The proviso under R.6B of the K.E.R. protects only the teachers holding posts of specialist teachers sanctioned before 1969-70, not the posts themselves.

Headnote:
Appointment - Specialist Teacher - K.E.R. - R.2, R.6B(1), R.68(1)
Fact of the Case:

The appellant, the Manager of an aided U.P. School, appointed the 5th respondent as a Needle Work Teacher in a sanctioned post. The appointment was not approved, leading to the appeal.
Finding of the Court:

The court found that the proviso under R.6B gives protection to the teachers who were holding the posts of specialist teachers sanctioned before 1969-70 and not to the posts which they were occupying. The 5th respondent was not a teacher holding a post sanctioned before 1969-70, so the proviso did not apply.
Issues: The main issue was whether the appointment of the 5th respondent as a Needle Work Teacher in a sanctioned post was valid under the relevant provisions of the K.E.R.
Ratio Decidendi: The court held that R.6B prevails over R.2(3) and protects only the teachers holding posts sanctioned before 1969-70. The proviso under R.6B did not apply to the 5th respondent's appointment.
Final Decision: The court dismissed the writ appeal, upholding the dismissal of the original petition.

Judgment :-

1. The Manager of an aided U. P. School is the appellant. The post of a Needle Work Teacher, a specialist teacher as it is known under the K.E.R., was sanctioned for the School in 1961. One Nandini who continued as a specialist teacher in that sanctioned post retired from service on 31-3-1986. The Manager, the appellant, appointed the 5th respondent as Needle Work Teacher in that vacancy. The appointment was not approved by the authorities and therefore the Manager came to this Court under Art.226 of the Constitution. The Writ petition was dismissed and hence this appeal.

2. The appellant contends that the appointment was to a sanctioned post of a specialist teacher which did not cease to exist when Nandini retired. The Manager did not create a new post of a Needle Work Teacher and the appointment of the 5th respondent was not to a new post. It is contended that the approval was declined on a wrong understanding of the relevant provisions, in Chapter XXIII of the K.E.R. In order to appreciate the contentions of the appellant, it is necessary to extract R.2 and R.6B(1) iff Chapter XXIII of the K.E.R, which read thus:

"2. (1) Subject to availability of funds, the number of specialist teachers that may be appointed in Lower Primary Schools shall be as follows:

(i) A music teacher or a sewing mistress will be allowed to a Lower Primary School having a total strength of 200 or more girl pupils.

(ii) A music teacher and a sewing teacher will be allowed to a Lower Primary School where the strength of the girl pupils is 400 or above.

(iii) XX XX XX

(iv) Music/ Needle work will be taught also to boys who wish to learn them.

(v) As far as possible combined posts of music and sewing teachers will be created.

(vi) Two or three Schools (Departmental and Aided both) may be clubbed together for the purpose of appointment of specialist teachers. Part time teachers may be appointed if the number of periods of work in a week is less than 15,

(2) The number of specialist teachers who may be appointed in a District shall be fixed by the Director and intimated to the District Educational Officer every year.

(3) Notwithstanding anything contained in the above rules, no post of Specialist Teacher shall be created in any Lower Primary School or Lower Primary Sections of Upper Primary or High Schools:

Provided that posts already sanctioned against which specialist teachers are appointed and approved may continue as such."

"68(1) Notwithstanding anything contained in any other rule in this Chapter no posts of specialist teacher or craft teacher shall be created in any upper primary schools or upper primary sections of High Schools for a period of 6 years from the school year 1969-70.

Provided that the posts sanctioned before 1969-70 against which specialist teachers and craft teachers are appointed and approved and such teachers who are qualified according to the rules then in force may however continue as such."

3. R.2(1) provides the principles for the fixation of the number of specialist teachers with reference to the strength of pupils and subject to the availability of funds. The rule does not compel the appointment of specialist teachers in all cases. R.2(3) prohibits the creation of the post of specialist teacher but protects continuance of "posts already sanctioned against which specialist teachers are appointed and approved" Then follows R.66. R.6B beginning with the usual non-obstante clause "Notwithstanding anything contained in any other rule in this Chapter". R.6B(1) states that no post of specialist teacher shall be created in any Upper Primary Schools or Upper Primary sections of High Schools for a period of 6 years from the school year 1969-70. But, under the proviso teachers who were qualified and who were holding sanctioned posts before 1969-70 were allowed to continue as such. The short question, therefore, is whether the proviso under Rale 6B gives protection to the posts sanctioned before 1969-70 or to teachers who were appointed to

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1988 Supreme(Ker) 200

Judges : BALAKRISHNA MENON,BHASKARAN NAMBIARKRISHNANKUTTY - AppellantVersusCOMMISSIONER AND SECRETARY TO GOVERNMENT - RespondentCase No : W.A. No. 401 of 1988Decided On : 06/02/1988Advocates Appeared : K. Ramakumar; Lovely Paulose; Roy Abraham; For Appellant Government Pleader; For Respondents

The proviso under R.6B of the K.E.R. protects only the teachers holding posts of specialist teachers sanctioned before 1969-70, not the posts themselves.