GOVINDA PILLAI Vs. STATE OF KERALA

JUDGEMENT

(1.) The Original Petition giving rise to this writ appeal was filed by the manager of an aided school and a sewing mistress appointed in the lower primary school of which he was the Manager. In terms of Chap.23 of the Kerala Education Rules sewing mistress is a specialised teacher. Appointment of petitioner No.2 was on 1.6.1987. The post was earlier occupied by one K. Indiramma. Indiramma had continuous service in the school as a sewing mistress from 3.6.1967 onwards. Indiramma retired on 31.3.1987. The educational authority refused to approve the appointment of petitioner No. 2 on the ground that under R.2(3) of Chap.23 of the Kerala Education Rules, no post of specialised teacher could be treated in any lower primary school and what was saved by the proviso to that Rule was only the person who was holding the post of a specialised teacher in a lower primary school before the commencement of the academic year 1969-70. According to the petitioners, what was saved by the proviso to R.2(3) of the Chap.23 of Kerala Education Rules, was a post of specialised teacher that existed prior to the academic year 1969-70 and not merely the incumbent and the post continues to exist notwithstanding the retirement or death of the prior incumbent of the post. This contention raised on behalf of the petitioners was not accepted by this Court originally and this Court following the decision in Krishnankutty v. Commissioner. & Secretary to Government ( 1988 (1) KLT 913 ) dismissed the Original Petition. The Writ Appeal filed by the petitioners against the said judgment was dismissed by the Division Bench by holding that in the light of the decision in Krishnankutty which was binding on the single Judge there was no scope for interference in appeal. The petitioners challenged the decision of the Division Bench in Civil Appeal No. 10409 of 1995 before the Supreme Court. The Supreme Court allowed the appeal and accepted the contention of the petitioners that what was saved by the proviso to R.2(3) of the Chap.23 of Kerala Education Rules, was the post of specialised teacher that existed prior to the academic year 1969-70 and not merely the incumbent occupying such a post. After disagreeing with the view taken by this Court earlier and holding that the post will continue to exist, the Supreme Court remanded the Writ Appeal to this Court for considering whether there were any other Government Orders abolishing such posts. The Supreme Court indicated the scope of enquiry by this Court as follows:

(2.) Though the Supreme Court gave the parties opportunities to file additional pleadings neither of the parties have filed any additional pleadings before us.

(3.) Learned counsel for the appellants, Manager and the Teacher submitted that there were no subsequent Government Orders which abolished such posts and on the interpretation placed on R.2(3) of Chap.23 of the Kerala Education Rules by the Supreme Court in the order of remand, post continues to subsist and no long as the conditions of Chap.23 R.2(2) are satisfied, the post can be filled by the competent teacher and in this case by petitioner No. 2. Counsel therefore submitted that the authorities were bound to approve the appointment of petitioner No. 2 for the concerned academic years. Learned Government Pleader submitted that Ext. P12 order dated 22.8.1989 marked in the Original Petition was a subsequent order abolishing the post. The learned Government Pleader in particular referred to the operative portion of the order reading: