STATE OF KERALA Vs. HASEENA S

JUDGEMENT

(1.) These two Writ Appeals are taken up for consideration together, as they arise out of a common judgment dated 04/08/2011 of the learned Single Judge. It is not in dispute that the party respondents / writ petitioners were appointed against a clear vacancy as early as in 2005 as High School Assistants in Mathematics and Natural Science. It is also not in dispute that though they were appointed as early as in 2005, approval of their appointments came to be done only with effect from 01/06/2010. The grievance of the writ petitioners was, as they were appointed against a regular vacancy by the Manager of the respondent School, for no fault of theirs, there cannot be postponement of their approval from the actual date of appointment in the year 2005. So far as the stand of the Government was, as and when the vacancy arises or in the vacancy already existing, the Manager should appoint atleast one protected teacher in the vacancy, therefore, according to the stand of the Government, in the absence of not appointing protected teachers, approval of appointment of regular teacher has to be postponed and it can only be from the date on which a protected teacher is appointed. This stand of the Government was mainly on account of Government order dated 19/11/2009. As against this, the stand of the writ petitioners was, till Government order dated 19/11/2009 came into existence, there was no compulsion as indicated in the Government order to appoint atleast one protected teacher in the vacancy available in the schools and otherwise, the regularly appointed teachers' approval will be postponed. Therefore, in the absence of any such compulsion on the part of the Managers of aided schools, the appointments, which were done in 2005 cannot be frustrated by postponing the date of approval to a future date.

(2.) After going through all the Government orders and the facts in the present two cases, the learned Single Judge opined that neither the Managers nor the writ petitioners could be found fault with for not appointing any protected teacher against clear vacancy in 2005, as a duty was cast on the officers of the Education Department to send the list of protected teachers of the schools concerned, so that the Managers could comply with the undertaking given to the Government as per R.6(viii) of Chapter V of the Kerala Education Rules. Against this judgment of the learned Single Judge, the Government is in appeals before us contending that there is an obligation on the part of the Managers to follow the directions issued by the Government from time to time by securing the list of protected teachers, so that the existing vacancies would be filled up by the protected hands.

(3.) It is not in dispute that the school in question was established in 1982. It is also not in dispute that as per the order of Government, all those schools which were started after 1979 have to be considered as new schools, therefore, the first priority so far as appointment of teachers has to be given to protected teachers. Later on, the existing vacancies could be filled up directly by the schools concerned through the Managers.