R. Vasudevan Pillai v. State of Kerala & Others (W.A. Nos. 29 and 30 of 2012; W.P.(C) No. 1150 of 2012)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH** **THURSDAY, THE 19TH DAY OF JANUARY 2012/29TH POUSHA 1933** **WA.No. 29 of 2012 () IN WPC/5234/2011 -------------------------------------AGAINST THE ORDER/JUDGMENT IN WPC.5234/2011 DATED 25-11-2011** **APPELLANT(S)/PETITIONER:** **--------------------------------R.VASUDEVAN PILLA S/O. K.RAGHAVAN PILLA AMBANATTU SARASWATHY MANDIRAM, PERAYAM MULAVANA P.O., KOLLAM. (PHYSICAL EDUCATION TEACHER NSS HIGH SCHOOL, ANIKKADU, KOTTAYAM).** **BY ADVS.SRI.S.SUBHASH CHAND SMT.V.AJITHA** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION OFFCE OF THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM-695 001.** **3. THE DEPUTY DIRECTOR (EDUCATION) OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION KOTTAYAM-686 001.** **4. THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER KOTTAYAM-686 001.** **5. THE GENERAL MANAGER & INSPECTOR NSS SCHOOLS** - **OFFICE OF THE GENERAL MANAGER & INSPECTOR NSS SCHOOLS, PERUNNA P.O., CHANGANASSERY-686 001.** **R5 BY P.GOPAL** **R BY GEORGE MECHERIL, GOVERNMENT PLEADER** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19-012012, ALONG WITH W.A.NO.30/2012 & WP(C) NO.1150/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.NO.29/2012** ## **APPENDIX** ## **APPELLANT'S EXHIBITS** **ANNEXURE-I : COPY OF ORDER BEARING GO(RT) NO.5284/2011/G.EDN. DATED 26/11/2011.** **//TRUE COPY//** **PA TO JUDGE.** ## **jg** C.R. C.N.RAMACHANDRAN NAIR & BABU MATHEW P.JOSEPH, JJ. .................................................................... W.A. Nos.29, 30 of 2012 & WP(C) No.1150 of 2012 .................................................................... Dated this the 19[th] day of January, 2012. ## J U D G M E N T ## Ramachandran Nair, J. In the connected Writ Appeals filed by a Physical Education Teacher and the Writ Petition filed by the Corporate Management, which employs the teacher concerned, the question raised is one and the same, i.e. whether post of physical education teacher in the high school can be retained by reckoning the periods of physical education in higher secondary section of the high school under the same corporate management. 2. We have heard learned counsel appearing for the teacher, learned counsel for the Corporate Management and also learned Government Pleader for the respondents. 3. The appellant teacher was appointed in a leave vacancy in a School under the Corporate Management in 1993. W.A.No.29, 30/2012 & 1150/2012 -2- Later his appointment as physical education teacher got regularised with effect from 06/06/1994. While the appellant was continuing as a physical education teacher in NSS High School, Anikkad, which also has a higher secondary section, the periods of physical education fell below 5, which is the minimum required periods for retaining the post in the School under Rule 6(4) of Chapter XXIII of the Kerala Educational Rules. In fact, admittedly, the periods of physical education fell as low as 4 in a week, which led to abolition of the post in the school with effect from 15/07/2008. The DEO issued an order declaring abolition of the post, which necessarily means that the appellant became a surplus teacher in the school and as a result of this, the Corporate Management, which has several other schools, ought to have retrenched the junior most teacher in physical education and deployed the appellant as a substitute who had as on the date of retrenchment 13 years of service as a regular teacher. Both the appellant and the management challenged the orders of the DEO. While the retrenched teacher requested for redeployment in the School W.A.No.29, 30/2012 & 1150/2012 -3- in terms of the decision of the DEO, the management insisted that the School at Aanikkad where from the teacher was retrenched is entitled to retain the post of one physical education teacher which is by clubbing the periods in physical education available in the higher secondary school, which is functioning along with the high school under the same management. Reliance was placed by the management on Ext.P4 produced in the WP(C) filed by them, which is a Government Order dated 04/01/1993. What is stated in this order is that up to 4 periods of physical education in higher secondary school will be reckoned for retaining the post of physical education teacher in the high school. Going by a plain reading of this order, the management is entitled to have the post of physical education teacher retained because the post got abolished for want of one period in a week, whereas according to the Management higher secondary school has 12 periods in physical education. However, learned Government Pleader appearing for the State and the Educational authorities submitted that Ext.P4 Government Order does not survive W.A.No.29, 30/2012 & 1150/2012 -4- because Special Rules for higher secondary education was introduced through Chapter XXXII of the Kerala Educational Rules with effect from 12/11/2001, which does not provide physical education as part of the curriculum for higher secondary schools. The appellant teacher remained neutral to this contention of the management because in either case, he is entitled to protection. 4. We have bestowed our attention to the contention raised by the management. The Management's case will stand only if Ext.P4 order continues to be in force even now. It is a settled position by virtue of the decision of the Supreme Court in M.M.Dolichan and Others v. State of Kerala and others, reported in AIR 2001 SC 216, that when special rules are made, administrative orders issued until then, which will stand contrary to the special rules, will stand automatically overruled. The question to be examined is whether the Special Rules admit of validity or relevance for Ext.P4, which provides for retention of the post in physical education in high school by reckoning periods of physical education studies in higher W.A.No.29, 30/2012 & 1150/2012 -5- secondary school. In the first place, Ext.P4 will have relevance or application only in the case of a management which has both high school and higher secondary school in the same location, without which clubbing of periods of coaching in a single subject is not possible for the same teacher to teach in both sections of the school. Here again the basic condition is that higher secondary school must have physical education as part of curriculum i.e. the course study. If the special Rules provide for physical education as part of the curriculum fixing periods based on whatever norms the Government considered relevant, then certainly Ext.P4 could be taken as consistent with the special rules that came into force later. However, unfortunately, for the management, teachers and for the student community, the Government in their wisdom decided not to have physical education teaching for students in higher secondary schools. In fact, going by Rule 3 of Chapter XII we notice that as many as 39 subjects are provided for coaching to higher secondary students wherein physical education does not figure at all. So much so, we do not know on what basis W.A.No.29, 30/2012 & 1150/2012 -6- the management can contend that periods of physical education of higher secondary school should be reckoned for making up the deficiency of periods in high school in physical education for retaining the post in the higher school. We are of the view that when the Special Rules came into force, Ext.P4 for whatever be the period it applied ceased to exist. So much so, the Government's stand is perfectly justified. The learned Single Judge while disposing of the two WP(C)s, one filed by the management and the other by the teacher, directed the Government to consider the management's case with reference to the Government orders relied on by them. The Government has issued Ext.P23 order on the next day of the judgment wherein it is clearly stated that since no physical education periods are provided for higher secondary schools the notification relied on by the petitioner has no relevance or application, and so long as the special rules do not admit of physical education as part of the curriculum of higher secondary education, the clubbing of periods of high school with higher secondary school does not arise at all. The W.A.No.29, 30/2012 & 1150/2012 -7- management has no case that anywhere in Kerala including the Schools under them physical education teachers are appointed in higher secondary school. Therefore, the high school which lost the post of physical education teacher for want of required periods cannot retain the post merely because a higher secondary school under the same management is functioning in the same place and probably in the same premises. We, therefore, see no merit in the WP(C) filed by the management and the same is accordingly dismissed. 5. As a consequence of the judgment of the learned Single Judge impugned in the Writ Appeals and the above judgment in the WP(C) filed by the management, the appellant in the Writ Appeals is entitled to protection and redeployment in another school under the same corporate management after retrenching the junior most teacher which the management is bound to do. Therefore, there will be a direction to the Management to implement the judgment forthwith. However, the question to be considered is whether the retrenchment of W.A.No.29, 30/2012 & 1150/2012 -8- the teacher yet to be made and redeployment of the teacher should be with retrospective effect i.e. from 15/07/2008. What we feel is that on account of litigation and nonimplementation of the earlier orders issued by the educational authorities i.e. the DEO, which is now confirmed vide Ext.P23 dated 26/11/2011, and since the appellant teacher is continuing in the very same school though with 4 periods in physical education and the junior physical education teachers in other schools of the management were also continuing, we feel the Government Order should take effect from 01/02/2012. As a result of this direction, the Management will substitute the junior most teacher with the appellant teacher with effect from 01/02/2012. The appellant as well as the retrenched teacher will be paid salary till 31/01/2012 and thereafter the retrenched teacher will be eligible only to the benefits under the KER. 6. Learned counsel for the management submitted that arrears of salary was not being paid to 4 teachers in physical education working in different schools under the same W.A.No.29, 30/2012 & 1150/2012 -9- corporate management i.e. within the jurisdiction of Deputy Director, Kottayam on account of this dispute. We notice that the controversy was only in respect of retrenchment of one teacher for which we do not know why salary was declined to several teachers. We are of the view that salary could be declined only to one teacher i.e. the junior most teacher from the date of his retrenchment to substitute appellant teacher, and we see no reason why 3 other teachers including the appellant are not given salary because only one teacher need to be retrenched which is the junior most in service. Therefore, all those approved teachers who are seniors to the junior most should have been paid salary without any contest whatsoever. If salary was not paid on account of want of approval, which was kept pending for settling this issue, then approval should be considered first after making the above arrangement, and then arrears of salary should be paid to all teachers. There will be a direction to the respondents to release arrears of salary in terms of the direction contained as above within a period of two months from the date of receipt W.A.No.29, 30/2012 & 1150/2012 -10- of a copy of this judgment. Since the Department allows retention of physical education teacher in the high school even after Special Rules vide Ext.P25, we do not think neither the appellant nor the teacher who ought to have been retrenched on abolition of appellant's post could be declined arrears of salary until 31/03/2012. 7. In spite of the above legal position as stated above after coming into force of the special rules, learned counsel for the petitioner has referred to Ext.P25 dated 23/01/2007 issued by the Regional Director of Higher Secondary Education prescribing post of physical education teacher in higher secondary school and providing the rate of special allowance. Of course, what is clear from Ext.P25 is that even after the special rules came into force the Government allowed management schools to continue to engage high school teachers in physical education teaching in the higher secondary school and they have been paid special allowance of Rs.50 per month, which obviously means that Ext.P4 was continued. Even though Government allowed retention of high W.A.No.29, 30/2012 & 1150/2012 **==> picture [21 x 9] intentionally omitted <==** school teachers based on Ext.P4 Government order contrary to the Special Rules, we do not think the same can be approved by this Court as Ext.P4 stands overruled by Special Rules. These Writ Appeals are disposed of as above and the Writ Petition is dismissed. ## (C.N.RAMACHANDRAN NAIR, JUDGE) (BABU MATHEW P.JOSEPH, JUDGE) jg