THOMAS N C Vs. DIRECTOR OF PUBLIC INSTRUCTIONS

JUDGEMENT

(1.) The Petitioner had different spells of approved service under the 4th Respondent's school (for short 'the school') as is obvious from Exts. Pl to P5. As per Ext. Pl, his appointment was approved with effect from 28.9.1993 to 30.4.1994. The approved service as per Ext.P5 was from 2.6.1997 to 30.4.2002. Essentially, by virtue of the approved service in terms of Exts. Pl to P5 the Petitioner became a claimant under Rule 51 -A of Chap.XIV-A of the Kerala Education Rules (for short 'the KER'). After the last spell of service of the Petitioner the school became an uneconomic school. As per the staff fixation for the year 2009-2010 viz., Ext.P6, only seven divisions were sanctioned in the school. On 31.5.2009 the Headmistress of the school Smt. Eliamma Mathew retired from service. In the resultant vacancy occurred in the category of UPSA, the fourth. Respondent Manager appointed the Petitioner as per Ext.P7 with effect from 1.6.2009. The said appointment of the Petitioner was approved by the second Respondent as per order dated 23.11.2009. Salary bill for November, 2009 was thereupon presented and encashed. Later, the arrear bill from 1.6.2009 was presented along with the bill for December, 2009. However, it was returned on the ground that since the school being an uneconomic school, the Petitioner is not entitled to get salary. Ext.P8 is the objection raised in that behalf by the second Respondent. Thereupon, the Petitioner approached this Court challenging Ext.P8 by filing W.P. (C) No. 1066 of 2010. As per interim order dated 15.2.2010 this Court directed to pay salary to the Petitioner for the month of December, 2009 and consequently it was paid. Later, the first Respondent filed Ext.P9 statement in the said Writ Petition. It was stated thereunder that the students strength in that school was only 59 and the school did not have the minimum effective strength of students viz., 25 per standard, as provided in Rule 22A of Chap. V. of the KER. As already noticed, there are seven divisions in the school viz., one division each in standard 1 to 7. Ext.P10 is the Government order dated 12.10.2006 ordering filling up of vacancies in uneconomic schools by protected teachers. Taking note of the aforesaid circumstances, the second Respondent requested the first Respondent to cancel the appointment of the Petitioner. In fact, as per Ext. P11 order dated 17.2.2010 the first Respondent while cancelling the appointment of the Petitioner on the ground that the school is uneconomical, held that in such uneconomic schools vacancies could have been filled up only by protected teachers. Ext. P11 order was produced in W.P. (C) No. 1066 of 2010. In the said circumstances, the said Writ Petition was closed reserving the right of the Petitioner to challenge Ext. P11 order dated 17.2.2010. It is in the said circumstances that this Writ Petition has been filed by the Petitioner challenging Ext. P11 order. While admitting this Writ Petition, an interim order was issued directing the first Respondent to pay salary to the Petitioner from June, 2009 onwards excluding the salary of November, 2009 till the closure of the school, in accordance with law, pending disposal of the Writ Petition. A counter affidavit has been filed in this Writ Petition along with the petition to vacate the interim order.

(2.) I have heard the learned for the Petitioner as also the learned Government Pleader.

(3.) The contention of the Petitioner is that being a Rule 51A claimant he is having preferential claim over protected teachers. That apart, it is contended that the very concept of uneconomical school is unknown to the Kerala Education Rules though Rule 22A of Chap. V. of the KER empowers the Government to withdraw recognition for want of minimum effective strength of students as provided thereunder. The further contention of the Petitioner is that in terms of Sub-rule (4) of Rule 22A of Chap. V. of the KER the recognition of the school could not be withdrawn as the school is situated in a remote slum area in Calicut. I do not think that I should consider the said contention at this stage, as admittedly, Government did not withdraw the recognition of the school in terms of Rule 22A of Chap. V of the KER, so far. Evidently, as per Ext. P11 the appointment of the Petitioner was cancelled finding that the school is an uneconomic school. As noticed earlier, the contention of the Petitioner is that the concept of uneconomical school is foreign to the KER. It is true that the term 'uneconomic school' has not been defined any where in the Kerala Education Rules. However, the term is being used to describe schools which did not have the sufficient students strength in terms of the provisions under the KER for sanctioning a division. Admittedly, the school is having one division in each standard from standard 1 to 7 though the total students strength is only 59. Though the school did not have effective minimum students strength to sanction one division in each of the said standards, so far it is not closed down. It is in the said circumstances that Government included the said school under the category described as uneconomical. The Petitioner cannot contend merely because of the absence of a definition in the Act and the Rules that the school did not fall under the said category which is described as 'uneconomical schools'.