Kerala High Court
K.T.Phalgunan Kunjammathoduvayil vs State Of Kerala on 28 June, 2002
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
MONDAY, THE 27TH DAY OF NOVEMBER 2017 / 6TH AGRAHAYANA, 1939
WP(C).No. 8879 of 2010
PETITIONER:
K.T.PHALGUNAN KUNJAMMATHODUVAYIL,
PHYSICAL EDUCATION TEACHER, KADATHANAD RAJA'S, HIGH
SCHOOL, PURAMERI, VADAKARA, KOZHIKODE DIST.
BY ADVS.SRI.ELVIN PETER P.J.
SMT.POOJA SURENDRAN
RESPONDENT(S):
1. STATE OF KERALA, REPERSENTED BY THE
SECRETARY TO GOVERNMENT, GENERAL EDUCATION,
DEPARTMENT, GOVERNMENT SECRETARIAT,,
THIRUVANANTHAPURAM.
2. THE DIRECTOR OF PUBLIC INSTRUCTION
THIRUVANANTHAPURAM.
3. THE DEPUTY DIRECTOR OF EDUCATION
KOZHIKODE.
4. THE DISTRICT EDUCATIONAL OFFICER
VADAKARA, KOZHIKODE DIST.
5. THE MANAGER, KADATHANAD RAJA'S HIGH
SCHOOL PURAMERI, VADAKARA, KOZHIKODE DIST.
6. N.K.MURALLEDHARAN, PHYSICAL EDUCATION
TEACHER, KADATHANAD RAJA'S HIGH SCHOOL PURAMERI,,
VADAKARA, KOZHIKODE DIST.
R1 TO R4 BY GOVERNMENT PLEADER SRI.RON BASTIAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-11-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PBS
WP(C).No. 8879 of 2010
APPENDIX
PETITIONER'S EXHIBITS
EXT.P1 TRUE COPY OF THE ORDER, G.O.DT.23-4-1991 ISSUED BY THE GOVERNMENT.
EXT.P2 TRUE COPY OF THE APPOINTMENT ORDER DT.15.1.1997 OF THE PETITIONER'S
EXT.P3 TRUE COPY OF THE APPOINTMENT ORDER DT.12.2.2000 OF THE PETITIONER.
EXT.P4 TRUE COPY OF THE APPOINTMENT ORDER DT.1.6.2005 OF THE PETITIONER.
EXT.P5 TRUE COPY OF THE STAFF FIXATION ORDER DT.29.7.2005 ISSUED BY THE DEO,
VADAKARA.
EXT.P6 TRUE COPY OF THE ORDER DT.2.2.2006 ISSUED BY THE DEO, VADAKARA.
EXT.P7 TRUE COPY OF THE ORDER DT.28.3.2006 ISSUED BY THE DEO, VADAKARA.
EXT.P8 TRUE COPY OF THE ORDER DT.6.12.2008 ISSUED BY THE 2ND RESPONDENT, DPI.
EXT.P9 TRUE COPY OF THE ORDER G.O. DATED 28.6.2002 ISSUED BY THE GOVERNMENT.
EXT.P10 TRUE COPY OF THE ORDER, G.O. DATED 26.7.1999 ISSUED BY THE GOVT.
EXT.P11 TRUE COPY OF THE ORDER, G.O.DATED 8.2.2010 ISSUED BY THE GOVERNMENT.
EXT.P12 TRUE COPY OF THE JUDGMENT DT.17.2.09 IN W.P.(C) NO. 26797/2008 OF THIS
HON.COURT.
EXT.P13 TRUE COPY OF THE AMENDMENT TO THE RULE ISSUED AS PER G.O DATED
6.10.2008.
RESPONDENT'S EXHIBITS NIL
/TRUE COPY/
PA TO JUDGE
PBS
A.MUHAMED MUSTAQUE, J.
=========================
W.P.(C).No.8879/2010
~~~~~~~~~~~~~~~~~~~~~~~~~
Dated this the 27th day of November, 2017
J U D G M E N T
The petitioner was appointed as a Physical Education Teacher in the High School section of Kadathanad Rajan's High School on 1/6/2005 in a retirement vacancy that occurred on 31/5/2005. The appointment was approved. Later, this approval was sought to be cancelled stating that the sixth respondent, another Physical Education Teacher working in Upper Primary section was found to be excess as the Upper Primary section did not had the effective strength of 500 pupils as referred in Rule 6B(2)(a) of Chapter XXIII of the Kerala Education Rules, 1959 (KER for short). As seen from Rule 6B(2)(a), the post of Physical Education Teacher in the Upper Primary School or the Upper Primary section of a High School can be retained only if there is an excess strength of 500 pupils or more. However, the sub-rule (1) of Rule 6B states that those qualified teachers, who were actually holding the said post as on 6/3/1979 can be saved. The sixth respondent was appointed in the Upper Primary WPC 8879/2010 -:2:- section only on 10/1/1985. The proviso to Rule 6B(1) states that Specialist Teachers appointed in the Upper Primary Schools or Upper Primary sections of High Schools after 6/3/1979 and before 22/8/1989 can be permitted to continue as such till their retirement, resignation, death or transfer. That means, such class of Specialist Teachers, who were appointed between 6/3/1979 and before 22/8/1989 can be permitted to continue in their posts till their resignation or occurrence of any events referred in the said proviso. In the light of the above, there may not be any difficulty to the sixth respondent to continue as his appointment was much before August 1989. It is taking note of this, the manager appointed the petitioner in the retirement vacancy in High School section. I need not elaborate the legal issue involved in this matter. In fact, a Single Bench of this Court had considered the legal aspects involved in a similar issue and by Exhibit P12 judgment at paragraph (9) held thus:
"9. The provisions dealing with fixation of staff strength in departmental and aided schools are those contained in Chapter XXIII of the KER. Rule 2 of Chapter XXIII of the KER stipulates that notwithstanding anything contained in any other rule of Chapter XXIII, no post of Specialist WPC 8879/2010 -:3:- Teacher shall be allowed to continue in any Lower Primary School or Lower Primary Section of Upper Primary or High School, except for the continuance of the qualified teachers who were actually holding the post on the Sixth day of March, 1979. The proviso to rule 2 of Chapter XXIII, however, stipulates that the Specialist Teachers appointed in Lower Primary Schools or Lower Primary Sections of Upper Primary Schools or High Schools after the Sixth day of March, 1979 and whose appointments were approved shall be allowed to continue as such till their retirement, resignation, death or transfer and that the posts of the Specialist Teachers shall be allowed to continue for their such continuance till they vacate the posts. Rule 2 of Chapter XXIII of the KER does not in my opinion apply to Specialist Teachers working in the High School sections of schools. It applies only to Specialist Teachers in Lower Primary Schools or Lower Primary Sections of Upper Primary Schools and High Schools. Therefore, relying on rule 2 of Chapter XXIII of the KER, the appointment of the petitioner as Drawing Teacher in the High School section of GVHS, Koovappady cannot be said to be illegal."
The sixth respondent is enjoying the protection of proviso to Rule 6B(1) of Chapter XXIII KER, certainly, the petitioner need not be disturbed as the appointment is legal and valid. The impugned order WPC 8879/2010 -:4:- is therefore, set aside.
The writ petition is disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE ms