Reji K.J. v State of Kerala and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 2[ND] DAY OF JUNE 2022 / 12TH JYAISHTA, 1944 ``` ## `WP(C) NO. 2165 OF 2021` ## `PETITIONER/S:` ``` REJI K.J. AGED 39 YEARS W/O. PAUL E.C., PHYSICAL EDUCATION TEACHER, ST. ANTONYS C.H.S.KOTTAT, THRISSUR-680731. BY ADVS. T.T.MUHAMOOD SRI.A.RENJIT SRI.V.E.ABDUL GAFOOR SRI.A.MOHAMMED SAVAD ``` ## `RESPONDENT/S:` ``` 1THE STATE OF KERALA REP. BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2THE DIRECTOR OF GENERAL EDUCATION, DIRECTORATE OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695001. 3THE DEPUTY DIRECTOR OF EDUCATION, O/O THE DDE, THRISSUR-680001. 4THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DEO, IRINJALAKKUDA, THRISSUR-680121. 5THE CORPORATE MANAGER, FC CONGREGATION SCHOOL, IJK ALVERNIA PROVINCIAL HOUSE, CHALAKKUDY, THRISSUR-680307. ``` ``` BY ADVS. SRI.JAYENDRAN KOCHOTH SMT.REKHA C NAIR, SR GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 2165 OF 2021 2 ``` ## **JUDGMENT** The case of the petitioner is that she is working as a Physical Education Teacher in St.Antony’s CHS Kottat, Thrissur, an aided school managed by the 5th respondent and governed by the provisions of the Kerala Education Act and the Rules framed thereunder. She contends that she was appointed as Physical Education Teacher with effect from 10.7.2015 against an anticipated additional post. However, by Ext.P1 order dated 31.5.2016, her request for approval was rejected on the ground that there was no sanctioned post and also that it would result in additional financial commitment to the Government. Though the same was challenged by the Manager, the 3rd respondent rejected the same by Ext.P2 order. The revision petition filed before the Government also met with the same fate. 2. The petitioner contends that in terms of Rule 6(4) of Chapter XXIII of the KER, there has to be one post of Full-Time Physical Education Teacher and one Full-Time post of Drawing ``` WP(C) NO. 2165 OF 2021 3 ``` Teacher irrespective of the number of periods of work per week in each of the concerned subjects. It is pointed out that the school was originally a girls’ school and it was by Ext.P7 order that sanction was accorded to admit boys in the school, however, subject to the condition that there would be no financial commitment to the Government. The petitioner contends that even prior to the issuance of Ext.P7 order, there has been a Physical Education Teacher post in the said school. It is the contention of the petitioner that in that view of the matter, the contention of the Government in the order impugned that it would entail additional financial commitments, cannot be sustained. It is contended that the restriction imposed in the Government Order is only to grant additional posts over and above the post which is existing as on the date of issuance of Ext.P4. As there was a post of Physical Education teacher, the reasons afforded for rejection cannot be sustained. It is in the afore circumstances that this writ petition is filed seeking the following reliefs:- 1. issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P6 order. 2. issue a writ of certiorari or any other appropriate writ, ``` WP(C) NO. 2165 OF 2021 4 ``` order or direction quashing Exts.P1 and P2 orders. 3. issue a writ of mandamus or any other appropriate order or direction, directing the respondents 1 to 4 to approve the appointment of the petitioner as Physical Education Teacher w.e.f 10.7.2015 and grant all the service benefits to the petitioner. 3. A counter affidavit has been filed by the Government, wherein it is stated that the Corporate Manager has appointed the petitioner herein as a Physical Education teacher from 10.7.2015 during the academic year 2015-2016. However, the approval of the appointment was rejected on the ground that it would entail additional financial commitment and it would go against the Government Orders. 4. Sri T.T. Muhamood, the learned counsel appearing for the petitioner, submits that the reasons stated for the rejection of approval of the appointment cannot be sustained. The learned counsel points out that the Government has concluded that there is eligibility for the post of Physical Education teacher in the school based on the number of students available. According to the learned counsel, a Division Bench of this Court in the judgment dated 19.1.2011 in W.A.No.2679 of 2009 ( **State of** ``` WP(C) NO. 2165 OF 2021 5 ``` **Kerala v. P Satheesh Kumar** ), had held that the student community is entitled to get training in Physical Education and other non-scholastic subjects and the Government is duty-bound to provide service of specialist teachers to all schools even if the number of students does not warrant. According to the learned counsel, as per Rule 6(4) of Chapter XXIII of the KER, there has to be one post for Full-Time Physical Education teacher and one Full-Time post for Drawing Teacher. According to the learned counsel, the school in which the petitioner is working has no other specialist teachers other than the Physical Education teacher. 5. The learned Government Pleader reiterates the contentions in the counter and by referring to Ext.P7 order, it is submitted that it has been made clear at the time of admitting boys in the school that there shall be no additional financial commitments. 6. I have considered the submissions advanced and have perused the records. The reason for refusing to grant approval to the appointment is that it would entail additional ``` WP(C) NO. 2165 OF 2021 6 ``` financial commitment. However, it is undisputed that there are no other specialist teachers other than the Physical Education teacher in the said school and that the said post had been existing in the school for quite some time. In that view of the matter, the stand taken by the Department that sanctioning of posts of Physical Education teacher would entail additional financial commitment cannot be accepted. As rightly submitted by the learned counsel, the restrictions in the Government Order relied on by the respondents is only with respect to the grant of any additional post over and above the post which was existing as on the date of Ext.P4. The same is not the case herein. Furthermore, after admitting boy students to a girls’ school, the Government cannot expect the school to be run without the required staff strength. When student strength is allowed to be increased, it necessarily follows that the management has every right to appoint teachers required under the norms keeping in mind the student strength. In view of the discussion above, the petitioner is entitled to succeed. Ext.P1, P2 and P6 will stand quashed. ``` WP(C) NO. 2165 OF 2021 7 ``` There will be a direction to the respondents 1 to 4, to approve the appointment of the petitioner as Physical Education Teacher with effect from 10.07.2015 and disburse all consequential benefits. This writ petition is disposed of. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** sru ``` WP(C) NO. 2165 OF 2021 8 ``` ## `APPENDIX OF WP(C) 2165/2021` ``` PETITIONER’S EXHIBITS: ``` ``` EXHIBIT P1TRUE COPY OF ORDER NO.B4-5529/15/L.DIS. DATED 31.5.2016 ISSUED BY THE 4TH RESPONDENT. ``` - `EXHIBIT P2 TRUE COPY OF ORDER NO.B2-12650/2016/L.DIS. DATED 15.2.2017 ISSUED BY THE 3RD RESPONDENT.` - `EXHIBIT P3 TRUE COPY OF REVISION PETITION SUBMITTED BY THE MANAGER BEFORE THE 1ST RESPONDENT ON 25.3.2017.` - `EXHIBIT P4 TRUE COPY OF REVISION PETITION SUBMITTED BY THE MANAGER ON 5.2.2018.` - `EXHIBIT P5 TRUE COPY OF JUDGMENT DATED 14.3.2019 PASSED BY THIS HON'BLE COURT IN WP(C) NO.7754/2019.` - `EXHIBIT P6 TRUE COPY OF GO(RT)NO.3451/2020/G.EDN. DATED 28.12.2020.` - `EXHIBIT P7 TRUE COPY OF G.O.(RT) NO.1947/04/G.EDN. DATED 21.5.2016, GRANTING SANCTIONED TO ADMIT BOY STUDENTS IN THE PETITIONER'S SCHOOL (WITH TYPED COPY).` ``` RESPONDENTS EXHIBITS : NIL ```