SUMADEVI G. Vs. DIRECTOR PUBLIC INSTRUCTION

JUDGEMENT

(1.) This appeal is before us pursuant to the reference order dtd. 27/2/2020 of a Division Bench of this Court that doubted the correctness of the view expressed by another Division Bench in Sandhya T.N v. Jalaja Kumari - [(2008) 3 KLT 655] while deciding the inter se claim between holders of rights under Rule 43 and Rule 51A of Chapter XIV-A of the KER in the matter of preferential appointment to vacancies arising in teaching posts in the school concerned. The brief facts necessary for an appreciation of the issue that has been referred is as follows:

(2.) The 5 respondent in the writ petition, Smt. Jaya R was appointed as a UPSA in the school with effect from 22/7/1996 in a regular vacancy and was thereafter promoted as HSA (Mal) with effect from 1/6/2005. While continuing as such, the staff fixation order in the school for the academic year 2010-2011 was passed on 15/7/2010, whereby three posts of HSA, in the subjects of Natural Science, Malayalam and Hindi, were reduced on account of the reduced student strength in the school. The HSAs who were liable to be retrenched from service were however accommodated by promoting the surplus HSA (NS) as Headmaster, reverting the surplus HSA (Hindi) as LG Hindi Teacher and reverting Smt. Jaya R as UPSA in a vacancy that arose with effect from 1/6/2010 consequent to the promotion of one Sindhu, UPSA as HSA (PS). The reversion of Smt. Jaya R as UPSA was stated to be in accordance with the provisions of the 2n proviso to Rule 43 of Chapter XIV-A KER.

(3.) The writ petitioner, Smt. Sumadevi had, in the meanwhile approached the Manager of the school with a representation dtd. 15/4/2010 staking a claim for appointment to the vacancy of UPSA that arose with effect from 1/6/2010. Her claim was based on the right that accrued to her under Rule 51A as noticed above. When the representation did not evoke any response from the manager of the school she approached this Court through a writ petition which was disposed with a direction to the educational authorities to consider her case on merits. In the proceedings that ensued, the educational authorities directed the manager of the school to appoint her as UPSA in the vacancy that arose with effect from 1/6/2010. While the manager of the school did not initially comply with the said directions, pursuant to the directions issued by this court in a later writ petition, she was appointed as UPSA by an order dtd. 20/11/2010. The said appointment was not, however, approved by the educational authorities for the reason that the manager had not indicated the vacancy to which she was appointed. In an appeal preferred by Smt. Sumadevi against the denial of approval, the Government found that there was no vacancy available to accommodate the petitioner as UPSA. It was challenging the said Government Order that she preferred the writ petition before this Court.