J.C. Stella Jasmine vs State of Kerala and Others

K. Sreedharan, J.—4th Respondent is a corporate management. It has many schools. In a leave vacancy of Lower Division Clerk, in one of the schools belonging to the 4th Respondent, Petitioner was appointed. That vacancy was between 7th January 1985 to 6th April 1985. Later when another leave vacancy arose in one of the schools run by the 4th Respondent, Petitioner was appointed from 13th November 1985, Since the permanent incumbent expired during that vacancy, Petitioner was appointed in that regular vacancy with effect from 29th December 1985. Above appointments were not approved by the District Educational Officers on the ground that 4th Respondent ought to have promoted two Peons who were fully qualified and posted as Lower Division Clerks. 4th Respondent took up the matter in appeal before the Deputy Director of Educational and the Director of Pubic Instruction without success. Thereupon, Petitioner and 4th Respondent preferred revision petitions under Rule 92 of Chapter XIV-A of Kerala Education Rules before Government. By Exhibit P-8 order, Government rejected both revision petitions. Hence this Original Petition.

Respondents 5 and 6 were working as Peons when the vacancies of Lower Division Clerks, to which Petitioner was appointed, arose. Respondents 5 and 6 were appointed long subsequent to 1st October, 1964 So, their conditions of services are governed by Chapter XXIV-B of the Kerala Education Rules. Rule 7 of Chapter XXIV-B inter alia states that rules regarding appointment, promotion, seniority etc. contained in Chapter XIV-A applicable to teachers of aided school shall mutatils mutandis apply, to non-teaching staff in aided schools. Note-1 to Rule 1 of Chapter XIV-A provides that a member of the non-teaching staff under the category of Clerks, Peons, etc., shall be eligible for appointment as teachers, provided he has the prescribed qualification. As per Rule 43 of Chapter XIV-A, vacancies in the higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority. The combined effect of the above provisions is that a qualified Peon is entitled to be promoted to the cadre of Lower Division Clerk in preference to a direct recruit. When vacancy of Lower Division Clerk arose in the school run by the 4th Respondent on 7th January 1985, Respondents 5 and 6 were fully qualified to be promoted to that post. Their claim for promotion is protected by Rule 43 of Chapter XIV-A of Kerala Education Rules. Petitioner''s appointment to that vacancy has gone to affect the rights of these Respondents adversely. So, educational authorities and the Government were justified in refusing to approve the appointment of the Petitioner.

In view of what has been stated above, I find no merit in this original petition. It is accordingly dismissed. However, I make no order as to costs.