PADMINIKUTTY Vs. D E O OTTAPALAM

JUDGEMENT

(1.) O. P. 99/1994 has been referred to Bench for being disposed of along with W. A. 1111/1991 on the ground that the view expressed by a learned Single Judge of this Court in Babu Varghese v. Manager, 1994 (1) KLT 557 , runs contrary to the decision of a Division Bench in W. A. 517/1992 and the decision in O. P. 6282/1987, pending consideration in W. A. 1111/1991. In the decision reported in 1994 (1) KLT 557, learned Single Judge held that proviso to R.43 of Chap.14A K. E. R. has to be read down and should be understood as providing that promotion to the post of High School Assistant in core subjects should be in the ratio of 1:1:1. That decision goes on to state that the minimum subject requirement, referred in the proviso to R.43, is the subject requirement laid down by the Director of Public Instruction in the Circular dated 13.5.1985 as 1:1:1 between core subjects, namely Mathematics, Science and Social Studies.

(2.) For a proper understanding of the issues raised in the Original Petition and the Writ Appeal, we consider it necessary to narrate the facts in detail. The facts in O. P. 99/1994 are as follows. - Petitioner in the Original Petition - Smt. Aleyamma - was appointed as an Upper Primary School Assistant with effect from 29.7.1986 during the academic year 1986-87. She is fully qualified to hold the post of HSA (Social Studies). A permanent vacancy of HSA (Social Studies) arose in the school on 1.9.1989 on account of the death of a HSA (Social Studies). Petitioner was promoted as HSA (Social Studies). That appointment was not approved by the departmental authorities on the ground that one Smt. Letty Philipose, who was senior to her in the U. P. School Section, should have been promoted as per R.43 of Chap.14A. Aggrieved by the denial of approval, petitioner approached this court by filing O. P. 13423/1991. On dismissal of that Original Petition, she took up the matter in W. A. 517/ 1992. Division Bench dismissed the Appeal on the ground that Smt. Letty Philipose, a trained Science graduate, should have been promoted as HSA, since she was the seniormost UPSA entitled to promotion under R.43 of Chap.14A. During the academic year 1991 -92, seniormost HSA (Social Studies), namely Smt. V.P. Ponnamma, was promoted as Headmistress. Instead of promoting the petitioner to that vacancy, manager appointed a fresh hand - Smt. Sissy Koshy, the 5th respondent - as HSA (Maths). The appointment of the 5th respondent made with effect from 8.10.1991 is questioned by Aleyamma, the petitioner.

(3.) During the academic year 1991-92, there were 11 posts of High School Assistants, as per the staff fixation order passed by the educational authorities. At the that time, according to the petitioner, there were only two High School Assistants in Social Studies after Smt. V. P. Ponnamma's promotion as Headmistress with effect from 1.6.1991. The minimum subject requirement for Social Studies as on 1.6.1991, by applying the ratio of 1:1:1, should be three. Petitioner, who was fully qualified to hold the post of HSA (Social Studies) and senior enough among the UPSAs, should have been promoted to that vacancy. Instead of doing that, 5th respondent was appointed against a post of HSA (Maths) from open quota. As there were six Science teachers, as against the minimum subject requirement of four, the District Educational Officer refused to grant approval to the appointment of the 5th respondent. 5th respondent took up the matter in appeal before the Deputy Director of Education, who agreed with the decision rendered by the District Educational Officer. 5th respondent then took up the matter before the Government. Government called for a report from the Deputy Director of Education. Deputy Director opined that the appointment of the 5th respondent was against the Rules, since the petitioner who is a R.43 claimant should have been accommodated as the eleventh HSA to meet the minimum subject requirement in Social Studies. Ignoring the report of the Deputy Director of Education, the government ordered regularisation of the 5th respondent's appointment as HSA (Maths) with retrospective effect from 8.10.1991 and to pay her the salary. This decision of the Government is under challenge. . .