Judgment:
P. Bhavadasan, J.
1. The appellant was the sixth respondent in the Writ Petition, She was appointed as Upper Primary School Assistant (for short, 'U.P.S.A.') in the fifth respondent's High School, in a maternity leave vacancy from 6.6.2002 to 17.10.2002. While so, a regular 2.9.2002, in which the first respondent/Writ Petitioner was appointed. The point that arises for decision in this case is, whether the appellant should have been accommodated in the regular vacancy which arose on 2.09.2002 or a fresh hand like the first respondent could have been inducted, as was done in this case. The brief facts of the case are the following:
2. As mentioned earlier, the appellant was appointed as U.P.S.A. in a maternity leave vacancy from 6.6.2002 to 17.10.2002. The said appointment was approved by the District Educational Officer (for short, 'D.E.O.') on 12.6.2003. While so, a regular vacancy in the cadre of U.P.S.A. arose, as a result of promotion of one of the U.P.S.A's. on 2.09.2002. The first respondent/writ petitioner was appointed in that vacancy. The D.E.O., by order dated 20.5.2003, approved the said appointment of the first respondent from 2.09.2002 to 31.3.2003 and from 2.7.2003 onwards without any time limit On approval of the first respondent's aforementioned appointment, the appellant/sixth respondent moved the D.E.O. by filing a representation on 10.7.2003, and this Court by judgment dated 15.6.2004 in Writ Petition (Civil) No. 17296 of 2004 directed the D.E.O. to consider the claim of the appellant/sixth respondent. There was some dispute between the parties as to whether the appellant has submitted the representation dated 10.7.2003. Any way, pursuant to the direction of this Court, the appellant's claim for appointment in the regular vacancy which arose on 2.9.2002 was considered by the D.E.O. and rejected by Ext.P4 order dated 5.10.2004. The D.E.O. took the view that since the appointment of the appellant in the leave vacancy was approved only on 12.6.2003, she could have raised a claim for any appointment under Rule 51A of Chapter XIV-A of the Kerala Education Rules (for short, 'K.E.R.') only thereafter. The said Rule recognises the right of a retrenched teacher for re-appointment. In the meantime, the first respondent was promoted as H.S.A. on 9.6.2003 and in the resultant vacancy, the appellant was appointed as U.P.S.A.
3. The appellant challenged Ext.P4 order before the Deputy Director of Education, by filing Ext. PS appeal. The Deputy Director by Ext.P6 order dated 11.12.2006 allowed the appeal. The D.E.O. was directed to regularise the appointments of U.P.S.As. made by the Manager. As per that order, the appellant was to be accommodated in the regular vacancy of U.P.S.A. which arose on 2.9.2002. The first respondent challenged Ext.P6 order before the Director of Public Instruction, by filing a petition dated 17.8.2007. The Director of Public Instruction, by Ext.P7 order dated 31.10.2007 dismissed the said petition and upheld the order of the Deputy Director of Education, Ext.P6. The Manager, in the meantime, challenged the order of the Deputy Director of Education before the Government, by filing a Revision on 19.11.2007. The Government by Ext.P8 letter dated 26/11,2007 forwarded the said Revision to the Director of Public Instruction, directing him to reconsider the matter, after hearing all concerned parties,, including the Manager. Based on the said communication of the Government, the Director of Public Instruction reconsidered the matter and by Ext,P9 order dated 3.7.2008, affirmed his decision contained in Ext.P7 order dated 31.10,2007. Challenging Exts.P6, P7 and P9 orders, the first respondent filed the present Writ Petition. The sixth respondent/appellant filed a counter affidavit, supporting the impugned orders. Ext.R6(a) order of the Government dated 9.11.1999 was also produced along with the said counter affidavit. That said order says that, 'Government are pleased to clarify that the services of leave substitutes will be regularised against the first arising permanent/regular vacancy in the respective schools in the order of seniority'. The Manager filed a counter affidavit, supporting the first respondent/writ petitioner. The learned Single Judge after hearing both sides, allowed the Writ Petition and quashed Exts.P6, P7 and P9 orders. Feeling aggrieved by the judgment of the learned Single Judge, this appeal is preferred by the sixth respondent.
4. The learned Counsel for the appellant submitted that in view of Ext,R6(a) order and Rule 51 of Chapter X.IV-A of the K.E.R., the appellant should have been accommodated in the regular vacancy which arose on 2,9.2002, even though at the relevant time, her appointment was not approved. The Manager committed an illegality in inducting a fresh hand in the regular vacancy of U.P.S.A. The said illegality was approved by the D,E,O,; but the Deputy Director of Education and the Director of Public Instruction took the correct view in law and there was no valid ground for interfering with those orders in the Writ Petition. The learned Counsel for the first respondent, on the other hand, supported the impugned orders. He also pointed out that there was considerable delay in filing Ext,P5 appeal dated 27.9.2005 against Ext.P4 order dated 5.10.2004. Therefore, the Deputy Director should not have entertained that appeal. In answer, the learned Counsel for the appellant submitted that the first respondent/petitioner challenged Ext.P6 order dated 11.12.2006 of the Deputy Director of Education by filing a petition only on 17.8.2007, before the Director of Public Instruction. So, there is delay on the part of the first respondent also to challenge the order adverse to him. It is also pointed out that as evident from Ext,P7, the first respondent did not raise such a contention of delay against the appellant before the Deputy Director.
5. We considered the rival submissions made at the Bar and also the materials on record. The rule governing retrenchment of teachers is Rule 51 in Chapter XIV-A of the K.E.R., which reads as follows:
51. When a vacancy in any category of post terminates necessitating the relief of a teacher, senior hands shall ordinarily be retained in preference to junior hands with due regard to the requirement of subjects determined by the Director under Sub-rule (1) of Rule 1 and to the instructions issued by him under Sub-rule (4) of the Rule.
As far as U.P.S. As. are concerned, there is no question of subject requirement in making the appointment or ordering retrenchment. We have already quoted the relevant portion of Ext.R6(a) order,, which mandates that incumbents working in leave vacancies shall be accommodated in the regular vacancies having regard to their seniority. The said order further explains or clarifies Rule 51 of Chapter XIV-A of the K.E.R., Sub-section (2) of Section 7 of the Kerala Education Act says that, The Manager shall be responsible for the conduct of the school in accordance with the provisions of this Act and the rules thereunder'. Rule 9 of Chapter III of the K.E.R., makes it one of the mandatory duties of the Manager to comply with the orders issued by the Government and the Department in conformity with the provisions of the Kerala Education Act and the Rules, Rule 9(1) of Chapter III of the K.E.R. reads as follows:
9. Duties and powers of the managers of Aided Schools.- (1) The Manager shall be responsible for the conduct of the school strictly in accordance with the provisions of the Kerala Education Act and the Rules issued thereunder. He shall also abide by the orders that may be issued from time to time by the Government and the Department in conformity with the provisions of the Act and the rules issued thereunder.
6. In the light of the above provisions, the Manager could have made the appointments/ retrenchments only in accordance with Rule 51 of Chapter XIV-A of the K.E.R. quoted above and Ext.R6 (a) order mentioned above, The Manager could not take shelter behind the plea that when the regular vacancy arose, the appointment of the appellant in the maternity leave vacancy was not approved. The Manager knew that the appointment was in a maternity leave vacancy which arose in a post sanctioned as per the Staff Fixation Order of that year, that the appellant was qualified for appointment as U.P.S.A. also and therefore, even if there is delay, the appellant's appointment was going to be approved, Therefore, when the regular vacancy arose, the appellant should have been accommodated in that vacancy and a fresh hand could have been appointed only in the remaining portion of the maternity leave vacancy, in which the appellant was working. As a matter of fact, as the remaining period of the said leave vacancy does not have a duration of two months, the first respondent could not have been appointed at all, as U.P.S.A., in view of Rule 7A(3) of Chapter XIV-A of the K.E.R., which says that, the vacancies which have duration of two months or less period shall not be filled up by any appointment. The said two months period has since been amended with effect from 16.4.2005, but, when the appointment of the first respondent was made, the unamended rule was remaining in force. The legal position that the Manager cannot deny promotion or re-appointment for the reason that original appointment was not yet approved, is covered by the Division Bench decision of this Court in Joshi v. Krishna P. Raian 2006 (4) KLTSN 63 : Case No. 85.
7. In view of the above legal position, the decision of the learned Single Judge cannot be sustained. As held by the Deputy Director and the Director, the Manager should have appointed the appellant in the regular vacancy which arose on 2.9.2002. The appointment of the first respondent in that vacancy was illegal. The D.E.O. should not have approved the said respondent's appointment. We notice that the contention of delay from the part of the appellant raised by the first respondent cannot be accepted, as he was equally guilty of delay in challenging the order (Ext.P6) of the Deputy Director before the Director of Public Instruction. Further, that point is also seen not canvassed before the Director,, when the said officer considered the challenge against Ext. PS order.
In the result, the Writ Appeal is allowed. The judgment under appeal is reversed and the Writ Petition is dismissed. Exts.P6, P7 and P9 orders are restored.