointment. It is further stated therein that the sanctioning of divisions and posts in the W.P.(C) NO.16386/2009 6 school, which is admittedly a special school, are regulated by the G.O issued in 1969 and the sanctioning of the divisions and posts are not at all governed by the Kerala Education Rules. 5. Evidently, Ext.P10 order was passed by the first respondent pursuant to a direction of this Court in Ext.P9 judgment. True that in the counter affidavit, the third respondent has stated to the effect that the Kerala Education Rules are not applicable for sanctioning of divisions and posts in the special schools. Rule 4(i) of Chapter II of the Kerala Education Rules would make it clear that the school in question is classified as the school for education for particular categories of students. Therefore, admittedly, it is a special school falling under the classification under Chapter II of the Kerala education Rules. True that while granting aided status to standard V to X as per Ext.P2, it was specifically ordered that no more posts other than those indicated in annexure thereunder would be sanctioned to the school. Though Ext.P2 contains such a rider, the question whether Rule 4(iv) of Chapter XXIII of the Kerala Education Rules is applicable to the special schools was not all considered by the first respondent while issuing Ext.P1 order. The fact that the Manager of the W.P.(C) NO.16386/2009 7 School had taken up such a contention was noted while issuing Ext.P10. However, Ext.P10 would not reveal consideration of the said issue. As already stated in Ext.P2 order, there is a rider that no more posts would be sanctioned other than the posts already sanctioned as per the same. But a scrutiny of Ext.P2 would reveal that it did not specifically state the provisions and procedures governing the sanctioning of divisions and posts in special schools. Though in the counter affidavit, it has been stated that sanctioning of divisions and posts to special schools are regulated by G.O in 1969, neither in Ext.P1 nor in the counter affidavit the provisions have been incorporated with regard to the sanctioning of divisions and posts in special schools. That apart, the first respondent did not state in Ext.P10 that the Kerala Education Rules are inapplicable to special schools. Though such a contention has been raised in the counter affidavit filed on behalf of the third respondent, I am of the considered view that in the light of the consistent case advanced by the Manager as also the petitioner that in U.P section of the school, one more post is liable to be sanctioned in terms Rule 4(iv) of Chapter XXIII of the Kerala Education Rules, the first respondent should have considered the question as to how W.P.(C) NO.16386/2009 8 the sanctioning of divisions and posts in special schools are regulated and in that context whether chapter XXIII of the Kerala Education rules is applicable in the matter of sanctioning of divisions and posts in special schools and whether one more post of Assistant Teacher is allowable. Though the counter affidavit contains statement to the effect that the appointment of the petitioner was declined to be approved on the ground of non-possession of TTC/B.Ed., the said aspect was not touched in Ext.P10. The petitioner has specifically raised a contention that she possesses the qualification of M.Com, D.S.E and B.Ed in commerce from the Kannur University. Therefore, the said reasoning of the third respondent while declining of approval of the petitioner should also have been considered by the first respondent. Since the specific contention raised by the petitioner and also by the manager of the school that Rule 4 (iv) of Chapter XXIII of the Kerala Education Rules is applicable to the school and therefore, Ext.P6 is unsustainable inasmuch as the posts were sanctioned without due regard to the said provisions should have been considered by the first respondent while passing Ext.P10. Neither the petitioner nor the respondents made available before this Court the W.P.(C) NO.16386/2009 9 provision which actually regulates the sanctioning of the divisions and posts in special schools. The fact that the school is classified as the special school, in terms of specification under Chapter XXIII cannot be disputed. Therefore, the issue to be considered is whether Rule 4(iv) of Chapter XXIII of the Kerala Education Rules is applicable in the matter of sanctioning of divisions and posts in the special schools. Indisputably, the question regarding the application of the provisions under Chapter XXIII in the matter of sanctioning of divisions and posts in special schools has not been considered while issuing Ext.P10. In the circumstances, Ext.P10, as rightly contended by the petitioner is not an order passed with proper application of mind and therefore, it is liable to be interfered with. Ext.P10 is therefore, set aside. Accordingly, there will be a direction to the first respondent to re-consider the contentions raised by the petitioner and the Manger of the school as to whether Chapter XXIII of the Kerala Education Rules is applicable in the matter of sanctioning of divisions and posts in special schools like the petitioner's school and pass appropriate orders in the matter of approval of appointment of the petitioner expeditiously, at any rate, within a period of three months from the date of W.P.(C) NO.16386/2009 10 receipt of a copy of this judgment after affording an opportunity of being heard to the petitioner and the Manager. The writ petition is accordingly disposed of. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.16386/2009 11 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) NO.16386/2009 12