Kerala High Court
State Of Kerala vs Prasanth M. Kaimal on 23 February, 2021
Equivalent citations: AIRONLINE 2021 KER 421
Author: A.K. Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar, P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE GOPINATH P.
TUESDAY, THE 23RD DAY OF FEBRUARY 2021/4TH PHALGUNA, 1942
W.A.No.1029 OF 2020
AGAINST THE JUDGMENT DATED 23.01.2019 IN W.P(C).NO.31555/2011(T)
OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 1 TO 4 IN W.P.(C):
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 DEPUTY DIRECTOR OF EDUCATION,
ERNAKULAM, PIN-682030.
3 THE ASSISTANT EDUCATIONAL OFFICER,
KOTHAMANGALAM, PIN-686691.
4 THE ACCOUNTANT GENERAL(A AND E),
KERALA, THIRUVANANTHAPURAM, PIN-695001.
BY SRI.A.J.VARGHESE, SR. GOVERNMENT PLEADER
RESPONDENTS/PETITIONERS IN W.P.(C):
1 PRASANTH M. KAIMAL,
SANSKRIT TEACHER (FULL TIME) MUSLIM L.P. SCHOOL,
MYLOOR, PALLARIMANGALAM PO, KOTHAMANGALAM, 686671
[PIN].
2 HAMSA P JUNIOR
URDU TEACHER (FULL TIME), MUSLIM L.P. SCHOOL,
MYLOOR, PALLARIMANGALAM P O, KOTHAMANGALAM,686671
[PIN].
3 THE MANAGER,
MUSLIM L.P. SCHOOL, MYLOOR, PALLARIMANGALAM P O,
KOTHAMANGALAM, 686671 [PIN].
W.A.No.1029/2020 :: 2 ::
R1 BY ADV. SRI.K.JAJU BABU (SR.)
R1 BY ADV. SMT.M.U.VIJAYALAKSHMI
R1 BY ADV. SRI.BRIJESH MOHAN
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.No.1029/2020 :: 3 ::
'C.R.'
JUDGMENT
A.K. Jayasankaran Nambiar, J.
The State Government is in appeal against the judgment dated 23.1.2019 in W.P.(C).No.31555/2011, whereby, a learned Single Judge quashed the order dated 9.11.2011 of the State Government in the General Education Department that decided to abolish the posts of Sanskrit and Urdu teachers sanctioned in the Muslim LP School, Myloor, based on an objection raised by the Accountant General, Thiruvananthapuram. The brief facts necessary for a disposal of the Writ Appeal are as follows:
2. The Muslim LP School, Myloor is an aided School under the administrative jurisdiction of the Assistant Educational Officer [AEO], Kothamangalam. It is not in dispute that the School was granted sanction by the Government to function as an LP School with 5th Standard as well, as a special case. The 5 th Standard was discontinued for a brief period, and it was later restored with effect from the academic year 1994-95. It would appear that the Manager of the School had filed O.P.No.13425/1998, aggrieved by the W.A.No.1029/2020 :: 4 ::
rejection by the educational authorities of his request to sanction a Part Time post of Hindi teacher to the 5th Standard in the School. Pursuant to the directions issued by this Court in the said O.P, a Part Time post of Hindi teacher was sanctioned in the School from the academic year 1997 onwards, as per the Government Order dated 30.6.1999. On the strength of this Government Order, the Manager made a request for sanctioning of Part Time posts of Sanskrit and Urdu teachers to teach in the 5 th Standard of the said School.
Although the said request was initially rejected by the AEO, in an appeal preferred before the Deputy Director of Education, the latter allowed the request by an order dated 30.11.2000, by reckoning four periods each available for these languages in Standard V of the School. Pursuant to the said order, one Part Time post each for Sanskrit and Urdu was allowed by the AEO in the staff fixation order dated 12.9.2001 for the academic year 2001-02. The Manager consequently made appointments of Sri.Prasanth N. Kaimal and Sri.P.Hamsa, as the Part Time Sanskrit teacher and Urdu teacher respectively, against the said posts, and the said appointments were approved by the educational authorities with effect from 28.7.2000 and 25.1.2001 respectively.
3. In subsequent years, the strength of students studying W.A.No.1029/2020 :: 5 ::
Sanskrit and Urdu increased, and accordingly, the aforesaid two teachers were given the full time benefits when they completed five years of service, and it was established that they had eight periods of work per week with effect from 15.7.2006. It was while so that, pursuant to a direction issued by the Government, based on an audit objection, the Deputy Director of Education, vide letter dated 13.10.2009 [Ext.P15], was instructed to abolish the posts of Sanskrit and Urdu teachers sanctioned in the School with immediate effect.
4. The affected teachers Sri.Prasanth N. Kaimal and Sri.P.Hamsa filed W.P.(C).No.33671/2009 against the said direction of the Government, and this Court, after noticing a non-compliance with the rules of natural justice while passing the impugned order, quashed the said order, and directed the Government to pass fresh orders in the matter, in accordance with law, after affording an opportunity of being heard to the Manager of the School as well as the affected teachers. In the proceedings that ensued, the Government passed Ext.P23 order dated 9.11.2011 once again reiterating its stand that the posts of Sanskrit and Urdu teachers in the School could not be allowed to continue. It was the said order that was impugned in the writ petition.
W.A.No.1029/2020 :: 6 ::
5. It is apparent from a reading of Ext.P23 order that the basis for the decision of the Government was the provision in the Kerala Education Rules [hereinafter referred to as the "KER"], which classified an 'LP School with Std.V' as an 'LP School' and not as an 'UP School' [Rule 2(2)(b) of Chapter II of the KER]. It was observed therefore that inasmuch as there was no provision under the Rules to sanction a post of language teacher in an LP School, going by Rule 6(1) of Chapter XXIII KER, and a language teacher could only be sanctioned in a UP School, there was no enabling provision under the KER that permitted the sanctioning of a post of language teacher in the petitioners school, which, as already noticed, is an LP School with a 5th Standard permitted to function therein as per a Government Order.
6. The learned Single Judge, who considered the matter, observed that a post that had been sanctioned in the School and had been worked for a long number of years could not be suddenly abolished more so when there was no fraud or misrepresentation established either on the part of the affected teachers or the Manager of the School. The learned Judge found that if the sanctioning of posts by the Deputy Director of Education was indeed in violation of any Government Order, then the authorities W.A.No.1029/2020 :: 7 ::
have ought to have acted immediately to set right the irregularity. Notice was also taken of the fact that the incumbents to the Part Time posts that were sanctioned in the School were also given full time benefits which clearly indicated that there was sufficient student strength in the School to accommodate the said two posts. The learned Judge went on to observe that in public appointments, certainty of tenure is an important factor, and teachers whose service had been approved and had been continuing in service for a long time could not be thrown out merely on account of an irregularity committed by the Deputy Director of Education. The order impugned in the writ petition was accordingly set aside, and the teachers were held entitled to the service benefits for the period of service rendered against the said posts.
7. Before us, it is the contention of the learned Government Pleader, based on Ext.P23 order impugned in the writ petition, that the Deputy Director of Education had sanctioned the Part Time posts of Sanskrit and Urdu teachers in the School taking note of the sanction earlier given by the Government to a Part Time post of Hindi Teacher in the School. It is his contention that the sanctioning of the Part Time post of Hindi teacher to teach in the 5 th Standard of the LP School was inevitable, since Hindi is a W.A.No.1029/2020 :: 8 ::
compulsory language to be taught in the 5 th Standard. He would argue therefore that the Deputy Director of Education was not justified in adopting the same logic for sanctioning the Part Time posts of Sanskrit and Urdu teachers since the sanctioning of such language teachers other than a teacher of a compulsory language could only be in the UP School as mandated under the KER. The impugned order of the Government is sought to be justified on the said reasoning.
8. We have given our anxious consideration to the submissions advanced by the learned Government Pleader. It is, no doubt, true that under Chapter II Rule 2 of the KER, Schools for General Education are broadly classified as 'Primary' and 'Secondary'. The Rule further stipulates that the first seven standards shall be collectively known as 'Primary Grade' and shall be further sub-divided into two sections, of which, Standards I to IV shall form 'Lower Primary Section' and Standards V to VII, the 'Upper Primary Section'. Rule 2(2)(b) of Chapter II, while defining an 'Upper Primary Section' clarifies that it does not include existing Lower Primary Schools where Standard V is retained by the special sanction of the Government.
W.A.No.1029/2020 :: 9 ::
9. It would appear from a reading of Rule 2, therefore, that while the broad sub division of a Primary School is twofold as 'Lower Primary School' and an 'Upper Primary School', the Rule does recognise a third category of Lower Primary Schools wherein Standard V is retained by special sanction of the Government. Such schools are treated as an 'LP Schools' solely on account of a statutory legal fiction. The question that assumes relevance, however, is the curriculum that should be followed while imparting instructions to students in the 5th Standard in such LP Schools. In our view, in the matter of determining the curriculum, the number of posts to be sanctioned, the nature of the posts to be sanctioned etc, there cannot be any distinction drawn between a 5 th Standard that forms part of an LP School and one that forms part of an UP School. This is more so because, in the matter of imparting instructions to Students of 5th Standard, the statutory classification between UP School and LP School is irrelevant. If the Student strength and the educational need noticed in the 5th Standard in an LP School demands the sanctioning of posts, either Part Time or Full Time, of language teachers, then such posts would necessarily have to be sanctioned in the school, notwithstanding that the enabling provisions under the KER, permits the sanctioning of language teachers only in UP Schools. To interpret the provision otherwise, W.A.No.1029/2020 :: 10 ::
would lead to an incongruous and unconstitutional result of depriving Students studying in 5th Standard of an LP School, to which sanction has been accorded by the Government to include a 5th Standard, of the benefits of staff fixation and consequential imparting of instructions in the languages concerned. It is trite that an interpretation that leads to an unconstitutional result is to eschewed.
10. We are therefore of the view that the order of the Deputy Director of Education that sanctioned the additional posts of Part Time teachers in Sanskrit and Urdu in the School, as early as in 2000, based on the student strength and the number of periods taught in the said subjects, cannot be seen as illegal. We, therefore, see no reason to interfere with the judgment of the learned Single Judge that rightly set aside Ext.P23 order that was impugned in the writ petition.
11. Before parting with this case, we might also observe that we have only upheld the judgment of the learned Single Judge to the extent it set aside the impugned order on merits, and nothing in the judgment of the learned Single Judge or in this judgment shall be seen as authorizing the continuation of teachers concerned in the W.A.No.1029/2020 :: 11 ::
petitioner School if the student strength or the number of periods taught by them do not justify the retention of such posts in the School. That is a matter for the educational authorities to examine while completing the staff fixation on a yearly basis.
In the result, for the reasons stated in the impugned judgment, as supplemented by the reasons given in this judgment, the impugned judgment is upheld, and the Writ Appeal is dismissed.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE Sd/-
GOPINATH P. JUDGE prp/24/2/21