State Of Kerala vs State Of Kerala
2021 Latest Caselaw 6411 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR.JUSTICE A.K.JAYASANKARAN NAMBIAR
                                   &
                 THE HONOURABLE MR.JUSTICE GOPINATH P.

    TUESDAY, THE 23RD DAY OF FEBRUARY 2021/4TH PHALGUNA, 1942

                         W.A.No.1029 OF 2020

AGAINST THE JUDGMENT DATED 23.01.2019 IN W.P(C).NO.31555/2011(T)
                    OF HIGH COURT OF KERALA

APPELLANTS/RESPONDENTS 1 TO 4 IN W.P.(C):

      1        STATE OF KERALA
               REPRESENTED BY THE SECRETARY TO GOVERNMENT,
               GENERAL EDUCATION DEPARTMENT, GOVERNMENT
               SECRETARIAT, THIRUVANANTHAPURAM-695001.

      2        DEPUTY DIRECTOR OF EDUCATION,
               ERNAKULAM, PIN-682030.

      3        THE ASSISTANT EDUCATIONAL OFFICER,
               KOTHAMANGALAM, PIN-686691.

      4        THE ACCOUNTANT GENERAL(A AND E),
               KERALA, THIRUVANANTHAPURAM, PIN-695001.

               BY SRI.A.J.VARGHESE, SR. GOVERNMENT PLEADER

RESPONDENTS/PETITIONERS IN W.P.(C):

      1        PRASANTH M. KAIMAL,
               SANSKRIT TEACHER (FULL TIME) MUSLIM L.P. SCHOOL,
               MYLOOR, PALLARIMANGALAM PO, KOTHAMANGALAM, 686671
               [PIN].

      2        HAMSA P JUNIOR
               URDU TEACHER (FULL TIME), MUSLIM L.P. SCHOOL,
               MYLOOR, PALLARIMANGALAM P O, KOTHAMANGALAM,686671
               [PIN].

      3        THE MANAGER,
               MUSLIM L.P. SCHOOL, MYLOOR, PALLARIMANGALAM P O,
               KOTHAMANGALAM, 686671 [PIN].
 W.A.No.1029/2020                    :: 2 ::




                   R1 BY ADV. SRI.K.JAJU BABU (SR.)
                   R1 BY ADV. SMT.M.U.VIJAYALAKSHMI
                   R1 BY ADV. SRI.BRIJESH MOHAN

      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
 23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
 FOLLOWING:
 W.A.No.1029/2020                    :: 3 ::




                                                              'C.R.'

                              JUDGMENT

A.K. Jayasankaran Nambiar, J.

The State Government is in appeal against the judgment

dated 23.1.2019 in W.P.(C).No.31555/2011, whereby, a learned

Single Judge quashed the order dated 9.11.2011 of the State

Government in the General Education Department that decided to

abolish the posts of Sanskrit and Urdu teachers sanctioned in the

Muslim LP School, Myloor, based on an objection raised by the

Accountant General, Thiruvananthapuram. The brief facts

necessary for a disposal of the Writ Appeal are as follows:

2. The Muslim LP School, Myloor is an aided School under

the administrative jurisdiction of the Assistant Educational Officer

[AEO], Kothamangalam. It is not in dispute that the School was

granted sanction by the Government to function as an LP School

with 5th Standard as well, as a special case. The 5 th Standard was

discontinued for a brief period, and it was later restored with effect

from the academic year 1994-95. It would appear that the Manager

of the School had filed O.P.No.13425/1998, aggrieved by the W.A.No.1029/2020 :: 4 ::

rejection by the educational authorities of his request to sanction a

Part Time post of Hindi teacher to the 5th Standard in the School.

Pursuant to the directions issued by this Court in the said O.P, a Part

Time post of Hindi teacher was sanctioned in the School from the

academic year 1997 onwards, as per the Government Order dated

30.6.1999. On the strength of this Government Order, the Manager

made a request for sanctioning of Part Time posts of Sanskrit and

Urdu teachers to teach in the 5 th Standard of the said School.

Although the said request was initially rejected by the AEO, in an

appeal preferred before the Deputy Director of Education, the latter

allowed the request by an order dated 30.11.2000, by reckoning

four periods each available for these languages in Standard V of the

School. Pursuant to the said order, one Part Time post each for

Sanskrit and Urdu was allowed by the AEO in the staff fixation order

dated 12.9.2001 for the academic year 2001-02. The Manager

consequently made appointments of Sri.Prasanth N. Kaimal and

Sri.P.Hamsa, as the Part Time Sanskrit teacher and Urdu teacher

respectively, against the said posts, and the said appointments were

approved by the educational authorities with effect from 28.7.2000

and 25.1.2001 respectively.

3. In subsequent years, the strength of students studying W.A.No.1029/2020 :: 5 ::

Sanskrit and Urdu increased, and accordingly, the aforesaid two

teachers were given the full time benefits when they completed five

years of service, and it was established that they had eight periods

of work per week with effect from 15.7.2006. It was while so that,

pursuant to a direction issued by the Government, based on an audit

objection, the Deputy Director of Education, vide letter dated

13.10.2009 [Ext.P15], was instructed to abolish the posts of Sanskrit

and Urdu teachers sanctioned in the School with immediate effect.

4. The affected teachers Sri.Prasanth N. Kaimal and

Sri.P.Hamsa filed W.P.(C).No.33671/2009 against the said direction

of the Government, and this Court, after noticing a non-compliance

with the rules of natural justice while passing the impugned order,

quashed the said order, and directed the Government to pass fresh

orders in the matter, in accordance with law, after affording an

opportunity of being heard to the Manager of the School as well as

the affected teachers. In the proceedings that ensued, the

Government passed Ext.P23 order dated 9.11.2011 once again

reiterating its stand that the posts of Sanskrit and Urdu teachers in

the School could not be allowed to continue. It was the said order

that was impugned in the writ petition.

W.A.No.1029/2020 :: 6 ::

5. It is apparent from a reading of Ext.P23 order that the

basis for the decision of the Government was the provision in the

Kerala Education Rules [hereinafter referred to as the "KER"],

which classified an 'LP School with Std.V' as an 'LP School' and not

as an 'UP School' [Rule 2(2)(b) of Chapter II of the KER]. It was

observed therefore that inasmuch as there was no provision under

the Rules to sanction a post of language teacher in an LP School,

going by Rule 6(1) of Chapter XXIII KER, and a language teacher

could only be sanctioned in a UP School, there was no enabling

provision under the KER that permitted the sanctioning of a post of

language teacher in the petitioners school, which, as already

noticed, is an LP School with a 5th Standard permitted to function

therein as per a Government Order.

6. The learned Single Judge, who considered the matter,

observed that a post that had been sanctioned in the School and had

been worked for a long number of years could not be suddenly

abolished more so when there was no fraud or misrepresentation

established either on the part of the affected teachers or the

Manager of the School. The learned Judge found that if the

sanctioning of posts by the Deputy Director of Education was

indeed in violation of any Government Order, then the authorities W.A.No.1029/2020 :: 7 ::

have ought to have acted immediately to set right the irregularity.

Notice was also taken of the fact that the incumbents to the Part

Time posts that were sanctioned in the School were also given full

time benefits which clearly indicated that there was sufficient

student strength in the School to accommodate the said two posts.

The learned Judge went on to observe that in public appointments,

certainty of tenure is an important factor, and teachers whose

service had been approved and had been continuing in service for a

long time could not be thrown out merely on account of an

irregularity committed by the Deputy Director of Education. The

order impugned in the writ petition was accordingly set aside, and

the teachers were held entitled to the service benefits for the period

of service rendered against the said posts.

7. Before us, it is the contention of the learned Government

Pleader, based on Ext.P23 order impugned in the writ petition, that

the Deputy Director of Education had sanctioned the Part Time

posts of Sanskrit and Urdu teachers in the School taking note of the

sanction earlier given by the Government to a Part Time post of

Hindi Teacher in the School. It is his contention that the

sanctioning of the Part Time post of Hindi teacher to teach in the 5 th

Standard of the LP School was inevitable, since Hindi is a W.A.No.1029/2020 :: 8 ::

compulsory language to be taught in the 5 th Standard. He would

argue therefore that the Deputy Director of Education was not

justified in adopting the same logic for sanctioning the Part Time

posts of Sanskrit and Urdu teachers since the sanctioning of such

language teachers other than a teacher of a compulsory language

could only be in the UP School as mandated under the KER. The

impugned order of the Government is sought to be justified on the

said reasoning.

8. We have given our anxious consideration to the

submissions advanced by the learned Government Pleader. It is, no

doubt, true that under Chapter II Rule 2 of the KER, Schools for

General Education are broadly classified as 'Primary' and

'Secondary'. The Rule further stipulates that the first seven

standards shall be collectively known as 'Primary Grade' and shall

be further sub-divided into two sections, of which, Standards I to IV

shall form 'Lower Primary Section' and Standards V to VII, the

'Upper Primary Section'. Rule 2(2)(b) of Chapter II, while defining

an 'Upper Primary Section' clarifies that it does not include existing

Lower Primary Schools where Standard V is retained by the special

sanction of the Government.

W.A.No.1029/2020 :: 9 ::

9. It would appear from a reading of Rule 2, therefore, that

while the broad sub division of a Primary School is twofold as

'Lower Primary School' and an 'Upper Primary School', the Rule

does recognise a third category of Lower Primary Schools wherein

Standard V is retained by special sanction of the Government. Such

schools are treated as an 'LP Schools' solely on account of a

statutory legal fiction. The question that assumes relevance,

however, is the curriculum that should be followed while imparting

instructions to students in the 5th Standard in such LP Schools. In

our view, in the matter of determining the curriculum, the number

of posts to be sanctioned, the nature of the posts to be sanctioned

etc, there cannot be any distinction drawn between a 5 th Standard

that forms part of an LP School and one that forms part of an UP

School. This is more so because, in the matter of imparting

instructions to Students of 5th Standard, the statutory classification

between UP School and LP School is irrelevant. If the Student

strength and the educational need noticed in the 5th Standard in an

LP School demands the sanctioning of posts, either Part Time or Full

Time, of language teachers, then such posts would necessarily have

to be sanctioned in the school, notwithstanding that the enabling

provisions under the KER, permits the sanctioning of language

teachers only in UP Schools. To interpret the provision otherwise, W.A.No.1029/2020 :: 10 ::

would lead to an incongruous and unconstitutional result of

depriving Students studying in 5th Standard of an LP School, to

which sanction has been accorded by the Government to include a

5th Standard, of the benefits of staff fixation and consequential

imparting of instructions in the languages concerned. It is trite that

an interpretation that leads to an unconstitutional result is to

eschewed.

10. We are therefore of the view that the order of the Deputy

Director of Education that sanctioned the additional posts of Part

Time teachers in Sanskrit and Urdu in the School, as early as in

2000, based on the student strength and the number of periods

taught in the said subjects, cannot be seen as illegal. We, therefore,

see no reason to interfere with the judgment of the learned Single

Judge that rightly set aside Ext.P23 order that was impugned in the

writ petition.

11. Before parting with this case, we might also observe that

we have only upheld the judgment of the learned Single Judge to the

extent it set aside the impugned order on merits, and nothing in the

judgment of the learned Single Judge or in this judgment shall be

seen as authorizing the continuation of teachers concerned in the W.A.No.1029/2020 :: 11 ::

petitioner School if the student strength or the number of periods

taught by them do not justify the retention of such posts in the

School. That is a matter for the educational authorities to examine

while completing the staff fixation on a yearly basis.

In the result, for the reasons stated in the impugned

judgment, as supplemented by the reasons given in this judgment,

the impugned judgment is upheld, and the Writ Appeal is dismissed.

Sd/-

A.K.JAYASANKARAN NAMBIAR JUDGE

Sd/-

GOPINATH P.

JUDGE

prp/24/2/21