Kerala High Court
A. Manzoor vs The State Of Kerala on 5 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
WP(C) NO. 3450 OF 2018
PETITIONER:
A. MANZOOR
AGED 33 YEARS, S/O.AHAMMED KOYA,FULL-TIME
L.G.ARABIC TEACHER,COMPOUND CMSLS SCHOOL, ALAPPUZHA
688001.
BY ADVS.
SRI.V.A.MUHAMMED
SRI.V.RAJASEKHARAN NAIR
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,GENERAL
EDUCATION DEPARTMENT,
SECRETARIAT,THIRUVANANTHAPURAM-695001.
2 THE DIRECTOR OF PUBLIC INSTRUCTION
JAGATHY, THIRUVANANTHAPURAM-695014.
3 THE DEPUTY DIRECTOR OF EDUCATION
ALAPPUZHA - 688001.
4 THE DISTRICT EDUCATIONAL OFFICER
ALAPPUZHA-688011.
5 THE ASSISTANT EDUCATIONAL OFFICER
ALAPPUZHA-688011
6 THE CORPORATE MANAGER
C.M.S.SCHOOLS, KOTTAYAM-686001.
Sri. Bimal. K. Nath, Sr. G. P.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO.3450 OF 2018
2
JUDGMENT
The petitioner claims to be having a continuous service
as Full Time LG Arabic Teacher from 08.10.2012 to
31.03.2013 on a daily wages in a regular vacancy in
Compound CMSLP School, Alappuzha under the management
of the 6th respondent Corporate Management. Ext.P1 is his
appointment order. The appointment from 22.07.2013 to
31.03.2014 on daily wages was ordered by the District
Educational Officer to be approved. By Ext.P3, the petitioner
was appointed on the scale of pay of Rs.13210 - 22360 and
was posted as a Full Time Arabic Teacher in the vacancy of
Sri.Shamnad K., who was transferred to C.M.S.L.P School,
Kannetty from 01.09.2012 onwards. He claimed full time
scale of pay.
2. It is the contention of the petitioner that by
Ext.P4, the Assistant Educational Officer as per order dated
30.04.2016 has sanctioned Full Time Arabic Teacher post
during 2013-14. It is further contended that, as per Rule 2 A
of Chapter XXIII KER wherein, it is provided that if there are
aggregate of 28 pupils in all the four standards to study
Arabic, the post shall be sanctioned either as Part-Time or
WP(C) NO.3450 OF 2018
Full-Time as per Rule 7. Turning to Rule 7, the petitioner
contends that the School is entitled to be sanctioned with a
Full-Time Arabic Teacher. The approval of the petitioner's
appointment was however not accepted by the Educational
Authority, which led the petitioner to file statutory appeal and
thereafter, the revision before the Government. By Ext.P9
order, the 1st respondent rejected the appeal filed by the
teacher and held that the approval cannot be granted except
on daily wages. A counter affidavit has been filed on behalf of
the 1st respondent supporting the impugned order, in which it
is specifically stated that the School being an uneconomic
School, the total students strength should be at 60 whereas,
based on the report submitted by the Educational Authorities,
it is only 52.
3. I have heard Smt.P.A.Jenzia, learned counsel for
the petitioner and Sri.Bimla K.Nath, the learned Government
Pleader appearing for the respondents 1 to 5.
4. The question that falls for consideration before this
Court is as to whether the 6th respondent School is entitled for
a Full Time Arabic Teacher in terms of Rule 2 A Chapter XXIII
KER. A perusal of Ext.P9 order shows that the Educational
Authorities have given a report that the total students
WP(C) NO.3450 OF 2018
strength of the School is only 52 on 2013-14. It is pertinent
to note that the said report also takes note of the fact that
there is 29 students studying for Arabic. When confronted
with the discrepancy with regard to the operation of Rule 2A
of Chapter XXIII KER, the Senior Government Pleader
contends that as per Ext.P7 circular, the Government has
taken a policy decision that for uneconomic Schools, unless
the students strength is 60, the class 1 to 4, the post of Full
Time Teacher cannot be sanctioned.
5. On a consideration of the rival contention raised
across the Bar, I find that there is some force in the
contention of the petitioner in terms of Rule 2A of Chapter
XXIII KER. For sanctioning of Full Time post in the Arabic
subject, the relevant Rule that governs the field in Rule 2A of
Chapter XXIII KER. To the pointed question as to whether
there is any statutory backing for the decision of the
Government that 60 students will have to be there for
sanctioning of a Full Time post, it is submitted that the field is
governed by Ext.P7 circular. It is true that Ext.P7 reflects a
policy decision of the Government, for which this Court cannot
comment upon, but certainly when the policy decision is
pitted against the statutory rule and when there is a conflict
WP(C) NO.3450 OF 2018
between the two, it is only the statutory rule which will prevail
backing. This Court finds that these intricate issues has not
gain the attention of the 1st respondent Government. This is
so more particular so because, it is the Government
exchequer which is ultimately affected when appointment of
the petitioner is approved. Therefore, I am of the considered
view that the matter requires reconsideration at the hands of
the 1st respondent.
Accordingly, Ext.P9 order is set aside. The 1 st respondent
is directed to take up the appeal filed by the petitioner and
reconsider the same in the light of the observation as above.
Needful shall be done after affording an opportunity of
hearing the petitioner, within a period of four months from
the date of receipt of a copy of this judgment.
Sd/- EASWARAN.S
JUDGE
lsn
WP(C) NO.3450 OF 2018
APPENDIX OF WP(C) 3450/2018
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER OF
THE PETITIONER DATED 2/7/2014
EXHIBIT P2 TRUE COPY OF THE ORDER NO.B5/1981/15
DATED 14/9/2015 OF THE 4TH RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER OF
THE PETITIONER DATED 22/7/2013 ALONG
WITH APPROVAL THEREON
EXHIBIT P3(A) TRUE COPY OF THE APPOINTMENT ORDER OF
THE PETITIONER DTD 2.6.2014
EXHIBIT P4 TRUE COPY OF THE STAFF FIXATION ORDER
NO.D.DIS/C/2234/2015(3) DATED
30/4/2016
EXHIBIT P5 TRUE COPY OF THE STAFF FIXATION ORDER
NO D.DIS/C/2234/2015(4) DATED
15/3/2016
EXHIBIT P6 TRUE COPY OF THE STAFF FIXATION ORDER
NO.D.DS/C.2234/2015(5)DATED 30.4.2016
EXHIBIT P7 TRUE COPY OF THE CIRCULAR
NO.59604/J2/12/G.EDN.DATED 6/11/102 OF
THE GOVERNMENT.
EXHIBIT P8 TRUE COPY OF THE REVISION PETITION
FILED BEFORE THE GOVERNMENT DATED
5/1/2017
EXHIBIT P9 TRUE COPY OF THE
GO(RT)NO.273/2017/G.EDN.DATED
28.6.2017 OF THE GOVERNMENT.
EXHIBIT P10 TRUE COPY OF THE STAFF FIXATION ORDER
NO.D DIS.C/2253/2017 DATED 6/12/2017
EXHIBIT P11 TRUE COPY OF THE STAFF FIXATION ORDER
NO.D.DIS.C/1169/2017 DATED 12/7/2017
EXHIBIT P12 TRUE COPY OF THE LETTER
NO.60930/J2/11/G.EDN.DTD 25.10.2011 OF
THE GOVERNMENT.
EXHIBIT P13 TRUE COPY OF THE CIRCULAR
NO.951951/J2/16/G.EDN.DATED 9/11/2016
OF THE GOVERNMENT
EXHIBIT P14 TRUE COPY OF THE DECISION REPORTED IN
WP(C) NO.3450 OF 2018
1969 KHC 313.
RESPONDENTS EXHIBITS: NIL
TRUE COPY
P.A TO JUDGE
LSN
