HYMAVATHY Vs. ADDL SECRETARY

JUDGEMENT

(1.) Petitioner seeks the issue of a writ of certiorari to quash Ext. P2 order which the Government passed on a claim advanced by the petitioner that she was entitled to preference for appointment as Upper Primary School Assistant in the school under the management of the second respondent. She was appointed for the period from 11-6-1982 to 13-8-1982 consequent on promotion of one Smt. P. Radha, an Upper Primary School Assistant as High School Assistant in a leave Vacancy. The Manager appointed her again as Upper Primary School Assistant from 15-7-1982 to 13-8-1982 in a newly sanctioned post. That appointment was, curiously, during the currency of the first appointment. The manager had reported the promotion of Smt. Radha as H. S. A. for approval as he was obliged to do. He also separately reported the appointment of the petitioner on two occasions from 11-6-1982 to 13-8-1982 and from 15-7-1982 to 13-8-1982 for approval. The controlling officer refused to approve the promotion of Smt. Radha for the reason that there was an excess High School Assistant on the staff who could be deployed in that vacancy, Smt. Radha had therefore to continue as Upper Primary School Assistant. If that was so, there was no vacancy in which the petitioner could have been appointed from 11-6-1982 to 13-8-1982. The appointment of the petitioner for the period from 15-7-1982 to 13-8-1982 was not approved, because the period of appointment was for less than one month, and no such appointment could have been made against such a leave vacancy. In other words, neither of the two appointments of the petitioner was approved by the Department. A maternity leave vacancy arose in the school when Smt. Kamala, an Upper Primary School Assistant took leave from 14-7-1982 to 19-11-1982. The manager appointed the. third respondent who was a qualified hand. Petitioner objected to the approval of that appointment of the third respondent on the ground that her earlier appointment entitled her to preference. However, the controlling officer approved that appointment. In the mean time, the manager had filed an appeal against the refusal of the controlling officer to approve the promotion of Smt. Radha as High School Assistant. The appeal was rejected by order dated 20-12-1982. That order has become final, since neither the manager nor Smt. Radha had taken up the matter any further. The result is that there was no vacancy of Upper Primary School Assistant for the period from 11-6-1982 to 13-8-1982, in which the petitioner could have been appointed, or even if appointed, her appointment could have been approved by the Department.

(2.) The petitioner filed O. P. 6464 of 1983 before this Court, challenging refusal of approval of her appointment. She obtained an order of stay of approval of the appointment of the third respondent. Subsequently, this Court disposed of the Original Petition itself directing the Government to consider the claim of the petitioner. The Government passed a fairly elaborate order-Ext. P2 dated 20-3-1984- after hearing the petitioner, the Headmaster and the third respondent through representatives. The Government disposed of the contentions raised by the petitioner and held that the petitioner was not entitled for approval of her appointment for the period from 11-6-1982 to 13-8-1982 in the promotion vacancy or from 15-7-1982 to 13-8-1982 in the additional vacancy. It also held that she had no preferential claim under R.51A Chap.14A of the Kerala Education Rules for appointment, in the subsequent leave vacancy. Petitioner challenges Ext. P2 order.

(3.) Counsel for petitioner urged before me four points for consideration. He submits firstly that the appointment of the petitioner as U.P.S.A. "for the period from 11-6-1982 to 13-8-1982 ought to have been approved, because, there was, as a matter of fact, a vacancy of Upper Primary School Assistant, the manager had appointed her and she had actually worked in that post. Counsel submits that her appointment in an available vacancy and service rendered by her consequent thereon should be recognised by the Controlling Officer and the Government; and that the latter completely ignored that basic right of the teachers in passing Ext. P2 order. His next submission is that Government erred in refusing to approve the promotion of Smt. Radha as High School Assistant, since a protected teacher could not be deployed in a short term leave vacancy and also since the subject requirements did not permit such deployment. Ext. P3 order directing absorption of protected teachers irrespective of subject requirements was issued only on 12-10-1982 and had no retrospective effect. The appointment of the petitioner in the consequent vacancy should therefore have been approved, whereas the vacancy arose earlier. Counsel submits next that approval of her appointment from 11-6-1982 should not have been denied on the basis of the staff fixation order which came into being only on 14-7-1982. The next submission is that R.51A Chap.14A of the K E.R. entitles any qualified teacher with prior service in the school-whether that is approved service or not to be preferred for future appointment; and therefore, the petitioner ought to have been given preference to the third respondent for appointment in the leave vacancy from 14-7-1982 to 19-11-1982.