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2018 DIGILAW 678 (KER)

Srikant S. K, S/o. M. Krishnan v. M. D Murali

2018-08-17

C.T.RAVIKUMAR, HRISHIKESH ROY

body2018
JUDGMENT : HRISHIKESH ROY, J. 1. Heard Dr.George Abraham, learned counsel for the petitioners and Shri T.K.Aravinda Kumar Babu, learned Government Pleader, representing the respondents. 2. This Contempt Case is filed, alleging wilful defiance of the judgment dated 17.07.2012, whereunder the respondents were directed to identify the Schools which do not have Physical Education Teachers, assess the workload for Physical Education and then estimate the required teachers' strength in those Schools, and to make appointment from the rank list. The petitioners are those who were selected by the Public Service Commission (PSC) for the post of Physical Education Teacher (High School Section), in the Ernakulam district. The rank list which was published on 14.10.2008, expired eventually on 15.04.2013. 3. The appointment of Physical Education Teachers in High Schools is governed by the provisions contained in Chapter XXIII of the Kerala Education Rules (K.E.R.). Minimum of five divisions in Standards VIII and IX put together, is necessary for appointment of a Physical Education Teacher, in the School concerned. Because of dearth of students in the Government Schools in Ernakulam district, five divisions in Standards VIII and IX were not available and such Schools are deprived of Physical Education Teachers. For the same cause, Physical Education Teachers were also not available in the aided Schools. 4. Since Rule 6(4) of Chapter XXIII of the K.E.R does not permit appointment of teachers in specialised subjects, without the required number of divisions, most schools with low student intake, were deprived of the services of a Physical Education Teacher. Reflecting upon this situation and considering the necessity for the students to receive training in physical activities, a Division Bench of this Court in the judgment dated 19.01.2011 in the W.A.No.2679 of 2009 and other analogous cases, opined that the Government should identify the Schools where the services of Physical Education Teacher are not available due to the dearth of students, and to make appointment of common teachers by grouping such Schools. Thus, pooling of teachers was suggested by the Division Bench in the said judgment. 5. Following the above judgment in the W.A.No.2679 of 2009, those included in the rank list filed representation before the Government to implement the direction of the Division Bench. Since the representation (Ext.P3) was kept pending, they filed the W.P.(C) No.19429 of 2011. Thus, pooling of teachers was suggested by the Division Bench in the said judgment. 5. Following the above judgment in the W.A.No.2679 of 2009, those included in the rank list filed representation before the Government to implement the direction of the Division Bench. Since the representation (Ext.P3) was kept pending, they filed the W.P.(C) No.19429 of 2011. The learned Judge, while considering the matter, observed that it is up to the Government to take a decision on the Ext.P3 and accordingly, as the rank list was expiring, issued direction on 18.07.2011, for consideration of the representation by the Government within two months, from the date of the judgment. 6. The above direction did not meet the writ petitioners' expectation and accordingly, they challenged the judgment dated 18.07.2011 of the writ court by filing the W.A.No.1305 of 2012. The Division Bench referred to the Government decision to club the Schools and provide for a pool of Physical Education Teachers in terms of the judgment in the W.A.No.2679 of 2009 and issued consequential directions to the respondents, to identify the Schools which do not have Physical Education Teachers and if there is any need, to appoint the required number of teachers from the rank list, assigning them the Schools. The State challenged the above judgment of the Division Bench in the Supreme Court, but the Special Leave Petition was dismissed on 08.04.2013. 7. Referring to the above facts, Dr.George Abraham, the learned counsel contends that the petitioners, by virtue of their selection by the Public Service Commission, should now be appointed and the only thing that the respondents are required to do is to include the names of the petitioners in the Teachers Bank and to appoint them, to provide the services of Physical Education Teachers, in all the Schools in Ernakulam district. According to the petitioners, many Schools are still deprived of Physical Education Teachers and accordingly, it is argued that the respondents have wilfully defied the direction of the Division Bench dated 17.07.2012, in W.A.No.1305 of 2012. 8. According to the petitioners, many Schools are still deprived of Physical Education Teachers and accordingly, it is argued that the respondents have wilfully defied the direction of the Division Bench dated 17.07.2012, in W.A.No.1305 of 2012. 8. On the other hand, the learned Government Pleader Shri T.K.Aravinda Kumar Babu, refers to the order dated 05.08.2013 [Annexure-R1(c)] of the Deputy Director of Education, Ernakulam, to point out that to implement the court's direction, the Government had introduced a comprehensive teachers package and ordered for permanent shifting of the specialist teachers to the Teachers Bank, so that the services of specialist teachers can be made available to all Schools, irrespective of the number of students in each School. In furtherance to this decision, pooling of Physical Education Teachers was ordered by assessing the number of periods available in each School, so that the students' need of Physical Education in all the Schools can be addressed, from the pool of Physical Education Teachers. The list of Physical Education Teachers, who are pooled in Ernakulam district, is shown as Ext.R1(c)(2). 9. According to the respondents, there are 455 Schools (both Government and aided) in Ernakulam district and after assessing the Physical Education needs of the students in those Schools as well as the workload to be rendered by the teachers, it was determined that from the teachers pool, only 32 teachers have the full weekly workload of 25 periods of teaching hours. The services of the remaining 191 Physical Education Teachers with lesser workload have been pooled together, so that they can cater to the needs of Physical Education in other Schools, which suffer from non-availability or shortage of Physical Education Teachers. According to the assessment of the authorities, the existing 223 Physical Education Teachers are sufficient to handle the Physical Education classes in all the Schools in Ernakulam district. With such projection, Shri Aravinda Kumar Babu argues that there is neither any clear vacancy to accommodate any fresh persons from the rank list nor there is any need for creation of additional posts of Physical Education Teachers in the Ernakulam district. 10. We have considered the submissions made by the rival counsel and have also carefully perused the pleadings of the parties. 10. We have considered the submissions made by the rival counsel and have also carefully perused the pleadings of the parties. The W.A.No.1305/2012 judgment, required the authorities to identify the Schools which do not have Physical Education Teachers, assess the workload in each School and where there is need, to appoint the required number of teachers from the rank list, assigning them to the clubbed Schools. The Annexure-R1(c) proceedings dated 05.08.2013 shows that the authorities took steps for pooling of Physical Education Teachers in Ernakulam district, to cater to the needs of the students of all the Schools. But, the said order [Annexure-R1(c)] became the subject of litigation and in consequence thereof, the Government issued the order dated 06.08.2015 (Annexure-F), whereby the earlier order for appointment of specialist teachers was cancelled and arrangement was made for assessment of the students' requirement and to appoint specialist teachers, by clubbing the neighbouring Schools. But those Schools under the corporate management were excluded from the pooling process and clubbing exercise was restricted only to the Schools under the individual management. On this basis, the respondents argue that the petitioners cannot claim appointment from the rank list in Schools, under corporate management. 11. What is discernible from Annexure R1(c) order is that the existing strength of Physical Education Teachers in Ernakulam district is more than sufficient to cater to the Physical Education needs of the students and after pooling of the resources, there is no requirement of appointment of additional teachers. 12. It is also relevant to note that the rank list expired on 15.04.2013 and no vacancy of Physical Education Teacher arose in Government High Schools in Ernakulam district, prior to the expiry date i.e., 15.04.2013. Some retirement vacancies did arise in the aided Schools in Ernakulam district, but those in the rank list, cannot be considered for appointment against the vacancies in the aided Schools, as Annexure-R1(c) order is currently non-implementable because of the interim order issued by the court. 13. The above narrative makes it clear that the claim for appointment made by the petitioners cannot legitimately flow from the P.S.C rank list, as the said list has spent its course by now and in any case, the requirements of the Schools and the students have been adequately addressed by the steps taken by the authorities. 13. The above narrative makes it clear that the claim for appointment made by the petitioners cannot legitimately flow from the P.S.C rank list, as the said list has spent its course by now and in any case, the requirements of the Schools and the students have been adequately addressed by the steps taken by the authorities. Because of the pooling of the already appointed teachers and clubbing of Schools, appointment of more Physical Education Teachers from the rank list is not warranted. 14. Having regard to these circumstances, we are of the considered opinion that the petitioners have failed to make out any case of wilful defiance of the order in the W.A.No.1305 of 2012 by the respondents. 15. In view of such conclusion, the Contempt Case is dismissed.