THULASI BHAI Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant was working as a Teacher in D.V.H.S., Thalavoor as High School Assistant (Maths.) in the year 1977. For the year 1977-78, staff fixation orders were made as per Ext. P1. Eight posts of Mathematics teachers were sanctioned for the school for that year. There were only 7 teachers in mathematics and therefore one more teacher was required to be appointed. The appellant was appointed by the Manager as Mathematics teacher for the 1977-78 and the Manager sought approval of the District Educational Officer, respondent No.2 for the appointment. The approval was refused by Ext. P-2. On appeal, the Deputy Director of Public Instruction confirmed the order of the District Educational Officer, as per Ext. P-3. On the matter being taken up further in revision, those revision petitions were also dismissed as per Exts. P4 and P5. It is in this background that the appellant approached this Court in O.P. No.97 of 1980. The learned single Judge having dismissed the said original petition, she has come up with this appeal.

(2.) The reason given for not approving the appointment of the appellant is that the 4th respondent, who was already in service in the upper primary section of the institution, was entitled to be promoted under R.43 of Chap.14A of the Kerala Education Rules As the 4th respondent was available, it was held that there was no scope for resorting to direct recruitment. This was based on certain Circulars issued by the department. The appellant's case, however, is that none of the Circulars issued earlier to the contrary can hold the field when there is a statutory provision which regulates the subject matter by R.43 of Chap.14A and R.2(2) of Chap.31, K.E.R. The effect of these provisions has been examined by a Division Bench of this Court in the case reported in The Manager, S N. School, Parur, v. The Secretary to Government (1981 (2) ILR Kerala 638). It is clear from the said decision that the statutory provision makes it clear that the question of filling up the vacancy by way of promotion arises only if the candidate is duly qualified for the sanctioned post. Therefore, if he is not qualified for the sanctioned post it is clear that the question of filling up the vacancy by a person who is not qualified does not arise. The Circulars which take a contrary view cannot therefore be regarded as having any legal efficacy. The learned counsel for the appellant also submitted that the matter is fully concluded by the aforesaid decision. We have therefore to proceed on the basis that the refusal to approve the appointment of the appellant could be justified only if the 4th respondent could be promoted in accordance with the rules. The 4th respondent could not be promoted in accordance with the rules as she was not duly qualified for appointment at the relevant point of time. The post in question was, High School Assistant (Maths). The qualification required for holding the post of a teacher is graduation in that particular subject, namely, mathematics, as is clear from R.2(2) of Chap.31. It is not disputed that so far as the appellant is concerned, she is duly qualified as she is a graduate in Mathematics. So far as the 4th respondent is concerned, she is a graduate in science and not a graduate in mathematics. It is therefore clear that she was not qualified to hold the post of Teacher in Mathematics for the year 1977-78. That being the position, she could not have been promoted as H.S.A. (Maths) during the year 1977-78. There was no candidate available for filling up the post of H.S.A. (Maths) by promotion. Therefore the only process of recruitment available was by direct recruitment and that was how the appellant was selected and appointed. We are also informed that in fact she did function and discharge the duties of a teacher in mathematics in 1977-78. We have therefore no hesitation in taking the view that the refusal to approve the appointment of the appellant is illegal and the promotion of the 4th respondent was contrary to law.