MEENAKSHY Vs. STATE OF KERALA AND ORS.

JUDGEMENT

(1.) IN the C.N.N. Girl's High School, Cherpu, a High School Assistant (Hindi) retired from service on 31st March 1977. The Petitioner and the 4th Respondent were then working as lower grade language teachers (Hindi). The Petitioner was fully qualified for the post of High School Assistant (Hindi) while the 4th Respondent though senior to the Petitioner, was not qualified. On 18th June 1977 the 4th Respondent also became qualified for appointment as High School Assistant (Hindi). On 23rd June 1977 the 3rd Respondent - -Manager appointed the Petitioner as High School Assistant (Hindi). The 2nd Respondent - -District Educational Officer, Trichur by Ext. P -3 dated 8th September 1977 declined approval to the Petitioner's appointment on the ground that the 4th Respondent 'who is the qualified senior hand has the claim for the post of High School Assistant (Hindi)'. Against Ext. P -3 the Petitioner appealed to the Regional Deputy Director of Public Instruction, Ernakulam, who by order dated 13th June 1978 rejected that appeal. Thereupon, the Petitioner filed a revision before the 1st Respondent -State. The 1st Respondent -State by Ext. P -4 order dated 9th February 1979 rejected the Petitioner's revision holding that the 4th Respondent the senior most lower grade (Hindi) teacher should have been promoted as High School Assistant on 23rd June 1977. The Petitioner challenged Ext. P -4 order before this Court in O.P. No. 555 of 1979. The original petition was disposed of by this Court by Ext. P -5 judgment. This Court quashed the orders challenged by the Petitioner including Ext. P -4 and directed the 2nd Respondent District Educational Officer to pass fresh orders. The 2nd Respondent thereupon passed Ext. P -6 on 1st September 1979 holding that the rule applicable in the case is Rule 43 of Chapter XIV A of the Kerala Education Rules and not Rule 43(E)(1)(f), and directed the 3rd Respondent - -Manager to promote the 4th Respondent in the vacancy as, according to the 2nd Respondent, the appointment of the Petitioner was irregular. Ext. P -6 was challenged by the Petitioner before this Court in O.P. No. 3166 of 1979. This Court by Ext.P -9 Judgment set aside Ext. P -6 order and again directed the 2nd Respondent to consider the claims of the Petitioner and the 4th Respondent for promotion as High School Assistants under Rule 43(B) of Chapter XIV A of the Kerala Education Rules. Thereupon, the 2nd Respondent passed Ext. P -8 order on 11th January 1980 holding that the promotion of the Petitioner was irregular and that the 4th Respondent ought to have been promoted. The Petitioner who continued as High School Assistant (Hindi) from 23rd June 1977 has again challenged the order of the 2nd Respondent by this original petition.

(2.) A counter -affidavit has been filed on behalf of the 2nd Respondent. It is stated in para 5 of the counter -affidavit that at the time of effecting the promotion of the Petitioner the 4th Respondent who was senior to the Petitioner was duly and fully qualified to be promoted. In para 7 it is stated as follows:

(3.) THE questions that arise for consideration are: (1) A vacancy of High School Assistant Language arose in an aided school. The seniormost lower grade language teacher was not qualified for the post of High School Assistant Language when the vacancy arose but became qualified before the vacancy was filled up by promoting a lower grade language teacher who was only a junior but was qualified for promotion when the vacancy arose. Who is the rightful claimant for the post under Rule 43 B of Chapter XIV A of the Kerala Education Rules? Can the delay in effecting the promotion deprive the teacher qualified for the post at the time when the vacancy arose of the promotion? (2) Simply because it is not said in Rule 43B(1)(iii) that the promotion under the clause must be according to seniority can the Manager promote a junior overlooking a qualified senior hand? and (3) Whether the giving of an option in writing by a Lower Grade Language Teacher qualified for promotion as High School Assistant Language when there was no vacancy of a part -time High School Assistant Language in the school can create a claim for preference for promotion as High School Assistant Language under Rule 43B(1)(i)?