VASUDEVAN PILLA Vs. STATE OF KERALA

JUDGEMENT

(1.) In the connected Writ Appeals filed by a Physical Education Teacher and the Writ Petition filed by the Corporate Management, which employs the teacher concerned, the question raised is one and the same, i.e. whether post of physical education teacher in the high school can be retained by reckoning the periods of physical education in higher secondary section of the high school under the same corporate management. We have heard learned counsel appearing for the teacher, leaned counsel for the Corporate Management and also learned Government Pleader for the respondents.

(2.) The appellant teacher was appointed in a leave vacancy in a School under the Corporate Management in 1993. Later his appointment as physical education teacher got regularised with effect from 06/06/1994. While the appellant was continuing as a physical education teacher in NSS High School, Anikkad, which also has a higher secondary section, the periods of physical education fell below 5, which is the minimum required periods for retaining the post in the School under Rule 6(4) of Chapter XXIII of the Kerala Educational Rules. In fact, admittedly, the periods of physical education fell as low as 4 in a week, which led to abolition of the post in the school with effect from 15/07/2008. The DEO issued an order declaring abolition of the post, which necessarily means that the appellant became a surplus teacher in the school and as a result of this, the Corporate Management, which has several other schools, ought to have retrenched the junior most teacher in physical education and deployed the appellant as a substitute who had as on the date of retrenchment 13 years of service as a regular teacher. Both the appellant and the management challenged the orders of the DEO. While the retrenched teacher requested for redeployment in the School in terms of the decision of the DEO, the management insisted that the School at Anikkad where from the teacher was retrenched is entitled to retain the post of one physical education teacher which is by clubbing the periods in physical education available in the higher secondary school, which is functioning along with the high school under the same management. Reliance was placed by the management on Ext.P4 produced in the WP(C) filed by them, which is a Government Order dated 04/01/1993. What is stated in this order is that up to 4 periods of physical education in higher secondary school will be reckoned for retaining the post of physical education teacher in the high school Going by a plain reading of this order, the management is entitled to have the post of physical education teacher retained because the post got abolished for want of one period in a week, whereas according to the Management higher secondary school has 12 periods in physical education. However, learned Government Pleader appearing for the State and the Educational authorities submitted that Ext.P4 Government Order does not survive because Special Rules for higher secondary education was introduced through Chapter XXXII of the Kerala Educational Rules with effect from 12/11/2001, which does not provide physical education as part of the curriculum for higher secondary schools. The appellant teacher remained neutral to this contention: of the management because in either case, he is entitled to protection.

(3.) We have bestowed our attention to the contention raised by the management. The Management's case will stand only if Ext.P4 order continues to be in force even now. It is a settled position by virtue of the decision of the Supreme Court in M.M. Dolichan and Others v. State of Kerala and others, 2001 AIR(SC) 216 that when special rules are made, administrative orders issued until then, which will stand contrary to the special rules, will stand automatically overruled. The question to be examined is whether the Special Rules admit of validity or relevance for Ext.P4, which provides for retention of the post in physical education in high school by reckoning periods of physical education studies in higher secondary school. In the first place, Ext.P4 will have relevance or application only in the case of a management which has both high school and higher secondary school in the same location, without which clubbing of periods of coaching in a single subject is not possible for the same teacher to teach in both sections of the school. Here again the basic condition is that higher secondary school must have physical education as part of curriculum i.e. the course study. If the special Rules provide for physical education as part of the curriculum fixing periods based on whatever norms the Government considered relevant, then certainly Ext.P4 could be taken as consistent with the special rules that came into force later. However, unfortunately, for the management, teachers and for the student community, the Government in their wisdom decided not to have physical education teaching for students in higher secondary schools. In fact, going by Rule 3 of Chapter XII we notice that as many as 39 subjects are provided for coaching to higher secondary students wherein physical education does not figure at all. So much so, we do not know on what basis the management can contend that periods of physical education of higher secondary school should be reckoned for making up the deficiency of periods in high school in physical education for retaining the post in the higher school. We are of the view that when the Special Rules came into force, Ext.P4 for whatever be the period it applied ceased to exist. So much so, the Government's stand is perfectly justified. The learned Single Judge while disposing of the two WP(C)s, one filed by the management and the other by the teacher, directed the Government to consider the management's case with reference to the Government orders relied on by them. The Government has issued Ext.P23 order on the next day of the judgment wherein it is clearly stated that since no physical education periods are provided for higher secondary schools the notification relied on by the petitioner has no relevance or application, and so long as the special rules do not admit of physical education as part of the curriculum of higher secondary education, the clubbing of periods of high school with higher secondary school does not arise at all. The management has no case that anywhere in Kerala including the Schools under them physical education teachers are appointed in higher secondary school. Therefore, the high school which lost the post of physical education teacher for want of required periods cannot retain the post merely because a higher secondary school under the same management is functioning in the same place and probably in the same premises. We, therefore, see no merit in the WP(C) filed by the management and the same is accordingly dismissed.