K.K. MOIDU Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner was appointed as a part time menial with effect from 21-2-1970 in an aided school managed by the 2nd respondent. The said appointment of the petitioner was approved as probationary with effect from 21-2-1970 by the District Educational Officer, Badagara (3rd respondent). During the academic year 1969-70 one permanent post of peon and two permanent posts of part time menials had been sanctioned for the school. The 6th respondent and the petitioner were holding the two posts of part time menials, the former being the senior of the two. In the staff fixation for 1970-71 an additional post of peon was sanctioned for the school. The Manager thereupon appointed the 5th respondent to that post and moved the District Educational Officer for approval of the said action. The said request was refused by the 3rd respondent on the ground that the new post of peon had to be filled up by promoting the senior hand in the lower category of part time menials A and that the appointment of the 5th respondent who was an outsider, was in contravention of R. 43 of Chap.14(A) of the Kerala Education Rules, 1959. Against the said order passed by the 3rd respondent the Manager preferred an appeal before the Regional Deputy Director of Public Instruction, Kozhikode (4th respondent). The 4th respondent agreed with the view expressed by the District Educational Officer and rejected the appeal. Thereupon the Manager preferred a revision petition before the State Government under R. 92 of Chap.14(A) of the Kerala Education Rules. That was disposed of by the Government as per the order Ex. P2 dated 6-9-1971 which reads as follows:

(2.) R. 43 of Chap.14(A) is in the following terms:

(3.) On a perusal of Ex. P2 it is seen that the Government have not differed from the view taken by the subordinate officers regarding the applicability of R. 43 to the case in question. What has been done under Ex. P2 is to sanction the appointment of the 5th respondent as a peon, notwithstanding the fact that it is opposed to the mandatory provision contained in R. 43, by purporting to invoke the Government's power under R. 3 of Chap.1 of the Kerala Education Rules. That rule reads: