THE MANAGER Vs. STATE OF KERALA,

JUDGEMENT

(1.) Captioned writ petitions are materially connected challenging the Government Order dated 22.7.2019, whereby direction was issued to approve the appointment of Aswathy.A, H.S.A. (Natural Science) for the period from 1.6.2015 to 14.7.2018, if she is qualified otherwise. W.P.(C) No.23712/2019 is filed by the Manager of CFD Higher Secondary School, Mathur, Palakkad, whereas the connected writ petition is filed by H.S.A (Physical Science), who was affected by the impugned Government Order. Therefore, I heard them together and propose to pass this common judgment. Material facts available from 25712/2019 is relied upon to dispose of the writ petitions.

(2.) On 15.7.2014 the school was sanctioned with four posts of HSA (Physical Science) and three posts of HSA (Natural Science) as per Ext.P1 staff fixation order. On 31.5.2015, one Smt.Krishnamani, HSA (N.S) retired on superannuation. 30483 of 2019 On 28.4.2016 the District Educational Officer, Palakkad i.e., the 3rd respondent issued Ext.P2 staff fixation order for the academic year 2015-2016. On 1.6.2016, the 4th respondent i.e., Aswathy.A was appointed as HSA (N.S). The appointment was placed for approval before the District Educational Officer, however, as per Ext.P3 order dated 7.6.2017 it was rejected. The said order was upheld by the Deputy Director of Education a As per Ext.P4 order dated 20.10.2017. Thereupon, the Manager filed revision before the Director of Public Instructions i.e., the 2nd respondent herein. While so, the 4 th respondent i.e., Aswathy.A. preferred a representation before the State Government and secured a judgment in W.P. (C) No.2254/2018, whereby the State was directed to consider the revision petition filed by Aswathy. In the meanwhile as per Exts.P6 and P7 dated 18.12.2017, the District Educational Officer has issued the staff fixation orders for the year 2016-2017 and 2017-2018 respectively. While so, the 1st respondent heard the parties in the revision filed by Aswathy on 14.6.2019 and has passed Ext.P12 order directing 3 rd respondent 30483 of 2019 to approve the 4th respondent's appointment as HSA (N.S) w.e.f. 1.6.2015 to 14.7.2018. The contention put forth by the Manager as well as other petitioner, who is affected by Ext.P12 Government Order, is that the Government Order is illegal since there was no vacancy to appoint Aswathy.A. w.e.f. 1.6.2015 as is evident from Ext.P2 staff fixation order. So also there was no scope for appointment of Aswathy since there was an embargo of fresh appointment on account of the Government Order dated 28.6.2002. Further more petitioner in the connected writ petition viz., Rajitha.R had to be retained being a senior HSA (Physical Science) in the retirement vacancy as directed by the 3rd respondent .

(3.) The 4th respondent i.e., Aswathy.A. filed a detailed counter affidavit basically contending that on the basis of the appointment order, she joined duty on 1.6.2015 itself and in terms of Rule 7 Chapter XIVA K.E.R the appointment became effective from the said date and the Manager was legally bound to forward the appointment for approval within 15 days in accordance with Rule 8 Chapter XIV K.E.R and 30483 of 2019 the District Educational Officer was bound to pass orders on the approval of appointment within 30 days. However, the proposal was not forwarded by the Manager. Smt.Rajitha was working as HSA (Physical Science) during the academic year 2010-2011 on the basis of Ext.P1 staff fixation order issued during the relevant academic year. She was continuing as HSA (Physical Science) since academic year 2009. After 2010-2011 academic years, staff fixation orders were not issued by the 3 rd respondent since the Government was considering the implementation of teachers' package. However, it was directed by issuing circulars that, till the finalization of the issue of teachers' package, the staff fixation orders in force for the academic year 2010-2011 shall be followed. It was accordingly that, Smt.Rajitha continued in service as HSA (Physical Science) for the subsequent years. During the academic year 2010-2011, five pots of HSA (P.S) was sanctioned in the school and three posts of HSA (N.S) was also sanctioned. The appendix along with staff fixation order for the academic year 2014-2015 shows that, number of posts of HSA (P.S) 30483 of 2019 sanctioned was only three and number of posts of HSA (N.S)sanctioned was also three. As per Ext.P2 staff fixation order, three posts of HSA(N.S) sanctioned for the previous academic years were retained for the academic year 2015-2016 and the number of posts of HSA (Physical Science) sanctioned is continued to be three indisputably. Smt.Rajitha was occupying the 5 th post of HSA (Physical Science) that was sanctioned during the academic year 2010-2011. For want of staff fixation orders for the subsequent academic years Smt.Rajith.R. Continued as HSA (Physical Science).