Sijin N.S. v. State of Kerala and others

**“CR”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 03RD DAY OF SEPTEMBER 2019 / 12TH BHADRA, 1941** ## **WA.No.1615 OF 2019** **WP(C) 21166/2012(U) OF HIGH COURT OF KERALA DATED 28.5.2019** ## **APPELLANT/PETITIONER:** **SIJIN.N.S., AGED 37 YEARS** **PHYSICAL EDUCATION TEACHER, HIGHER SECONDARY SCHOOL, MUNDOOR, PALAKKAD DISTRICT.** ## **BY ADV. DR.GEORGE ABRAHAM** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATIONAL DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHPURAM-695001** - **2 THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM -695001** - **3 THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD-678001** - **4 THE MANAGER HIGHER SECONDARY SCHOOL, MUNDOOR, PALAKKAD-678592** - **5 A.SIVAN DRAWING TEACHER (RETIRED), RESIDING AT SAVITHA VIHAR, KOLLENGODE.P.O., PALAKKAD DISTRICT-678506** **R1 BY GOVERNMENT PLEADER (BY ORDER) R2-3 BY GOVERNMENT PLEADER(BY ORDER)** ## **OTHER PRESENT:** **SR.GP SRI.A.J.VARGHESE** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A No.1615 of 2019 **“CR”** -2- ## **JUDGMENT** ## **K.VINOD CHANDRAN, J.** The petitioner is before this Court praying for setting aside Ext.P8 order of the Government and a direction to pay salary for the period from 1.3.2003 to 31.5.2008, as a Physical Education Teacher in the Upper Primary section of the respondent School. We have to notice the complex facts arising in this writ petition which also has to be considered on the basis of the earlier litigation. 2. We will refer to the parties by their names. N.S.Sijin; the appellant herein was appointed as a Physical Education Teacher for U.P. section in the 4[th] respondent's School on 1.8.2001 as per Ext.P1, which was also approved as on 6.4.2002. In the academic year 2002-03, there was reduction of one post of Specialist Teacher in the High School W.A No.1615 of 2019 -3- section. Here, we have to notice that at that point of time, there was a Music Teacher and a Drawing Teacher in the High School section; one K.V.Brinda Kumari and A.Sivan respectively. Brinda Kumari was retrenched, against which she took up proceedings before the statutory authority. The Joint Director of Public Instructions, by Ext.P2, found that in accordance with the staff strength, there could be only one post of Specialist Teacher in the High School section. Sivan, who was another Specialist Teacher in the High School section was found to have not acquired the necessary minimum qualification for being posted as a Specialist Teacher in the High School section, ie; he did not have an SSLC or equivalent qualification. Sivan was a person who was working in the U.P section as a Drawing Teacher, who was shifted to the High School section; in which vacancy Sijin was appointed. Hence, Sivan was directed to be shifted to the W.A No.1615 of 2019 -4- UP section as Drawing Teacher and Brinda Kumari allowed to continue in the High School section as Music Teacher. This resulted in the retrenchment of Sijin. KER provided only for one Specialist Teacher in the UP Section. 3. Sivan and Sijin both filed writ petitions from the above order. Ext.P5 judgment of the learned Single Judge found that Sivan is entitled to be continued as Specialist Teacher in the High School section on the strength of Rule 1(3) of Chapter XXXI of KER, which provided an exemption from such minimum educational qualification. The learned Single Judge relied on **Rani George v. Deputy Director of Education of Education (2004 (1) KLT 460)** to find that the Specialist Teachers in the UP section and High School sections can be interchanged and it is the prerogative of the Manager to decide on where the Specialist Teacher is accommodated. The learned Single Judge also relied on the W.A No.1615 of 2019 -5- judgment of another Single Bench in **Satheeshkumar P v.** . **State of Kerala and others (2009 (3) KLT 439)** 4. In _**Satheeshkumar** ,_ the issue arising was as to whether the proviso to Rule 6(4) of Chapter XXIII of KER would regulate the sanctioning of posts as provided in the main section. The section provided for a Drawing Teacher, a Music Teacher, a Physical Education Teacher and a Sewing Teacher, the last subject to the number of girl students. The 2[nd] proviso, however, required that there should be five periods for one full time post of Specialist Teacher and the third proviso that every other post in the Art Group would be sanctioned only if the periods under each group exceeds 25 periods per week. The learned Single Judge in _**Satheeshkumar**_ found that the proviso could not regulate the Rule and held that there could be no insistence of sufficient standards which prescription was not available in W.A No.1615 of 2019 -6- the Rule. There was a batch of writ appeals from _**Satheeshkumar**_ filed by the Government. Government also filed an appeal from Ext.P5 judgment, which was posted along with the batch of writ petitions. 5. In the writ appeal, a Division Bench reversed the judgment of the learned Single Judge in _**Satheeshkumar**_ and by Ext.P6, found that the requirement in the proviso applies squarely. The Division Bench in fact approved yet another decision of a Single Judge in **Sree Vidhya H.S. v. State of** . **Kerala [2008 (1) KLT 1016)** 6. Sijin filed a review (R.P No.520/2010) from Ext.P5 judgment in which the very same Division Bench passed an order dated 18.8.2011. The Division Bench found that the petitioner's appointment in the year 2001-02 having been approved, he will be re-employed as and when fresh vacancy arises in terms of the Rules. The Division Bench, W.A No.1615 of 2019 -7- however, felt no grounds to review the common judgment and while rejecting the review, directed the petitioner to work out the relief in terms of a Scheme introduced by the Government. The Scheme introduced was not available at the time when Sijin was retrenched. An SLP was taken from the judgment and order in review, which too stood rejected on 28.11.2011. 7. Later, Sijin filed a representation for considering the payment of salary between 1.3.2003 and 31.5.2008. The later date is the date on which Sivan retired and Sijin was taken back to the UP section as a Physical Education Teacher. The contention of Sijin was that despite the orders of the statutory authorities, he had worked continuously between 1.3.2003 and 31.5.2008. It was also contended that the review had left open the remedies of Sijin and in any event, the dictum as laid down in Ext.P6 judgment did not regulate W.A No.1615 of 2019 -8- the affairs of Sijin as there was no contention of any insufficiency of standards in the respondent School. Sijin also still maintains that Sivan was entitled to the permanent exemption from qualification for being continued in the High School section; in which event Sijin could have been accommodated in the U.P. Section. 8. We have heard Sri.A.J.Varghese, the learned Senior Government Pleader for the respondent State and Sri. George Abraham for the appellant. 9. We have to first deal with the issue as to whether Sijin is entitled to be continued during the period in which he claims salary, which essentially revolves around the eligibility of Sivan to be continued as a Specialist Teacher in the High School section. Admittedly, Sivan did not have an SSLC qualification as awarded by the Commissioner for Examinations, Kerala or its equivalent. The reliance placed W.A No.1615 of 2019 -9- by the Counsel for the respondent as was done by the learned Single Judge in Ext.P5 is on sub-rule (3) of Rule 1 Chapter XXXI. 10. We have to notice that sub-rule (3) was brought in only in the context of sub-rule (2) introduced by an amendment in 1987 introduced by G.O.(P) No.55/87/G.Edn dated 6.3.1987 (SRO No.871 of 1987). By sub rule (2), a pass in SSLC Examination conducted by the Commissioner for Government Examinations, Kerala or its equivalent was prescribed as the minimum general educational qualifications for all teaching posts in Private Primary Schools including posts of Language Teachers and Specialist Teachers. Suitable amendments were also made in the qualifications as seen from Rule 3. For the UP section prior to the amendment, qualification required for Drawing Teachers was a pass in Standard VI or its equivalent and certificates in W.A No.1615 of 2019 -10- Drawing as prescribed in the sub-rule, which are not relevant for our consideration. After the amendment of 1987 and introduction of sub-rule (2) in Rule 1, there was an amendment with respect to the qualification prescribed for Specialist Teachers providing SSLC as the minimum qualification as against Standard VI earlier prescribed. But, however, for the high school section, the requirement of qualification of SSLC was available in the KER right from 1972 onwards. Hence, a Specialist Teacher, who is shifted to the High School section should have the minimum qualification of SSLC even before the amendment of 1987. 11. The learned Counsel for the appellant would argue that since Sivan had the qualification as prescribed in the Rule, prior to 1987 for being considered as a Specialist Teacher in the UP section, he is entitled to be interchanged to the High School on the qualification with which he continues W.A No.1615 of 2019 -11- in the UP section for reason of a permanent exemption as available in sub-rule (3) of Rule 1 of Chapter XXXI. 12. We cannot countenance such contention, specially looking at sub-rule (3) of Rule (1), which reads thus:- “(3) Qualified teachers in service in Private Schools as on 30.6.1980 and teachers who have approved qualified service in Private Schools prior to that date shall be, permanently exempted from the requirement of the general educational qualifications prescribed for all teaching posts in Private Primary Schools under sub-rule (2) above, not only in respect of posts held by them but also in respect of promotions to higher posts, provided they have the qualifications prescribed for such higher posts, but for the prescription of the revised minimum general educational qualifications.” Sub Rule (3) of Rule (1) provides an exemption from the minimum qualification brought in by the amendment of 1987. By virtue of this exemption, those who were holding posts with the qualification as prescribed in the KER prior to the amendment of 1987 could continue to hold such posts W.A No.1615 of 2019 -12- for reason of the permanent exemption in sub section (3). They would also be entitled to such permanent exemption in respect of promotions to higher posts provided they have the qualification prescribed for such higher post, but for the prescription of the revised minimum general educational qualifications. Hence, the permanent exemption was only with respect to the revised minimum general educational qualifications brought in by 1987. If SSLC had been a general minimum general educational qualification prescribed for the post of Specialist Teacher in the High School section by 1987, Sivan had a claim to be considered for being interchanged to the High school section. However, even prior to 1987 amendment, the minimum qualification for a Specialist Teacher in the High School section was SSLC. Sivan admittedly did not have that and hence cannot claim any permanent exemption and the claim for permanent W.A No.1615 of 2019 -13- exemption from the minimum general educational qualifications as prescribed in 1987 would not help him to be continued as a Specialist Teacher in the High School Section. He could continue in the U.P. Section though he did not have the qualification as prescribed in 1987. 13. One another anomaly is insofar as Sijin having not challenged the common judgment in Ext.P6, by two appeals filed. As we noticed earlier, Sivan's claim and Sijin's claim were considered together in Ext.P5 judgment by a learned Single Judge. Both Sivan and Sijin were found to be entitled to be continued, one in the High School section and the other in the UP section. The Government filed appeals from both the judgments in the writ petitions which were allowed by Ext.P6, another common judgment. There is also a contention raised that the dictum in Ext.P6 does not apply to the instant case. We, however, are unable to countenance the W.A No.1615 of 2019 -14- said contention, since Ext.P2 order of the Joint Director of Public Instructions specifically found that there could be only one post of Specialist Teacher in the High School section in accordance with the staff strength. Hence, the question of the applicability of the proviso was also up for consideration in the writ petitions filed by Sivan and Sijin. Both the appeals filed by the State were allowed by Ext.P6. When review was attempted, Sijin should have filed a review from both the judgments in appeals. Despite the fact that Sivan had by then retired and had lost interest in the matter, his continuance in the High School would have affected the continuance of Brindakumari. Only on Sivans claim being upheld, could Sijin have a claim to be continued in the U.P section. Further, we also notice that the judgment at Ext.P6 has become final as against Sijin. The review did not leave W.A No.1615 of 2019 -15- open all questions and left open only consideration under a Scheme which was available at the time of disposal of the review, but not at the time when Sijin was kept out on retrenchment. It is not the inclusion in the Scheme that was agitated in the subsequent proceedings by Sijin. Hence, Sijin also cannot take shelter under the order in review, since the the remedy left open to him, was not to agitate the cause which has been finally decided by Ext.P6 judgment. For all the above reasons, we reject the writ appeal, leaving open the parties to suffer their respective costs. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/JUDGE** **V.G.ARUN** Scl/4.09