W.P.(C) Nos. 31132 of 2009, 35308 of 2014 & 16351 of 2021, High Court of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` MONDAY, THE 10[TH] DAY OF OCTOBER 2022 / 18TH ASWINA, 1944 WP(C) NO. 31132 OF 2009 ``` ## **`PETITIONER:`** ``` V.P.BEENA ``` ``` MUSIC TEACHER,MATTANNUR HIGHER SECONDARY SCHOOL,, P.O.MATTANNUR-670 702,KANNUR DISTRICT. BY ADV SRI.KALEESWARAM RAJ ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT,, DEPARTMENT OF GENERAL EDUCATION,, KERALA GOVERNMENT SECRETARIAT,, THIRUVANANTHAPURAM.` - `2 THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY,THIRUVANANTHAPURAM.` - `3 THE DEPUTY DIRECTOR OF EDUCATION KANNUR.` - `4 THE DISTRICT EDUCATIONAL OFFICER THALASSERY.` - `5 THE MANAGER MATTANNUR HIGHER SECONDARY SCHOOL,, P.O.MATTANNUR-670 702.` - `6 MR.C.K.SREEJITH DRAWING TEACHER,MATTANNUR HIGHER SECONDARY, SCHOOL,P.O.MATTANNUR-670 702 BY ADVS. SRI.CIBI THOMAS SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL SRI.K.V.PAVITHRAN` ## **`OTHER PRESENT:`** ``` 0 GP K.M FAISAL ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ``` ``` ON 10.10.2022, ALONG WITH WP(C).16351/2021, 35308/2014, THE ``` **2** ## **W.P.(C).Nos.31132 of 2009, 35308 of 2014** **& 16351 of 2021** ``` COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C).Nos.31132 of 2009, 35308 of 2014 & 16351 of 2021** **3** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 10[TH] DAY OF OCTOBER 2022 / 18TH ASWINA, 1944 WP(C) NO. 16351 OF 2021`** ## **`PETITIONER:`** ``` MANAGER, MATTANNUR HIGHER SECONDARY SCHOOL MATTANNUR, KANNUR DISTRICT-670702, SIVADAS.K.T, S/O.LATE P.M.GOPALAN NAMBIAR, 'SALILAM', AYYALOOR, SIVAPURAM, KANNUR DISTRICT-670702. BY ADV POOVAMULLE PARAMBIL ABDULKAREEM ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2THE DIRECTOR OF GENERAL EDUCATION, OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695014. 3THE DEPUTY DIRECTOR OF EDUCATION OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, KANNUR-670002. 4THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, THALASSERY-670101. 5V.P.BEENA, MUSIC TEACHER, MATTANNUR HIGH SCHOOL, MATTANNUR, KANNUR DISTRICT-670702. 6HEAD MASTER, MATTANUR HIGH SCHOOL, MATTANNUR, KANNUR DISTRICT-670702. BY SRI.K.M.FAISAL, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.10.2022, ALONG WITH WP(C).31132/2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C).Nos.31132 of 2009, 35308 of 2014 & 16351 of 2021** **4** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 10[TH] DAY OF OCTOBER 2022 / 18TH ASWINA, 1944 ``` ## **`WP(C) NO. 35308 OF 2014`** ## **`PETITIONER:`** ``` V.P.BEENA AGED 44 YEARS W/O. A.K.VIJAYAN, MUSIC TEACHER, MATTANJUR HIGHER SECONDARY SCHOOL, P.O.MATTANJUR - 670 702, KANNUR DISTRICT, RESIDING AT ANANADAM, KADIRUR, THALASSERRY, KANNUR DISTRICT. BY ADV SRI.KALEESWARAM RAJ ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.` - `2 THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM - 585 001.` - `3 THE DEPUTY DIRECTOR OF EDUCATION KANNUR.` - `4 THE DISTRICT EDUCATIONAL OFFICER THALASSERY.` - `5 THE MANAGER MATTANHUR HIGHER SECONDARY SCHOOL, P.O MATTANNUR - 670 702.` - `6 MR.C.K.SREEJITH DRAWING TEACHER, MATTANNUR HIGHER SECONDARY SCHOOL, P.O.MATTANNUR - 670 702. BY ADVS. SRI.K.M.FAISAL, GOVERNMENT PLEADER POOVAMULLE PARAMBIL ABDULKAREEM SRI.CIBI THOMAS` **W.P.(C).Nos.31132 of 2009, 35308 of 2014 & 16351 of 2021** **5** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.10.2022, ALONG WITH WP(C).31132/2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C).Nos.31132 of 2009, 35308 of 2014 & 16351 of 2021** **6** ## **P.V.KUNHIKRISHNAN, J.** **-------------------------------W.P.(C).Nos.31132 of 2009, 35308 of 2014 & 16351 of 2021** **---------------------------------------------Dated this the 10[th] day of October, 2022** ## **JUDGMENT** These three writ petitions are connected and therefore, I am disposing these three writ petitions by a common judgment. 2. The issue involved in these writ petitions is regarding the approval of appointment of a music teacher. Petitioner in W.P.(C). Nos.31132/2009 and 35308/2014 is the music teacher. The petitioner in W.P.(C). No.16351/2021 is the Manager of the school in which the music teacher is working. I will narrate the facts in W.P.(C). No.16351/2021, which is the latest writ petition. 3. The petitioner is the manager of Mattannur Higher Secondary School. According to the petitioner, from the academic year 2006-07 onwards the petitioner submits proposals for sanction of music post in UP Section of the school. According to the petitioner, the total effective strength of pupils exceeds more than 500. However the proposal **7** ## **W.P.(C).Nos.31132 of 2009, 35308 of 2014 & 16351 of 2021** submitted by the petitioner was not considered by the 4[th] respondent and the post of music was also not sanctioned due to the economic ban on creation of new post. Though economic ban imposed by the 1[st] respondent was lifted by issuing G.O.(P).No.10/10/G.Edn dated 12.01.2010 and the petitioner executed an affidavit in terms of the above said Government Order, the post of music was not sanctioned even in the revised staff fixation order. Though the petitioner filed appeal and revision before the higher authorities, the same was also not properly considered is the contention of the petitioner. Hence,the petitioner was constrained to approach the 1[st] respondent by filing Ext.P13 revision petition dated 10.02.2020 for creation and sanction of music post in UP Section of the school. However, Ext.P13 was rejected by Ext.P15 order. According to the petitioner, Rule 6B(2)(a) Chapter XXIII KER provides one post of specialist teacher, either music teacher or physical education teacher or drawing teacher or swing teacher as decided by the educational officer concerned during staff fixation in the case of departmental schools and as required by the manager in the case of aided **8** ## **W.P.(C).Nos.31132 of 2009, 35308 of 2014 & 16351 of 2021** schools in each Upper Primary School of Upper Primary Section of a high school with an effective strength of 500 pupils above in the complete Upper Primary Section on the 6[th] working day of each academic year. According to the petitioner, going by this rule, a post of music should be sanctioned in UP section of the school especially when there is no other specialist teacher working in Upper Primary Section. It is submitted that even though the post of music teacher was subsequently approved, the same was not given effect from the date of her original appointment. It is stated that Ext.P15 order is unsustainable. 4. W.P.(C). Nos.31132/2009 and 35308/2014 are filed by the music teacher who was appointed with effect from 2005 onwards. It will be better to extract the prayers in these two writ petitions. ## W.P.(C). Nos.31132/2009: - i. To issue a writ of certiorari quashing Exhibits P2, P4, P6 and P8 as unjust, erroneous, illegal and unsustainable. - ii. To issue a writ of mandamus directing the respondents 1 to 4 to approve the appointment of the petitioner as Music Teacher in Mattannur **9** ## **W.P.(C).Nos.31132 of 2009, 35308 of 2014 & 16351 of 2021** Higher Secondary School under the 5th respondent with effect from 27/01/2005. - iii. To declare that the petitioner is entitled to get her appointment approved as Music Teacher in Mattannur Higher Secondary School under the 5[th] respondent with effect from 27/01/2005. - iv. To grant such other reliefs as this Honourable Court may deem fit and proper. (SIC) ## W.P.(C). No.35308/2014: - i. To issue a writ of certiorari quashing Exhibit P7 and P9 as unjust, illegal and arbitrary. - ii. To declare that the Petitioner is entitled to get appointment as Music Teacher in the U.P.Section approved with effect from 27.1.2005 or 1.6.2006. - iii. To issue a writ of mandamus directing the respondents to pass orders approving the appointment of the Petitioner as Music Teacher in the U.P.Section of 5[th] respondent's school either with effect from 27.1.2005 or with effect from 1.6.2006. - iv. To issue a writ of mandamus directing the respondents to disburse the salary due to the Petitioner with arrears from either 27.1.2005 or 1.6.2006 onwards. - v. To issue such other orders, directions or writs as may be prayed for and that this Hon'ble Court **W.P.(C).Nos.31132 of 2009, 35308 of 2014 & 16351 of 2021** **10** may deem fit on the facts and circumstances of the case. **==> picture [39 x 13] intentionally omitted <==** 5. Heard the learned counsel for the petitioners and the learned Government Pleader. 6. A perusal of Ext.P15 order in W.P.(C). No.16351/2021 will not show that the contention of the petitioners to the effect that Mr.Sreejith who is the teacher mentioned in Ext.P15 was actually accommodated in the High School Section and he is now working as a regular teacher and therefore, Ms.V.P.Beena who is actually accommodated in U.P.Section is to be approved from the date of her original appointment is considered. It is also contended that there are more than 500 students available in the school. Hence it submitted that a music teacher post is available from 2007 onwards in the school. This point is not considered in Ext.P15 order. In such circumstances, according to me, Ext.P15 in W.P. (C). No.16351/2021 and the impugned orders in W.P.(C). Nos.31132/2009 and 35308/2014 can be quashed and the matter can be remitted back to the Government for fresh consideration after hearing all the parties. **11** ## **W.P.(C).Nos.31132 of 2009, 35308 of 2014 & 16351 of 2021** Therefore, these writ petitions are disposed of in the following manner: 1. Ext.P15 in W.P.(C). No.16351/2021 is quashed and the 1[st] respondent is directed to reconsider Ext.P13, after affording an opportunity of hearing to the petitioners in these writ petitions, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. 2. The impugned orders in W.P.(C). Nos.31132/2009 and 35308/2014 are quashed to facilitate the Government to pass fresh orders as directed above. JV Sd/- **P.V.KUNHIKRISHNAN JUDGE** **W.P.(C).Nos.31132 of 2009, 35308 of 2014 & 16351 of 2021** **12** ## **`APPENDIX OF WP(C) 16351/2021`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE PROPOSAL DATED 12/06/2006 FOR THE FIXATION OF STAFF SUBMITTED BY THE PETITIONER. ``` - `Exhibit P2 TRUE COPY OF THE STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2006-07 DATED 20/11/2006` - `Exhibit P3 TRUE COPY OF THE STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2007-08 DATED 30/11/2007.` - `Exhibit P4 TRUE COPY OF THE STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2008-09 DATED 26/3/2009.` - `Exhibit P5 TRUE COPY OF THE STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2010-11 DATED 29/3/2011` - `Exhibit P6 TRUE COPY OF THE APPEAL PETITION DATED 21/01/2008 SUBMITTED BY THE PETITIONER` - `Exhibit P7 TRUE COPY OF THE BOND EXECUTED BY THE PETITIONER ON 02/08/2011.` - `Exhibit P8 TRUE COPY OF THE REVISED STAFF FIXATION ORDER 7/11/2011 ISSUED BY THE 4TH RESPONDENT` - `Exhibit P9 TRUE COPY OF THE REPRESENTATION DATED SUBMITTED BY THE PETITIONER` - `Exhibit P10 TRUE COPY OF THE CERTIFICATE DATED 10/1/2012 ISSUED BY THE 5TH RESPONDENT` - `Exhibit P11 TRUE COPY OF THE REQUEST DATED 01/02/2012 SUBMITTED BY THE PETITIONER` - `Exhibit P12 TRUE COPY OF THE ORDER NO. B1/14995/16/K.DIS. DATED 28/2/2017 ISSUED BY THE 3RD RESPONDENT.` - `Exhibit P13 TRUE COPY OF THE REVISION PETITION DATED 10/2/2020 SUBMITTED BY THE PETITIONER` - `Exhibit P14 TRUE COPY OF THE JUDGMENT DATED` **13** ## **W.P.(C).Nos.31132 of 2009, 35308 of 2014** **& 16351 of 2021** ``` 04/03/2020 IN WP(C) NO.6507/2020 ISSUED BY THIS HON'BLE COURT Exhibit P15TRUE COPY OF THE G.O (RT) NO.3326/2021/G.EDN. DATED 09/07/2021 ISSUED BY THE 1ST RESPONDENT ``` **W.P.(C).Nos.31132 of 2009, 35308 of 2014 & 16351 of 2021** **14** ## **`APPENDIX OF WP(C) 35308/2014`** ``` PETITIONER EXHIBITS ``` ``` P1 - TRUE COPY OF THE APPOINTMENT ORDER DT. 27.1.05. ``` ``` P2 - TRUE COPY OF THE ORDER DT. 07.3.05. ``` ``` P3 - TRUE COPY OF THE INTERIM ORDER DT. 29.2.12 IN WPC NO. 31132/09. ``` ``` P4 - TRUE COPY OF G.O(P) NO. 116/2012/G.EDN/ DT. 12.4.12. ``` ``` P5 - TRUE COPY OF THE REVISION PETITION SUBMITTED BY THE MANAGER BEFORE THE 1ST RESPONDENT. ``` ``` P6 - TRUE COPY OFTHE REPRESENTATION DT. 256.10.12 SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE CHIEF MINISTER. ``` ``` P7 - TRUE COPY OF G.O(P) NO. 693/2014/G.EDN DTY. 11.2.14. ``` ``` P8 - TRUE COPY OF THE REVISION PETITION DT. 17.3.14 SUBMITTED BY THE MANAGER BEFORE THE 1ST RESPONDENT. P9 - TRUE COPY OF THE LETTER DT. 21.5.14. ``` **W.P.(C).Nos.31132 of 2009, 35308 of 2014 & 16351 of 2021** **15** ## **`APPENDIX OF WP(C) 31132/2009`** |`PETITIONER EXHIBITS`|`PETITIONER EXHIBITS`| |---|---| |`Exhibit P1`|`COPY OF APPOINTMENT ORDER DATED`| ||`27/01/05.`| |`Exhibit P2`|`COPY OF ORDER NO.B4-2496/2005/K.DIS.`| ||`DATED 07/03/2005 ISSUED BY THE 4TH`| ||`RESPONDENT.`| |`Exhibit P3`|`COPY OF APPEAL DT.12/4/2005 SUBMITTED`| ||`BY THE PETITIONER BEFORE THE D.D.E.,`| ||`KANNUR.`| |`Exhibit P4`|`COPY OF ORDER NO B1-8333/05/KDIC.`| ||`DT.22/08/2005 ISSUED BY THE D.D.E.`| ||`KANNUR.`| |`Exhibit P5`|`COPY OF APPEAL DT.06/09/05 SUBMITTED`| ||`BY THE MANAGER BEFORE THE DPI.`| |`Exhibit P6`|`COPY OF ORDER NO.EM3/41129/05/K.DIS.`| ||`DATED 13/12/2005 ISSUED BY THE DPI.`| |`Exhibit P7`|`COPY OF REPRESENTATION DT.22/4/05`| ||`SUBMITTED BEFORE THE HON'BLE EDUCATION`| ||`MINISTER.`| |`Exhibit P8`|`COPY OF ORDER NO.31269/K2/2007/G.EDN.`| ||`DATED 31/01/2008.`| |`Exhibit P9`|`COPY OF INTIMATION`| ||`NO.18351/K2/06/G.EDN DATED 03/05/2006.`| |`Exhibit P10`|`COPY OF G.O.(RT) NO.4506/2004/G.EDN.`| ||`DATED 15/10/2004.`|