SATHYANARAYANAN Vs. ASST. EDUCATIONAL OFFICER

JUDGEMENT

(1.) The petitioner was appointed as a peon in an aided school managed by the 2nd respondent. His regular approved appointment commences on 2-9-1991, though he did have temporary service prior to that which is not relevant to decide this case. While in service he acquired Hindi Rashtra Visharad qualification in February 1995. By reason of that, according to him, he become qualified for appointment as Hindi teacher in the upper primary section of the school. A vacancy of Hindi teacher arose on 3-6-1996. On the strength of R.43 Chap.14A KER, which is made applicable to the non teaching staff as well in terms of the rules in Chap.24A and B of KER, he claimed promotion to the said post. But the 2nd respondent Manager appointed the 4th respondent who was a teacher earlier during the period from 15-9-1992 to 17-12-1992. During that period he did have approved service and on the strength of the approved service he become a claimant under R.51A Chap.14A KER for appointment to any vacancy that may arise in future. Honouring the claim under R.51A Chap.14A KER the 2nd respondent Manager appointed the 4th respondent as Hindi teacher. Petitioner objected to this appointment before the Assistant Educational Officer claiming that he shall be appointed in terms of R.43 Chap.14A KER as made applicable to the non teaching staff. The Assistant Educational Officer took a decision in his favour and directed the manager to appoint the petitioner in place of the 4th respondent. The 4th respondent filed an appeal before the District Educational Officer. Simultaneously a revision before the Government was also preferred. This court directed in an earlier Original Petition filed by the 4th respondent to dispose of the said revision petition. Accordingly, Government considered the matter and passed Ext. P2 setting aside the order Ext. P1 passed by the Assistant Educational Officer and approving the decision taken by the Manager in appointing the 4th respondent against the vacancy of Hindi teacher that had arisen on 3-6-1996. Ext. P2 is under challenge before this court.

(2.) In short, the only question that comes up for consideration in this case is whether the petitioner's claim for promotion as Hindi teacher under R.43 Chap.14A KER from the category of peon prevails over the claim of the 4th respondent, a retrenched teacher under R.51A of Chap.14A KER.

(3.) Rules in Chap.14A KER prescribe the conditions of services of aided school teacher. As per note 2 to R.1, qualified non teaching staff are also entitled for appointment and promotion as teacher provided there is no teacher eligible for promotion or for appointment to such post under these rules" (emphasis supplied). R.51A is a provision coming within these rules. That rule provides that qualified teachers who are relieved as per R.49 or 52" on account of termination of vacancies shall have preference for appointment to future vacancies" The 4th respondent is a person who was relieved on account of termination of vacancy, on 17-12-1992. Therefore, she is a claimant in terms of R.51A which comes within the rules in Chap.14A KER. So non teaching staff, in terms of note 2 to R.1 Chap.14A KER, can aspire for promotion only in the absence of any claimant under the rules in Chap.14A KER. The petitioner cannot therefore have any overwhelming claim over that of the 4th respondent. In such circumstances, the view taken by the Government in Ext. P2 cannot be stated to be wrong. That view is fortified by a decision of this court in Reghu v. State of Kerala ( 1993 (2) KLT 82 ).