LIJU K. Vs. STATE OF KERALA

JUDGEMENT

(1.) The case projected in the aforecaptioned writ petition (civil) is as follows :- The Upper Primary (UP) section of the 3rd respondent Thekkumuri Aided High School, Puthenchira, Irinjalakuda, Thrissur District was established in the year 1952 and as the said U.P section of that School was one which was established long prior to 1979, the said U.P.section of the school will not come within the sweep and ambit of Rule 6 of Chapter V KER. It is pointed out that originally the school was originally an Upper Primary School and later, the said Upper Primary School was upgraded as a High School after the year 1979 and accordingly it is pointed out that it is the High School Section alone which had come into existence after 1979 and that the U.P.Section had come into existence long prior to 1979 as it was started as early as in the year 1952. It is pointed out that the 1st respondent State Government had earlier issued Ext.P-11 order G.O.(P) No.73/2006/G.Edn dated 18.2.2006 directing that only that section of the school which started functioning after the year 1979, which alone would come within the definition of the new school as envisaged under Rule 6 Chapter V KER and that in the case of pre-upgraded section of such a new school, the same will not be bound by the stipulation regarding appointment of protected hands as envisaged in Rule 6 Chapter V KER. The stipulations in Ext.P-11 Government Order dated 18.2.2006 was again reiterated by the Government as per Ext.P-12 Government Circular No.27/J2/2006/G.Edn dated 26.5.2006. Accordingly, it is contended by the petitioner that in the light of Ext.P-11 G.O. dated 18.2.2006 and P-12 Government Circular dated 26.5.2006, the vacancies arising in the U.P. section of the 3rd respondent Aided High School, is not liable to be filled up by a protected hand and that the said U.P section will stand totally outside the purview of Rule 6 Chapter V KER. The first petitioner's appointment as UPSA (Upper Primary School Assistant) in the U.P section of the 3rd respondent High School was duly approved by the Educational Authority concerned, w.e.f 1.6.2009 as per Ext.P- 1 and therefore it is contended that she becomes a statutory claimant under Rule 43 of Chapter XIV A KER who is entitled to be promoted as H.S.A (Malayalam) in a vacancy which has arisen subsequent to 1.6.2009. It is also pointed out that the Government has also ordered that as per Ext.P-13 G.O.(Ms.) No.123/91/G.Edn dated 5.8.1991 that if there is a statutory claimant under Rule 43 or under Rule 51A of Chapter XIV A KER, who is eligible to be appointed, then the obligation to appoint a protected teacher can be overlooked. This was again reiterated by the Government as per Ext.P-14 G.O.(Ms.)No.347/98/G.Edn dated 1.9.1998.

(2.) It is stated that when a vacancy of H.S.A (Malayalam) has arisen in the 3rd respondent Aided High School on 5.2.2009, the 1st petitioner who was entitled to be so appointed by promotion under Rule 43 of Chapter XIV A KER, was so appointed by the 3rd respondent Manager as per Ext.P-2 appointment order dated 1.6.2010. In the consequential vacancy of UPSA, which was created by the promotion of petitioner as HSA as per Ext.P-2, the

(3.) rd respondent Manager had appointed the 2nd petitioner as UPSA in that vacancy as covered by Ext.P-3 appointment order. Ext.P-3 appointment order of the 2nd petitioner as UPSA was declined to be approved by the 3rd respondent DEO on the ground that the 3rd respondent Manager had chosen not to appoint a protected teacher in the vacancy of HSA to which the petitioner was appointed as per Ext.P-1. Consequently, the approval of the promotion of the 1st petitioner as HSA as per Ext.P-2, also stood declined by the Educational Authorities concerned. The sheet anchor of the petitioner's case is that the U.P section of the school stands totally outside the purview of Rule 6 Chapter V KER and that the 1st petitioner who was a UPSA in that school as a statutory right to be promoted to the post of HSA by the mandate of Rule 43 Chapter XIV A KER, as she was the senior most UPSA, having all the prescribed qualifications for holding the post of HSA and that the statutory obligation to secure promotion on the basis of Rule 43 cannot in any manner be bittled down by executive prescriptions regarding appointment of protected teachers and at any rate, the Government was clarified as per Ext-11 that in schools like the 3rd respondent, where the U.P section was established prior to 1979, and the High School section is established in 1979 or thereafter,then, the U.P section cannot be subjected to Rule 6 of Chapter V KER, etc. 3. Later, during the pendency of this writ petition, the Government had issued Ext.P-15 letter dated 26.8.2014, directing that those teachers who are continuing in schools without approval should be retrenched. It is pointed out by the petitioners and the 3rd respondent that the direction in Ext.P-15 was not enforced as against the petitioners herein and they are allowed to continue in service. It is also pointed out that the 2nd respondent DEO had approved the appointment of the 1st petitioner as HSA (Malayalam) with effect from 2.6.2014 in the revised scale of Rs.29,200-62,400/- as per the endorsement dated 11.7.2016 made in Ext.P-16 and the approval is so granted w.e.f 2.6.2014,etc. The prayers in the writ petition are as follows:-