L.MANJUSHA Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is working as High School Assistant in the A.S.Mhammed Kutty Memorial Higher Secondary School, Alathur. The petitioner is fully qualified for promotion as Higher Secondary School Teacher (English) in terms of Rule 6(2) of Chapter XXXII KER. In the light of a management dispute, the District Educational Officer is presently officiating as Manager of the School on the strength of Exhibit P5 order of the Director of Public Instructions. The petitioner being the senior most eligible teacher, submitted a request seeking promotion as HSST (Junior) English. Exhibit P6 is the reply given by the District Educational Officer stating that the request can be considered after finalisation of the management dispute. Thereupon, the petitioner approached the Regional Deputy Director and by Exhibit P7, the petitioner was informed that her request for promotion can be considered only after receiving proposal for appointment under 25% quota from the Manager, and that no such proposal was received from the present Manager (DEO, Palakkad). Learned counsel for the petitioner would contend that pendency of the management dispute or the fact that the DEO is officiating as the Manager, cannot stand in the way of the petitioner being promoted as HSST (Junior). The learned Government Pleader contends that even for by-transfer promotion under the 25% quota, there has to be a selection committee.

(2.) The answer to the contention of the Manager not being authorised to effect by-transfer promotion is available in the decision of this Court in Prathibha Kumari v. District Educational Officer [2008(2) KLT 253], wherein it is held that unless the court specifically restricts the powers of appointment of DEO, there cannot be any restriction in the DEO exercising the powers of othe Manager. A reading of Exhibit P5, under which the District Educational Officer is authorised to officiate as Manager, reveals that specific conferment of authority having been conferred for effecting promotions/re- appointments.

(3.) For answering the contention that even for by-transfer promotion as HSST (Junior) under 25% quota, there has to be a recommendation/selection by duly constituted selection committee, the learned counsel for the petitioner relies on G.O(ORD)No.247/19/G.Edn. dated 21.1.2019 whereby the Government has clarified that when all the vacancies set apart for by-transfer promotion is filled up, there is no requirement of recommendation by a selection committee. Even though the learned Government Pleader relies on Chapter XXXII Rule 5 to contend that the provision is otherwise, in view of the clarification by the Government order, there cannot be an insistence that promotion could be effected only on a recommendation made by a selection committee.