SREEKUMAR AMMA Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal is by Sreekumari Amma challenging the judgment of the learned single Judge in O. P. No. 3272 of 1987. The appellant was appointed as an Upper Primary School Assistant for different short durations from 1979 to 1981. This is in the Nair Samajam Boys High School, an aided institution governed by the Kerala Education Act and the rules made thereunder. She could not be continued as an Upper Primary School Assistant for want of vacancies and thus acquired protection under R.51A of Chap.14A of the Kerala Education Rules (for short, the Rules). When such was the position, a permanent vacancy of Upper Primary School Assistant arose in the year 1983 and the manager appointed the appellant in the said vacancy in due recognition of her rights under R.51-A. But by order Ext. P1 dated 29-11-1983, the District Educational Officer refused approval to the said appointment on the ground that there are other High School Assistants who are entitled to the benefit of R.51-A. In other words, approval was refused on the ground that the manager should have appointed the protected High School Assistant in preference to the appellant, who was a protected Upper Primary School Assistant. The decision of the D. E. O. was further affirmed on appeal by the Director of Public Instruction by order Ext. P2 dated 12-9-1984. The said order was affirmed in revision by the State Government by Ext. P9 dated 28-3-1987. It is the said orders that the appellant challenged in the writ petition. The learned single Judge has dismissed the writ petition, observing that all doubts in this behalf now stand clarified by the issuance of the Government Order in G. O. (MS) 146/86/G. Edn. dated 14-8-1986. It states that fresh appointment could be approved only after the condition regarding absorption of protected High School Assistant is satisfied. The learned single Judge has also relied upon the earlier decisions of this court reported in I. L. R.1973 (2) Kerala 39 between the Manager, V. V. U. P. S. Padoor and another and A. E. O. Mullassery & another, and O. P. Nos. 3326/72, 4424/83 and 8329/84. The learned single Judge has held that in the light of the principles laid down in these cases the respondents were right in taking the view that the appellant could not have been appointed as an Upper Primary School Assistant, though she was entitled to the protection under R.51-A on the ground that there are other High School Assistants also entitled to the protection of R.51-A. It is the said decision that is challenged in this appeal.

(2.) Sri. Gopalakrishnan Nair, learned counsel for the appellant contended that as the vacancy in this case was that of Upper Primary School Assistant, the appellant has a preferential claim for appointment to the said post, as she is a protected Upper Primary School Assistant under R.51-A. It was his contention that the protection under R.51-A cannot be given in this case to High School Assistants as the vacancy is that of an Upper Primary School Assistant. In support of his contention he relied upon the decision of this, court reported in 1988 (1) KLT 644 between Gopalakrishnan Nair and District Educational Officer. As the question raised in this case is fully covered by the said decision, it was contended that the view taken by the learned single Judge cannot be sustained. That was a case in which a clerk serving in an aided school had acquired a preferential right for further appointment under R.51-A having regard to the prior service he had as a clerk to his credit in that institution. A vacancy of the post of a peon arose in that school. The clerk who had acquired a preferential right under R.51-A was appointed as a peon. That was challenged before this court on the ground that the clerk who had acquired a preferential right for future appointment under R.51-A can exercise that right only in respect of the vacancy of a clerk and not in respect of any vacancy of a post either superior or inferior to that of a clerk. This court after examination of R.51-A ruled as follows:

(3.) But it was contended by Sri. Sugathan, learned High Court Government Pleader, that R.51-A has been interpreted by this court in several decisions in the light of Para.9 of Ext.R1(c), G. O.MS193/82/G.Edn. dated 20th December 1982 as requiring the educational agency to appoint a High School Assistant who has acquired a preferential right under R.51-A when a vacancy of an Upper Primary School Assistant arises in preference to an Upper Primary School Assistant who has a preferential right under R.51-A for appointment to the said post. Our attention was drawn to the judgment of this court reported in 1976 KLT 506 between Krishna Varma Raja and D.E.O., Kasaragod. But we find on a careful reading of the said judgment that this question was neither debated nor decided in the said case. What has been laid down in the said case is that R.51-A must be understood in the light of the subsequent note added to the said provision by the rule making authority for the purpose of clarifying the said statutory provision. Hence the said decision cannot advance the case of the learned High Court Government Pleader. The next decision relied upon is the one rendered by a learned single Judge in O.P.No.4424 of 1983-K. That was a ease in which the Government had directed that the services of a protected teacher in the high school section could be utilised in the upper primary section also. The learned single Judge has held that as the Government is paying salary to the teachers, it cannot be said that the Government made any mistake in passing such an order. We find that R.51-A did not really come up for interpretation in the said judgment.