IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12606 of 2007(A)
1. MOTHER BONIFACE MARY,
... Petitioner
Vs
1. SECRETARY TO GOVERNMENT,
... Respondent
2. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
3. THE DISTRICT EDUCATIONAL OFFICER,
4. J.G.VALSALAKUMARI, CRAFT (AGRICULTURE),
5. SMT. DHEEMA RANI,
For Petitioner :SRI.S.GOPAKUMARAN NAIR (SR.)
For Respondent :SRI.P.N.MOHANAN
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :13/07/2009
O R D E R
S. Siri Jagan, J.
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W. P (C) Nos. 12606, 12895 & 35105 of 2007
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Dated this, the 13th July, 2009.
J U D G M E N T
These three writ petitions are directed against the same
Government Order, but challenging different directions in that order.
Therefore, they are heard and disposed of by this common judgment.
For convenience, I shall refer to the rank of parties and exhibits as
obtaining in W.P(C) No. 35105/2007.
2. W.P(C) No. 35105/2007 is filed by a craft teacher named
Smt. Valsalakumari J.G appointed by the 3rd respondent to a
retirement vacancy which arose on 31-3-1985. Smt. Valsalakumari
was appointed to that vacancy on 14-8-1985. But that appointment
was refused to be approved on the ground that on the retirement of
the erstwhile incumbent, the post itself stands abolished by virtue of
Rule 6B of Chapter XXIII of the Kerala Education Rules.
Subsequently, the management cancelled the appointment of Smt.
Valsalakumari. Smt. Valsalakumari J.G approached this Court by
filing O.P. No. 11838/1996 in which there was an order of stay of
termination of service of Smt. Valsalakumari. While so, the
management changed in 1996. As per the staff fixation order for the
year 2004-05, a vacancy of a sewing teacher was sanctioned along
with that of a craft teacher. The petitioner in W.P(C) No. 12895/2007
Smt. Dheema Rani was appointed to the post of sewing teacher
sanctioned in 2004. Her appointment was also not approved,
probably due to the situation prevailing on account of non-approval of
the appointment of Smt. Valsalakumari. By Ext. P4 judgment dated
23-8-2005, O.P. No. 11838/1996 filed by Smt. Valsalakumari was
allowed and the Government was directed to re-consider the matter.
Pursuant thereto, the Government re-considered the matter and
passed an order directing approval of the appointment of Smt.
Valsalakumari J.G with effect from 1-11-2004, by converting the post
W.P.C. No. 12606/07 etc. -: 2 :-
of sewing teacher held by Smt. Dheema Rani and directing payment of
salary for the period from 14-8-1985 to 1-11-2004 to Smt.
Valsalakumari J.G, which was directed to be recovered from the
Manager invoking Section 8 of the Kerala Education Act, 1958. The
Manager and Smt. Dheema Rani challenged the same in W.P(C) Nos.
24521/2006 and 25421/2007 in which that order was quashed by
judgment dated 27-11-2006 and the Government was directed to re-
consider the matter after hearing Smt. Smt. Valsalakumari J.G, Smt.
Dheema Rani and the Manager. It is pursuant to that judgment, Ext.
P13 order has been passed by the Government, but the same was in
terms of the earlier order itself. W.P(C) No. 35105/2007 is filed by
Smt. Valsalakumari J.G against that part of Ext. P13 order, by which
she has been denied approval of appointment with effect from 14-8-
1985. W.P(C) No. 12895/2007 is filed by Smt. Dheema Rani
challenging that part of the order, whereby the post of sewing
teacher is directed to be converted to that of a craft teacher. W.P(C)
No. 12606/2007 is filed by the management challenging that part of
the order whereby the salary to be paid to Smt. Valsalakumari J.G for
the period from 14-8-1985 to 1-11-2004 has been directed to be
recovered from the Manager invoking Section 8 of the Kerala
Education Act, 1958.
3. If W.P(C) No. 35105/2007 filed by Smt. Valsalakumari J.G is
allowed and her appointment is directed to be approved from 14-8-
1985, then automatically the other two writ petitions also have to be
allowed. Therefore, I shall consider W.P(C) No. 35105/2007 first.
4. The question as to whether by virtue of Rule 6B of Chapter
XXIII of K.E.R., the post of specialist teacher or craft teacher stands
abolished on the retirement of the incumbent after 1969-70 has been
a vexing question which was the subject matter of various decisions of
W.P.C. No. 12606/07 etc. -: 3 :-
the Government and this Court . Ultimately, that issue was settled by
the decision of a Full Bench of this Court in Harikumar v. State of
Kerala, 2003(1) KLT 797 (F.B), holding that on the retirement of the
incumbent of the post, the post would stand abolished. Strictly going
by that judgment, Smt. Valsalakumari J.G may not be entitled to
succeed in her writ petition. But, the question is not that simple.
At the relevant time, when Smt. Valsalakumari J.G was appointed and
subsequently, this question was considered by the Government in
various orders. By Ext. P5 order dated 24-9-1969, the Government
held that the posts of specialist craft teachers sanctioned before 1969-
1990 will be continued even if the incumbent retired or left the post
for other reasons and that the post will be allowed to be filled up by
qualified hands. Again by Ext. P6 order dated 8-1-1988 referring to
G.O. Ms. No. 87/79/G. Edn. dated 2-6-1979, the Government have
clarified that when the incumbent holding the post vacated the post,
such post can be restored as full time or part time according to the
availability of periods for the specialist subjects and that as long as
thiat Government Order existed, restoration shall be continued. Still
later, by Ext. P7 dated 20-7-1988, the Government informed the
Director of Public Instruction that the posts of specialist teachers and
craft teachers which existed during 1987-88 against which specialist
teachers and craft teachers were appointed and approved will
continue as such until further orders and they may be paid as usual.
By Ext. P8 circular dated 17-12-1988, the Government again clarified
that none of those posts will be deemed to have been abolished in
subsequent years for any reason whatsoever and the post will be
treated as continuous. The substitutes appointed against the
vacancies were also permitted to be paid salary continuously. This
was directed to include all appointments made against vacancies
W.P.C. No. 12606/07 etc. -: 4 :-
during the year 1988-1989 also. By Ext. P9 order dated 15-2-1992,
referring to four teachers who were similarly appointed, the
Government held that if the approval of those four teachers was made
before the issuance of G.O.(MS) 154/89/G. Edn. dated 22-8-1989,
they could have been paid salary and continued as per Ext. P8
circular dated 17-12-1983 as they were in service before issuance of
the Government Order dated 22-8-1989. By Ext. P10(a) dated 22-12-
2000, the Government held as follows:
“Government have examined the case w.e.f. the report from
the Director of Public Instruction and found that the appointment
of Sri. J. Shylock was made on 3.10.1985 during the prevalence of
Government Circular No. 78932/J1/88/GE dated 17.12.88 even
though the circular was cancelled with the issuance of G.O.(MS)
154/89/GE dated 22.8.1889. Which has no retrospective
operation.
In the circumstances, Government are pleased to accord
sanction for the restoration of the post of craft teacher
(Agriculture) in the Victory High School, Olathanny w.e.f.
3.10.1985 onwards and to approve the appointment of Sri. J.
Shylock as craft teacher (Agriculture) against the above restored
post subject to the condition that the post will cease to exist with
the vacation of the post by the present incumbent through
retirement, resignation, death or like reasons if it is otherwise in
order.”
In Ext. P10(b) dated 5-2-2005 a similar appointment dated 19-6-1986
was directed to be approved. By Ext. P10(c) dated 23-6-1998, the
appointment dated 31-10-1985 of a specialist teacher was directed to
be approved by the Government. By Ext. P10(d), another appointment
dated 1-8-1989 was directed to be approved. By Ext. P10(e) dated
28-1-1998, an appointment dated 4-8-1988 was directed to be
approved. By Ext. P10(f) dated 19-12-2000, the post abolished in
1992-93 was directed to be restored and appointment to that post was
approved. By Ext. P10(g) order dated 18-4-1981, an appointment
W.P.C. No. 12606/07 etc. -: 5 :-
dated 20-7-1975 was directed to be approved. By Ext. P10 (h) dated
4-5-1990, an appointment dated 7-6-1989 was directed to be
approved. In Ext. P10 (i) dated 11-11-1997, an appointment on 3-8-
1983 was directed to be approved. By Ext. P10(j), appointment dated
3-6-1985 was directed to be approved. By Ext. P10(k) dated 13-6-
1997, a post for 1987-88 was restored and appointment approved. By
Ext. P10(l) dated 28-11-1998, an appointment dated 30-10-1986 was
approved. By Ext. P10(m) dated 29-7-2000 an appointment dated
3-6-1985 was directed to be approved. By Ext. P10(n) dated 12-4-
1991, an appointment for the year 1987-1988 was directed to be
approved. By Ext. P10(o) dated 2-2-2001, an appointment dated 1-6-
1993 was directed to be approved. Therefore, despite the
prescription in Rule 6B, the Government themselves had even
restored the abolished post and directed approval of appointment
similar to that of Smt. Valsalakumari J.G. In fact, in Ext. P11
judgment in O.P.No. 15817/1996, a learned Judge of this Court noting
a similar situation, finding that similar appointments have been
approved by the Government themselves in several cases, held that
the petitioner in that original petition is also entitled to get the same
treatment as otherwise it would be discriminatory, especially since
the Rules were not very clear on the subject and the appointments
were not wantonly made. I am of opinion that Smt. Valsalakumari J.G
is entitled to a similar relief insofar as several other similarly placed
teachers have been given the very same benefit which Smt.
Valsalakumari J.G seeks in her writ petition.
5. In this connection, I note two things. One is that in
Harikumar’s case (supra), the Full Bench was considering a case of
appointment of a physical education teacher on March, 31, 1995.
Further, the Government themselves, by G.O(P) No. 174/2008/G.
W.P.C. No. 12606/07 etc. -: 6 :-
Edn. dated 6-10-2008 amended Rule 6B to read as follows:
“6B, Notwithstanding anything contained in any other rule in this
Chapter except sub-rule (2) hereunder no post of Specialist
Teacher or Craft Teacher shall be allowed to continue in any
Upper Primary School or Upper Primary School section of a High
School except for the continuance of the qualified teachers who
were actually holding the said post on the 6th day of March, 1979.
Provided that the specialist teachers appointed in Upper
Primary School or Upper Primary School section of a High School
after the 6th day of March 1979 but before 22nd day of August,
1989 whose appointments were approved shall be allowed to
continue as such till their retirement, resignation, death or
transfer and the posts of such Specialist Teachers shall be allowed
to continue for their such continuance till they vacate the post.”
It is clear from the said amendment that the Rules themselves
permitted appointments made between 6-3-1979 and 22-8-1989,
which were approved to be continued till their retirement,
resignation, death or transfer. If such appointments illegally
approved shall be continued, I see no reason why Smt.
Valsalakumari’s appointment should not be directed to be approved in
tune with the other cases referred to above and the amended Rule 6B.
6. In view of my above findings, I am satisfied that Smt.
Valsalakumari J.G is entitled to have her appointment with effect
from 14-8-1985 as a craft teacher (agriculture) approved with effect
from that date. Once it is approved, the appointment made by the
manager stands ratified and salary paid to Smt. Valsalakumari J.G
cannot be recovered from the Manager.
7. Insofar as for the year 2004-2005, as per Ext. P5 staff
fixation order, both the posts of a craft teacher and a sewing teacher
have been sanctioned, it is not necessary to convert the post of sewing
teacher to that of craft teacher. In the above circumstances, the
direction to convert the post of sewing teacher to that of craft teacher
W.P.C. No. 12606/07 etc. -: 7 :-
in the impugned order is also set aside. But, I make it clear that
Smt. Valsalakumari J.G is not entitled to any additional monetary
benefits arising from the approval of her appointment with effect from
14-8-1985 before 1-11-2004 other than what has been already paid to
her. However, her service from 14-8-1985 would be counted for all
other service benefits, including retirement benefits.
The writ petitions are disposed of as above.
S. Siri Jagan, Judge.
Tds/