IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 WP(C).No. 34274 of 2003(E) ------------------------------------ PETITIONER(S): ------------------------ 1. MANAGER, NETAJI H.S., PRAMADAM, PATHANAMTHITTA. 2. ANU V.SUDEV, MUSIC TEACHER, NETAJI H.S., PRAMADAM, PATHANAMTHITTA. BY ADV. MR.S.ABDUL RAZZAK RESPONDENT(S): ------------------------- 1. THE DISTRICT EDUCATIONAL OFFICER, PATHANAMTHITTA. 2. THE GOVT. OF KERALA, REPRESENTED BY SECRETARY, GENERAL EDUCATION (K) DEPARTMENT, GOVT. SECRETARIAT,THIRUVANANTHAPURAM-1 BY SR. GOVERNMENT PLEADER SMT.T.B.REMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/11/2009, THE COURT ON 13/11/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.34274/2003 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPOINTMENT ORDER DT.D 11.9.01. P2:- COPY OF THE STAFF FIXATION ORDER DTD. 18.12.01. P3:- COPY OF THE APPOINTMENT ORDER DTD. 5.6.02. P4:- COPY OF THE STAFF FIXATION ORDER DTD. 10.7.02. P5:- COPY OF THE APPELLATE ORDER DTD. 26.12.02. P6:- COPY OF THE REVISION ORDER DTD. 29.4.03. P7:- COPY OF THE STAFF FIXATION ORDER DTD. 23.7.03 ISSUED BY R1. P8:- COPY OF THE REVISION PETITION DTD. 19.5.03. P9:- COPY OF THE G.O.(MS) NO.525/95/G.EDN. DTD. 28.10.95. P10:- COPY OF THE LETTER NO.33432/E3/03/G.EDN. DTD. 18.8.03. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 34274 of 2003-E - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of November, 2009. JUDGMENT The first petitioner is the manager and second petitioner is a music teacher appointed by the first petitioner in Netaji High School, Pramadam. The second petitioner’s appointment as music teacher in the school was approved in a leave vacancy for the period from 11.9.2001 to 31.1.2002. There were one post each for drawing and music sanctioned for 2001-2002 in the high school section and this is evidenced by Ext.P2 staff fixation order. A vacancy of music teacher arose on 31.3.2002 consequent on the retirement of Smt. V.N. Radhamma and the second petitioner was appointed from 1.6.2002. The post of music teacher was abolished in the staff fixation for the year 2002-2003, as per Ext.P4. This is confirmed in appeal and revision by Exts.P5 and P6. The revision filed by the first petitioner against Ext.P6 order was rejected as per Ext.P10 which is under challenge in this writ petition. 2. Mainly, it is contended that the requirement of want of sufficient periods and the consequential denial of approval are against the spirit and contents of Rule 6(4)(b) of Chapter XXIII K.E.R. wpc 34274/2003 2 3. The respondents have filed a counter affidavit supporting the action taken. 4. The petitioners have raised various grounds to challenge the orders in question. The petitioners are relying upon a recent decision of this Court in Satheesh Kumar v. State of Kerala (2009 (3) KLT 439) wherein the same question was examined in detail. Regarding the sanctioning of posts of drawing and music teachers, it was held in para 13 thus: “Therefore, a High School is entitled to have one full time post each in these three different subjects irrespective of the number of periods. The same cannot be denied by resort to the third proviso.” The scope of the three provisos have also been examined in detail in paragraphs 14 and 15. It was held that what is envisaged under the proviso is only sanctioning of a second post in the Art Group, i.e. Music Teacher or a post in the Craft Group. 5. Learned Govt. Pleader relied upon an unreported decision in W.A. No.908/1994 and connected case to contend that the sanctioning of post is dependent upon the number of periods. That was a case where the post of music teacher was abolished on the ground that sufficient number of periods were not available. For music post, there were only nine periods in standards VIII and IX and accordingly the post was abolished. The wpc 34274/2003 3 Division Bench was of the view that since there is already one post of drawing teacher in the Art Group in high school section, the periods available do not require sanction of post of music teacher in addition to the post. 6. In fact, the Division Bench in Writ Appeal No.275/2004 had considered the true interpretation of Rule 6(4) of Chapter XXIII K.E.R. The clause introduced as per the Govt. Order dated 28.10.1995 and the third proviso are the same. While considering the effect of Rule 6(4), it was held thus by the Division Bench in the above judgment: “Rule 6(4) mandates that in every high school there shall be one full time post of music teacher irrespective of the number of periods of work per week for music. In the light of this statutory provision the Govt. Order which runs counter to it could not be given effect to.” In W.A. No.908/1994 the effect of the statutory provisions has not been considered in detail. In fact in the decision in Satheeshkumar's case (2009 ((3) KLT 439) the entire statutory scheme has been considered and the effect of the provisos was also considered. The judgment of the Division Bench in W.A. No.275/2004 gives an interpretation of Rule 6(4) of Chapter XXIII K.E.R. Since those aspects have not been considered in W.A. No.908/1994, the same is distinguishable especially the decision turned wpc 34274/2003 4 upon the facts of the said case. Therefore, the contention of the learned Govt. Pleader is rejected. The view taken in Satheeshkumar's case (2009 (3) KLT 439) is in tune with the judgment of the Division Bench in W.A. No.275/2004. 6. In the light of Rule 6(4)(b) a post of music teacher is liable to be sanctioned irrespective of the number of periods, Exts.P5, P6 and P10 are quashed. There will be a direction to the respondents to sanction and restore the post of music teacher and to approve the appointment of the second petitioner from the academic year 2002-2003 onwards. Appropriate orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. Consequential monetary benefits also will be disbursed accordingly. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/