K.R. Jayamohan v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** ## **TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933** ## **WP(C).No. 19875 of 2009(D)** **----------------------------------------** ## **PETITIONER(S):** **-----------------------** **K.R.JAYAMOHAN DRAWING TEACHER, IVANS HIGH SCHOOL, PARASALA 695 502.** **BY ADV. SMT.S.KARTHIKA SRI.M.S.UNNIKRISHNAN** **SMT.K.P.GEETHA MANI SRI.M.R.ANISON** ## **RESPONDENT(S):** **-------------------------** **1. STATE OF KERALA REP. BY ITS SECRETARY TO GOVT. GENERAL EDUCATION DEPARTMENT, SECRETARIAT TRIVANDRUM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION TRIVANDRUM.** **3. THE DEPUTY DIRECTOR OF EDUCATION TRIVANDRUM.** **4. THE DISTRICT EDUCATIONAL OFFICER NEYYATTINKARA.** ## **5. THE MANAGER** **IVANS HIGH SCHOOL, PARASALA 695 502** ## **R1 TO R4 BY GOVERNMENT PLEADER SMT.NISHA BOSE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **W.P(C) NO.19875/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **P1:- COPY OF THE APPOINTMENT ORDER ISSUED BY THE 5TH RESPONDENT W.E.F.2.11.1998.** **P2:- COPY OF THE STAFF FIXATION ORDER OF THE SCHOOL FOR THE ACADEMIC YEAR 1999-2000.** **P3:- COPY OF THE ORDER DTD. 17.2.2000 ISSUED BY THE 3RD RESPONDENT.** **P4:- COPY OF THE ORDER DT. 13.11.2000 ISSUED BY THE 4TH RESPONDENT.** **P5:- COPY OF THE ORDER DTD. 10.7.2001 ISSUED BY THE IST RESPONDENT.** **P6:- COPY OF THE JJDGMENT DTD. 2.3.2007 IN OP. 24778/2001.** **P7:- COPY OF THE REPRESENTATIN DTD. 9.5.2007.** **P8:- COPY OF THE ORDER DTD. 9.3.2007 ISSUED BY THE IST RESPONDENT.** **P9;- COPY OF THE ORDER DTD. 31.8.2007 ISSUED BY THE 4TH RESPONDENT.** **P10:- COPY OF THE ORDER DTD. 19.11.2007 ISSUED BY THE IST RESPONDENT.** **P11:- COPY OF THE LETTER DTD. 18.12.2008.** **P12:- COPY OF THE CERTIFICATE DTD. 1.1.2008 BY HM.** **P13:- COPY OF THE JUDGMENT DTD. 23.8.2005 IN OP.11838/1996.** **P14:- COPY OF THE ORDER NO.D4-4730/2000/D.DIS. DTD. 14.8.2000.** **P15:- COPY OF THE PROCEEDINGS DTD. 2.2.2009.** **P16:- COPY OF THE INTERIM ORDER DTD. 5.10.2007 IN IA. 12338/2007 IN WPC. 12606/2007.** ## **RESPONDENT'S EXHIBITS** **NIL:-** **TRUE COPY** **P.S. TO JUDGE** **tss** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No.19875 of 2009-D** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 18th day of October, 2011.** ## **JUDGMENT** The petitioner, a specialist teacher (Drawing) appointed by the fifth respondent Manager in 1998 as per Ext.P1 order, could not succeed in getting approval of her appointment in spite of similar approval orders granted in favour of various other persons. 2. The facts of the case show that even though the petitioner was appointed from 2.11.1998 when Smt. Rajamma who was holding the post, expired on 24.8.1998, the post of Drawing Teacher was existing in the school from the year 1972-1973. But in the academic year 1999-2000 at the time of staff fixation the fourth respondent abolished the post of Drawing Teacher, as evident from Ext.P2. The challenge against the same was rejected by all the authorities and by the Government as evident from Exts.P3 to P5 orders. In a writ petition filed by the Manager, viz. O.P.No.24778/2001 this Court, as per Ext.P6 judgment, directed the Manager to approach the Government. This direction was issued in the light of the decision of a Full Bench of this Court in **Harikumar v. State of Kerala** (2003 (1) KLT 797 - FB). Ext.P7 is a further representation wpc 19875/2009 2 submitted by the petitioner in that regard. Ext.P8 is an order passed in favour of another teacher Smt. J.G. Valsalakumari which also was relied upon by the petitioner. She was appointed as a Craft Teacher in Vimala Hridaya School, Viraly, Neyyattinkara. Ext.P9 is the report submitted by the District Educational Officer wherein it is mentioned that the petitioner stands in the same position as that of 54 Physical Education Teachers who have been granted approval as per G.O.(Ms) No.113/00/G.Edn. dated 6.4.2000. The Government by Ext.P10, rejected the request of the petitioner which is under challenge in this writ petition. 3. Heard learned counsel for the petitioner and learned Government Pleader. 4. Learned counsel for the petitioner invited my attention to various Government Orders wherein, in the second post of specialist teacher, the appointments made by the Managers have been approved by the Government. It is pointed out that one of the main reasons pointed out in Ext.P10 is the pendency of a writ petition challenging Ext.P8 order issued in favour of Smt. J.G. Valsalakumari. It is submitted that the said writ petition has been allowed by judgment dated 13.7.2007. Apart from that, my attention was invited to G.O.(MS) No.307/2004/G.Edn. dated 4.10.2004 which concerns the approval of appointment of Physical Education wpc 19875/2009 3 Teachers who were continuing without approval as on 6.4.2000. Therein, the Government directed approval on certain conditions. 5. Learned Government Pleader supported the order passed by the Government. 6. The judgment in W.P.(C) Nos.12606/2007 and connected cases considered various aspects including the Full Bench decision in **Harikumar's case** (2003 (1) KLT 797 - FB), This Court has noticed in para 4 of the judgment that in spite of Rule 6B of Chapter XXIII K.E.R., various orders have been passed by the Government allowing continuance of specialist teachers. Reference is made to various Government Orders. The relevant portion is extracted below: “At the relevant time, when Smt. Valsalakumari J.G. was appointed and subsequently, this question was considered by the Government in various orders. By Ext.P5 order dated 24.9.1969, the Government held that the posts of specialist craft teachers sanctioned before 1969-1990 will be continued even if the incumbent retired or left the post for other reasons and that the post will be allowed to be filled up by qualified hands. Again by Ext.P6 order dated 8.1.1988 referring to G.O.Ms. No.87/79/G. Edn. dated 2.6.1979, the Government have clarified that when the incumbent holding the post vacated the post, such post can be restored as full time or part time according to the availability of periods for the wpc 19875/2009 4 specialist subjects and that as long as that Government order existed, restoration shall be continued. Still later, by Ext.P7 dated 20.7.1988, the Government informed the Director of Public Instruction that the posts of specialist teachers and craft teachers which existed during 1987-88 against which specialist teachers and craft teachers were appointed and approved will continue as such until further orders and they may be paid as usual. By Ext.P8 circular dated 17.12.1988, the Government again clarified that none of those posts will be deemed to have been abolished in subsequent years for any reason whatsoever and the post will be treated as continuous. The substitutes appointed against the vacancies were also permitted to be paid salary continuously. This was directed to include all appointments made against vacancies during the year 1988-1989 also. By Ext.P9 order dated 15.2.1992, referring to four teachers who were similarly appointed, the Government held that if the approval of those four teachers was made before the issuance of G.O.(Ms) 154/89/G.Edn. dated 22.8.1989, they could have been paid salary and continued as per Ext.P8 circular dated 17.12.1983 as they were in service before issuance of the Government Order dated 22.8.1989. By Ext.P10(a) dated 22.12.2000, the Government held as follows: “Government have examined the case w.e.f. the report from the Director of Public Instruction and found that the appointment of Sri J. Shylock was made on 3.10.1985 during the prevalence of Government Circular No.78932/J1/88/GE dated 17.12.1988 even though the circular was cancelled with the issuance of G.O.(MS) 154/89/GE dated 22.8.1989 which has no retrospective operation. wpc 19875/2009 5 In the circumstances, Government are pleased to accord sanction for the restoration of the post of craft teacher (Agriculture) in the Victory High School, Olathanny w.e.f. 3.10.1985 onwards and to approve the appointment of Sri J. Shylock as craft teacher (Agriculture) against the above restored post subject tot he condition that the post will cease to exist with the vacation of the post by the present incumbent through retirement, resignation, death or like reasons if it is otherwise in order.” In Ext.P10(b) dated 5.2.2005 a similar appointment dated 19.6.1986 was directed to be approved. By Ext.P10(c) dated 23.6.1998, the appointment dated 31.10.1985 of a specialist teacher was directed to be approved by the Government. By Ext.P10(d), another appointment dated 1.8.1989 was directed to be approved. By Ext.P10(e) dated 28.1.1998, an appointment dated 4.8.1988 was directed to be approved. By Ext.P10(f) dated 19.12.2000, the post abolished in 1992-93 was directed to be restored and appointment to that post was approved. By Ext.P10(g) order dated 18.4.1981, an appointment dated 20.7.1975 was directed to be approved. By Ext.P10(h) dated 4.5.1990, an appointment dated 7.6.1989 was directed to be approved. In Ext.P10(i) dated 11.11.1997, an appointment on 3.8.1983 was directed to be approved. By Ext.P10 (j), appointment dated 3.6.1985 was directed to be approved. By Ext.P10(k) dated 13.6.1997, a post for 1987-88 was restored and appointment approved. By Ext.P10(l) dated 28.11.1998, an appointment dated 30.10.1986 was approved. By Ext.P10(m) dated 29.7.2000 an appointment dated 3.6.1985 was directed to be approved. By Ext.P10(n) dated 12.4.1991, an appointment for the eyar 1987-88 was directed to be approved. By Ext.P10(o) dated wpc 19875/2009 6 2.2.2001, an appointment dated 1.6.1993 was directed to be approved. 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 subjet 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. Valsakaumari J.G. seeks in her writ petition.” Therefore, it is evident that various Government Orders have been issued restoring the posts of specialist teachers in different schools. Therefore, it is not as if the petitioner's is an isolated case. Learned counsel for the petitioner is right in submitting, therefore, that various Government Orders including the last of the orders issued as per G.O.(Ms) No.307/ 2004/G.Edn. dated 4.10.2004 will support the claim of the petitioner. 7. In the common judgment in W.P.(C) No.12606/07 and connected cases, this Court upheld the appointment granted and one of the reasons is wpc 19875/2009 7 the amendment made to Rule 6B of Chapter XXIII K.E.R. dated 6.10.2008. Of course, the said amendment may not apply as far as the petitioner is concerned. But still, as pointed out already, para 4 of the judgment contains detailed narration of the various Government Orders which restored the second post of specialist teacher. 8. In that view of the matter, the issue will be reconsidered by the Government. For enabling the Government to consider the same, Ext.P10 is quashed. There will be a direction to the Government to pass fresh orders after referring the findings in the judgment in W.P.(C) No.12606/2007 and connected cases, within a period of three months from the date of receipt of a copy of this judgment. The petitioner will file a representation elaborating the claim, along with a copy of the judgment in W.P.(C) No.12606/2007 and connected cases, which will be considered by the Government as directed above. The writ petition is disposed of as above. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/**