IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 WP(C).No. 14335 of 2009(J) PETITIONER: RAJESH K.G., URDU TEACHER, AUP SCHOOL, TARUR, PALGHAT DISTRICT. BY ADV. SMT.MARY BENJAMIN RESPONDENTS: 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS (ACADEMIC), OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICE, PALGHAT. 4. ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE ASSISTANT EDUCATIONAL OFFICE, ALTHUR, PALGHAT. GOVERNMENT PLEADER SRI.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 5.6.2006. EXT.P2 TRUE COPY OF THE PROCEEDINGS DATED 12.9.2006 OF THE FOURTH RESPONDENT. EXT.P3 TRUE COPY OF THE ORDER NO.G1/D.DIS.31713/07/DPI/DT. 25/10/2007 OF THE SECOND RESPONDENT. EXT.P4 TRUE COPY OF THE REVISION FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P5 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.25966 OF 2008. EXT.P6 TRUE COPY OF THE ARGUMENT NOTES SUBMITTED BY THE PETITIONER. EXT.P7 TRUE COPY OF THE G.O.(RT)NO.463/2009/G.EDN. DATED 29.1.2009. EXT.P8 TRUE COPY OF THE STAFF FIXATION ORDER FOR THE SCHOOL FOR THE YEAR 2006-2007. EXT.P9 TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK OF SMT.T.P.KALLIANIKUTTY. EXT.P10 TRUE COPY OF THE STAFF FIXATION ORDER FOR THE YEAR 1981- 1982. EXT.P11 TRUE COPY OF THE STAFF FIXATION ORDER FOR THE YEAR 2005- 2006. EXT.P12 TRUE COPY OF THE G.O.(Rt) 2390/2008/G.EDN. DATED 27.5.2008. EXT.P13 TRUE COPY OF THE PAGE NUMBERS 12 AND 13 OF THE SERVICE BOOK OF SMT.T.P.KALLIANIKUTTY. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 14335 OF 2009 ------------------------------------------------------ Dated this the 7th day of June, 2010 JUDGMENT The petitioner challenges Ext.P7 order dated 29.1.2009 passed by the Government, to the extent to which it is against the petitioner. 2. As per Ext.P1 order dated 5.6.2006, the petitioner was appointed as Urdu Teacher (LG. Full Time) in the Aided Upper Primary School, Tarur from 5.6.2006. The appointment was made in the retirement vacancy of one T.P.Kallianikutty. It is stated that T.P.Kallianikutty was a full time Urdu Teacher. T.P.Kallianikutty retired from service on 31.3.2006. The appointment order was sent for approval to the Assistant Educational Officer, Alathur, who, as per Ext.P2 proceedings dated 12.9.2006, rejected the proposal for approval on the following grounds: (1) T.P.Kallianikutty has worked in the part time post with full time benefit. (2) As per the staff fixation order 2006-07 only part time Urdu post was sanctioned and therefore, appointment of full time Urdu Teacher cannot be approved. (3) The transfer of management involving the change of ownership of the school has not been sanctioned. W.P.(C) NO.14335 OF 2004 :: 2 :: 3. Against Ext.P2 order, the Manager as well as the petitioner filed appeal before the District Educational Officer. The District Educational Officer confirmed Ext.P2 order. The Manager filed an appeal before the Director of Public Instruction, who rejected the appeal as per Ext.P3 order dated 25.10.2007. The petitioner filed a revision before the Government challenging the order passed by the Director of Public Instruction. The Manager also filed a revision. 4. The petitioner filed W.P.(C) No.25966 of 2008, complaining that the revision filed by the petitioner and the Manager were not promptly disposed of. The Writ Petition was disposed of as per Ext.P5 judgment dated 28.8.2008. The Government was directed to consider and dispose of the revision, after affording an opportunity of being heard to the parties. Thereafter, the Government disposed of the revision as per Ext.P7 order dated 29.1.2009. It was held that the appointment of the petitioner with effect from 5.6.2006 can be approved as part time Urdu Teacher, as part time post of Urdu was sanctioned in the school. However, it was also held that the petitioner could not be appointed as full time Urdu Teacher. One of the reasons stated for arriving at that conclusion was that W.P.(C) NO.14335 OF 2004 :: 3 :: Smt.T.P.Kallianikutty, Urdu Teacher was working against a part time post with full time benefit and as per the staff fixation order 2006-07, the Assistant Educational Officer had sanctioned only part time Urdu post in the school. The Manager was, therefore, not entitled to appoint the petitioner as full time Urdu Teacher against the sanctioned part time post. Another reason stated is that Group 'C' diversion was withdrawn during 1988-89 as per G.O.(MS) 98/88/G.Edn. dated 19.5.1988 and that position continued even at the time of considering the revision. 5. The learned counsel for the petitioner submitted that Ext.P13 service records relating to T.P.Kallianikutty would show that full time benefit was given to her from 15.7.1980 by diverting three periods from Group 'C' music as per the order dated 14.7.1980. The counsel also pointed out that Ext.P10 staff fixation order for 1981-82 shows that full time benefit to part time Urdu was granted as per G.O.43/78. It is submitted that G.O.43/78 relates to Group 'C' diversion. The counsel also pointed out that Ext.P11 staff fixation order for 2005-06 shows that full time benefit was allowed to part time Urdu as per G.O.(MS)62/73 dated 2.5.1973. The counsel W.P.(C) NO.14335 OF 2004 :: 4 :: pointed out that this Government Order relates to protection of teachers. 6. The petitioner filed I.A.No.7054 of 2010 praying for amendment of the Writ Petition. By the amendment, the petitioner has incorporated a contention that the view taken by the Government that Group 'C' diversion was withdrawn as per G.O.(MS) 98/88/G.Edn. dated 19.5.1988 is not correct. It is stated that the petitioner has information from reliable source that as per G.O.(MS) 124/88/G.Edn dated 20.7.1988, G.O.(MS)98/88/G.Edn dated 19.5.1988 was cancelled. It is stated that the petitioner could not obtain copies of those Government Orders. 7. The learned counsel for the petitioner, with reference to Ext.P12 G.O.(RT)No.2390/2008/G.Edn dated 27.5.2008, submitted that Group 'C' diversion was granted in the case of a teacher in Urdu, who was newly appointed in the year 2001-02. According to the counsel, Ext.P12 would clearly prove that the finding in Ext.P7 that Group 'C' diversion was cancelled is not correct. It is submitted that the very foundation of Ext.P7 order is the non-availability of Group 'C' W.P.(C) NO.14335 OF 2004 :: 5 :: diversion and that finding being erroneous, Ext.P7 is liable to be quashed. 8. It is also pointed out by the learned counsel for the petitioner that Ext.P8 staff fixation order for 2006-07 shows that in classes V, VI and VII, there are eight divisions. As per the revised curriculum for regional language Part I, which includes Urdu, the number of periods in each division for standards V to VII shall be four periods each for each division. It is therefore submitted that, prima facie, going by Ext.P8, for eight divisions, 32 periods would be available which would justify sanction of a full time post in Urdu. The counsel also submitted that the challenge by the Manager against the staff fixation order has not become final. 9. In the facts and circumstances of the case, I am of the view that it is just and proper to quash Ext.P7 order to the extent to which it is against the petitioner and to direct the Government to consider the matter afresh. All the contentions are left open to be considered by the Government. If the challenge against the staff fixation is pending before the Government, that also can be considered while W.P.(C) NO.14335 OF 2004 :: 6 :: considering the matter afresh as directed in the Writ Petition. Accordingly, the Writ Petition is partly allowed and Ext.P7 order dated 29.1.2009 passed by the Government, to the extent to which it is against the contentions of the petitioner, is quashed. The Government shall consider the matter afresh in the light of the findings and observations made hereinabove and after taking note of the contentions of the petitioner with respect to Group 'C' diversion and also with respect to the question of availability of a full time Urdu post. The Government shall dispose of the matter as expeditiously as possible after affording an opportunity of being heard to the petitioner, the Manager and any other affected party. The petitioner shall produce a copy of the Writ Petition together with Exhibits, copy of the counter affidavit and copies of I.A.Nos.7053 and 7054 of 2010 before the first respondent within a period of one month. (K.T.SANKARAN) Judge ahz/