{"id":188628,"date":"2009-07-29T00:00:00","date_gmt":"2009-07-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/r-stella-vs-state-of-kerala-rep-by-its-on-29-july-2009"},"modified":"2019-04-04T03:27:20","modified_gmt":"2019-04-03T21:57:20","slug":"r-stella-vs-state-of-kerala-rep-by-its-on-29-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/r-stella-vs-state-of-kerala-rep-by-its-on-29-july-2009","title":{"rendered":"R.Stella vs State Of Kerala Rep.By Its … on 29 July, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
R.Stella vs State Of Kerala Rep.By Its … on 29 July, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 24862 of 2007(I)\n\n\n1. R.STELLA, SWEING TEACHER, LMSLP SCHOOL,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA REP.BY ITS SECRETARY,\n                       ...       Respondent\n\n2. DIRECTOR OF PUBLIC INSTRUCTION,\n\n3. ASST.EDUCATIONAL OFFICER,\n\n4. ASST.EDUCATIONAL OFFICER,\n\n5. MANAGER, L.M.S.SCHOOL,\n\n                For Petitioner  :SRI.P.N.MOHANAN\n\n                For Respondent  :GOVERNMENT PLEADER\n\nThe Hon'ble MR. Justice S.SIRI JAGAN\n\n Dated :29\/07\/2009\n\n O R D E R\n                                S.SIRI JAGAN, J.\n                         ==================\n                           W.P(C).No.24862 of 2007\n                         ==================\n                   Dated this the 29th day of July, 2009\n                                J U D G M E N T\n<\/pre>\n
      The L.M.S. Educational Agency is an educational agency coming<\/p>\n
within the purview of the Kerala Education Rules, who are running 63<\/p>\n
aided schools in the State. One of those schools is Thiruppuram L.M.S.<\/p>\n
U.P. School. In that school, there was a Sewing teacher holding the<\/p>\n
post on 6.3.1979. She retired from service on 31.5.1983. Going by<\/p>\n
Chapter XXIII of Rules 2 and 6 B of the KER, on her retirement, the<\/p>\n
post of Sewing teacher ceased to exist. But the manager appointed<\/p>\n
one Sobhana Leela for the academic year 1983-84, on 15.6.1983. She<\/p>\n
was later transferred to Perumbalam, on 2.6.1985 as an unapproved<\/p>\n
teacher. In the resultant vacancy, the manager appointed the<\/p>\n
petitioner in the Thiruppuram school, on 19.8.1985. On 19.12.1988,<\/p>\n
the petitioner was transferred to Arumallore L.M.S. U.P. School, in the<\/p>\n
vacancy of a teacher who retired on 31.3.1987. By Ext.P4 letter dated<\/p>\n
24.6.1969, the Additional Secretary to Government, informed all<\/p>\n
concerned that the post of Specialist Craft teachers sanctioned before<\/p>\n
1969-70 will be continued even if the incumbents retire for leave the<\/p>\n
posts or other reasons and the post would be allowed to be filled up by<\/p>\n
qualified hands. By Ext.P5 letter dated 8.1.1988 from the Director of<\/p>\n
Public Instruction, it was clarified thus:\n<\/p>\n
              “In U.P. School under Rule 6B(1) of Chapter XXIII K.E.R. the
\n       existing specialist teacher can continue. As per G.O.Ms. No.87\/79\/G.Edn.<\/p>\n
W.P.C.24862\/07                          2<\/span><\/p>\n
      dt. 2.6.79 the Government have clarified that when the incumbents
\n      holding the posts vacated the posts, such posts can be restored as full
\n      time or part time according to the availability of periods for the specialist
\n      subjects. As long as this G.O. exists, restoration is continuing.\n<\/p><\/blockquote>\n
             However, it should be born in mind that appointment of leave
\n      substitutes shall not be approved for the reasons stated above.”\n<\/p><\/blockquote>\n
Again, in Ext.P6 letter dated 20.7.1988 from the Secretary to the<\/p>\n
Government, to the Director of Public Instruction, it was directed thus:<\/p>\n
             “3)    In the light of the representations received, Government
\n      now direct that<\/p>\n<\/blockquote>\n
             (i)    the posts of Specialist teachers and Crafts teachers existed
\n      during 1987-88 against which Specialist teachers and Craft teachers were
\n      appointed and approved will continue as such until further orders. They
\n      may be paid as usual, and<\/p>\n<\/blockquote>\n
             (ii)   In the case of those teachers whose appointments were not
\n      made in terms of the relevant rules in K.E.R. and whose appointments
\n      are held under objection, they will, however, be allowed to continue, but
\n      payment of salary will not be made until further orders.”\n<\/p><\/blockquote>\n
Again by Ext.P7 circular dated 17.12.1988, it was directed thus:<\/p>\n
             “The question is whether the vacancies caused by death,
\n      resignation\/retirement against the post of Specialist Teachers\/Craft
\n      Teachers\/Physical Education Teachers which posts were in existence prior
\n      to 69-70, can be filled up. Despite the ban, the managers filled up the
\n      vacancies which are held under objection\/by Audit\/Department; and
\n      many appeals, revision, review petitions, etc. before Government are
\n      pending. The matter is being examined by the Government and final
\n      orders are expected to be issued shortly. Few of the many
\n      representations received, Government clarify the post of Specialist
\n      teachers, craft teachers and Physical Education Teachers appointed
\n      against the above vacancies and whose appointments were approved will
\n      continue as such until further orders. They will be paid as usual. In other
\n      words, none of those posts will be deemed to have been abolished in
\n      subsequent years for any reason whatsoever, and the posts will be
\n      treated as continuous. The substitutes appointed against the vacancies
\n      will be paid continuously. This will include all appointments made against
\n      such vacancies during the year 1988-89 also.”\n<\/p><\/blockquote>\n
W.P.C.24862\/07                          3<\/span><\/p>\n
In Ext.P8 dated 22.8.1989, the Government finally directed thus:<\/p>\n
      “(i)   In view of the Government decision dated 27.1.1989, the position
\n             is that the posts of Specialist Teachers in Lower Primary and Upper
\n             Primary Schools which were being continued under the proviso to
\n             Rule 2(2) and 68(i) of Chapter XXIII will terminate with the
\n             vacation of the posts by the Specialist Teacher by retirement,
\n             resignation death and like reasons. No request for approval of fresh
\n             appointments against such post will be entertained or allowed by
\n             Government or by any educational authority. All the requests
\n             received or appeal or revision etc. pending with the educational
\n             authorities should be dealt with and disposed of accordingly.\n<\/p><\/blockquote>\n
      (ii)   The Government consider that the interim instructions issued to
\n             the departmental officers as per letters No.49524\/J1\/88\/G.Edn.\n<\/p><\/blockquote>\n
             dated     20.7.1988     and      19.8.1988     and     circular   No.
\n             78932\/J1\/88\/G.Edn. dated 17.12.1988 read as sixth and seventh
\n             paper above which were not implemented by the Department as
\n             pointed out by the Director of Public Instruction will not continue to
\n             be in force. The letters and Circular read as sixth and seventh
\n             paper above are therefore formally cancelled.”\n<\/p><\/blockquote>\n
Following the above Government orders, by Ext.P9 clarification dated<\/p>\n
8.10.1990, the Government clarified thus:\n<\/p>\n
      “D.    Whether G.O. dated 22.8.89 will hit the 133 Needle Work
\n             Teachers ?\n<\/p><\/blockquote>\n
             Operation    of   the   G.O.     dated   22.8.1989     will  not   be
\n      disadvantageously applied to those teachers, provided the effective
\n      strength of pupils – boys and girls reckoned together – is satisfied for
\n      each year.”\n<\/p><\/blockquote>\n
Following those orders, by Ext.P10, the Government directed approval<\/p>\n
of three specialist teachers appointed on 12.9.1985, 14.7.1986 and<\/p>\n
10.6.1985. By Ext.P11 order dated 22.12.2000, the appointment of a<\/p>\n
teacher with effect from 3.10.1985 was directed to be approved. By<\/p>\n
Ext.P12 dated 5.2.2004, the               appointment of another teacher<\/p>\n
W.P.C.24862\/07                     4<\/span><\/p>\n
appointed with effect from 19.6.1986 was directed to be approved. By<\/p>\n
Ext.P13 dated 23.6.1998, an appointment dated 3.10.1985 was<\/p>\n
directed to be approved in respect of a teacher in a school under the<\/p>\n
same educational agency, as that of the petitioner. By Ext.P14 dated<\/p>\n
6.1.1998, an appointment dated 1.8.1989 was directed to be<\/p>\n
approved. By Ext.P15 dated 28.1.1998,          an appointment dated<\/p>\n
4.8.1987 was directed to be approved. By Ext.P16 dated 19.12.2006,<\/p>\n
an appointment dated 1.6.1992 was directed to be approved. By<\/p>\n
Ext.P17 dated 18.4.1991,      an appointment dated 20.7.1975 was<\/p>\n
directed to be approved. By Ext.P18 dated 4.5.1990, another<\/p>\n
appointment dated 7.6.1989 was directed to be approved. By Ext.P19<\/p>\n
dated 11.11.1997, another appointment dated 3.8.1983 in respect of a<\/p>\n
teacher in the same educational agency was directed to be approved.<\/p>\n
By Ext.P20 dated 10.10.2000, the appointment of Sobhana Leela, who<\/p>\n
the petitioner replaced, was directed to be approved. By Ext.P21 dated<\/p>\n
13.6.1997, an appointment dated 2.6.1987 was directed to be<\/p>\n
approved. By Ext.P22 dated 28.11.1998, an appointment dated<\/p>\n
3.10.1986 in the same educational agency was directed to be<\/p>\n
approved. By Ext.P23 dated 29.7.2000, yet another appointment was<\/p>\n
directed to be approved with effect from 3.6.1985 onwards. By<\/p>\n
W.P.C.24862\/07                          5<\/span><\/p>\n
Ext.P24 dated 12.4.1991,          an appointment for the academic year<\/p>\n
1987-1988 onwards was directed to be approved. By Ext.P25 dated<\/p>\n
2.2.2001, an appointment with effect from 1.6.1993 was directed to<\/p>\n
be approved. All these appointments were of specialist teachers, most<\/p>\n
of whom were appointed subsequent to the appointment of the<\/p>\n
petitioner.\n<\/p>\n
      2.     However, although the petitioner’s appointment was<\/p>\n
identical to all those appointments, which were directed to be<\/p>\n
approved, the petitioner’s appointment was not approved. By Ext.P26,<\/p>\n
the petitioner filed a revision petition before the Government, which<\/p>\n
was rejected by Ext.P27 order dated 18.5.1993.                  The petitioner<\/p>\n
approached this Court by filing O.P.No. 2453\/1997 and pursuant to the<\/p>\n
judgment therein, the Government re-considered the matter and, by<\/p>\n
Ext.P28 dated 29.7.2002, again the request of the petitioner was<\/p>\n
rejected. The petitioner filed a review petition which was also rejected<\/p>\n
by Ext.P29. It is under the above circumstances, the petitioner has<\/p>\n
approached this Court seeking the following reliefs:<\/p>\n
      “i)    issue a writ of certiorari or any other appropriate writ, order or
\n             direction calling for the records leading to Ext.P28 and P29 and
\n             quash the same.\n<\/p><\/blockquote>\n
      ii)    issue a writ of mandamus or any other appropriate writ, order or
\n             direction commanding the 1st respondent to reconsider Ext.P26 in
\n             the light of Ext.P10 to P25 orders issued by the Government.\n<\/p><\/blockquote>\n
W.P.C.24862\/07                         6<\/span><\/p>\n
      iii)   Declare that the petitioner is entitled to get relaxation from Rule 2
\n             (3) of Chapter XXIII KER as similarly placed persons had been
\n             given such relaxation as evidenced by Exts.P10 to P25.\n<\/p><\/blockquote>\n
      iv)    Grant such other relief as this Hon’ble Court may deem fit and
\n             proper in the circumstances of the case.\n<\/p><\/blockquote>\n
      v)     issue a writ of mandamus directing the 2nd respondent to approve
\n             the appointment of the petitioner as a Sewing Teacher w.e.f.
\n             19.8.85.”<\/p><\/blockquote>\n
      3.     The petitioner’s contention is that the petitioner’s case is<\/p>\n
identical to all those teachers whose appointments have been<\/p>\n
subsequently approved by the Government as evidenced by Exhibits<\/p>\n
P10 to P25. Therefore, there is no reason for treating the petitioner<\/p>\n
differently to deny her the same benefit granted to those teachers, is<\/p>\n
the contention raised.\n<\/p>\n
      4.     The 2nd respondent has filed a counter affidavit supporting<\/p>\n
the impugned orders. They rely on Rules 2 and 6B of Chapter XXIII of<\/p>\n
KER in support of their contentions. They would also contend that the<\/p>\n
question of law has been finally settled by this Court in Harikumar v.<\/p>\n
State of Kerala<\/a> [2003 (1) KLT 797 (F.B)] against the petitioner.<\/p>\n
      5.     I have considered the rival contentions in detail.<\/p>\n
      6.     I had occasion to consider a case of exactly identical<\/p>\n
appointment of another teacher in another school in W.P.(C).<\/p>\n
No.12606\/2007 and connected cases,                  in which      all the above<\/p>\n
W.P.C.24862\/07                           7<\/span><\/p>\n
arguments of the petitioners in those cases, found favour with me and<\/p>\n
I directed approval of appointment of that teacher. In doing so, I had<\/p>\n
relied on Rule 6B which was amened by Ext.P32. In that judgment,<\/p>\n
which is produced as Ext.P31 herein, after referring to the very same<\/p>\n
exhibits, I had held thus:\n<\/p>\n
             ‘4……Therefore, despite the prescription in Rule 6B, the
\n      Government themselves        had even restored the abolished      post   and
\n      directed approval of appointment similar to that of Smt. Valsalakumari
\n      J.G. In fact, in Ext. P11 judgment in O.P.No. 15817\/1996, a learned
\n      Judge of this Court      noting a similar situation, finding that     similar
\n      appointments have been approved by the Government themselves in
\n      several cases, held that the petitioner in that original petition is also
\n      entitled to get the same treatment as otherwise it would be
\n      discriminatory, especially since the Rules were not very clear on the
\n      subject and the appointments were not wantonly made. I am of opinion
\n      that   Smt. Valsalakumari J.G is entitled to a similar relief insofar as
\n      several other similarly placed teachers have been given the very same
\n      benefit which Smt. Valsalakumari J.G seeks in her writ petition.\n<\/p><\/blockquote>\n
             5. In this connection, I note two things.            One is that in
\n      Harikumar’s case (supra), the Full Bench was considering a case of
\n      appointment of a physical education teacher on March, 31, 1995.
\n      Further, the Government themselves, by G.O(P) No. 174\/2008\/G. Edn.
\n      dated 6-10-2008 amended Rule 6B to read as follows:\n<\/p><\/blockquote>\n
             “6B, Notwithstanding anything contained in any other rule in this
\n             Chapter except sub-rule (2) hereunder no post of Specialist
\n             Teacher or Craft Teacher shall be allowed to continue in any Upper
\n             Primary School or Upper Primary School section of a High School
\n             except for the continuance of the qualified teachers who were
\n             actually holding the said post on the 6th day of March, 1979.\n<\/p><\/blockquote>\n
                     Provided that the specialist teachers appointed in Upper
\n             Primary School or Upper Primary School section of a High School
\n             after the 6th day of March 1979 but before 22nd day of August,
\n             1989 whose appointments were approved shall be allowed to
\n             continue as such till their retirement, resignation, death or transfer
\n             and the posts of such Specialist Teachers shall be allowed to
\n             continue for their such continuance till they vacate the post.”\n<\/p><\/blockquote>\n<\/blockquote>\n
W.P.C.24862\/07                         8<\/span><\/p>\n
      It is clear from the said amendment that the Rules themselves permitted
\n      appointments made between 6-3-1979 and 22-8-1989, which were
\n      approved to be continued till their retirement, resignation, death or
\n      transfer. If such appointments illegally approved shall be continued, I
\n      see no reason why       Smt. Valsalakumari’s appointment should not be
\n      directed to be approved in tune with the other cases referred to above
\n      and the amended Rule 6B.’<\/p>\n
Since the case of the petitioner is identical to the case of a teacher<\/p>\n
involved in those writ petitions, I am satisfied that the petitioner in this<\/p>\n
writ petition is also entitled to get her appointment approved with<\/p>\n
effect from 19.8.1985. In fact till the Full Bench decision in<\/p>\n
Harikumar’s case (supra) probably because of orders of the<\/p>\n
Government themselves mentioned above, the issue was still at large<\/p>\n
and there were even decisions both ways, which led to the reference<\/p>\n
to the Full Bench resulting in that decision. Accordingly, this writ<\/p>\n
petition is disposed of with the following direction:\n<\/p><\/blockquote>\n
      The respondents are directed to see that the petitioner’s<\/p>\n
appointment as Sewing teacher in the L.M.S. U.P.School, Thirupuram,<\/p>\n
is approved with effect from 19.8.1985, with all consequential service<\/p>\n
benefits.\n<\/p><\/blockquote>\n
      The writ petition is allowed as above.\n<\/p><\/blockquote>\n
                                                            Sd\/-\n<\/p><\/blockquote>\n
sdk+                                                 S.SIRI JAGAN, JUDGE<\/p>\n
              The words “L.M.S. U.P. School” occurring in 3rd, 4th and<\/p>\n
W.P.C.24862\/07                      9<\/span><\/p>\n
12th lines of page No.1 and in the penultimate sentence in page No.8 of
\nthe judgment dated 29\/7\/2009 in W.P.(C).No. 24862\/2007 are
\ncorrected as “L.M.S. L.P. School” as per order dated 25\/08\/2009 in
\nI.A.No.10671\/2009.\n<\/p><\/blockquote>\n
                                                    Sd\/-\n<\/p><\/blockquote>\n
                                               Registrar (Judicial)<\/p>\n
          \/\/\/True copy\/\/\/<\/p>\n
                                    P.A. to Judge<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court R.Stella vs State Of Kerala Rep.By Its … on 29 July, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-188628","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nR.Stella vs State Of Kerala Rep.By Its ... on 29 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/r-stella-vs-state-of-kerala-rep-by-its-on-29-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"R.Stella vs State Of Kerala Rep.By Its ... on 29 July, 2009 - 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