IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27040 of 2007(R)
1. K.K.SATHYAN, HIGH SCHOOL ASSISTANT
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. DEPUTY DIRECTOR OF EDUCATION,
3. DISTRICT EDUCATIONAL OFFICER,
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.27040 of 2007-R
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Dated this the day of November, 2009.
JUDGMENT
The petitioner was appointed as a music teacher in K.P.E.S. High
School, Kayakkodi during 1994-1995 in a post sanctioned by the District
Educational Officer in the same year itself. But the approval was rejected
on the ground that the post has to be filled up by a protected teacher. This
was challenged in O.P. No.5139/1996 and pursuant to the directions issued
by this Court, the appointment was approved.
2. In the year 1996-1997 the Deputy Director of Education cancelled
the post on the ground that as per the Govt. Orders in force, there should be
26 periods for sanctioning additional posts in the school. The petitioner
challenged the same by a representation before the Government. Ext.P4 is
the final order passed by the Government. This was challenged by the
petitioner before this court and the writ petition was allowed. Ext.P6 is the
judgment of the Division Bench in W.A. No.275/2004 dismissing the
appeal filed by the respondents. By Ext.P7 judgment in O.P.
NO.13660/2001 this Court directed the Government to take a decision on
the representation filed by the petitioner and thereafter Ext.P9 order has
wpc 27040/2007 2
been passed rejecting the claim which is under challenge in this writ
petition.
3. The main ground on which the sanction is refused, is that
sufficient periods are not available from 1997-1998 onwards to
accommodate the petitioner.
4. The petitioner has raised various grounds to challenge the orders
in question. The petitioner is relying upon a recent decision of this Court
in Satheeshkumar v. State of Kerala (2009 (3) KLT 439) wherein 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.
5. 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
wpc 27040/2007 3
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.
6. The petitioner is relying upon a decision of an earlier Division
Bench in Ext.P6 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.P6 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.P6 judgment of the Division
wpc 27040/2007 4
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.P6 judgment of the Division Bench.
7. Therefore, the writ petition is allowed. Ext.P9 is quashed. Since a
post of music teacher is allowable in terms of Rule 6 (4) of Chapter XXIII
K.E.R. irrespective of the number of periods, there will be a direction to the
respondents to approve the appointment of the petitioner and grant
appropriate benefits. Orders in this regard shall be passed within a period of
three months from the date of receipt of a copy of this judgment. No costs.
`
(T.R. Ramachandran Nair, Judge.)
kav/