P.V. Geetha v. Secretary to Government, General Education (J) Department, Government Secretariat, Thiruvananthapuram & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR** **MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932** **WP(C).No. 17109 of 2010(K)** **------------------------------------** **PETITIONER(S):** **----------------------** **P.V.GEETHA, AGED 51 YEARS,PROTECTED MUSIC TEACHER, G.V.H.S.S.NATTAKAM, RESIDING AT NEDUMPALLIL ILLAM,KUMARANALLOOR, KOTTAYAM-686016.** **BY ADV. SRI.N.UNNIKRISHNAN** **RESPONDENT(S):** **-----------------------** **1. THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (J) DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM.** **2. THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM.** **3. THE DISTRICT EDUCATIONAL OFFICER, KADUTHURUTHY.** **4. INFANT JESUS HIGH SCHOOL, VADAYAR, VAIKKOM,KOTTAYAM REP.BY THE MANAGER.** **5. THE CORPORATE MANAGER (BY POWER OF ATTORNEY) CORPORATE MANAGEMENT OF SCHOOLS, DIOCESE OF KAJIRAPPALLY-686507.** - **R1 TO R3 BY GOVERNMENT PLEADER MR.DILIP MOHAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ## **C.T.RAVIKUMAR, J. ~~~~~~~~~~~~~~ W.P.(C) No.17109 of 2010 ~~~~~~~~~~~~~~~~~~ Dated this the 19[th] day of July 2010** ## **J U D G M E N T** The petitioner was appointed under the 4[th] respondent's school on 13.7.1981 as a Music Teacher. The said appointment was approved by the competent education authority. While continuing as such she was deployed to Murikkumvayal Government High School from 11.1.1985 on account of division fall in the school. It was recognising her right to get protection that she was thus deployed to the said school. Till 1993 the petitioner continued in the said school. Thereafter, she had been working in Govt.VHSS, Nattakom with a clubbing arrangement with Govt.UPS, Kummanam. Now, as per Ext.P1 petitioner has been posted as Music Teacher in St.Mary's High School, Ummikuppa with a direction to join there on the date of re-opening day ## W.P.(C) No.17109 of 2010 ## -: 2 :- of the academic year 2010. 2. It is in the said circumstances that this Writ Petition has been filed mainly with the prayer for a declaration that the petitioner is entitled to be posted under the 3[rd] respondent (sic. 4[th] respondent) as Music Teacher. According to the petitioner, she has already completed more than 23 years of service and thus eligible and entitled to get the benefit flowing from Ext.P2 G.O. dated 14.6.2003. The learned counsel for the petitioner submitted that in the light of G.O.(MS)No.525/95/G.Edn dated 28.10.95 the petitioner is entitled to get re-deployment to her parent school itself. Yet another contention of the petitioner is that in the light of the circular dated 16.8.2003 the claim of the petitioner could not have been rejected. In short, it is the contention of the petitioner that she is entitled to get redeployed to her parent school, the school belonging to the 4[th] respondent. In that context, the learned counsel for the petitioner brought to my attention Ext.P8 letter dated W.P.(C) No.17109 of 2010 -: 3 :- 28.5.2010 of the 4[th] respondent addressed to the 2[nd] respondent. It would reveal that, at present, no specialist teacher is available in the Art Group consisting of posts of Music and Drawing in the said school. In the circumstances, it is submitted that Ext.P1 memo dated 3.5.2010 and the letter dated 25.2.2010 issued by the 3[rd] respondent are liable to be set aside and that the respondents be directed to re-deploy the petitioner to the school belonging to the 4[th] respondent. A statement has been filed in this writ petition by the 2[nd] respondent. The fact that the petitioner was originally deployed on account of division fall while working as Music Teacher under the 4[th] respondent school was admitted thereunder. The entitlement of the petitioner for protection and the fact that the petitioner has already completed more than 23 years of service and thereby acquired entitlement to get the benefit of Ext.P2 G.O. are also not disputed in the said statement. But, it is contended therein that the petitioner could not be redeployed to 4[th] ## W.P.(C) No.17109 of 2010 -: 4 :- respondent school on account of non-availability of a vacancy of Music Teacher in the said school. 3. Before adverting to rival contentions I think it worthwhile to look into the provisions under Rule 6(4) of Chapter XXIII of the Kerala Education Rules, which reads thus :- Notwithstanding anything contained in rule 7, in High School section of every complete High School there shall be :- - (b) One full time post of Music Teacher irrespective of the number of periods of work per week for Music. “Provided also that if there is already a post of Drawing Teacher under the Art Group the second post in the Art Group, namely a post of Music Teacher or a post in the Craft Group will be sanctioned only when the periods under each group exceeds 25 periods per week”. A perusal of G.O.(MS)No.525/95/G.Edn dated 28.10.1995 is also relevant in the context of the rival contentions. It would reveal that in the light of the said statutory provision viz; Rule 6(4) of Chapter XXIII of the KER, the same has been issued requiring posting of a specialist teacher in Art W.P.(C) No.17109 of 2010 -: 5 :- Group consisting of Music Teacher and Drawing Teacher in High school irrespective of the number of periods per week. Thus, it is obvious that going by the statutory provisions as also the G.O. dated 28.10.1995 one teacher in Music and Drawing are mandatory in every complete High School irrespective of the number of periods per week. 4. In this case, as is obvious from the facts expatiated earlier, more particularly from Ext.P8 that in the High School section of the said school belonging to the 4[th] respondent no specialist teacher in Art Group is presently available on account of the retirement of one P.P.George, who was working in the said school as Drawing Teacher. In fact, the said Sri.P.P.George had been working in the said school on the strength of the same school protection granted to teachers who had completed more than 23 years of service. Ext.R3(c) is the staff fixation order for the year 2009-2010. It would reveal that Sri.P.P.George was working as the Drawing Teacher in the said school and W.P.(C) No.17109 of 2010 -: 6 :- there was no other Music Teacher working in the said school. That apart, it is evident from the said order that the petitioner is the Music Teacher of that school and that she has been under deployment. The facts that the said P.P.George has, now, retired from service and after his retirement no other teacher is available in the Art Group consisting of specialist teachers in Drawing and Music, are also not disputed. The said position has been specifically admitted by the 4[th] respondent in Ext.P8 and he has already informed the said fact to the 2[nd] respondent through Ext.P8. As noticed earlier, the entitlement of the petitioner to get the benefit of Ext.P2 G.O. as she had already completed 23 years is not under dispute. In fact, a feeble attempt has been made in the statement challenging the entitlement of the petitioner to the benefits flowing from Ext.P2. In Ext.P2, it has been stated thus :- “3. Government after having examined the matter are pleased to order that the teachers who have completed 23 years of service and have got selection grade, teachers ## W.P.(C) No.17109 of 2010 -: 7 :- under treatment for cancer (with genuine Medical Certificate) and widows of Jawans, who are eligible for protection, will be retained in the same school.” In the statement it is contended that petitioner had not made any claim for same school retention till the receipt of the appointment order issued by the Corporate Manager, Diocese of Kanjirappally. With respect to the claim for same school protection it is further stated in paragraph 4 therein as follows :- “In order to consider the said aspects details regarding the pupil strength, divisions and posts existing in the parent school ie; 4[th] respondent school are required.” It is not in dispute that the petitioner had completed 23 years of service and get Selection Grade with effect from 13.7.2004. When the said twin conditions are satisfied the respondents cannot legally dispute the entitlement of the petitioner for the benefit granted as per Ext.P2 viz; same school protection. The contention that the petitioner did not raise the claim for same school retention till the receipt W.P.(C) No.17109 of 2010 -: 8 :- of the appointment order issued by the Corporate Manager, Diocese of Kanjirappally cannot be a ground for denying the benefit if the petitioner is otherwise eligible for the same. Now, the other reason given in the statement to resist the claim of the petitioner for redeployment to the parent school is that in case of such a reposting to the parent school it will result in disbursement of salary to the petitioner without any work. In that context it is to be noted that the petitioner has been given protection from 1985 onwards. Accordingly recognizing the eligibility under Ext.P2 G.O., one P.P.George who was working as Drawing Teacher in the very same school belonging to the 4[th] respondent, was permitted to continue in the said school till his retirement. Besides the petitioner the said Sri.P.P.George was the other specialized teacher available in the said school in the Art Group. Admittedly the said person has now retired from service. If the said P.P.George could have continued in the said school on the strength of W.P.(C) No.17109 of 2010 -: 9 :- the protection provided as per Ext.P2, I am at a loss to understand as to how the respondent could deny the said benefit to the petitioner, after admitting her entitlement, especially when Sri.P.P.George had retired from service. Therefore, I am of the view that the objections raised by the respondent to deny re-deployment to the petitioner cannot be sustained at all. As a specialist teacher in the Art Group, the said P.P.George must have been taking classes in the said school and these periods must be available in the school. I am of the considered view that even in the absence of such a situation the respondent could not legally reject the claim of the petitioner for redeployment to the 4[th] respondent school in the light of the specific provisions under Rule 6(4) and 64(b) of Chapter XXIII of the KER. The said position has been reiterated in G.O.(MS)No.2810/95. In the light of the said rules and also in the light of the circular No.H 10 65318/97 dated 16.8.2003 the 4[th] respondent is bound to recall the petitioner who is a ## W.P.(C) No.17109 of 2010 -: 10 :- protected teacher to the parent school and he has already expressed his willingness as is obvious from Ext.P8. A completed High School is entitled to get one post each in Music and Drawing irrespective of the number of periods per week. In view of the admitted position that the other teacher who was working in 4[th] respondent school belonging to the Art Group namely; Drawing Teacher has retired from the school there cannot be any impediment at all for redeploying the petitioner to the school belonging to the 4[th] respondent. I am fortified in my view by a decision of this Court in **Satheesh Kumar** v. **State of Kerala** reported in **[2009(3) KLT 439]** . In fact the said decision was rendered after adverting to all the relevant provisions under the Kerala Education Rules ie; Rule 6(4) and 6(7) of Chapter XXIII. For all these reasons I have no hesitation to hold that the petitioner is entitled to get redeployed to the school belonging to the 4[th] respondent viz; her parent school, despite the issuance of Ext.P1. To enable the W.P.(C) No.17109 of 2010 -: 11 :- respondents to issue an order of redeployment, Ext.P1 is set aside. Consequently, there will be a direction to respondents 2 and 3 to issue consequential orders redeploying the petitioner to Infant Jesus High School belonging to the 4[th] respondent as Music Teacher within a period of three weeks from the date of receipt of a copy of this judgment. Writ petition is disposed of as above. ## **C.T.RAVIKUMAR, JUDGE.** Jvt