STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT Vs. HARIMURALI K., LOWER GRADE MUSIC TEACHER, DURGA HIGHER SECONDARY SCHOOL

JUDGEMENT

(1.) The appeal is against the judgment of the learned Single Judge, which directed approval to the appointment of a Music Teacher in the academic year 2009-10 with effect from 8.1.2009. On facts, it is to be noticed that the first respondent herein, who was the petitioner before the learned Single Judge, was appointed as a Music Teacher (Lower Grade) with effect from 8.1.2009, against the vacancy of a Music Teacher, who retired from service on 31.3.2008. There was another Specialist Teacher; a Physical Education Teacher (for brevity referred to as PET), continuing in the school and hence Rule 6B(2) of Chapter XXIII of the Kerala Education Rules ('KER' for brevity) stands against the sanction of such a post, is the specific contention of the Government before this Court.

(2.) The learned Single Judge found that there were two posts of PET's in the school till 1984-85, out of which one was protected and continued along with a Music Teacher. The protected post was abolished consequent to the retirement of the incumbent and the Manager requested for sanction of one post of PET in the U.P Section, despite there existing a Music Teacher in the U.P.Section of the School. The educational authorities consistently found against the sanction of the post, which, however, later by Ext.P3 order, was revised. Though Ext.P3 found that there could be no post of PET permissible in the U.P Section, under Chapter XXIII Rule 6B, because there is already a part time Music Teacher in the U.P. Sec. of the school; the creation of post was allowed invoking Rule 3, Chapter I of the KER, thus, relaxing the rigor of the KER. Now, when the Music Teacher retired and another was sought to be appointed in that post, the educational authorities declined the claim, on the ground that the other person whose continuance was exempted under Rule 3 as per Ext.P3, fulfills the condition in Rule 6B, as it has been amended in 2005.

(3.) The learned Senior Government Pleader would submit that the present Rule 6B came in 2005 and the appointment of the first respondent also occurred after the Rule came into force. Specific reference is made to Rule 6 B(2)(a). Rule 6B(2) is a non-obstante clause, prohibiting continuance of Specialist Teachers in any UP school or UP Sec. of High School, except as provided under subsection (a). Sub-section (a) permitted sanction of posts only if the UP Sec. had an effective strength of 500 pupils; subject to sub-section (b), if there was no other Specialist Teacher in the regular employment of the UP Section. In such circumstances, there could be no appointment made to the respondent School of a Music Teacher when there was continuing a Physical Education Teacher; it is argued.