BABITHA Vs. DPI AND ORS ,

JUDGEMENT

(1.) The petitioner challenges Ext. P2 order issued by the 3rd respondent revoking the approval granted to the petitioner as Lower Primary School Assistant with effect from 01/06/2007. Ext. P2 order issued on 21/07/2010 on the basis of a finding in audit report stating that the petitioner was appointed as LPSA in the promotion vacancy of Smt. Lally Xavier which was approved by the Assistant Educational Officer as per order dated 14/09/2007. The school came under the purview of uneconomic school during the year 2007-2008. Vacancies that had arisen during the said academic year ought to be filled up only with the protected hand in terms of Circular dated 18/05/2008. It was therefore mentioned that the action of AEO in granting approval of appointment to the petitioner with effect from 01/06/2007 is not in order and hence action has to be taken in the matter. It is pursuant to the said audit objection, the AEO had passed Ext. P2 order directing the Head Mistress to stop all payments including salary in respect of the petitioner. By virtue of interim order passed by this Court, the petitioner had been working in the said school and is drawing salary. It is inter alia contended that Ext. P2 order cannot be issued by the AEO as he has no power to revoke the order of approval nor can he review the order passed by him. That apart, it is contended that the audit objection came only after three years of regular appointment and if the appointment was not approved within a reasonable time, the petitioner would have other opportunities to get employment. That apart, it is contended that the direction not to pay salary is clearly illegal in the light of the judgment of this Court in Usuvathunnisa v. Asst. Educational Officer,1990 2 KerLT 530.

(2.) Counter affidavit is filed by the 3rd respondent inter alia contending that the Government as per G.O. (P) 259/06/G. Edn. dated 12/10/2006 has indicated that the vacancy in an uneconomic school shall be filled up only from protected hands. It is contended that since the petitioner's appointment was not in accordance with the said directions issued by the Government, the petitioner has no legal right to get approval. The approval was granted only on account of a mistake which was noted only during the audit objection and therefore corrective measures had been taken in the matter.

(3.) Having regard to the aforesaid contentions, the question to be considered is whether the petitioner can claim regular appointment in the said post and whether Ext. P2 is liable to be interfered with. In regard to the appointment of the petitioner, though a contention is raised that it was a valid appointment, having regard to the fact that the appointment has been made against the circulars issued by the Government, the Manager was bound to follow the circular before taking steps for appointment. Same is the situation as far as the Assistant Educational Officer is concerned. Before approving the same, the said authority ought to have taken sufficient care to see whether the appointment is in accordance with the procedure prescribed. Wrong appointment cannot give rise to a legal right to the petitioner to claim the continuance in employment and therefore I have no hesitation to hold that the respondent authority was justified in coming to the conclusion that the appointment of the petitioner was bad in law and was against the circulars issued.