IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 WP(C).No. 985 of 2007(P) -------------------------------- PETITIONER(S): ---------------------- RAJITH KULAVAYAL, AGED 34, S/O. M. NANU, FUL TIME JUNIOR LANGUAGE TEACHER (SANSKRIT), THILANUR U.P.SCHOOL,P.O. THAZHE CHOVVA KANNUR DISTRICT. BY ADV. SRI.V.A.MUHAMMED SRI.N.M.HASHIM RESPONDENT(S): ----------------------- 1. THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT, ANNEXE, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR, EDUCATION, KANNUR P.O., KANNUR-2. 4. THE ASSISTANT EDUCATIONAL OFFICER, KANNUR NORTH, P.O. KANNUR-2, KANNUR DIST. GOVERNMENT PLEADER SRI. T.R.REMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 985/2007 P APPENDIX PETITIONER'S EXHIBITS : EXT.P1. COPY OF THE APPOINTMENT ORDER DT. 2/6/03 OF THE PETITIONER. EXT.P2. COPY OF THE STAFF FIXATION ORDER NO. D.DIS F/3533/03 DT. 07/08/03 FOR THE YEAR 2003-04. EXT.P3. COPY OF THE TIME TABLE MADE BY THE HM OF THILANNOOR UPS. EXT.P4. COPY OF THE GOMS 371/2000/G.EDN DT. 13/11/2000. EXT.P5. COPY OF THE GO RT NO. 1405/05/G.EN DT. 5/4/05. EXT.P6. COPY OF THE JUDGMENT DT. 26/7/2004 IN WPC 25021/04 OF THIS COURT. EXT.P7. COPY OF THE GO RT NO. 4636/06/G.EDN DT. 14/11/2006. EXT.P8. COPY OF THE RELEVANT PAGE OF STAFF FIXATION ORDER OF THE SCHOOL. (79-80). EXT.P9. COPY OF THE -DO- FOR THE YEAR 1998-99. EXT.P10. COPY OF THE RELEVANT PAGE OF SERVICE BOOK. EXT.P11. COPY OF THE ORDER OF THE APPOINTMENT OF SMT. NIRMALA DT. 16/08/78. EXT.P12. COPY OF THE GO RT NO. 2390/2008/G.EDN OF THE GOVT.D T. 27/5/2008. RESPONDENTS' EXHIBITS : NIL. / TRUE COPY / tga T.R.RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No.985/2007-P ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 2nd day of July, 2009 J U D G M E N T The petitioner herein is aggrieved by Ext.P5 order by which the Government held that the post held by the petitioner namely, Full Time Sanskrit Teacher, cannot be restored. The petitioner was appointed as Full Time Sanskrit Teacher with effect from 02/06/2003 against a retirement vacancy of Smt.K.Nirmala, Full Time Sanskrit Teacher. Ext.P1 is the copy of the appointment order. The staff fixation order for the year 2003-04 shows that the Assistant Educational Officer did not sanction the Full Time post taking the view that the retirement vacancy is treated as Part Time post. 2. The question is whether the Assistant Educational Officer could have followed Group 'C' diversion principle to sanction Full Time post. The petitioner has averred in paragraph (4) of the writ petition that the requisite number of students in Std.V, VI and VII for the past 24 years available in the school is more than 50 for each years and the Headmaster of the school has proposed as per Ext.P3, the possibility of treating the post as Full Time one by adopting the Group 'C' diversion. The petitioner is relying upon Ext.P4 Government Order dated 13/11/2000 in support of the above claim. W.P.(C). No.985/2007 -:2:- The Manager even though moved the higher authorities, by Ext.P5 the Government rejected the same. The petitioner relies upon order passed in respect of another appointee in similar circumstances, namely, Ext.P7. Ext.P6 is a judgment of this Court in W.P.(C).No.25021/2004, which is also relied upon by the petitioner. 3. The specific contention raised by the third respondent in the counter affidavit is that the Full Time post of Sanskrit was sanctioned not by Group 'C' diversion but in terms of G.O.(MS).No.62/73/G.Edn., dated 02/05/1973, extending the benefit of Full Time post to the concerned teacher. It is pointed out that during 2003-04, the existing Full Time post under the above Government Order ceased to exist due to retirement of Smt.K.Nirmala, who was enjoying the benefit. 4. The question is whether the petitioner is entitled for the benefit of G.O.(MS)No.43/78/G.Edn., dated 13/04/1978, as per which the Government had extended the benefit that was allowed as per G.O.(MS). No.5014/68/G.Edn., dated 08/11/1968 in the matter of Sanskrit Teachers also. Presently, by Ext.P5, the said issue has not been considered by the Government. The only issue that was considered was whether after the retirement of the existing Teacher, as per G.O.(MS).No.62/73/G.Edn., dated W.P.(C). No.985/2007 -:3:- 02/05/1973, the petitioner could be granted the benefit. 5. Since the question whether the petitioner is entitled for the benefit of G.O.(MS)No.43/78/G.Edn., dated 13/04/1978, is not considered, the Government will re-hear the matter and take a fresh decision. Therefore, Ext.P5 is quashed. The entitlement of the petitioner for the benefit of the said Government Order in terms of proposal Ext.P3 forwarded by the Headmaster will be considered and fresh orders will be passed within two months from the date of receipt of the copy of this judgment. The writ petition is disposed of as above. No costs. T.R.RAMACHANDRAN NAIR, JUDGE ms