W.P.(C) Nos. 5234 & 9912 of 2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **FRIDAY, THE 25TH NOVEMBER 2011 / 4TH AGRAHAYANA 1933** **WP(C).No. 5234 of 2011(D)** **-------------------------------------** **PETITIONER(S):** - **----------------------** **R.VASUDEVAN PILLA, S/O.K.RAGHAVAN PILLA, AMBANATTU SARASWATHY MANDIRAM, PERAYAM, MULAVANA P.O., KOLLAM (PHYSICAL EDUCATION TEACHER, N.S.S. HIGH SCHOOL, ANIKKADU,KOTTAYAM)** **BY ADV. SRI.S.SUBHASH CHAND SRI.T.NIKLAVU SMT.V.AJITHA** **RESPONDENT(S):** **-------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM, - 695001.** **3. THE DEPUTY DIRECTOR (EDUCATION), OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM - 686001.** **4. THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, KOTTAYAM - 686001.** **5. THE GENERAL MANAGER & INSEPCTOR, NSS SCHOOLS, OFFICE OF THE GENERAL MANAGER & INSPECTOR NSS SCHOOLS, PERUNNA P.O., CHANGANASSERY 686001.** **R1 TO R4 BY GOVT. PLEADER SMT.NISHA BOSE ADV. SRI.P.GOPAL FOR R5** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/11/2011, ALONG WITH WPC NO. 9912 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **W.P.(C) NO.5234/2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **P1:- COPY OF THE APPOINTMENT ORDER DTD. 6.6.1994 THUS ISSUED BY RESPONDENT NO.5.** **P2:- COPY OF THE STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 08-09 IN RESPECT OF NSS HS ANIKKAD ISSUED BY RESPONDENT NO.4.** **P3:- COPY OF THE ORDER DT. 17.10.2009 PASSED BY RESPONDENT NO.2.** **P4:- COPY OF THE GOVERNMENT LETTER DTD 1.12.2010 ISSUED BY RESPONDENT NO. 1 TO RESPONDENT NO.5.** ## **P5:- COPY OF THE REPRESENTATION DTD. 24.10.2008 SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.3.** **P6:- COPY OF THE REPRESENTATION DTD. 13.2.2009 THUS SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.2.** ## **P7:- COPY OF THE REPRESENTATION DT.D 21.1.2010.** ## **P8:- COPY OF THE REQUEST TO THE PUBLIC INFORMATION OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, THIRUVALLA.** **P8(a):- COPY OF THE REPLY ISSUED BY THE PUBLIC INFORMATION OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, THIRUVALLA.** **P9:- COPY OF THE DEMAND NOTICE BEARING 1464/10 DTD 13.12.2010 ISSEUD BY THE ASSISTANT REGISTRAR/SALE OFFICER, PARAVUR SNVRC BANK.** ## **RESPONDENT'S EXHIBITS** **R5(a):- COPY OF THE GOVERNMENT ORDER GO(MS) 3/93/G.EDN. DTD. 4.1.1993.** **R5(b);- COPY OF THE SENIORITY LIST OF PHYSICAL EDUCATION TEACHER AS ON 1.1.2011 WORKING IN THE AIDED SCHOOLS UNDER THE MANAGEMENT OF NAIR SERVICE SOCIETY.** **R5(c):- COPY OF THE LETTER DTD. 18.4.2011 OF THE 7TH RESPONDENT TO THE HEADMISTRESS, NSS GIRLS HIGH SCHOOL, PERUNNA.** **TRUE COPY** **P.S. TO JUDGE** **tss** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) Nos. 5234 & 9912 of 2011** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 25th day of November, 2011.** ## **JUDGMENT** These writ petitions are at the instance of the Management of the school as well as the teacher affected. W.P.(C) No.5234/2011 is filed by the petitioner who is a Physical Education Teacher working in NSS High School, Anikkad in Kottayam district under the management of the fifth respondent and W.P.(C) No.9912/2011 is filed by the Management. 2. The dispute originated by the fixation of staff for the academic year 2008-2009 and it continues for later years also. I shall refer to the facts of the case as detailed in W.P.(C) No.9912/2011. Ext.P1 is the staff fixation order for the year 2007-2008. The fifth respondent Physical Education teacher was appointed regularly from 1994 onwards. The school was sanctioned a post of Physical Education Teacher for the academic year 2007-2008. But for the academic year 2008-2009 as per the staff fixation there was a reduction of one division in Standard IX which resulted in the abolition of the post. Ext.P3 is the said order. The management requested to retain the post by addition of four periods in the Higher Secondary school. 3. Appeals and revisions were filed successively by the management, 2 wpc 5234 & 9912/2011 but they ended in rejection. Those orders have been produced as Exts.P5 and P7 and Ext.P10 is the letter issued by the Government, rejecting the revision petition. 4. Learned counsel for the Management mainly relied upon Ext.P12 Government Order by which it was ordered that four periods for Physical Education in the Higher Secondary classes will be reckoned for determining the retention of the existing post of Physical Education Teacher in the school during the staff fixation but not for creation of a new post. While considering the said plea by the management, the Government in Ext.P10 took the view that the said Government Order mandates that the post which existed in the previous year will only be retained reckoning the period available in the Higher Secondary section. The post concerned was not sanctioned in the school for the previous year also and hence it cannot be retained. 5. The documents relating to the succeeding years have also been produced in the writ petition. Ext.P13 is the staff fixation order for the year 2009-2010, Ext.P14 is the appeal filed by the petitioner against Ext.P13 and Ext.P15 is the order passed by the third respondent rejecting the appeal. Ext.P16 is the further revision filed before the second respondent and Ext.P17 is the consequential order from which Ext.P18 revision petition wpc 5234 & 9912/2011 3 was filed before the Government which is said to be pending. 6. For the next academic year, Ext.P19 is the staff fixation order and Ext.P20 is the appeal from it, which stands rejected by Ext.P21 and Ext.P22 is the revision petition pending before the Director of Public Instruction. 7. The Government Order Ext.P10 also directed the Management to accommodate the fifth respondent after retrenching the juniormost teacher in any of the schools under the Corporate Management. 8. In W.P.(C) No.5234/2011 the petitioner contends that he had commenced aided school service on 18.1.1993 in a short term vacancy of Physical Education Teacher in NSS Upper Primary School, Uppada in Malappuram District. This was followed by another short term appointment from 6.6.1993 to 31.5.1994 in another school. He commenced his regular continuous service in NSS Girls High School, Karuvatta with effect from 6.6.1994 onwards. It is his case that since he is one of the seniormost Physical Education Teacher under the Corporate Management, he was entitled to be accommodated in a sanctioned vacancy of Physical Education Teacher in which juniors to him in service were working. It is also stated that the instructions issued by the Department to retrench the juniormost teacher, ought to have been complied with by the Corporate Management. 9. Learned counsel for the petitioner in W.P.(C) No.9912/2011 4 wpc 5234 & 9912/2011 submitted that a wrong assumption was made in Ext.P10 order regarding the applicability of the Government Order Ext.P12, by overlooking the fact that a post was sanctioned for the year 2007-2008 in the school and the fifth respondent was continuing as such. It is therefore submitted that the view taken by the Government cannot be supported. The school is a Higher Secondary school. In the Higher Secondary division, four periods are available. My attention was invited to the details in the reply affidavit, wherein various orders with regard to the Higher Secondary Courses have been produced. Two periods are allotted for Physical Education for each batch as per G.O.(MS) No.145/90/G/Edn. dated 3.7.1990. It is submitted that Ext.P12 is issued for a salutary purpose to retain the existing post of Physical Education Teacher and what is prohibited is creation of a new post. Herein, as the fifth respondent was continuing in a sanctioned post in the year 2007-2008, there will not be creation of a new post at all and therefore by reckoning the periods of the Higher Secondary division also, the post could have been retained. It is submitted that when Physical Education Teachers of the High Schools are engaged for handling classes in standards XI and XII, they will be paid a special allowance of Rs.50/- as evident from Ext.P12 itself. It is pointed out that in respect of NSS Higher Secondary School, Anikkad, the Regional Director Higher Secondary wpc 5234 & 9912/2011 5 Education, in Ext.P27, para 11, has stated about the details of the staff of the High School section who are eligible for Special Allowance and serial No.4 therein is the Physical Education Teacher attached to High School section and the rate of Special Allowance allowed is Rs.50/- per month. It is stated that this is in tune with Ext.P12. It is therefore submitted that the Government may be directed to reconsider the entire matter and as Ext.P12 is applicable, the posts are liable to be sanctioned for the respective years from 2008-2009 onwards. 10. Regarding the above aspect, as directed by this Court learned Government Pleader made available along with a memo, the Government letter referred to in Ext.P12, which was directed to be produced, since it had to be ascertained whether Ext.P12 will apply to aided schools. In fact, the District Educational Officer, in the counter affidavit took the stand that it cannot be followed in aided school. 11. Government Letter No.41760/J3/91/G.Edn. dated 7.1.1992 issued by the General Education (J) Department communicates the minutes of the meeting held on 9.12.1991 by the Minister (Education) with the representatives of Government/Aided School Physical Education Teachers Association and copy has been communicated to the Director of Public Instruction and Director of Higher Secondary Education, among others. wpc 5234 & 9912/2011 6 Among the decisions therein, item (1) is with regard to the creation of post and item (2) is with regard to the protection for teachers who lost the posts for want of sanction. Therein, the relevant paragraph reads thus: “ V V V fyf]W jxaRÕŸv¡¨ yUqƒeU CR¨LsæU AÕ¡RRNkor] yVWPtOWt]¤ WLp]WLÈ|LkWqORa j] qvi] fyVf]WW¥ 500 WOŸ]Wt]sæ IÐ WLqe¾L¤ j]¡¾sL¨]p] ŸOºV. RRzyVWPtOWt]sOU, k}q]pcOW¥ CsæL¾fOoPsU JfLjOU fyVf] WW¥ CR¨LsæU j]¡¾sL¨]p]ŸOºV. pO.k]. RRzyVWP¥ WLp]WLÈ| LkW fyVf]WWRt yUmÌ]\ÿ kOj: kq]SwLijL j]¡SÇw°¥ y¡¨Lq] R£ y^}v kq]Yejp]sLeV. 14&10&88&Rs D¾qv]¤ j¤W] pfOSkLRspOç yT^j|°¥ fOa¡ÐV 91&92 v¡x¾]sOU j¤WeRoÐV j]SvhjW¡ ASkƒ]\ÿO. C¨Lq|°¥ kq]Ye]¨OWpOU, 1990&91&¤ y¡vÿ}y]¤ DºLp]qOÐvqOU, 91&92 &¤ yVãLlV l]WVSyxj]¤ fyVf]W jxVaRÕŸvqOoLp AÕ¡RRNkor]p]RspOU RRzyVWPt]RspOU IsæL WLp]WLÈ|LkW¡¨OU 1991&92 v¡xS¾àV k]q]\ÿOv]as]¤ j]ÐOU yUqƒeU AjOvh]pV¨LRoÐV f}qOoLj]\ÿO. C¾qRoLqO yT^j|U oO¢ RkLq]¨¤ (88&89&¤V) j¤W]p]ŸOºV. (^]. KL.IU.IyV.159/88.................14&10&88). kæyV aP WæLyOWt]¤ WLp]WLÈ|LkW fyVf]W AjOvh]pV¨OvL¢ j]vQ¾]p]sæ. IË]sOU 11, 12 WæLyOWt]SspV¨V AjOvh]\ÿ k}q]pcOW¥ WPa] So¤kr´ v]iU fyVf]W jxVaRÕŸ WLp]WLÈ|LkWqORa fyVf] WW¥ j]s j]rO¾OÐf]jOSvº] oLNfU We¨L¨LvOÐfLeV. kRƒ, CT k]q}pcOW¥ WPa] We¨L¨] KqO kOf]p fyVf]W AjOvh] pV¨OWSpL, kOf]p j]pojU ja¾OWSpL R\áOvL¢ kLa]sæ. RvLS¨xe¤ zp¡ Ry¨¢cr] v]nLY¾]¤ WLp]Wkq]w} sj¾]jLp] y]smô]¤ k]q}pcOW¥ j]ép]\ÿ]Ÿ]sæ. Cf]R£ Bvw| Wf yUmÌ]\ÿV RvLS¨xe¤ zp¡ Ry¨¢cr] cprWVa¡ kq] SwLi]pV¨OÐfLeV.” Such decisions were arrived at after discussion with the representatives of Government/Aided School Physical Education Teachers Association. wpc 5234 & 9912/2011 7 Evidently, aided school teachers are also involved in the matter. In that view of the matter, there cannot be any dispute that Ext.P12 can be made applicable in aided schools also. In fact, as already noted, in Ext.P27 the Director of Higher Secondary Education has ordered a Special Allowance of Rs.50/- as provided in Ext.P12 order, to the Physical Education Teacher of the High School section who is engaged to handle the Physical Education classes in Higher Secondary division. In Higher Secondary Division, no post of Physical Education Teacher has been sanctioned. 12. In that view of the matter, the whole issue will be re-considered by the Government. As rightly pointed out by the learned counsel for the petitioner in W.P.(C) No.9912/2011, the Government in Ext.P10 did not take the view that Ext.P12 is not applicable to aided schools. But the Government erred in assuming that for the previous year, viz. 2007-2008 the post was not sanctioned in the school. The staff fixation order for the year 2007-2008 has been produced as Ext.P1 which is dated 23.7.2007. Therein, the posts sanctioned includes the post of Physical Education Teacher. The fifth respondent Physical Education Teacher was affected only because of the staff fixation for the next year, viz. 2008-2009, which did not sanction the post. Therefore, the said assumption made by the Government in Ext.P12 is not supportable. Hence, the matter will have to wpc 5234 & 9912/2011 8 be reconsidered by the Government after considering various aspects. 13. Learned counsel for the petitioner in W.P.(C) No.5234/2011 submitted that the petitioner being one of the seniormost Physical Education teachers under the Corporate Management, he could have been adjusted to any other school by the Management in the meanwhile. It is submitted that junior teachers are receiving salary. Learned counsel for the Management submitted that Ext.R5(c) letter produced along with the counter affidavit in W.P.(C) No.5234/2011, issued by the District Educational Officer, Kottayam will show that the salary of the juniormost teacher has also been withheld. Therefore, it is submitted that the Management was waiting for a decision in the writ petition and therefore as the matter is to be reconsidered by the Government and as the post is liable to be sanctioned, the petitioner will be entitled to claim all the monetary benefits. 14. Learned counsel for the petitioner in W.P.(C) No.5234/2011 submitted that pending the decision, for this year a proper adjustment may be directed to be made. Since the matter is being remitted to the Government again, it is open to the petitioner to seek for any interim orders during the pendnecy of the revision petition before the Government which will be duly considered by the Government. 15. Learned counsel for the Management submitted that the 9 wpc 5234 & 9912/2011 Government may be directed to consider the matter in the light of the view taken by a Division Bench of this Court in **State of Kerala v. P. Satheeshkumar and another** (2011 (2) KLT 219) also, wherein this Court was of the view that as far as student community is concerned, they should not be denied the training in physical education. 16. A reading of the judgment shows that the said findings have been made while considering the interpretation of Rule 6(4) of Chapter XXIII K.E.R. The relevant portion of the judgment reads as follows: “4. Before parting with the matter, we feel R.6(4) as explained above will work in a discriminatory manner so far as the students of various schools are concerned. Since R.6(4) does not authorize appointment of a single teacher without the minimum period of work for the subjects Physical Education, Music, Craft etc., smaller schools with less number of divisions will not have sufficient periods to employ even a single teacher in any of the specialist subjects, whereas large schools with several divisions would have teachers in all these specialist subjects. The consequence will be that in smaller schools students will not be entitled to the services of a Physical Education Teacher, Music Teacher or a Craft Teacher, whereas the service of such teachers will be available to students of larger schools. In our view, the entire student community should get training in Physical Education, Craft and the like and in order to achieve this, wpc 5234 & 9912/2011 10 Government can probably appoint teachers in these subjects combining the periods of work in different schools. In other words, common teachers can be appointed by combining the periods of work in U.P. Section and High School Section of the same school under the same management or by clubbing periods of work in different schools under different managements but in the same area. Probably with a limited travel the same teacher appointed for different schools could serve all such schools. If this arrangement is made, probably the teachers appointed and whose appointments have been disapproved by educational authorities and upheld by us through this judgment could be given preference in employment as well. If common teachers are appointed to schools coming under different managements, then a dispute may arise as to which school management is entitled to appoint the common teacher. We feel this problem could be sorted out by Government appointing teachers in the Government schools and sending them on working arrangement to the aided schools because so long as Government pays salary, it makes no difference whether the Government school teachers are sent to aided schools where appointments are not allowed for want of required number of period of work of the teachers. Since there is more transparency in the appointment of teachers by Government in Government schools, it would be desirable for the Government to take over the appointment of specialist teachers for aided schools where the schools are not authorised to appoint teachers on account of lack of required period of work. The Government is wpc 5234 & 9912/2011 11 directed to identify the schools where the service of specialist teachers are not available and make appointment of common teachers for such schools so that every school get the facility and the same should be done within a period of three months from the date of receipt of copy of this judgment. Wherever appointments made in violation of the Rules are approved by the educational agency, it is for the Government to recover the salary paid to such teachers from the management concerned for making illegal appointments against the Rules. Further, if the approval is granted in a hurry and against norms, it is for the Government to initiate disciplinary action against the educational authority concerned for perpetuating illegality in the appointments.” This Court was considering the creation of post in U.P. and High School Sections. But the concern expressed by the Bench that the student community should not be deprived of training in physical education and other subjects, is important. Evidently, the post of Physical Education Teacher has not been sanctioned so far in Higher Secondary Schools. Therefore, in schools wherein High School and Higher Secondary School are combined, there will not be any difficulty to implement Ext.P12 order for the purpose of retaining the post of Physical Education Teacher in High School by allowing the said teacher to handle classes in higher secondary school for which Rs.50/- is sanctioned as Special Allowance. This will wpc 5234 & 9912/2011 12 serve the purpose of both High School and Higher Secondary School. As far as the training in Physical Education is concerned, the same is so important for the advancement of the student community, especially in sports and games also. Therefore, the situation could be remedied if Ext.P12 is duly implemented. The above observations made by the Bench can profitably be utilised as far as Higher Secondary divisions are also concerned and the said aspect will also be considered by the Government. 17. Therefore, the order Ext.P10 produced in W.P.(C) No.9912/2011 is quashed. The revision petition filed by the Management, Ext.P8 will be reconsidered in the light of Ext.P12 order and the staff fixation order for the year 2007-2008. The same will be heard along with Ext.P18 revision petition filed by the Management for the year 2009-2010. Ext.P22 is the revision petition pending before the Director of Public Instruction, Thiruvananthapuram with regard to the academic year 2010-2011. Since the Government will have to take a decision, the same will also be called for by the Government for taking a decision in common. 18. Since all matters are to be considered by the Government, W.P. (C) No.5234/2011 is also disposed of in the light of the directions in W.P. (C) NO.9912/2011. 19. The petitioner in W.P.(C) No.9912/2011 will produce all the wpc 5234 & 9912/2011 13 relevant records including the staff fixation orders for the respective years before the Government and the details of the periods sanctioned for the Higher Secondary division. Appropriate orders will be passed after hearing all the parties, within a period of two months from the date of receipt of a copy of this judgment. The writ petitions are disposed of as above. No costs. **(T.R. Ramachandran Nair, Judge.)** ## **kav/**