IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21722 of 2005(J)
1. C.K. BALAN, MANAGER,
... Petitioner
2. RANJINI. A.V., MUSIC TEACHER,
3. CICILIAMMA THOMAS, MUSIC TEACHER,
4. MARY T.I., DRAWIGN TEACHER,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. DISTRICT EDUCATIONAL OFFICER,
3. DISTRICT EDUCATIONAL OFFICER,
4. DISTRICT EDUCATIONAL OFFICER, WAYANAD.
For Petitioner :SRI.M.VIJAYAKUMAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :13/11/2009
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No. 21722 of 2005-J
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Dated this the 13th day of November, 2009.
JUDGMENT
The petitioners are respectively the manager and teachers working in
different schools. They are aggrieved by the decisions taken by the
respondents to abolish the post of music teacher in the first petitioner’s
school and denial of approval to the appointments of second and third
petitioners as music teachers and the 4th petitioner as drawing teacher.
2. In the school managed by the first petitioner, a post of music
teacher existed which was abolished by the District Educational Officer
stating that as per G.O.(MS) No.525/95/G.Edn. dated 28.10.1995, the
periods available are not sufficient to sanction the music post in the school.
3. The second petitioner was appointed as Music Teacher in
Parassinikadavu High School from 2.6.1997 against a retirement vacancy.
But the said post was abolished stating the above reason. The third
petitioner was appointed as a music teacher at St. Joseph’s H.S.S., Kallodi
from 15.1.1981. The appointment was approved, but the post was
abolished on 15.7.2002. The 4th petitioner was appointed as drawing
teacher in another school from 2.6.1986 and the said appointment was
wpc 21722/2005 2
approved also. But later the post was abolished by the 4th respondent.
4. The respondents relied upon clause 5(ii) of the Govt. Order dated
28.10.1995 to the effect that “if there is already a post of drawing teacher
under the Art Group in the High School section, the second post in Art
Group or a post in Craft group will be sanctioned only when the periods
under each group become 26 periods and above” in abolishing these posts.
The contention is that the same goes against the express provisions of Rule
6(4) of Chapter XXIII K.E.R.
5. The first petitioner had earlier approached this court by filing O.P.
No.7177/1999 wherein this Court directed the Government to reconsider the
matter. A writ appeal was filed against the judgment in O.P. No.7177/1999
which was dismissed by Ext.P3 judgment. The other petitioners have also
filed O.P. No.6331/1999, W.P.(C) No.25424/2003 and 27415/2003
wherein also the Government was directed to reconsider the matter. Exts.P8
to P11 are the orders passed by the Government rejecting the claim of the
petitioners. The orders were passed relying upon the amendment by
introducing third proviso to Rule 6(4) of Chapter XXIII KER.
6. The petitioners have raised various grounds to challenge the orders
in question. The petitioners are relying upon a recent decision of this
Court in Satheeshkumar v. State of Kerala (2009 (3) KLT 439) wherein
wpc 21722/2005 3
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.
7. 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
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.
8. The petitioners are relying upon a decision of an earlier Division
wpc 21722/2005 4
Bench in Ext.P3 regarding the interpretation of Rule 6(4) of Chapter XXIII
KER. 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 Ext.P3 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. Ext.P3 judgment of the Division
Bench 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 as the decision turned 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 Ext.P3 judgment of the Division Bench.
9. The writ petition is therefore allowed. Exts.P8 to P12 are quashed.
wpc 21722/2005 5
There will be a direction to the second respondent to pass appropriate orders
regarding the posts claimed by the petitioners in the light of the findings
rendered above and such orders shall be passed within a period of three
months from the date of receipt of a copy of this judgment. Depending
upon the orders of approval the respective parties will be entitled for
consequential monetary benefits also which are to be disbursed within a
further period of three months. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/