ARAVINDAKSHAN V. M. Vs. SECRETARY TO GOVERNMENT

JUDGEMENT

(1.) This is one of vestigial vintage case which has fortunately seen the end today.

(2.) The petitioner was directly appointed as a High School Assistant (Mathematics) in the 5th respondent's school. Respondents 6 and 7 were also working as teachers in the said school, though teaching different subjects. During the academic year 1988-89 a vacancy of High School Assistant (Mathematics) occurred in the 5th respondent's School. This Was on the strength of the staff fixation under the applicable circulars of the Education Department. The management of the 5th respondent appointed the petitioner to the said Vacancy as High School Assistant (Mathematics) and issued an appointment Order, dated 8th June 1988. The said appointment order specifically provided that the appointment was subject to the provisions of the Kerala Education Act and the Rules contained therein and such other rules or orders issued from time to time by the Government or other competent authorities. The appointment order specifically certified that there was no qualified teacher existing in service under the educational agency who was eligible for promotion to the vacancy for which the appointment was made. When approval was sought from the authorities of the Education Department for approval of the petitioner's appointment, the District Educational Officer by his order Ext. P - 3 dated 20th January 1989 declined to grant approval to the direct appointment of the petitioner as H.S.A. (Mathematics) with effect from 8th June 1988 for the additional post sanctioned for the year 1988-89 in the 5th respondent's school. He pointed out that there was one vacancy of H.S.A. in the High School, the incumbent appointed against the vacancy (petitioner) was a graduate in Mathematics, and as per the subject ratio, there were five sanctioned posts for Mathematics, but only four Mathematics hands. He highlighted the proviso to R.43 of Chapter XIV A of the Kerala Education Rules (hereinafter referred to as 'the Rules'), which was brought into force from 10th October 1988 and held that the minimum subject requirement for Mathematics as also Social Studies and Science in the school was already satisfied and hence the appointment of a fresh Mathematics hand was not justified. Consequently, he refused to grant approval to the appointment of the petitioner. The petitioner carried an appeal to the Deputy Director of Education. This appeal was rejected by the Deputy Director of Education by his Order dated dated 989 at Ext. P - 5. The Deputy Director of Education in his appellate order highlighted the proviso to R.43 of Chapter XIV A of the Rules that when there are trained graduates of Lower grade awaiting promotion they can be promoted to any posts of H.S.A. (Core Subject) if the minimum subject requirements are satisfied. According to the Deputy Director, the minimum subject requirements of Mathematics, Social Studies and Science were satisfied; since two claimants under R.43 in the Upper Primary Section (one Economics main and the ether Chemistry main) were there, unless relinquishment letters in the prescribed form were submitted by the said claimants, the appointment order issued to the petitioner could not be approved. The petitioner filed a further appeal to the Director of Public Instruction, which was also rejected by the Order dated 28th July 1989 at Ext. P - 7, We may point out here that appeals were also similarly filed by the Manager of the 5th respondent school and and those appeals were also disposed of by common orders passed by the concerned authorities. Finally, a petition was filed by the petitioner before the State Government, which also came to be rejected on 17th October, 1989 by Ext. P - 10 order. Being aggrieved, the petitioner is before this court.

(3.) The crux of the issue is, what is the meaning to be given to the newly inserted proviso to R.43 of Chapter XIV A of the Rules Mr. Ramakumar, learned Counsel for the petitioner, emphasized the opening part of R.43 and contended that it was subject to the provisions of R.44 and 45 which meant that any person could not be appointed as High School Assistant in any vacancy of teacher of a subject, unless he was qualified la leach that particular subject. In other words, his contention that, if the vacancy is that of a Mathematics teacher no one other than a Mathematics graduate could he appointed. The argument no doubt is prima facie attractive. We may confess that it attracted earlier Division Benches also.