The State of Kerala vs K. Udayakumaran

Thottathil B. Radhakrishnan, J.—We have heard the learned Senior Government Pleader and the learned counsel appearing for different private respondents.

This matter relates to four teachers of P.K. High School, Mannapra, Alathur Taluk, Palakkad District.

Sri. V. Sivan, HSA (Physical Science) retired on 30.06.2008. The 2nd writ petitioner Smt. Indulekha K. was promoted from the category of UPSA to that retirement vacancy of HSA (Physical Science) with effect from the next working day, viz., 01.07.2008. Sri. A.K. Sreekumaran, HSA (Natural Science) retired on 31.03.2009. The 4th petitioner Smt. Indira K.R. was promoted from the category of UPSA as HSA (Natural Science) in that retirement vacancy with effect from 01.06.2009 when the school reopened after mid-summer vacation. The 3rd petitioner Sri. Sreevalsan V.P. and the 5th petitioner Smt. N. Bindu, were respectively appointed against the consequential vacancies of UPSAs with effect from 01.07.2008 and 01.06.2009.

The Department refused the approval of the appointment of one among the newly appointed UPSAs, but the reasoning of the Department was such that it would affect the promotions and appointments of all the aforesaid four persons. Therefore, they along with the Manager filed the writ petition. Before the learned single Judge, arguments were advanced based on Rules 43 and 51A of Chapter XIV-A KER and the effect of the proviso and notes to one of those Rules vis-�-vis the Government order obliging the Manager to appoint protected teachers. While the statutory obligation in relation to protected teachers were noted by the learned single Judge as only relevant to those teachers retrenched from the educational agency concerned, it was further held that the executive order of the Government will not apply where the statutory Rule directly governs. It was accordingly held by the learned single Judge that the eligibility of two teachers who were working as UPSAs for promotion in terms of Rule 43 of Chapter XIV-A KER had to be accepted overriding the effect of the executive order whereby the Government wanted protected teachers to be appointed in vacancies.

Hearing the learned Senior Government Pleader and the learned counsel for the contesting respondents, we thought it appropriate to look into the facts which we have noted above in relation to the process by which writ petitioners 2 to 5 came to occupy the posts that they are now holding. With that, the first question that would arise even dehors the discussions on the applicability or otherwise of Rules 43 and 51A of Chapter XIV-A KER would be as to whether the Manager could be compelled to make appointments of protected teachers without the Department making available to the Manager, the list of protected teachers. This issue is no more res integra having regard to the judgments of this Court in 2011 (3) KHC 650 (Ker) as affirmed by the Division Bench in State of Kerala Vs. Nadeera, which also stands approved by the Hon''ble Supreme Court of India. That precedent is authority for the position that even as per the Circulars and Government Orders, the staff fixation is an exercise to be compulsorily done every year which would also take with it the opportunity to find the availability of proper teaching faculty in the school vis-�-vis the pupil strength. In case protected teacher is not available, the vacancies cannot be kept vacant for all time to come, because that will adversely affect the pupils who have to be taught. The Manager would have been found fault with, if vacancies are kept without being filled up. In cases where the Department had not communicated the list of protected teachers to the Manager of an aided school, there is no obligation on the part of the Manager to secure the list of the protected teachers from the respective Offices of the Education Department and then to make appointment. The terms of Rule 6(viii) of Chapter V of the KER were also understood by the Division Bench in that case as casting the obligation on the Managers in the aided schools only to the extent that they must appoint the protected teachers, whenever a list is sent. Beyond that, there is no other obligation cast on them.

We have looked into the pleadings in the writ petition and the counter affidavit filed by the Department before the learned single Judge. Apart from making reference to the relevant Rules and Government Orders, there is no assertion whatsoever by the Department that they had communicated the list of protected teachers to the Manager of the School and that the Manager had failed or refused to make appointment from that list. As it was in Nadeera''s case (supra), this is also one where it is not the case of the Department that the Management concealed the list of the protected teachers and intentionally violated the guidelines.

In the light of the aforesaid facts, we do not find any ground to further elaborate on the preferential applicability of Rule 43 of Chapter XIVA over the executive orders or Rule 68 of Chapter V of the KER. The impugned judgment does not warrant interference in this intra-court appeal. The writ appeal, therefore, fails.

In the result, this writ appeal is dismissed. No costs.