IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24862 of 2007(I)
1. R.STELLA, SWEING TEACHER, LMSLP SCHOOL,
... Petitioner
Vs
1. STATE OF KERALA REP.BY ITS SECRETARY,
... Respondent
2. DIRECTOR OF PUBLIC INSTRUCTION,
3. ASST.EDUCATIONAL OFFICER,
4. ASST.EDUCATIONAL OFFICER,
5. MANAGER, L.M.S.SCHOOL,
For Petitioner :SRI.P.N.MOHANAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :29/07/2009
O R D E R
S.SIRI JAGAN, J.
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W.P(C).No.24862 of 2007
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Dated this the 29th day of July, 2009
J U D G M E N T
The L.M.S. Educational Agency is an educational agency coming
within the purview of the Kerala Education Rules, who are running 63
aided schools in the State. One of those schools is Thiruppuram L.M.S.
U.P. School. In that school, there was a Sewing teacher holding the
post on 6.3.1979. She retired from service on 31.5.1983. Going by
Chapter XXIII of Rules 2 and 6 B of the KER, on her retirement, the
post of Sewing teacher ceased to exist. But the manager appointed
one Sobhana Leela for the academic year 1983-84, on 15.6.1983. She
was later transferred to Perumbalam, on 2.6.1985 as an unapproved
teacher. In the resultant vacancy, the manager appointed the
petitioner in the Thiruppuram school, on 19.8.1985. On 19.12.1988,
the petitioner was transferred to Arumallore L.M.S. U.P. School, in the
vacancy of a teacher who retired on 31.3.1987. By Ext.P4 letter dated
24.6.1969, the Additional Secretary to Government, informed all
concerned that the post of Specialist Craft teachers sanctioned before
1969-70 will be continued even if the incumbents retire for leave the
posts or other reasons and the post would be allowed to be filled up by
qualified hands. By Ext.P5 letter dated 8.1.1988 from the Director of
Public Instruction, it was clarified thus:
“In U.P. School under Rule 6B(1) of Chapter XXIII K.E.R. the
existing specialist teacher can continue. As per G.O.Ms. No.87/79/G.Edn.W.P.C.24862/07 2
dt. 2.6.79 the Government have clarified that when the incumbents
holding the posts vacated the posts, such posts can be restored as full
time or part time according to the availability of periods for the specialist
subjects. As long as this G.O. exists, restoration is continuing.However, it should be born in mind that appointment of leave
substitutes shall not be approved for the reasons stated above.”Again, in Ext.P6 letter dated 20.7.1988 from the Secretary to the
Government, to the Director of Public Instruction, it was directed thus:
“3) In the light of the representations received, Government
now direct that(i) the posts of Specialist teachers and Crafts teachers existed
during 1987-88 against which Specialist teachers and Craft teachers were
appointed and approved will continue as such until further orders. They
may be paid as usual, and(ii) In the case of those teachers whose appointments were not
made in terms of the relevant rules in K.E.R. and whose appointments
are held under objection, they will, however, be allowed to continue, but
payment of salary will not be made until further orders.”Again by Ext.P7 circular dated 17.12.1988, it was directed thus:
“The question is whether the vacancies caused by death,
resignation/retirement against the post of Specialist Teachers/Craft
Teachers/Physical Education Teachers which posts were in existence prior
to 69-70, can be filled up. Despite the ban, the managers filled up the
vacancies which are held under objection/by Audit/Department; and
many appeals, revision, review petitions, etc. before Government are
pending. The matter is being examined by the Government and final
orders are expected to be issued shortly. Few of the many
representations received, Government clarify the post of Specialist
teachers, craft teachers and Physical Education Teachers appointed
against the above vacancies and whose appointments were approved will
continue as such until further orders. They will be paid as usual. In other
words, none of those posts will be deemed to have been abolished in
subsequent years for any reason whatsoever, and the posts will be
treated as continuous. The substitutes appointed against the vacancies
will be paid continuously. This will include all appointments made against
such vacancies during the year 1988-89 also.”W.P.C.24862/07 3
In Ext.P8 dated 22.8.1989, the Government finally directed thus:
“(i) In view of the Government decision dated 27.1.1989, the position
is that the posts of Specialist Teachers in Lower Primary and Upper
Primary Schools which were being continued under the proviso to
Rule 2(2) and 68(i) of Chapter XXIII will terminate with the
vacation of the posts by the Specialist Teacher by retirement,
resignation death and like reasons. No request for approval of fresh
appointments against such post will be entertained or allowed by
Government or by any educational authority. All the requests
received or appeal or revision etc. pending with the educational
authorities should be dealt with and disposed of accordingly.(ii) The Government consider that the interim instructions issued to
the departmental officers as per letters No.49524/J1/88/G.Edn.dated 20.7.1988 and 19.8.1988 and circular No.
78932/J1/88/G.Edn. dated 17.12.1988 read as sixth and seventh
paper above which were not implemented by the Department as
pointed out by the Director of Public Instruction will not continue to
be in force. The letters and Circular read as sixth and seventh
paper above are therefore formally cancelled.”Following the above Government orders, by Ext.P9 clarification dated
8.10.1990, the Government clarified thus:
“D. Whether G.O. dated 22.8.89 will hit the 133 Needle Work
Teachers ?Operation of the G.O. dated 22.8.1989 will not be
disadvantageously applied to those teachers, provided the effective
strength of pupils – boys and girls reckoned together – is satisfied for
each year.”Following those orders, by Ext.P10, the Government directed approval
of three specialist teachers appointed on 12.9.1985, 14.7.1986 and
10.6.1985. By Ext.P11 order dated 22.12.2000, the appointment of a
teacher with effect from 3.10.1985 was directed to be approved. By
Ext.P12 dated 5.2.2004, the appointment of another teacher
W.P.C.24862/07 4
appointed with effect from 19.6.1986 was directed to be approved. By
Ext.P13 dated 23.6.1998, an appointment dated 3.10.1985 was
directed to be approved in respect of a teacher in a school under the
same educational agency, as that of the petitioner. By Ext.P14 dated
6.1.1998, an appointment dated 1.8.1989 was directed to be
approved. By Ext.P15 dated 28.1.1998, an appointment dated
4.8.1987 was directed to be approved. By Ext.P16 dated 19.12.2006,
an appointment dated 1.6.1992 was directed to be approved. By
Ext.P17 dated 18.4.1991, an appointment dated 20.7.1975 was
directed to be approved. By Ext.P18 dated 4.5.1990, another
appointment dated 7.6.1989 was directed to be approved. By Ext.P19
dated 11.11.1997, another appointment dated 3.8.1983 in respect of a
teacher in the same educational agency was directed to be approved.
By Ext.P20 dated 10.10.2000, the appointment of Sobhana Leela, who
the petitioner replaced, was directed to be approved. By Ext.P21 dated
13.6.1997, an appointment dated 2.6.1987 was directed to be
approved. By Ext.P22 dated 28.11.1998, an appointment dated
3.10.1986 in the same educational agency was directed to be
approved. By Ext.P23 dated 29.7.2000, yet another appointment was
directed to be approved with effect from 3.6.1985 onwards. By
W.P.C.24862/07 5
Ext.P24 dated 12.4.1991, an appointment for the academic year
1987-1988 onwards was directed to be approved. By Ext.P25 dated
2.2.2001, an appointment with effect from 1.6.1993 was directed to
be approved. All these appointments were of specialist teachers, most
of whom were appointed subsequent to the appointment of the
petitioner.
2. However, although the petitioner’s appointment was
identical to all those appointments, which were directed to be
approved, the petitioner’s appointment was not approved. By Ext.P26,
the petitioner filed a revision petition before the Government, which
was rejected by Ext.P27 order dated 18.5.1993. The petitioner
approached this Court by filing O.P.No. 2453/1997 and pursuant to the
judgment therein, the Government re-considered the matter and, by
Ext.P28 dated 29.7.2002, again the request of the petitioner was
rejected. The petitioner filed a review petition which was also rejected
by Ext.P29. It is under the above circumstances, the petitioner has
approached this Court seeking the following reliefs:
“i) issue a writ of certiorari or any other appropriate writ, order or
direction calling for the records leading to Ext.P28 and P29 and
quash the same.ii) issue a writ of mandamus or any other appropriate writ, order or
direction commanding the 1st respondent to reconsider Ext.P26 in
the light of Ext.P10 to P25 orders issued by the Government.W.P.C.24862/07 6
iii) Declare that the petitioner is entitled to get relaxation from Rule 2
(3) of Chapter XXIII KER as similarly placed persons had been
given such relaxation as evidenced by Exts.P10 to P25.iv) Grant such other relief as this Hon’ble Court may deem fit and
proper in the circumstances of the case.v) issue a writ of mandamus directing the 2nd respondent to approve
the appointment of the petitioner as a Sewing Teacher w.e.f.
19.8.85.”3. The petitioner’s contention is that the petitioner’s case is
identical to all those teachers whose appointments have been
subsequently approved by the Government as evidenced by Exhibits
P10 to P25. Therefore, there is no reason for treating the petitioner
differently to deny her the same benefit granted to those teachers, is
the contention raised.
4. The 2nd respondent has filed a counter affidavit supporting
the impugned orders. They rely on Rules 2 and 6B of Chapter XXIII of
KER in support of their contentions. They would also contend that the
question of law has been finally settled by this Court in Harikumar v.
State of Kerala [2003 (1) KLT 797 (F.B)] against the petitioner.
5. I have considered the rival contentions in detail.
6. I had occasion to consider a case of exactly identical
appointment of another teacher in another school in W.P.(C).
No.12606/2007 and connected cases, in which all the above
W.P.C.24862/07 7
arguments of the petitioners in those cases, found favour with me and
I directed approval of appointment of that teacher. In doing so, I had
relied on Rule 6B which was amened by Ext.P32. In that judgment,
which is produced as Ext.P31 herein, after referring to the very same
exhibits, I had held thus:
‘4……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. 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.”
W.P.C.24862/07 8
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.’Since the case of the petitioner is identical to the case of a teacher
involved in those writ petitions, I am satisfied that the petitioner in this
writ petition is also entitled to get her appointment approved with
effect from 19.8.1985. In fact till the Full Bench decision in
Harikumar’s case (supra) probably because of orders of the
Government themselves mentioned above, the issue was still at large
and there were even decisions both ways, which led to the reference
to the Full Bench resulting in that decision. Accordingly, this writ
petition is disposed of with the following direction:
The respondents are directed to see that the petitioner’s
appointment as Sewing teacher in the L.M.S. U.P.School, Thirupuram,
is approved with effect from 19.8.1985, with all consequential service
benefits.
The writ petition is allowed as above.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
The words “L.M.S. U.P. School” occurring in 3rd, 4th and
W.P.C.24862/07 9
12th lines of page No.1 and in the penultimate sentence in page No.8 of
the judgment dated 29/7/2009 in W.P.(C).No. 24862/2007 are
corrected as “L.M.S. L.P. School” as per order dated 25/08/2009 in
I.A.No.10671/2009.
Sd/-
Registrar (Judicial)
///True copy///
P.A. to Judge