C.K. Mercy v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 23[RD] DAY OF JULY 2021 / 1ST SRAVANA, 1943** ## **WP(C) NO. 39316 OF 2017** ## **PETITIONER:** **C.K. MERCY AGED 29 YEARS, WIFE OF FRITTLE THOMASHIGH SCHOOL ASSISTANT (NEEDLE WORK)ST.PAUL'S HIGH SCHOOL, KOZHINJAMPARA,PALAKKAD DISTRICT** **BY ADVS. SRI.V.A.MUHAMMED SRI.M.SAJJAD** ## **RESPONDENTS:** **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENTGENERAL EDUCATION DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM 695 001 2 THE DIRECTOR FO PUBLIC INSTRUCTION JAGATHY, THIRUVANANTHAPURAM 695 014 3 THE DEPUTY DIRECTOR OF EDUCATION CIVIL STATION, PALAKKAD 678 001 4 THE DISTRICT EDUCATIONAL OFFICER PALAKKAD 678 001 5 THE MANAGER ST. PAULS'S HIGH SCHOOL, KOZHINJAMPARA, PALAKKAD DISTRICT 678 555 BY ADVS. R.HARIKRISHNAN E.RAMACHANDRAN** ## **OTHER PRESENT:** **SRI. P.M.MANOJ - SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.07.2021, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 39316 OF 2017** **2** ## **J U D G M E N T** The petitioner is stated to have been appointed as a High School Teacher in Needle Work in the services of “St.Paul's High School, Kozhinjampara, Palakkad, with effect from 01.06.2010, against a retirement vacancy. The petitioner has produced on record Ext.P1 appointment order in substantiation. 2. According to the petitioner, in the academic year 200910, the post of a Needle Work Teacher was sanctioned in the High School section of the School, but was abolished in the Staff Fixation Order of the year 2010-11, as is evident from Exts.P2 and P3. She says that as against Ext.P3, to the extent to which the post of Needle Work Teacher was abolished, the Manager moved the Deputy Director of Education (DDE) through Ext.P4, but that no orders have been issued thereon. She says that consequent thereto, the District Educational Officer (DEO) rejected her approval of appointment through Ext.P5 and that the appeals filed against the same before the DDE were also dismissed through Ext.P6. 3. The petitioner says that the Manager has moved a statutory Revision Petition before the Director of General Education **WP(C) NO. 39316 OF 2017** **3** (DGE), through Ext.P7 but that no orders have been issued on it either. 4. After saying as above, the petitioner says that she moved the 1st respondent - Government, seeking sanction of the post and approval of her appointment through Ext.P8, but that it was rejected by them through Ext.P9, which was again confirmed while she attempted a review against the said order, as per Ext.P10. She admits that she had earlier approached this Court by filing W.P. (C)No.14099/2014 but that it was withdrawn with liberty to file a fresh one; and asserts that it is in such circumstances that she has approached this Court. 5. I have heard Smt.P.A.Jenzia, learned counsel for the petitioner and Sri.P.M.Manoj, learned Senior Government Pleader appearing for the official respondents. 6. Smt.P.A.Jenzia, learned counsel for the petitioner, submitted that Ext.P3 order abolishing the post of Needle Work Teacher is wholly unsustainable because the reason stated therein is that there is a protected Music Teacher available under the same management. She asserted that this is not a valid reason for denying the post of specialist teacher because the post of Music Teacher comes under the 'Arts Group', while a 'Sewing Teacher' **WP(C) NO. 39316 OF 2017** **4** comes under the 'Craft Group'. She submitted that this issue has already been considered and decided by this Court in favour of her client in **Suman Paul and another v. District Educational Officer, Malappuram and others [2013 (2) KHC 598];** and then argued that, as per Rule 6 (4)(c), Chapter XXIII of the Kerala Education Rules (KER), a post of Sewing Teacher is admissible in every high school, if there is no Craft Teacher and the number of girls students are not less than two hundred. She asserted that in the School in question, namely the 5th respondent, there were 749 girls studying during the academic year 2009-10 and that at no point of time did that strength fall below 200. She concluded her submissions by submitting that since her client was appointed in the first post available in the 'Craft Group', there cannot be any impediment in sanctioning the said post because any such restriction, if any, can be only as against the second post, going by the provisions of Chapter XXIII of the KER. She, therefore, prayed that this writ petition be dismissed. 7. Sri.P.M.Manoj, learned Senior Government Pleader appearing on behalf of the official respondents, submitted that a counter affidavit has been filed on record, wherein, it has been averred that as per the 2nd and 3rd proviso to Rule 6(4)(c), Chapter **WP(C) NO. 39316 OF 2017** **5** XXIII of the KER, the post of a Specialist Teacher under any category can be sanctioned only if the number of periods is less than five and provided there is already a post of Drawing Teacher under the 'Arts Group'; in which event, the second post in the 'Arts Group', namely the post of a Music Teacher or a post in the 'Craft Group' will be sanctioned only when the periods exceeds 25 per week. He submitted that these stipulations in the afore Rule have not been complied with in the School during the academic year 2009-10; and that therefore, the Authorities were justified in having issued the impugned orders. He, therefore, prayed that this writ petition be dismissed. 8. The afore submissions of the learned Senior Government Pleader is, obviously, edificed on the provisions of Rule 6(4), Chapter XXIII of the KER. The said provisions mandate that one full time post of Sewing Teacher can be sanctioned if there is no Craft Teacher, provided that there are not less than 200 girls in the High School Section. 9. The 2nd and 3rd provisos to the afore said Rule, then mandate that no full time post of Specialist Teacher under any category mentioned therein shall be sanctioned, if the number of periods per week in the concerned subject is less than five; and **WP(C) NO. 39316 OF 2017** **6** further that if there is already a post of Drawing Teacher under the 'Arts Group', the post of a Music Teacher or a post in the 'Craft Group' will be sanctioned only when the periods under each group exceeds 25 per week. 10. It is, therefore, indubitable that what is provided under this Rule is that: for the first, there should be a minimum of five periods in the concerned subject; and second, that in the event of a Drawing Teacher being available under the 'Arts Group', the post of a Music Teacher or a post in the 'Craft Group' can be sanctioned only when the periods under each group exceeds 25 per week. 11. Obviously, therefore, this stipulation is attracted only to the second post and not to the first one and this is relevant because the petitioner asserts that she was accommodated to the 1st post in the 'Craft Group'. If this be so, then, prima facie, I fail to understand how her approval could be denied merely because there is an excess Music Teacher in the school, since the aforementioned provisions do not provide for any restriction in such event. 12. When I examine Ext.P10 order of the Government, which is impugned herein, it is evident that it has gone on the premise that as per G.O(M.S)No.525/1995/G.Edn, the petitioner's post cannot be maintained, but it does not explain how the petitioner's contentions **WP(C) NO. 39316 OF 2017** **7** based on the aforementioned statutory Rule have been dealt with. 13. This certainly presents a problem because the aforementioned Government Order, which is on record as Ext.P11, has been issued in the light of various court orders and it mandates that if there is already a post of Drawing Teacher under the 'Arts Group', the second post in the 'Arts Group' (Music Teacher) post or a post in the 'Craft Group' will be sanctioned only when the periods under each group become 25 or more. However, it is evident from the stipulations in this Government Order itself that what is in reference is only the second post and not the first. Since the petitioner asserts that she was accommodated to the first post and that there were 200 girls students studying in the School in the academic year 2009-1010, Ext.P10 certainly cannot find favour in law without further scrutiny. 14. Further, as rightly stated by the petitioner, in **Suman Paul** (supra), a learned Judge of this Court has luculently declared that if the number of periods exceeds 25 in 'Craft Group' and the sanctioned period exceeds 25 per week, a Craft Teacher can be appointed because the word 'each group' in the proviso to Rule 6(4) (c), Chapter XXIII of the KER cannot be taken to mean that for appointing a teacher in the 'Craft Group' even the Arts Group should **WP(C) NO. 39316 OF 2017** **8** exceed 25 periods. This issue has also not engaged the attention of the Authorities in any manner and for that reason also the impugned orders cannot be favoured by this Court. In the afore circumstances, I am of the certain opinion that the entire matter will require to be reconsidered by the Government, taking note of the specific assertions of the petitioner and within the ambit of the Provisions of Rule 6, Chapter XXIII of the KER. Resultantly, this writ petition is ordered and Ext.P10 is set aside; with a consequential direction to the Government to reconsider the claim of the petitioner, adverting specifically to the judgment of this Court in **Suman Paul** (supra), as also to the provisions of Rule 6, Chapter XXIII of the KER and after affording an opportunity of being heard to her and the Manager of the School - either physically or through video conferencing - thus culminating in an appropriate order thereon, as expeditiously as is possible but not later than three months from the date of receipt of a copy of this judgment. Sd/- ## **DEVAN RAMACHANDRAN** ## **JUDGE** rp **WP(C) NO. 39316 OF 2017** **9** ## **APPENDIX OF WP(C) 39316/2017** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 01-06-2010 EXHIBIT P2 TRUE COPY OF THE ORDER NO D.DIS B1/4497/09 DATED 03-10-2009 OF THE 4TH RESPONDENT EXHIBIT P3 TRUE COPY OF THE ORDER NO D.DIS.B1/6206/2010 DATED 30-09-2010 OF THE 4TH RESPONDENT EXHIBIT P4 TRUE COPY OF THE APPEAL PETITION MOVED BEFORE THE DEPUTY DIRECTOR BY THE MANAGER DATED 11-11-2010 EXHIBIT P5 TRUE COPY OF THE ORDER NO.K.DIS.B1/4426/2010 DATED 16-12-2010 OF THE 4TH RESPONDENT EXHIBIT P6 TRUE COPY OF THE ORDER NO.K.DIS/B4/24450/10 DATED 01-03-2011 OF THE DEPUTY DIRECTOR EXHIBIT P7 TRUE COPY OF THE REVISION PETITION SUEXHIBIT PONDENT DATED 28-03-2011 BY THE MANAGEER EXHIBIT P8 TRUE COPY OF THE REVISION SUBMITTED BEFORE THE GOVERNMENT BY THE PETITIONER DATED 23-03-2012 EXHIBIT P9 TRUE COPY OF THE G.O(RT) NO 5517/2012 G.EDN DATED 21-11-2012 OF THE GOVERNMENT EXHIBIT P10 TRUE COPY OF THE G.O(RT) NO 46/2014/G.EDN DATED 0301-2014 OF THE GOVERNMENT EXHIBIT P11 TRUE COPY OF THE G.O(MS0 NO.525/95.EDN DATED 28-101995 OF THE GOVERNMENT**