P MEENAKSHIKUTY Vs. STATE OF KERALA

JUDGEMENT

(1.) The bone of contention between the Petitioner and the 3rd Respondent in this case is the post of headmaster in the A.M.M. Upper Primary School, Vadavannur, a complete aided U.P. School, the Manager of which is the 4th Respondent. The Petitioner entered approved service of the said school as a full time Sanskrit teacher on 2.6.1981. During the academic year 2002-03, there was no sufficient student strength for a full time post of Sanskrit teacher, but the Petitioner was given the benefits of a full time teacher, by virtue of clause (vi) of G.O. (MS.) 62/73S. Edn. dated 2.5.1993 (which is produced as Ext. R1(b) along with the counter affidavit of the 1st Respondent). She was the senior-most among all the teachers of that school. The 3rd Respondent is a graduate teacher in the school. The post of headmaster of the school fell vacant on 1.4.2006. The 4th Respondent appointed the Petitioner as the headmistress and forwarded the appointment order to the 2nd Respondent for approval. By Ext. P2 order, the 2nd Respondent-Assistant Educational Officer refused approval for the appointment of the Petitioner as headmistress on three grounds, viz. "(1) there was no approved seniority list available in the school, (2) As per the staff fixation sanctioned to the school, there is only one part time post of Sanskrit, seniority list is prepared with reference to the category of posts specified in clauses (iii), (iv) and (v), Rule 3 Chapter XXIII K.E.R. as stated in Rule 34 Chapter XIVA K.E.R. and (3) the appointment of P.S. Lakshmy as the manager of the school has been rejected." The Petitioner's appeal to the District Educational Officer was dismissed by Ext. P3 order and by Ext. P6 order, the Government upheld the orders of the A.E.O. and D.E.O. While so, the 3rd Respondent, who was the senior-most graduate teacher in the school was appointed as the headmistress relying on the rules as it stood at that time, by another manager, whose credentials as a manager are disputed by the Petitioner, which appointment was also not approved by the 2nd Respondent. The Government, in Ext. P6 order, held that the appointment of the 3rd Respondent as the Headmistress of the school can be approved with effect from 2.5.2007. It is under these circumstances, the Petitioner has filed this Writ Petition, seeking the following reliefs:

(2.) Counsel on all sides agree that although the refusal of approval is for the above said three reasons, only the validity of the 2nd reason for non-approval viz. that the Petitioner was only a part time teacher, who is not entitled to be considered for appointment to the post of headmaster survives for consideration and the other two reasons are no more relevant on account of change of circumstances. The Petitioner's contention is that, the Petitioner was retained as a full time teacher by virtue of clause (vi) of Ext. R1(b) order, and therefore, she cannot be denied promotion on the ground that she is a part time teacher. She heavily relies on the Division Bench decision of this Court in Sreeramachandran v. State of Kerala, 2002 2 KerLT 428, wherein this Court held that a teacher having the protection of Clause (vi) of Rule 1(b) order is entitled to be considered for promotion as headmaster, notwithstanding the fact that the student strength warranted only a part time post.

(3.) There are other non-graduate teachers also in the school, senior to the 3rd Respondent, eligible to be appointed as head master. But according is held to be not entitled to appointment as headmistress, the 3rd Respondent, as a graduate teacher having half of the period of service of the next senior-most under graduate teacher, would be entitled to be appointed as per the rule existing as on the date of occurrence of vacancy, which rule has subsequently been amended dispensing with the preference to graduate teachers available as per the unamended rules. By virtue of the interim order of stay of Ext. P6 granted by this Court, the Petitioner continued to function as the headmistress until she voluntarily retired from service on 30.4.2010. Therefore, if the Petitioner's contentions are upheld, the 3rd Respondent cannot claim the subsequent vacancy also in view of the subsequent amendment to Rule 45 of Chapter XIV of the Kerala Education Rules.