State of Kerala v. Harimurali K. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY ,THE 01ST DAY OF APRIL 2019 / 11TH CHAITHRA, 1941** ## **WA.No. 1529 of 2015** **JUDGMENT IN WPC 15800/2011 of HIGH COURT OF KERALA DATED 26-08-2014** ## **APPELLANTS/RESPONDENTS 1 TO 4 IN WP(C):** - **1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANATHAPURAM.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM, PIN-695 001.** - **3 THE DEPUTY DIRECTOR OF EDUCATION, KASARAGOD, PIN-671001.** - **4 THE DIRECT EDUCATIONAL OFFICER, KANHANGAD, KASARAGOD DISTRICT, PIN- 671 315.** **SRI A.J VARGHESE SR GP** ## **RESPONDENT/PETITIONER & 5TH RESPONDENT IN WP(C):** - **1 HARIMURALI K., LOWER GRADE MUSIC TEACHER, DURGA HIGHER SECONDARY SCHOOL, KANHANGAD, KASARAGOD DISTRICT - 673 123.** - **2 THE HEADMASTER DURGA HIGHER SECONDARY SCHOOL, KANHANGAD, KASARAGOD DISTRICT-673123.** W.A.No.1529 of 2015 -2- * **3 MANAGER DURGA HIGHER SECONDARY SCHOOL, KANHANGAD, KASARAGOD DISTRICT-673123.** **BY ADVS. SMT.K.A.SANJEETHA SRI.ANEESH JOSEPH SRI.JOHN THITHEEMOS SRI.M.RAMESH CHANDER (SR.)** **ADDL.R3 IS IMPLEADED AS PER ORDER DATED 27.7.2016 IN I.A.866/2016.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** W.A.No.1529 of 2015 -3- **“CR”** ## **JUDGMENT** ## **K.VINOD CHANDRAN, J.** The appeal is against the judgment of the learned Single Judge, which directed approval to the appointment of a Music Teacher in the academic year 2009-10 with effect from 8.1.2009. On facts, it is to be noticed that the first respondent herein, who was the petitioner before the learned Single Judge, was appointed as a Music Teacher (Lower Grade) with effect from 8.1.2009, against the vacancy of a Music Teacher, who retired from service on 31.3.2008. There was another Specialist Teacher; a Physical Education Teacher (for brevity referred to as PET), continuing in the school and hence Rule 6B(2) of Chapter XXIII of the Kerala Education Rules ('KER' for brevity) stands against the sanction of such a post, is the specific contention of the W.A.No.1529 of 2015 -4- ## Government before this Court. 2. The learned Single Judge found that there were two posts of PET's in the school till 1984-85, out of which one was protected and continued along with a Music Teacher. The protected post was abolished consequent to the retirement of the incumbent and the Manager requested for sanction of one post of PET in the U.P Section, despite there existing a Music Teacher in the U.P.Section of the School. The educational authorities consistently found against the sanction of the post, which, however, later by Ext.P3 order, was revised. Though Ext.P3 found that there could be no post of PET permissible in the U.P Section, under Chapter XXIII Rule 6B, because there is already a part time Music Teacher in the U.P. Section of the school; the creation of post was allowed invoking Rule 3, Chapter I of the KER, thus, relaxing the rigor of the KER. Now, when the Music W.A.No.1529 of 2015 -5- Teacher retired and another was sought to be appointed in that post, the educational authorities declined the claim, on the ground that the other person whose continuance was exempted under Rule 3 as per Ext.P3, fulfills the condition in Rule 6B, as it has been amended in 2005. 3. The learned Senior Government Pleader would submit that the present Rule 6B came in 2005 and the appointment of the first respondent also occurred after the Rule came into force. Specific reference is made to Rule 6 B(2)(a). Rule 6B(2) is a non-obstante clause, prohibiting continuance of Specialist Teachers in any UP school or UP Section of High School, except as provided under subsection (a). Sub-section (a) permitted sanction of posts only if the UP Section had an effective strength of 500 pupils; subject to sub-section (b), if there was no other Specialist Teacher in the regular employment of the UP Section. In W.A.No.1529 of 2015 -6- such circumstances, there could be no appointment made to the respondent School of a Music Teacher when there was continuing a Physical Education Teacher; it is argued. 4. The learned Counsel appearing for the first respondent relies on **Babu A.C v. State of Kerala and others [2014 (4) KLT 33]** , wherein a similar situation was considered and an exemption granted under Rule 3, was held to be creation of a supernumerary post. Rule 6B(2) before and after amendment in 2005, was similar and there could be no difference found in the words employed in the said provision. It is hence contended that even the invocation of Rule 3 for the continuance of PET in 1986-87, has to be deemed to be a supernumerary post created; which would not hamper the regular appointment when a vacancy arose thereunder. 5. We notice _**Babu A.C**_ to be in not similar W.A.No.1529 of 2015 -7- circumstance, but a creation of a supernumerary post to be continued only till the retirement of a particular person. Therein the third respondent's appointment as a PET was not approved since there was a Needle Work Teacher, another Specialist Teacher, working in the school. By a Government order dated 4.10.2004, the Government, taking note of the peculiar problems faced by 46 Physical Education Teachers, directed their absorption to the various posts by creating supernumerary posts, subject to the condition that such post would be abolished on the vacation of that post by the incumbents. The third respondent therein was absorbed as a PET against the supernumerary post and there was one another PET against a full time post, in the school, the petitioner therein, continuing along with the third respondent, an admitted junior. The issue arising in the said case was whether the petitioner had to be shifted to W.A.No.1529 of 2015 -8- another school for the purpose of continuing the third respondent. The learned Single Judge found that the third respondent had been appointed in a supernumerary post at a time when there was already a Specialist Teacher in that school. This supernumerary post was created only to accommodate that respondent and to overcome the objection raised by the educational authority against his appointment as full time PET. The supernumerary post would not be reflected in the staff fixation orders, which deals with only the sanctioned posts of teachers as permitted by the KER. Hence, on the retirement of the Needle Work Teacher with effect from 30.4.2007, the continuance of the two Physical Education Teachers, were proper; since one is in the regular post and the other in a supernumerary post, created by the Government. The present case in fact stands on a still better footing, since here the Government has W.A.No.1529 of 2015 -9- created an additional post of PET, in the school, which would not be abolished even when the present incumbent retires. 6. Here, as the learned Single Judge noticed, at the time when a Music Teacher was continuing, there was no post of PET available in the school, for reason of there being one Specialist Teacher; a Music Teacher continuing in the L.P School in a regular post. The Government, invoking Rule 3, created a post of PET, quite contrary to the specifications in the KER and such post was not specifically stated to be supernumerary. The educational authorities had refused to approve the appointment of the PET and the Government at the revisional stage created a post of PET, not permissible under Rule 6B(2); but invoking Rule 3 Chapter I of the KER. It has to be noticed with emphasis that Ext P-3 order specifically created the post of PET in the school, in addition to the post of Specialist Teacher permitted under KER. The W.A.No.1529 of 2015 -10- regular post as permitted under the KER has to be necessarily continued and the same cannot be abolished on retirement of that Specialist Teacher merely because there is another Specialist Teacher continuing in the additional post created by the Government invoking its special powers. 7. In this context, we notice Rule 6B(2) as it existed before and after amendment, which are identically worded. Before amendment, Rule 6B(1) specifically prohibited creation of any post of Specialist Teacher or Craft Teacher for a period of 6 years from the school year 1969-70. Rule 6B (1) as it exists now, allows continuance of only Specialist or Craft Teachers in UP schools and UP Section of the High School, who are actually holding the said post on 6.3.1979. Sub-rule (1) of Rule 6B has no relevance in this case. The relevant Rule 6B(2) continues as such. Sub-section (2) again prohibits continuance of post of Specialist Teacher in UP W.A.No.1529 of 2015 -11- Schools and UP Section of High Schools, unless as specified therein. Sub-section (a) provides for a Specialist Teacher being a Music Teacher or a Physical Education Teacher or a Drawing Teacher or a Sewing Teacher as decided by the Educational Officer during staff fixation; only if there is an effective strength of 500 pupils in the UP section of the School. Sub-section (b) also prohibits such creation of posts, when there is another Specialist Teacher. 8. Read together Rule 6B(2) seeks to confine and continue the post of Specialist Teacher to one, irrespective of the subject and abolish any additional post available on the retirement of such incumbent. Hence when the Music Teacher was continuing and one protected PET retired, there could have been no appointment to the post of PET, or the same approved. A specialist teacher could then have been appointed only on the retirement of the Music Teacher. W.A.No.1529 of 2015 -12- However, on the request of the Manager an additional post of PET was created under Rule 3 Chapter I of KER. In _**Babu A.C** ,_ when the earlier 6B (2) identically worded was in force, continuation of a PET on a supernumerary post was permitted. A bit differently, here a post of PET was created invoking Rule 3; in the absence of a provision for sanction of the post as the Rules existed in the KER. In such circumstances, continuance of a person in that post would not have any effect in making an appointment to the regular post as available in the staff fixation order. 9. There is also a contention raised by the learned Government Pleader that when there is a supernumerary post and there is retirement of a regular hand, the person continuing in the supernumerary post, will be adjusted to the regular post. We cannot countenance the said contention raised, since even if it is a supernumerary post, it is created W.A.No.1529 of 2015 -13- till the vacation of the office of the incumbent and it has been created in addition to the regular post for the purpose of accommodating a particular person and by invoking the special powers conferred on the Government under Rule 3. Here the Government had not created a supernumerary post but had created an additional post of PET. 10. We see from the staff fixation order for the year 2008-09, that the post of Music Teacher was abolished only for the reason that there was a PET continued on the basis of creation of a post made under Rule 3. The post of PET is one created additionally to the post of Specialist Teacher allowed in the UP Section of the school as permitted by the KER. The educational authority cannot act in supersession of the powers exercised by the Government in creating an additional post and accommodate the incumbent in that post to the regular post available. In such circumstances, we are W.A.No.1529 of 2015 -14- of the opinion that the staff fixation orders have to be reworked continuing the post of Specialist Teacher and treating the first respondent to be appointed to that regular post. The PET would be continued in the additional post created under Rule 3. On the aforesaid grounds, we reject the writ appeal and affirm the judgment of the learned Single Judge. Parties left to suffer their respective costs. Before we leave the matter, we cannot, but, observe that the present state of affairs has been occasioned only by the indiscriminate invocation of the special powers conferred, without a thought on the consequences. When the Government has brought in provisions to confine the appointment of Specialist Teachers to one post in the U.P. Section of the aided schools, the Government itself has, by invocation of Rule 3, diverted from the essential object sought to be achieved to reduce the financial commitment W.A.No.1529 of 2015 -15- and made appointments in violation of its avowed policy as reflected in the subordinate legislation. This gives rise to unnecessary litigation before this Court and results in Teachers being continued in supernumerary posts or additional posts resulting in excessive financial commitment to the Government itself. We would have expected any responsible Government to act with more circumspection while invoking Rule 3 Chapter-I of KER. Sd/- **K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** Scl/2.04 W.A.No.1529 of 2015 -16- ## **APPENDIX** ## **APPELLANT'S EXHIBITS: NIL** **RESPONDENT'S EXHIBITS:** **ANNEXURE R3(A): COPY OF THE LETTER ISSUED BY THE MANAGER TO THE DISTRICT EDUCATIONAL OFFICER DATED 16.9.2015.** **ANNEXURE R3(B): COPY OF MEMORANDUM OF APPEAL FILED BY MANAGER, DURGA HIGHER SECONDARY SCHOOL, KANHANGAD BEFORE THE DEPUTY DIRECTOR OF EDUCATION, KASARAGOD.** **ANNEXURE R3(C): TRUE COPY OF THE REPLY BY MANAGER TO THE DISTRICT EDUCATIONAL OFFICER, KANHANGAD DATED 17.5.2016.**