IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24804 of 2007(C)
1. A.SIVAN, DRAWING TEACHER,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY
... Respondent
2. DIRECTOR OF PUBLIC INSTRUCTIONS,
3. DISTRICT EDUCATIONAL OFFICER,
4. K.V.BINDRA KUMARI, MUSIC TEACHER,
For Petitioner :SRI.GEORGE ABRAHAM
For Respondent :SRI.N.RAGHURAJ
The Hon'ble MR. Justice V.K.MOHANAN
Dated :27/08/2009
O R D E R
V.K.MOHANAN, J.
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W.P(C).Nos.24804/2007 & 1199/2006
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Dated this the 27th day of August, 2009
J U D G M E N T
The fate of W.P(C) No.1199 of 2006
depends upon the outcome in W.P.(C) No.24804
of 2007, and therefore, the above two writ
petitions are interconnected. Hence, these two
writ petitions are heard together and being
disposed of by this common order.
2. The petitioner in W.P(C) No.24804 of
2007 is originally appointed as a Drawing
Teacher in the U.P.Section of the High School,
Mundur on 28.8.1978. In the said school, there
were two posts of Specialist Teachers. Out of
two, one was abolished as a result of fixation of
strength of Teachers during the year 1998 and
hence, the petitioner was shifted from the
U.P.Section to the High School Section in a
vacancy which arose due to the retirement of one
WP(C) Nos.24804 of 2007&1199 of 2006
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Balachandran who was holding the post of Specialist
Teacher. Thus, from 31.3.1998 onwards, the
petitioner was working in the High School Section
as Drawing Teacher till his retirement. Out of the
two posts of Specialist Teachers, the remaining one
was occupied by one C.Murali, who retired on
31.7.2001 and to that post, the petitioner in W.P(C)
No.1199 of 2006 was appointed with effect from
1.8.2001. His appointment was also approved by
the Department.
3. That being the position, after five years,
the District Educational Officer, the third
respondent issued Ext.P1 order (in W.P(C) No.24804
of 2007) on 7.5.2003, which was eventually
challenged by the petitioner before this Court by
filing W.P(C) No.35916 of 2005 and this Court
passed Ext.P4 judgment directing the Government
to reconsider the matter and to take a fresh decision
WP(C) Nos.24804 of 2007&1199 of 2006
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after hearing the petitioner and other affected
parties. Thus, the Government passed Ext.P6 order,
declining the request of the petitioner to permit him
to continue as Drawing Teacher in the High School
Section. It is the above Ext.P6 order, challenged in
W.P(C) No.24804 of 2007.
4. The prayer in W.P(C) No.1199 of 2006 is
to quash Exts.P2,P3 and P5 orders by issuing a writ
of certiorari. The second prayer in the writ petition
is to issue a writ of mandamus or other appropriate
writ, order or direction commanding respondents 1
to 3 to retain the petitioner as Physical Education
Teacher in the school of the 4th respondent and to
approve his appointment during the year 2002-03
and subsequent years. The petitioner in the above
writ petition approached this Court when the third
respondent passed an order shifting the fifth
respondent, who is the petitioner in the other writ
WP(C) Nos.24804 of 2007&1199 of 2006
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petition, to the U.P.Section and retrenching the
petitioner herein so as to accommodate the other
petitioner holding that there would be one Specialist
post in the Upper Primary Section. Ext.P3 is the
said order. Against Ext.P2 order, the petitioner
herein preferred revision petition before the
Government and the same was disposed of by the
Government in the light of the direction issued by
this Court as per the judgment in W.P(C) No.16146
of 2003. As the order was against the petitioner, he
again challenged the said order by filing W.P.(C)
No.6949 of 2004 before this court and this Court, by
order dated 13.7.2005 in the above writ petition,
quashed the revisional order passed by the
Government and directed the Government to re-
examine the matter afresh. Ext.P4 is the judgment
of this Court in the writ petition on the basis of
which the Government passed Ext.P5 order. In
WP(C) Nos.24804 of 2007&1199 of 2006
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Ext.P5 order, the Government reiterated its earlier
stand and thus, aggrieved by Ext.P5 order, the
petitioner preferred the present writ petition.
5. In both the writ petitions, the State has
filed separate counter affidavits. The specific
contention of the Department is to the effect that
the shifting of the petitioner in W.P(C) No.24804 of
2007 to the High School Section was illegal and
arbitrary and therefore, he is to be reposted in the
U.P.Section for which the petitioner in the other
writ petition (1199/2006) had to be retrenched.
According to the Government, the petitioner in W.P
(C) No.24804 of 2007 was not eligible to be
transferred and appointed in any post in the High
School Section as he was not having the
S.S.L.C.qualification, which is one among the
requisite qualifications.
6. I have heard Sri.P.K.Sureshkumar,
WP(C) Nos.24804 of 2007&1199 of 2006
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learned counsel appearing for the petitioner in W.P.
(C) No.1199 of 2006 and also Sri.George Abraham,
learned counsel appearing for the petitioner in W.P.
(C) No.24804 of 2007 and the learned Government
Pleaders.
7. Counsel for the petitioners emphatically
submits that by virtue of sub-rule(2) and (3) of Rule
1 of Chapter XXXI of the Kerala Education Rules
(for short ‘the K.E.R.’), the petitioner in W.P.(C)
No.24804 of 2007 was fully qualified for transfer to
the post occurred in the High School Section of the
school and therefore, the contention of the
departmental authorities and the Government is
liable to be rejected. In support of the contention,
counsel for the petitioners very much relied upon
the decisions of this Court reported in Rani George
v. Deputy Director of Education (2004(1) KLT
460) and Satheeshkumar v. State of Kerala (2009
WP(C) Nos.24804 of 2007&1199 of 2006
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(3) KLT 439).
8. On the other hand, the Government
Pleaders contended that the exemption granted in
sub-rule (3) to Rule 1 of Chapter XXXI of the K.E.R.,
is not applicable in the case of the petitioner in W.P
(C) No.24804 of 2007. Thus, according to the
Government Pleaders, the appointment of the
petitioner in W.P(C) No.1199 of 2006 cannot be
approved because the post in which he was
appointed had to be accommodated by the
petitioner in W.P(C)No.24804 of 2007 after shifting
him from the High School Section.
9. I have carefully considered the arguments
advanced by the counsel appearing for the
petitioners as well as the learned Government
Pleaders and I have perused the materials on
record.
10. At the outset, it is to be noted that the
WP(C) Nos.24804 of 2007&1199 of 2006
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petitioner in W.P.(C) No.24804 of 2007 has already
retired from service on 31.3.2008 while he was
working in the High School Section as a Drawing
Teacher. Though the said petitioner was shifted and
appointed to the High School Section and working
there with effect from 31.3.1998, the objection was
raised by the Department only after five years of his
working in the High School Section. Ext.P6 order
(in W.P.(C) No.24804 of 2007) is dated 25.7.2007
and after six months from the date of Ext.P6, he
retired from the service. Thus, it can be seen that
he was working as Specialist Teacher in the High
School Section right from 31.3.1998 and he was
doing his job, without any other complaint for which
he had already received the salary etc. It is also the
fact that the petitioner in W.P(C) No.1199 of 2006
was appointed in the post of Physical Education
Teacher right on 1.8.2001 and the said
WP(C) Nos.24804 of 2007&1199 of 2006
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appointments were approved by the Department. In
the meanwhile, this Court passed the interim order
on 13.1.2006 on the basis of which he is continuing
in service. In the interim order passed by this Court
on 13.1.2006, it is made clear that the petitioner
shall be allowed to continue in service on condition
that the claims for service benefits including salary
will depend on the final result of the writ petition.
Thus, the petitioner was continuing in the post and
rendering the service without receiving any salary
for the last several years. As the petitioner in W.P
(C) No.24804 of 2007 had already retired from
service, at present, there is no question of
accommodating him in the U.P.Section.
11. Chapter XXXI of the K.E.R. deals with
qualifications of Private School teachers. Rule 1 of
the said Chapter says that the teachers in the
private schools shall have the educational and
WP(C) Nos.24804 of 2007&1199 of 2006
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professional qualifications prescribed in that
chapter. It is further stated that the conditions
regarding the age, Departmental Test qualifications,
service qualifications and other service conditions
shall be governed by the provisions of the Act and
the Rules contained in the foregone chapters. As
per sub-rule (2) to Rule 1, for all teaching posts in
Private Primary Schools including posts of
Language Teachers and Specialist Teachers, a pass
in S.S.L.C. Examination conducted by the
Commissioner for Government Examination or its
equivalent is fixed as the minimum general
educational qualification. Sub-rule (3) to Rule 1 of
Chapter XXXI of the K.E.R. is an exemption to sub-
rule (2) to Rule 1. Sub-rue(3) to Rule 1 reads as
follows:-
“(3) Qualified teachers in service in
Private Schools as on 30-6-1980 and teachers
who have approved qualified service in PrivateWP(C) Nos.24804 of 2007&1199 of 2006
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Schools prior to that date shall be,
permanently exempted from the requirement
of the general educational qualifications
prescribed for all teaching posts in Private
Primary Schools under sub-rule(2) above, not
only in respect of posts held by them but also
in respect of promotions to higher posts,
provided they have the qualifications
prescribed for such higher posts, but for the
prescription of the revised minimum general
educational qualifications.”
On a reading of sub-rule(3), it can be seen that the
teachers in service in Private Schools as on
30.6.1980 are exempted from the requirement of the
general educational qualifications, viz., S.S.L.C. as
fixed by sub-rule (2) to Rule 1. It is further seen
from sub-rule(3) that such exemption is not only in
respect of the posts held by such teachers, who
were in service as on 30.6.1980, but also in respect
of promotions to higher posts. From the above rule,
it is crystal clear that the exemption was given to
the occupants who have entered in service before
WP(C) Nos.24804 of 2007&1199 of 2006
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30.6.1980 not only for continuing in the post held by
them, but for promotion also. Therefore, I am of the
view that by virtue of this exemption contained in
Rule 1(3) of Chapter XXXI of the K.E.R., the
petitioner in W.P.(C) No.24804 of 2007 was rightly
shifted to the High School Section and his transfer
and appointment to the High School Section is
absolutely valid and proper. It is also relevant to
note at this juncture that the scale of pay in both the
sections was admittedly the same.
12. A Division Bench of this Court in a
decision reported in Rani George v. Deputy
Director of Education (2004(1) KLT 460) has held
that the posts of Specialist Teachers in the
Schools/sections are interchangeable if the same are
belonging to one educational agency and are having
High School with Upper Primary in the same
district. Admittedly, in the present case, the scale of
WP(C) Nos.24804 of 2007&1199 of 2006
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pay of the Drawing Teacher both in the U.P.Section
and the High School Section is one and the same.
Therefore, the transfer and appointment of the
petitioner to the High School Section is not a
promotion. It is only a shifting, especially when the
posts in High School Section and the U.P.Section
are interchangeable as held by the Division Bench of
this Court. It is a fact that the departmental
authorities initiated proceedings against the
petitioner in W.P(C) No.24804 of 2007 only after
five years from the date of his occupying post in the
High School Section and in the mean while, the
petitioner in the other writ petition was duly
appointed in the U.P.Section as a Physical
Education Teacher. It is also a fact that the
petitioner in W.P(C) No.24804 of 2007 has already
retired from service on 31.3.2008.
13. Under the above factual premises and in
WP(C) Nos.24804 of 2007&1199 of 2006
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view of the provisions of the K.E.R. referred above
and in the light of the position of law settled as per
the decisions reported in Rani George v. Deputy
Director of Education (2004(1) KLT 460) and
Satheeshkumar v. State of Kerala (2009(3) KLT
439), I am of the view that Ext.P6 in W.P(C)
No.24804 of 2007 is liable to be set aside and the
petitioner in W.P(C) No.1199 of 2006 is entitled to
get the relief as sought in the writ petition.
In the result, mainly on the basis of the
factual premises referred above, W.P(C)No.24804 of
2007 is allowed to the extent quashing Ext.P6 order
of the Government and W.P(C) No.1199 of 2006 is
allowed quashing Exts.P2,P3 and P5 and
respondents 1 to 3 are directed to retain the
petitioner as Physical Education Teacher in the
school of the fourth respondent and to approve his
appointment during the year 2002-03 and
WP(C) Nos.24804 of 2007&1199 of 2006
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subsequent years and for all service purposes and
are further directed to release his salary which was
due to him forthwith.
W.P(C)Nos.24804 of 2007 and 1199 of
2006 are allowed as indicated above.
V.K.Mohanan,
Judge
MBS/
WP(C) Nos.24804 of 2007&1199 of 2006
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V.K.MOHANAN,
J.
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O.P.NO. OF 200
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J U D G M E N T
WP(C) Nos.24804 of 2007&1199 of 2006
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DATED: -6-2009
WP(C) Nos.24804 of 2007&1199 of 2006
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