IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 25TH AUGUST 2008 / 3RD BHADRA 1930 WP(C).No. 15257 of 2008(N) -------------------------- PETITIONER: ------------ SATHEESH KUMAR.K., PHYSICAL EDUCATION TEACHER, JAYA JYOTHY V.H.S.S., AMPALATHUMBHAGOM P.O., PORUVAZHY, KOLLAM. BY ADV. SRI.ANIL SIVARAMAN SRI.HARIKRISHNAN RAVINDRAN RESPONDENTS: ------------- 1. THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA. 2. THE MANAGER, V.H.S.SCHOOL, ARKANNOOR, KOTTARAKKARA. 3. THE PRINCIPAL, JAYA JYOTHY V.H.S.S., AMPALATHUMBHAGOM P.O., PORUVAZHY, KOLLAM. ADDL.R4 & R5 : 4. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 5. THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM. (ADDL.R4 AND R5 IMPLEADED VIDE ORDER DATED 25.8.2008 ON I.A.NO.7568/2008) BY GOVERNMENT PLEADER SHRI A.J.VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T. SANKARAN,J. -------------------------------------- W.P.(C) No.15257 of 2008 N -------------------------------------- Dated this the 25th day of August, 2008. J U D G M E N T The petitioner is a Physical Education Teacher in Jaya Jyothy V.H.S.S., Ampalathumbhagom in Kollam District. The staff fixation order for the year 2007-2008 is produced as Ext.P1. Learned counsel for the petitioner submits that in the light of G.O.(Rt) No.807/91/G.Edn. dated 14.3.1991, there would be eight periods and for five periods there could be one teacher. The petitioner submits that he could continue in the same school. As per Ext.P1, it was held that the post of Physical Education Teacher cannot be sanctioned for the year 2007-2008. 2. The petitioner submitted Ext.P4 representation dated 18.4.2008 to the District Educational Officer, requesting to create a post of Physical Education Teacher in the school on clubbing arrangement with Government U.P. School, Edakkad so as to enable the petitioner to continue in the school. The petitioner relied on G.O.(P) No.178/02/G.Edn. dated 28.6.2002 in this regard. It was also pointed out that there is no Physical Education Teacher in Government U.P. School, Edakkad. Ext.P4 was not considered and disposed of. WP(C) No.15257/2008 2 3. The petitioner states that he was under the impression that his representation would be duly considered. It is stated that the Principal of the petitioner's school informed him that the Principal received instructions from the District Educational Officer to relieve the petitioner from the school. The petitioner was directed to join duty in the second respondent's school. The letter dated 17.3.2008 issued by the District Educational Officer, Kottarakkara to the Principal is produced as Ext.P5. 4. As per I.A.No.7569 of 2008, the petitioner has produced Exts.P6 and P7 documents. Ext.P7 is the representation dated 30.5.2008 submitted by the petitioner to the Director of Public Instruction. In Ext.P7 also, the petitioner claimed the benefit of G.O.(P) No.178/02/G.Edn. dated 28.6.2002. The prayer in Ext.P7 is also identical to the prayer made in Ext.P4 representation. Ext.P7 is also pending disposal. 5. The reliefs prayed for in the Writ Petition are the following:- “a) call for the records leading to Exts.P2 & P5 and to quash the same by issuing a writ in the nature of certiorari or any other appropriate writ, or direction; WP(C) No.15257/2008 3 b) declare that the petitioner is entitled to continue to work as Physical Education Teacher at JJVHS, Ambalathumbhagom in accordance with Rule 2 Chapter XXIII of the KER; c) issue any other such writ, order or direction as this Hon'ble Court may deem fit and necessary in order to meet the ends of justice on the facts and in the circumstances of the instant case; and d) award the costs of this case to the petitioner.” By the amendment of the Writ Petition, a prayer is added for the issue of a writ of mandamus commanding respondents 4 and 5 to take up Ext.P7 representation and pass appropriate orders in accordance with law. Additional respondents 4 and 5 are also sought to be impleaded by amendment of the Writ Petition. 6. A counter affidavit is filed by the first respondent. The main contention raised in the counter affidavit is contained in paragraph 3 which reads as follows:- WP(C) No.15257/2008 4 “3. During the academic year 2006-2007 there were only four periods for physical Education which was not sufficient for allowing a post of Physical Education Teacher and hence the existed post was abolished with effect from 15.7.2006 and the petitioner was granted protection in terms of G.O.(P)175/99/G.Edn. dated 26.7.1999 and G.O.(P) No.240/99/G.Edn. dated 29.9.1999 subject to deployment. During the year 2007-2008 also there was no scope for allowing a post of Physical Education Teacher. Petitioner was permitted to continue for 2007-2008 subject to deployment. Rule 2 Chapter XXIII Kerala Education Rule deals with sanction of specialist teachers in L.P.Schools, L.P. Section of U.P.Schools and High Schools. As far as the petitioner is concerned he is in the Cadre of Physical Education Teacher in High School and he does not come under the purview of Rule 2 Chapter XXIII KER which is applicable to L.P.Schools and L.P.Section of U.P. and High Schools only. No rules in force permits the petitioner to continue in the parent school without presence of a sanctioned post. He is eligible for protection in terms of G.O.(P) 175/99/G.Edn. dated 26.7.1999 and G.O.(P) 240/99/G.Edn. dated 29.9.1999 subject to deployment.” WP(C) No.15257/2008 5 It is also contended that the petitioner is continuing in the parent school duly enjoying the protection subject to deployment and that he has no right to continue in the parent school where there are no sufficient periods for sanctioning a post of Physical Education Teacher. It is also contended that being a protected Teacher, he is liable to deployment and he is bound to serve in any school where there is vacancy. 7. In view of the pendency of Ext.P7, I do not think it is necessary to dispose of the Writ Petition deciding the issues involved in it. The Director of Public Instruction shall look into the matter in the light of the contentions in the Writ Petition and the counter affidavit. It is only just and proper that a direction is issued to the Director of Public Instruction to consider and dispose of Ext.P7 representation on the merits. The learned counsel for the petitioner submits that there is change of circumstances and, therefore, additional points also may be allowed to be raised. It is submitted that abolition of the post is unnecessary as sufficient posts are available for accommodating the petitioner in the same school. All these are matters to be brought before the Director of Public Instruction by way of additional representation. In the facts and circumstances of the case, the Writ Petition is disposed of as follows:- WP(C) No.15257/2008 6 (i) The Director of Public Instruction shall consider Ext.P7 representation and also the additional representation, if any, filed by the petitioner, as expeditiously as possible and at any rate within a period of two months, after affording an opportunity of being heard to the petitioner and any other person likely to be affected. (ii) The petitioner shall file the additional representation, if any, before the Director of Public Instruction within a period of three weeks. (iii) The disposal of the Writ Petition with a direction to the Director of Public Instruction to dispose of Ext.P7 representation will not preclude the right of the petitioner to approach the District Educational Officer at the time of finalisation of the staff fixation order, pointing out his grievances. (iv) The petitioner will be free to produce such other materials and documents as are relevant in the matter, before the Director of Public Instruction. (v) It is made clear that I have not expressed any opinion on the merits of the case. (vi) The interim order shall continue till the disposal of the matter by the Director of Public Instruction. WP(C) No.15257/2008 7 (vii) The petitioner shall produce a copy of the Writ Petition and certified copy of the judgment before the Director of Public Instruction. K.T. SANKARAN, JUDGE. cks