BABU Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner was appointed as a Part Time Physical Education Teacher in the Raman Memorial Teachers Training Institute (RMTTI), Vaikkathur in Malappuram District with effect from 10.1.1996. His appointment as a Part Time Physical Education Teacher was also approved by the Education Authority. Another Physical Education Teacher, the 3rd respondent, was also appointed in the A.U.P School, Vaikkathur, another school under the management of the 4th respondent, with effect from 5.8.1996. When the appointment of the 3rd respondent was sent up for approval before the Education Authorities, the approval was denied citing the provisions of R.6B of Chapter XXIII of the K.E.R. which contemplates that there cannot be more than one sanctioned post of Specialist Teacher in an Upper Primary School or an Upper Primary Section of the High School. It was found that insofar as there was already a Specialist Teacher, namely Smt. Chandrika, who was working as a Needle Work Teacher, there was no post to which the 3rd respondent could have been accommodated. While matters stood thus by Ext.P1 Government order dated 4.10.2004, the Government, taking note of the peculiar problems faced by 46 Physical Education Teachers, directed the absorption of the said Physical Education Teachers in the various Schools by creating supernumerary posts in the said Schools subject to the condition that those supernumerary posts that were created in the Schools would cease to exist when the post was vacated by the incumbent for whom it was created. The 3rd respondent also obtained benefit of this Government order and was accordingly absorbed as a Physical Education Teacher against the supernumerary post that was created in the School under the 4th respondent management. This resulted in a situation where the petitioner, who was appointed with effect from 10.1.1996 in another School under the management of the 4th respondent, was now working along with the 3rd respondent who was his junior but was working against a full time post. The petitioner, therefore, approached the Government with a view to rectify the anomaly. By Ext.P2 order dated 7.8.2007, the 1st respondent allowed the 3rd respondent to continue in the supernumerary post and directed the appointment of the petitioner to the vacancy of Full Time Physical Education Teacher, that resulted consequent to the retirement of Smt. Chandrika, with effect from 30.4.2007. The appointment of the petitioner against this vacancy was also approved by the 2nd respondent by Ext.P3 order dated 17.3.2008. Thus the position as on March, 2008 was that the A.U.P. School, Vaikkathur under the management of the 4th respondent had two Physical Education Teachers i.e., two Specialist Teachers, one holding a supernumerary post and the other a regular sanctioned post. The 4th respondent Manager, assuming that the continuation of two Physical Education Teachers in the School was irregular and not in accordance with the provisions of the K.E.R., approached the 1st respondent with a request for the creation of a post of Physical Education Teacher in A.M.U.P. School, Vengad, yet another School under the management of the 4th respondent. There was also a request to shift the petitioner from the A.U.P. School, Vaikkathur to A.M.U.P. School, Vengad to the new post that was proposed and to shift the existing teacher working in A.M.U.P. School, Vengad to A.U.P School, Vaikkathur in the retirement vacancy of Smt. Chandrika. The request of the 4th respondent was not acceded to by the 1st respondent who went on to hold that the 3rd respondent who was working as a Physical Education Teacher at the A.U.P. School, Vaikkathur had to be transferred to RMTTI where there was a Part Time post of Physical Education Teacher that was already sanctioned. This apparently was after taking note of Rule 6B of Chapter XXIII and on the assumption that there were two Physical Education Teachers continuing in the School against one sanctioned post. Aggrieved by Ext.P4 order of the 1st respondent, to the extent it directed his transfer from the School, the 3rd respondent approached the 1st respondent with a Review Petition. The said Review Petition was heard by the 1st respondent after affording an opportunity of hearing to the petitioner and the Manager, and thereafter, the 1st respondent passed Ext.P7 order wherein he directed the retention of the 3rd respondent in the School and found that the petitioner had to be transferred to the RMTTI against the sanctioned Part Time post of Physical Education Teacher in that School. Ext.P7 order of the 1st respondent has been impugned in this Writ Petition, inter alia, on the grounds that (i) the said order was passed in gross violation of the rules of natural justice in that the petitioner was not given an effective opportunity of hearing, (ii) that the order was passed by the subsequent incumbent in the office of the 1st respondent whereas the hearing had been conducted by the predecessor in office, and (iii) that there was no way in which the directions in Ext.P7 could now be implemented, owing to a change in the management of the RMTTI, which was earlier under the 4th respondent's management but now under the management of the 4th respondent's daughter.

(2.) Counter affidavits have been filed on behalf of the 2nd respondent, the 3rd respondent teacher and the 4th respondent Manager. The counter affidavits seek to justify Ext.P7 order passed by the 1st respondent by pointing out that in the full time post of Physical Education Teacher the 3rd respondent was Senior to the petitioner and hence if there was a direction to transfer one among the Physical Education Teachers to another school, in view of R.6B of Chapter XXIII of K.E.R., then the petitioner, as the junior among the two teachers, had necessarily to be transferred.

(3.) I have heard Sri. K. Mohanakannan, the learned counsel appearing on behalf of the petitioner, Sri. M.R. Anison and Sri. Syam Kumar, counsel for respondents 3 and 4 respectively and the learned Government Pleader appearing on behalf of the 1st and 2nd respondents. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I am of the view that Exts.P4 and P7 orders proceed on an erroneous appreciation of the facts that obtained in the instant case. As has already been noted, the appointment of the 3rd respondent in the School pursuant to Ext.P1 Government Order dated 4.10.2004, was to a supernumerary post that was created only to accommodate him. The said post was created in order to overcome the objection raised by the Educational Authority against his appointment as Full Time Physical Education Teacher in the A.U.P. School, Vaikkathur at a time when there was already a Specialist Teacher, Smt. Chandrika who was continuing as a teacher in that School. The provisions of Rule 6B of Chapter XXIII of the K.E.R. clearly mandate mat there cannot be more than one Specialist Teacher in an U.P. School or the U.P. Section of a High School. It was faced with this situation, in many schools, that the Government thought it fit to issue Ext.P1 order to accommodate those teachers, including the 3rd respondent, who were faced with similar problems, by permitting the creation of supernumerary posts. The posts being supernumerary posts, did not reflect in the staff fixation orders which dealt only with sanctioned posts of teachers. The petitioner, was appointed in the same School against a regular sanctioned post of Physical Education Teacher, which arose consequent to the retirement of Smt. Chandrika with effect from 30.4.2007. Thus the two Physical Education Teachers namely, the petitioner and the 3rd respondent, who continued in the School from 2007, were holding a regular sanctioned post and supernumerary post respectively. Under these circumstances, there appears to have been no necessity, for the 4th respondent Manager to have approached the 1st respondent with a request for sanctioning a new post of Physical Education Teacher in A.M.U.P. School, Vengad where there was no regular sanctioned post of a Specialist Teacher. In fact, the records would show that such an attempt was made by the Manager only to accommodate one of the two teachers, in the A.U.P School, Vaikkathur, to the proposed post at the A.M.U.P. School, Vengad. The findings in Ext.P4 order of the 1st respondent and Ext.P7 order of the 1st respondent in review, all proceed on the assumption that the continuance of both, the petitioner and the 3rd respondent, as Physical Education Teachers in the A.U.P School, Vaikkathur, was in some manner contrary to the provisions of Rule 6B(2)(b) of Chapter XXIII of the K.E.R. I am of the view that insofar as the continuation of the 3rd respondent was against a supernumerary post, and not a regular sanctioned post, the 3rd respondent cannot be treated as a Physical Education Teacher appointed to a sanctioned post for the purposes of the aforementioned . As per the staff fixation orders pertaining to the School in question, and against the strength of sanctioned posts of Physical Education Teachers, there is only one Specialist Teacher, namely the petitioner herein, who is currently continuing in the said School. In that view of the matter, the continuance of both the petitioner as well as the 3rd respondent as Physical Education Teachers in the A.U.P. School, Vaikkathur cannot, on the face of it, be seen as violative of the provisions of the K.E.R.