Anitha P.P. vs State of Kerala

Anil K. Narendran, J.—The petitioners in these Writ Petitions are persons included in Exhibit P1 ranked list for the post of Physical Education Teacher (High School) Malayalam Medium, in the Education Department in Idukki District. Exhibit P1 ranked list published by the Kerala Public Service Commission, the 3rd respondent herein, was brought into force with effect from 29.12.2008. The validity of Exhibit P1 ranked list was extended from time to time and it expired on 30.6.2013. The Writ Petitions were filed on 28.2.2013 and 10.7.2013 respectively, seeking identical reliefs, i.e., a writ of certiorari to quash Exhibit P9 order issued by the Government to the extent it denies the transfer of the petitioners to the Teachers'' Bank, and for other reliefs.

According to the petitioners, there are 56 Government High Schools in Idukki District, out of which 34 High Schools do not have sanctioned post of Physical Education Teacher. As evident from Exhibits P2 and P3, those schools do not have sufficient students to have 5 divisions in Standards VIII and IX put together. In Exhibit P4 judgment, a Division Bench of this Court observed that, the entire student community should get training in Physical Education, Craft and the like and in order to achieve this, the Government can probably appoint teachers in these subjects combining the periods of work in different schools. The Division Bench further observed that, it would be desirable for the Government to take over the appointment of Specialist Teachers for aided schools where the schools are not authorised to appoint teachers on account of lack of required period of work.

Subsequent to Exhibit P4 judgment, the Government issued Exhibit P5 Government order, approving the proposal for setting up of Teachers'' Bank for managing the transition and introducing a scientific method of recruitment for teachers in aided sector. Going by Exhibit P5, the Specialist Teachers now working in schools will be shifted to the bank permanently in accordance with Exhibit P4 judgment. The service of trained Specialist Teachers will be made available to all schools in the State irrespective of the number of students in each school, by pooling the Specialist Teachers in the Teachers'' Bank with the part-time Specialist Teachers to be positioned by Sarva Siksha Abhiyan (SSA) as per Government of India guidelines for implementing the Right to Children to Free and Compulsory Education Act, 2009. It is made clear in Exhibit P5 that, in future, the appointment of Specialist Teachers will be made through the 3rd respondent and they will be retained in Teachers'' Bank for suitable deployment.

According to the petitioners, as evident from Exhibit P6 list, there are altogether 11 aided schools in Idukki District, where, there is no Physical Education Teacher available and no appointment of Physical Education Teacher is permissible in those schools, going by the provisions contained in Rule 6 to Chapter XXIII of the Kerala Education Rules (hereinafter referred to as ''the KER''). In addition to this, in 34 Government High Schools included in Exhibit P2 list also no appointment of Physical Education Teacher can be made. In such circumstances, applying the principle laid down by this Court in Exhibit P4 judgment, which was accepted by the Government in Exhibit P5, the candidates included in Exhibit P1 ranked list should have been transferred to the Teachers'' Bank for deployment to various Government schools as well as to the aided schools in the State. In Exhibit P7 judgment, while disposing of W.A. No. 1305 of 2012 filed by those who were included in the rank list of Physical Education Teachers in Ernakulam District, this Court observed that it is all the more easy if the teacher is posted in Government schools located in nearby area and directed the respondents therein to identify schools which do not have Physical Education Teachers, assess workload in each school and then estimate the teacher strength required for appointment of Physical Education Teachers in such of the schools where there is need and appoint the required number of teachers from the rank list assigning them the schools and intimate the District Educational Officer to allocate the work and fix the schedule for engagement of teachers appointed.

The petitioners have filed a detailed representation before the Government to transfer persons who are included in Exhibit P1 ranked list to the Teachers'' Bank and offer them appointment in various Government schools and aided schools in Idukki District. By Exhibit P8 judgment in W.P. (C) No. 22805 of 2012, this Court directed the Government to pass final orders on their representation, in accordance with law, with reference to the law declared by this Court as per Exhibits P4 and P7 judgments, within 3 months from the date of receipt of a copy of the judgment. Pursuant to the direction contained in Exhibit P8 judgment, the Government considered the matter and passed Exhibit P9 order, rejecting the request made by the petitioners since there is no vacancies of Physical Education Teachers in any of the schools where there is sanctioned post and since the Government is taking action to ensure the service of a Specialist Teacher in all schools by pooling the Specialist Teachers in the Teachers'' Bank with the Part-Time Specialist Teachers to be positioned in the Sarva Siksha Abhiyan (SSA). In Exhibit P9 order, the Deputy Director of Education, Idukki, the 2nd respondent herein, was directed to take necessary action to report the vacancy of Physical Education Teachers, if any, in any of the schools where there is sanctioned post, to the 3rd respondent immediately. It is aggrieved by Exhibit P9 Government order to the extent it denies transfer of the petitioners to the Teachers'' Bank, they have filed these Writ Petitions seeking various reliefs.

By order dated 28.6.2013 in W.P. (C) No. 5783 of 2013, a copy of which is marked as Exhibit P10 in W.P. (C) No. 17403 of 2013, this Court has directed the 2nd respondent, to report 34 vacancies in the post of Physical Education Teacher (High School) Malayalam Medium, in Idukki District to the 3rd respondent, before 5.00 pm on 29.6.2013. It was made clear that no advice against such vacancies reported in compliance with the above order shall be made without further orders from this Court.

A statement has been filed on behalf of the 2nd respondent contending that, the validity of Exhibit P1 ranked list, which was extended from time to time, is due to expire on 30.6.2013. Since there are no vacant post of Physical Education Teacher in Idukki District, the request of the petitioners to report vacancies to the 3rd respondent cannot be acceded to. The claim of the petitioners to be appointed as Physical Education Teachers in the aided schools in Idukki District also cannot be considered, since the appointments in aided schools in the State are being made by the Managers concerned from their own separate rank list and the 2nd respondent has absolutely no authority to direct those managements to appoint candidates from the rank list published by the 3rd respondent.

The 3rd respondent has also filed a counter affidavit contending that, as vacancies were not reported, no candidate from Exhibit P1 ranked list was advised. On 30.12.2011, one temporary vacancy existing in Government High School, Marayoor, was reported by the 2nd respondent, as per the directions in the judgment of this Court in W.P. (C) No. 8219 of 2011. As no candidate was advised from Exhibit P1 ranked list, its validity has been extended to the maximum validity period of 4= years, i.e., up to 31.6.2013. The 3rd respondent can advise candidates only if vacancies are reported by the appointing authority.

Heard arguments of the learned counsel for the petitioners in both the Writ Petitions, the learned Government Pleader appearing for respondents 1 and 2 and the learned Standing Counsel for the 3rd respondent.

The petitioners have approached this Court in these Writ Petitions seeking the following reliefs;

"(i) to issue a writ of certiorari or any other appropriate writ, order or direction to quash Exhibit P9 order issued by the Government to the extent it denies the transfer of the petitioners to the Teachers'' Bank;

(ii) to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to include the petitioners who are selected by Kerala Public Service Commission for the post of Physical Education Teacher as per Exhibit P1 and transfer them to the Teachers'' Bank for suitable deployment as per Exhibit P5 Government Order;

(iii) to issue a writ of mandamus or any other appropriate writ, order or direction directing respondents 1 and 2 to appoint the petitioners as Physical Education Teachers in the various aided schools as per Exhibit P6 list which are not having the post of Physical Education Teacher;

(iv) to issue a writ of mandamus or any other appropriate writ, order or direction directing respondents 1 and 2 to make common Physical Education Teachers for the 34 Government Schools as stated in Exhibit P2 from the list prepared by Kerala Public Service Commission as per Exhibit P1."

In order to maintain Writ Petitions before this Court, the petitioners have stated as follows in paragraph 5 of the Writ Petitions;

"5. Since the petitioners are seeking appointment to aided schools also, they cannot approach the Kerala Administrative Tribunal for redressal of their grievance.

The Government of Kerala has notified the service matters of Government teachers to the Kerala Administrative Tribunal. The Kerala Administrative Tribunal has no jurisdiction to direct appointment of persons to aided schools since the service conditions of aided school teachers are not notified. Hence the Tribunal lacks jurisdiction in that respect. Hence the only remedy available to the petitioners is to approach this Honourable Court under Article 226 of the Constitution of India."

The petitioners are persons included in Exhibit P1 ranked list published by the 3rd respondent for the post of Physical Education Teacher (High School) Malayalam Medium, in the Education Department in Idukki District. As admitted in the Writ Petitions, the Government of Kerala have already notified the service matters of Government school teachers to the Kerala Administrative Tribunal. Going by Section 15(1)(a) of the Administrative Tribunals Act, 1985 (hereinafter referred to as ''the Act''), the Kerala Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts, except the Supreme Court, in relation to recruitment, and matters concerning recruitment, to any civil services of the State or to any civil post under the State. As the service matters of Government school teachers have already been notified before the Kerala Administrative Tribunal, the subject matter of these Writ Petitions squarely comes within the purview of Section 15(1) of the Act.

The petitioners who are included in Exhibit P1 ranked list published by the 3rd respondent for the post of Physical Education Teacher (High School) Malayalam Medium, in the Education Department in Idukki District, have no legal right to seek appointment as Physical Education Teachers in various aided schools in Idukki District, as appointment of teachers in those aided schools are being made by the Managers concerned. Moreover, the recruitment of teachers in aided schools are not through the 3rd respondent. The question regarding the entitlement of the petitioners, if any, for transfer to the Teachers'' Bank will arise only after their appointment as Physical Education Teacher in the Education Department in Idukki District, against any of the actual vacancies reported to the 3rd respondent before the expiry of Exhibit P1 ranked list. The entitlement of the petitioners for appointment as Physical Education Teachers in the Education Department in Idukki District based on their ranking in Exhibit P1 ranked list is a subject matter squarely falling within the purview of Section 15(1) of the Act and the remedy available to them is to approach the Kerala Administrative Tribunal seeking appropriate reliefs. Therefore, these Writ Petitions are liable to be dismissed as not maintainable.

In the result, W.P. (C). Nos. 5783 of 2013 & amp; 17403 of 2013 are dismissed as not maintainable, without prejudice to the rights of the petitioners to approach the Kerala Administrative Tribunal for appropriate reliefs.

However, it is made clear that, the interim order granted by this Court dated 28.6.2013 in W.P. (C) No. 5783/2013 shall continue to be in force for a period of one month from today, if 34 vacancies in the post of Physical Education Teacher (High School) Malayalam Medium, in Idukki District has already been reported to the 3rd respondent, before 5.00 p.m. on 29.6.2013, in order to enable the petitioners in that Writ Petition to seek appropriate orders from the Kerala Administrative Tribunal.

No order as to costs.