N. Prema v. Deputy Director of Education, Palakkad & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 WP(C).No. 23454 of 2006(P) ------------------------------- PETITIONER: -------------- N. PREMA, MUSIC TEACHER (HIGH SCHOOL SECTION), SARVAJANA HIGH SCHOOL, PUDUCODE, PALAKKAD. BY ADVS. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SRI.SREEKANTH.K.R SRI.JIBU.P.THOMAS SRI.SUNIL J.CHAKKALACKAL RESPONDENTS: ------------------ 1. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. 2. THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD. 3. THE HEADMISTRESS, SARVAJANA HIGH SCHOOL PUDUCODE, PALAKKAD. BY SMT. RANI DIOTHIMA, GOVERNMENT PLEADER FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.23454/2006 ## A P P E N D I X ## PETITIONER'S EXHIBITS: EXT. P1 : COPY OF ORDER ISSUED BY R2 DTD. 29.11.00. EXT. P2 : COPY OF ORDER DTD. 26.7.99. EXT. P3 : COPY OF ORDER DTD. 15.2.06. EXT. P4 : COPY OF REPRESENTATION SUBMITTED BY PETITIONER DTD. 3.3.06. EXT. P5 : COPY OF JUDGMENT IN WP(C) 7450/06 DTD. 5.4.06. EXT. P6 : COPY OF ORDER DTD. 4.8.06. EXT. P7 : COPY OF GOVT. ORDER DTD. 28.6.02. EXT. P8 : COPY OF GOVT. ORDER DTD. 4.12.02. EXT. P9 : COPY OF JUDGMENT IN WP(C) 28939/03 DTD. 17.1.06. EXT. P10 : COPY OF ORDER IN I.A.1894/06 DTD. 22.3.06. EXT. P11 : COPY OF JUDGMENT IN O.P.Nos.30259/01 & 18363/02 DTD. 19.3.03. EXT. P12 : COPY OF JUDGMENT IN O.P.6518/97 DTD. 15.3.02. EXT. P13 : COPY OF STAFF FIXATION ORDER OF SCHOOL FOR THE YEAR 2006-07 ISSUED BY R2 DTD. 29.6.06. EXT. P14 : COPY OF ARGUMENT NOTES DTD. 21.07.06. EXT. P15 : COPYOF ORDER PASSED BY THE GOVT. DTD. 19.8.06. EXT. P16 : COPY OF LETTER ISSUED BY R1 DTD. 24.7.07. EXT. P17 : COPY OF LETTER SUBMITTED BY PETITIONER TO R3 DTD. 4.9.07. EXT. P18 : COPY OF LETTER RECEIVED FROM R3 DTD. 4.9.07. EXT. P19 : COPY OF LETTER ISSUED BY R3 TO HEADMASTER, GUPS, MUDAPPALLUR DTD. 5.9.07. WP(C).No.23454/2006 EXT. P20 : COPY OF LETTER ISSUED TO PETITIONER BY HEADMASTER, GUPS, MUDAPPALLUR DTD. 6.9.07. 1ST RESPONDENT'S EXHIBITS: EXT. R1(a) : COPY OF ORDER No.B1/5109/2005/D.DIS DTD. 15.7.05. EXT. R1(b) : COPY OF COMMUNICATION DTD.14.8.06. // True Copy // P.A. to Judge. smp ## **T.R. RAMACHANDRAN NAIR, J.** **--------------------------------------W.P.(C) No.23454 OF 2006 --------------------------------------Dated this the 2[nd] day of August, 2011.** ## **J U D G M E N T** The petitioner herein is aggrieved by Ext.P6 order by which the request of the petitioner for sanctioning full time post of Music Teacher in the school was rejected. The petitioner has approved service as Music Teacher from 21.06.1989. According to the petitioner, for the year 2005-06, the High School Section had 22 divisions in Standard VIII, 22 in Standard IX and 9 in Standard X namely, 53. Therefore, it is pointed out that there are 53 divisions in the Art Group which were liable to be divided between Music and Drawing. 2. In Ext.P6 order, the view taken is that in the light of G.O.(P) No.525/95/G.Edn. dated 28.10.1995, there is one period for Art group in 8[th] standard and one period for all specialist posts in 9[th] standard and no period is allotted in 10[th] standard. Accordingly, it is held that the school is entitled only for one specialist post in Art Group and hence Drawing Teacher being **W.P.(C) No.23454/2006** **2** senior, the post is sanctioned to Drawing. The view taken is that no periods are available to sanction a second post in Art Group. 3. Learned counsel for the petitioner submitted that the view taken therein is against the judgments of this Court namely, Exts.P11 and P12. It is pointed out that in the light of the said judgments, the petitioner is entitled for the reliefs prayed for. 4. The 1[st] respondent has filed a counter affidavit opposing the prayers of the petitioner. As on today, the petitioner is continuing in the school by way of clubbing arrangements. The 1[st] respondent's affidavit doesn't contain the details of the number of students for the succeeding years. Paragraph 7 of the counter affidavit states that the period available for Arts Group is below 25 which permits only one post in Art Group. 5. Learned counsel for the petitioner by relying upon the staff fixation order submitted that the averments in paragraph 7 of the counter affidavit that only 16.5 periods will be available cannot be justified. 6. Learned Government Pleader has relied upon a circular No.H2/41370/2008/DPI dated 04.08.2008 issued by the Director **W.P.(C) No.23454/2006** **3** of Public Instruction. Therein, in Standard VIII for Art group namely, Music Teacher or Drawing Teacher - one period and for Craft group namely, Craft Teacher or Sewing Teacher (Needle work Teacher) two periods are allotted. One period available under Art group and Craft group for Standard IX would be allotted either to Art group or to Craft group for sanctioning the specialist post. 7. The judgment of this Court in Ext.P11 is one rendered in an identical circumstance. Therein, the challenge was against non sanctioning of post relying on the Government Order namely, G.O.(MS) No.525/95/G.Edn dated 28.10.1995. This Court, in paragraph 2, held as follows: “It is common case that no corresponding amendments were carried out in Rule 6(4) of Chapter XXIII K.E.R in the light of the above said Government Order. Therefore, the post of Music Teacher has to be sanctioned taking into account the norms prescribed in the extant Rules ignoring the new Rules introduced as per the above said Government Order. It is declared so. Accordingly the impugned orders are quashed in both the cases and the matter is remitted to the Government for fresh determination in accordance with law after affording an opportunity of being heard to the petitioners within **W.P.(C) No.23454/2006** **4** three months from the date of receipt of a copy of this judgment in the light of the observations made herein above. While taking a decision the Government shall also consider G.O.(MS) No.300/2002/G.Edn dated 27.11.2002. The petitioners rely on paragraph 4 of the said Government Order”. 8. In Ext.P12 judgment, this Court was considering a similar case and the view taken is that what is involved is not creation of a new post and the post therein was existing from 1983 onwards. As far as the petitioner is concerned, she was continuing from 1989 onwards. 9. Learned counsel for the petitioner submitted that even though going by the orders relied upon by the respondents, the view taken that the post cannot be sanctioned is not justified. In that context, my attention was invited to the number of divisions sanctioned as per Ext.R1(a). The details as to the succeeding years and the staff fixation orders thereon are not available now. Therefore, it is only proper that the matter is reconsidered by the 1[st] respondent. Ext.P6 to the extent to which the relief is denied to the petitioner is thus quashed. All the aspects will be considered by **W.P.(C) No.23454/2006** **5** the 1[st] respondent in the light of the judgments of this Court, Exts.P11 and P12 and other factors including staff fixation orders for the succeeding years. Even though learned counsel for the petitioner relied upon a decision of this Court in _**Satheeshkumar**_ _vs._ _**State of Kerala**_ **(2009(3)KLT 439)** , the learned Government Pleader submitted that the said judgment has been reversed by the Division Bench. Appropriate orders will be passed after hearing the petitioner within a period of three months from the date of receipt of a copy of this judgment. This writ petition is disposed of as above. ## **T.R. RAMACHANDRAN NAIR JUDGE** smp