Kerala High Court
The Manager vs The State Of Kerala on 5 March, 2019
Author: V.G.Arun
Bench: K.Vinod Chandran, V.G.Arun
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 05TH DAY OF MARCH 2019 / 14TH PHALGUNA, 1940
WA.No. 2172 of 2018
JUDGMENT IN WP(C) 41279/2017 of HIGH COURT OF KERALA DATED
3.10.2018
APPELLANT/PETITIONER:
THE MANAGER, EMJAY VOCATIONAL HIGHER SECONDARY
SCHOOL, VILLIAPPALLY, KOZHIKODE DISTRICT,
673542.
BY ADV. SRI.V.A.MUHAMMED
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT
ANNEXE II, THIRUVANANTHAPURAM 695001
2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION,
HOUSING BOARD BUILDING, SANTHI NAGAR,
THIRUVANANTHAPURAM-695001.
3 THE REGIONAL DEPUTY DIRECTOR OF HIGHER
SECONDARY EDUCATION, CIVIL STATION,
KOZHIKODE-673020.
SR.G.P. SRI.A.J.VARGHESE
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
05.03.2019, ALONG WITH WA.2297/2018, THE COURT ON THE SAME
DAY PASSED THE FOLLOWING:
W.A.Nos.2172 &2297/2018
2
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 05TH DAY OF MARCH 2019 / 14TH PHALGUNA, 1940
WA.No. 2297 of 2018
JUDGMENT IN WP(C) 39302/2017 of HIGH COURT OF KERALA DATED 3.10.2018
APPELLANT/PETITIONER:
THE MANAGER,MOONNIYUR HIGHER SECONDARY SCHOOL,
TIRURANGADI, MALAPPURAM DISTRICT
BY ADVS.
SRI.V.A.MUHAMMED
SRI.M.SAJJAD
RESPONDENT/S:
1 THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT
ANNEXE-II, THIRUVANANTHAPURAM- 695001.
2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION,
HOUSING BOARD BUILDING, SANTHI NAGAR,
THIRUVANANTHAPURAM- 695001.
3 THE REGIONAL DEPUTY DIRECTOR OF HIGHER
SECONDARY EDUCATION, CIVIL STATION, B2 BLOCK,
MALAPPURAM- 676505.
OTHER PRESENT:
SRI A.J VARGHESE SR GP
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
05.03.2019, ALONG WITH WA.2172/2018, THE COURT ON THE SAME
DAY PASSED THE FOLLOWING:
W.A.Nos.2172 &2297/2018
3
JUDGMENT
V.G.ARUN, J.
These writ appeals are filed by the managers of aided Vocational Higher Secondary Schools, aggrieved by the common judgment by which the challenge in their writ petitions against Ext.P3 Government order was set at naught. The contention in the writ petitions was that Rules 1(d) and
(e) of Chapter XXXII KER had prescribed the workload for HSST and HSST (Junior) and that the Government had, vide Ext.P2 Government order, prescribed the norms for sanctioning additional post of Higher Secondary School Teacher (Junior) when there are one or more Higher Secondary School Teachers in a particular subject in a school. The prescription under Ext.P2 G.O is as follows:
"3. Government after examining the matter are pleased to issue the following norms for sanctioning an additional post of Higher Secondary School Teacher (Junior) when there are one or more W.A.Nos.2172 &2297/2018 4 Higher Secondary School Teacher in a particular subject in a Higher Secondary School:-
Numbers of Higher Minimum number of
Secondary School Teacher excess periods per week
post in a particular subject required for appointing a
existing in a HSS HSST (Junior) in the
concerned Subject.
One HSST 3
Two HSST 6
More than 2 HSST 9
Government also clarify that periods below the minimum level as indicated above shall be handled by the existing Higher Secondary School Teacher/Higher Secondary School Teachers."
2. Later, the Government issued Ext.P3 order modifying Ext.P2 to the effect that additional HSST (Junior) posts would be granted only if there are 7 or more periods in a particular subject, above the maximum of 25 periods prescribed for a Higher Secondary School Teacher. In Ext.P3, it is stated that if the additional periods is 6 or less, the management can appoint Guest Teachers for those periods for one or two days in a week. The appellants challenged Ext.P3 on the ground that the Government, by the impugned order, is W.A.Nos.2172 &2297/2018 5 attempting to amend Chapter XXXII Rule 1 (a) & (b) through an executive order. The appellants contended that there was no valid reason for modifying Ext.P2 order. It was contended that if HSST (Junior) post is sanctioned for the additional three periods, that does not mean that the junior teacher need to handle those three periods alone. It was contended that the total periods would be bifurcated and allotted in such a way that the maximum period of HSST (Junior) would not be more than 14 periods per week and the minimum period for the HSST, not less than 15 periods per week.
3. In their counter filed before the learned Single Judge, the respondents sought to justify Ext.P3 order, pointing out that the duration of periods in Higher Secondary Schools is 40 minutes and the maximum workload of HSST (Junior) being 14 periods per week, would work out to only 10.5 hours in a week, which will be approximately 2 hours a day. W.A.Nos.2172 &2297/2018 6 Likewise, the maximum of 25 periods in a week prescribed for HSST would work out to an average of about 2.5 to 3.5 hours in a day. It was also submitted that if an HSST (Junior) is appointed for the additional three periods, as proposed in Ext.P2 order, the workload of teachers so appointed will be only 27 minutes a day, for which the Government will have to dole out monthly salary in the pay scale Rs. 32300 to 68700, thereby expending huge amounts from the public exchequer. It was further stated that considering the aforementioned aspects, a policy decision was taken by the Government to permit appointment of Guest Teachers in those schools, where the excess periods are between 1 to 6. Along with the statements, Exts.R1(c) and (d) were produced, which are the guidelines for selection and appointment of Guest Teachers.
4. After considering the rival contentions and documents, the learned Single Judge held that in the absence W.A.Nos.2172 &2297/2018 7 of any statutory provision, the Government can very well exercise its executive power to regulate creation of post and that the manner in which the excess period is to be dealt with is a matter falling within the province of the Government. Based on the said findings, the writ petitions were dismissed.
5. The learned counsel for the appellants contended that Ext.P1 was issued on the wrong premise that HSST (Junior) appointed on the basis of Ext.P2 would be taking classes only for the excess periods. It was contended that, as a matter of fact, the total workload would be so adjusted between the existing HSST and the newly appointed HSST (Junior), that the periods above the minimum prescribed for HSST would be shared between the HSST and the HSST (Junior). It was also contended that there is no provision under the Kerala Education Act and Rules for appointment of Guest Teachers and that such stipulation in Ext.P3 would pave W.A.Nos.2172 &2297/2018 8 way for appointment of teachers other than HSST and HSST (Junior), which are the approved posts. The learned Government Pleader countered the arguments and contended that the reason as to why the Government had issued Ext.P3 has been stated in that order itself. It was also contended that the reasoning adopted by the learned Single Judge for repelling the challenge against Ext.P3 does not warrant interference.
6. Rule 1(d) of Chapter XXXII KER defines a Higher Secondary School Teacher as a Higher Secondary School Teacher in an aided School whose workload is 15 or more periods per week per subject. Rule 1(e) of Chapter XXXII defines Higher Secondary School Teacher (Junior) as a Higher Secondary School Teacher in an aided School whose workload is less than 15 periods per week per subject. The definition of Higher Secondary School Teacher reveals that the W.A.Nos.2172 &2297/2018 9 prescription thereunder is only with respect to the minimum periods per week per subject, which is fixed as 15 periods per week. The maximum periods for HSST was fixed as 25. By Ext.P2, the Government issued norms for sanctioning additional posts of HSST (Junior). The minimum number of excess period required for appointing HSST in the concerned subject was fixed as 3, 6 and 9 respectively depending on whether the school had one, two or more than two HSST. Later, the Government issued Ext.P3 modifying Ext.P2 wherein it is stated that instead of three periods, the requirement for appointment of a HSST (Junior) would be a minimum of seven excess periods. The reason for modification has been stated in Ext.P3 itself. It is stated in Ext.P3 that the duration of a period in Higher Secondary classes is less than 45 minutes. If a HSST (junior) is appointed for three excess periods, that would lead to a situation where a W.A.Nos.2172 &2297/2018 10 teacher would be appointed for taking classes for 2¼ hours in a week. Thus, in a school having only five working days, the workload of the HSST (Junior) would be only 27 minutes in a day. After considering those aspects the Government came to the conclusion that the norm prescribed in Ext.P2 was neither practical nor logical. We are of the definite opinion that Ext.P3 is based on sound and acceptable reasons. The contention that the HSST (Junior) appointed on the basis of Ext.P2 would share the workload of the existing HSST is not a contention that can be countenanced in a writ petition filed under Article 226 and therefore, the learned Single Judge was justified in rejecting that contention. It has to be borne in mind that the appointment of additional junior HSST is for the benefit of the students and is not for the purpose of providing an opportunity for effecting appointment to the managements or to adjust the workload of the existing HSST. No right of the W.A.Nos.2172 &2297/2018 11 appellants, let alone any fundamental right, has been violated by the issuance of Ext.P3. We find that Ext.P3 does not violate any provision of the Kerala Education Act and Rules. In such circumstances, the learned Single Judge had rightly repelled the challenge against Ext.P3 and dismissed the writ petitions. We do not find any sustainable reason to interfere with the impugned judgment and consequently, these writ appeals are dismissed.
Sd/-
K. VINOD CHANDRAN JUDGE Sd/-
V.G.ARUN JUDGE Scl/6.3 W.A.Nos.2172 &2297/2018 12 APPENDIX OF WA 2172/2018 PETITIONER'S/S EXHIBITS:
ANNEXURE I TRUE COPY OF THE
G.O(MS)NO.351/2004/G.EDN.DATED
20.11.2004 OF THE GOVERNMENT.
APPENDIX OF WA 2297/2018
PETITIONER'S/S EXHIBITS:
ANNEXURE 1 TRUE COPY OF THE G.O.
(MS.)NO.351/2004/G.EDN. DATED
20.11.2004 OF THE GOVERNMENT.