AJITH K.K Vs. STATE OF KERALA

JUDGEMENT

(1.) The impugned common judgment in the writ appeal refused the claim of the appellants, for regular appointment and approval from 02.06.2014 and 01.06.2016 on which dates the two appellants were appointed pursuant to retirement vacancies. The appellants so appointed were continued as daily wage employees by reason only of Ext.P10 order of the Government; specifically restricting filling up of vacancies in uneconomic schools in 2010-11 arising due to death, resignation, promotion, transfer etc. The said uneconomic schools could only employ daily wage workers in the contingencies above specified. However there is also a rider insofar as the Director of Public Instructions (DPI for brevity) being empowered to review such appointments and approve on regular basis, if the appointment of teachers at any time, comes within the minimum strength of the school, which strength is also specified in the Government Order. For Upper Primary Section the minimum strength is 45.

(2.) The learned Counsel appearing for the appellant would first contend that the retirement vacancies are not covered under Ext.P10. It is also argued on the basis of Ext.P9 staff fixation that there are only five posts sanctioned in the UP Section one of a Head Master, two of UPSA's, one Hindi Language teacher and one Office Attendant. The appellants herein were appointed as UPSA's on the respective dates as stated above. The learned Counsel would also contend that Sub-Rule (3) of Rule 7A (Chapter XIV A) read with Rule 5 of Chapter XXIII would require regular appointment of persons when such vacancies arise; especially on retirement. The decision of the Hon'ble Supreme Court in State of Kerala and others v. Sneha Cheriyan 2013 (1) HC 660 (SC) is also relied on.

(3.) We have to first observe that Ext.P10 has not been challenged in the writ petition which according to the learned Counsel was by reason of the absence of contingency on retirement being specified in Ext.P10. The learned Single Judge, rightly found that, all vacancies after 2012, as per Ext.P10 were to be only filled up with daily wage employees in an uneconomic school. The specific words employed in Ext.P10 are "death, resignation, promotion, transfer etc.". The mere absence of the word retirement does not have any consequence and it is not as if the retirement vacancies are directed to be filled up as per Ext.P10. The prohibition as per Ext.P10 we notice is only with respect to uneconomic schools, who do not have a minimum strength of students. The said prohibition of appointment of daily wage employees is also in the interest of the students who are continued in the school; which otherwise would be closed down and the students transferred to nearby schools.