Manager Cfd High School vs State Of Kerala And Ors

A.K. Jayasankaran Nambiar, J

The Manager of the CFD High School, Mathur, Palakkad, who was the petitioner in the writ petition, is the appellant before us, aggrieved by the

judgment dated 26.11.2019 of the learned Single Judge. The challenge in the Writ Petition was to Ext.P12 order dated 22.07.2019 of the 1st

respondent State Government that found that a vacancy that arose in a post of H.S.A (Natural Science) in the school on 01.06.2015, consequent to

the retirement of an earlier incumbent to the post, Smt.Krishnamani, had to be filled by appointing Smt.Aswathi, the 4th respondent in the Writ

Petition. The brief facts necessary for the disposal of the Writ Appeal are as follows:

Consequent to the retirement of an H.S.A (Natural Science) in the school on 31.05.2015, Smt.Aswathi was appointed as an H.S.A (Natural

Science) with effect from 01.06.2015 as is evident from Ext.R4(a) produced along with the counter affidavit of the 4th respondent. In the Writ

Petition, the petitioner Manager disputes the said appointment and points to the fact that there was no order passed by the District Educational Officer

either approving or rejecting the said appointment of Smt.Aswathi. Presumably proceeding on the said assumption, when pursuant to the staff fixation

order for the academic year 2015-2016, two posts of H.S.A (Physical Science) were reduced in the school, the Manager appointed one Rejitha, who

was working as H.S.A (Physical Science), and who would under normal circumstances have had to be retrenched owing to her being the junior most

HSA (Physical Science) in the school, to the vacant post of H.S.A (Natural Science). Thereafter, pursuant to the staff fixation for the year 2016-

2017, when an additional post of H.S.A (Physical Science) was sanctioned to the school, the Manager re-adjusted the appointment of Smt.Rejitha to

the said additional post inasmuch as that was the subject in which Smt.Rejitha was competent to be appointed as H.S.A. To the resultant vacancy

arising in the post of H.S.A (Natural Science) the Manager appointed Smt.Aswathi as H.S.A (Natural Science) with effect from 01.06.2016 and

forwarded the proposal to the educational authority for approval.

It is relevant to note that in the interregnum, ie. between the academic years 2015-2016 and 2016-2017, the Government came out with an order

sanctioning the teachers package and making it mandatory for aided schools to appoint protected teachers in additional posts resulting from staff

fixation orders. Taking note of the said Government Order, the approval to the appointment of Smt.Aswathi with effect from 01.06.2016 was denied

by the educational authority. The Manager preferred an appeal against the order of rejection dated 07.06.2017 before the Deputy Director of

Education but without any success, as the same also came to be rejected by an order dated 20.10.2017. Although a further revision was filed by the

Manager before the Director of Public Instructions, no orders were passed in the said Revision Petition. In the meanwhile, however, through a

representation dated 28.11.2017, Smt.Aswathi approached the Government claiming an approval of her service as H.S.A (Natural Science) with

effect from 01.06.2015 by maintaining that she was appointed as such in the school with effect from 01.06.2015, and hence, in the absence of any

Government Order similar to GO(P).No.199/2016 G.EDN dated 03.12.2016, the approval to the said appointment could not have been denied. In

particular, it was contended that the bar stipulated in the Government order aforementioned would apply only to appointments effected to vacancies

arising after 29.01.2016 and her appointment was with effect from 01.06.2015. The Government, by order dated 22.07.2019 impugned in the Writ

Petition, upheld the contention of Smt.Aswathi and found that she was rightly entitled to an approval of her appointment as H.S.A (Natural Science) in

the school with effect from 01.06.2015.

The challenge to the Government Order dated 22.07.2019 in the Writ Petition was premised essentially on the contention that Smt.Aswathi had not

been appointed by the Manager as H.S.A (Natural Science) in the school with effect from 01.06.2015 and that her first appointment as H.S.A

(Natural Science) was only with effect from 01.06.2016, and the latter appointment had not been approved by the educational authorities. The original

appointment of Smt.Rejitha in 2015 through her adjustment to an existing vacancy in the post of H.S.A (Natural Science) and the subsequent

adjustment in 2016-2017 to the additional post of H.S.A (Physical Science) sanctioned for that year is cited as a reason as to why the appointment of

Smt.Aswathi to the post of H.S.A (Natural Science) with effect from 01.06.2015 could not be approved.

The learned Single Judge, who considered the rival submissions found that it was incumbent upon the Manager to appoint a teacher qualified in

Natural Science to the vacancy that resulted consequent to the retirement of Smt.Krishnamani as H.S.A (Natural Science) with effect from

01.06.2015. The judgment of the Division Bench in Rakhee v. State of Kerala [2007 (1) KLT 766] was relied upon for holding that, pursuant to a

division fall and reduction in the posts sanctioned of H.S.A in any particular subject, the incumbent to be retrenched should be the junior most teacher

in the category concerned. Placing reliance on Rule 51 of Chapter XIV A K.E.R, it was held that H.S.As in different subjects could not be

categorised as a single category for the purposes of the said retrenchment or for consequent filling up of vacancies to the post of H.S.A. Applying the

said ratio, the learned Single Judge found, and in our view rightly so, that to the vacancy that resulted consequent to the retirement of

Smt.Krishnamani, who was an H.S.A (Natural Science), the appointment of Smt.Aswathi as H.S.A (Natural Science) with effect from 01.06.2015

had to be necessarily upheld. Admittedly, between Smt.Aswathi, who was an H.S.A in Natural Science and Smt.Rejitha, who was an H.S.A in

Physical Science, Smt.Aswathi had a better claim for appointment to the vacancy that resulted in the post of H.S.A (Natural Science). It is also

significant that on the date of her appointment as HSA (Natural Science) on 01.06.2015, there was no Government Order mandating that the post had

to be filled by protected teachers. There was, therefore, no impediment for granting approval to the said appointment. We are therefore, of the view

that the impugned judgment does not call for any interference. The Writ appeal fails and is accordingly dismissed.