STATE OF KERALA Vs. SATHEESHKUMAR

JUDGEMENT

(1.) The question arising in this batch of cases wherein nine are Writ Appeals filed by the State against judgment reported in , 2009 (3) KLT 439 of the learned Single Judge, is on the scope and meaning of Rule 6(4) of Chap. XXIII of the Kerala Education Rules which provides for appointment of teachers in Physical Education, Drawing, Music and Sewing in High Schools in the Aided sector. The learned Single Judge held that irrespective of number of periods available in a High School, every school is entitled to appoint a full time Physical Education Teacher and a Music Teacher. The case of the State is that under the second proviso to Rule 6(4) a teacher in the specialist subject can be appointed only if there are a minimum of 5 periods of work for the concerned subject in the school. Similarly according to the State, under the third proviso to the said Rule, in order to appoint a second teacher in Music or Drawing both falling under Art Group or in the Craft Group which covers sewing and needle work, there should be more than 25 periods of work under each Group in the school. The teachers involved in these cases are teachers whose appointments by the management were disapproved for the reason that the minimum period of work is not available in the school under the second proviso or that the school does not have more than 25 periods in the Group concerned for appointment of second teacher which are the requirements of provisos 2 and 3 of Rule 6(4). Even though the provisos support the case of the State, the learned Single Judge ignored the provisos by holding that main provisions will prevail over provisos and accordingly upheld the claim of the teachers and the managements that neither minimumperiod is required for appointment of a teacher in the specialist subject nor is there any requirement of more than 25 periods for appointment of a second teacher in the Art and Craft Groups. It is against this judgment the Writ Appeals are filed. We have heard Government Pleader appearing for the State/Appellants in the Writ Appeals, counsel appearing for the teachers and the managements involved.

(2.) Since the controversy is on the interpretation of Rule 6(4) of Chapter XXIII of K.E.R. wherein Rule 7 is also referred, we extract hereunder the said provisions for easy reference:

(3.) Before considering the scope of the Rule, we feel atleast the facts of the main case i.e. W.A. No. 2679/2009 should be stated with reference to which the scope of the Rule has to be considered. In that case, the school had three teachers, one in Physical Education, one in Drawing and the other in Music. While Physical Education is an independent subject under the specialist category, Music and Drawing constitute a single Group called the Arts Group. The Drawing Teacher who was in the school, retired on 31.5.2000. Soon after retirement, the management appointed a teacher as Drawing Teacher on 5.6.2002 and sought for approval of his appointment. However, vide Ext.P1 dated 20.8.2000 produced in the W.P. (C) the District Education Officer fixed the staff strength of the school wherein the post of the Craft Teacher stands abolished for the reason that under Ext.P5 Government Order dated 28.10.1995 the number of periods required for appointment of a second teacher in the Craft Group should be above 25. Admittedly under the norms for fixing curriculum, the periods available in the Craft subject in the school was only 15 periods and for Arts, the number of periods available in the school is 20. Since the school had already a teacher in Music which falls within the Art Group, a second teacher in the Art Group cannot be appointed under the third proviso to Rule 6(4) as the number of periods available is only 15, whereas the minimum periods for appointment of a second teacher in the Art Group under the said proviso is above 25. The appointment of a second Drawing Teacher in the Art Group in violation of the third proviso to Rule 6(4) was rejected by the Educational authority. Even though successive appeals were filed before the statutory authorities and ultimately a revision before the Government, all the petitions filed by the teacher concerned was rejected and the last order issued by the Government is the revisional order issued by the Government, produced as Ext.P4 in W.P. (C) No. 23531/2008. One fact that requires mention at this stage is about Ext.P5 Government Order issued on 28.10.1995, which was declared invalid by Ext.P6 judgment of this Court. However, the position covered by the said Government Order is introduced in the last proviso to Rule 6(4) with retrospective effect from the date of Government Order cancelled by the court i.e., 28.10.1995 and, therefore, Ext.P6 judgment is got over through amendment of the Rule. The case against the teacher was decided based on the last proviso to Rule 6(4). It is against this the teacher filed W.P. (C) which was allowed by the learned Single Judge holding that the proviso cannot control the main Clause (a) wherein it is stated that every school is entitled to have a Physical Education Teacher as well as Drawing Teacher irrespective of number of periods of work per week in each of the concerned subjects.