A protected teacher, being not a member of the staff of the school, is not entitled to be considered for the post of Headmaster.

1. Petitioner is the Manager of an aided Upper Primary School. By Ext.P16 order dated 16-12-1989 4th respondent, the Deputy Director of Education, Kottayam, directed the petitioner to appoint 5th respondent as Headmaster of the school and to regularise his claim for promotion to that post in any vacancy that has arisen on or after 4-5-1987, by reverting others appointed as Headmaster. This order is under challenge.

2. The short facts germane for disposal of this Original Petition are as follows: Fifth respondent was appointed as a teacher in the school during the academic year 1961-62. At that time he had not passed the Teachers Training Course. He was selected for the course in the departmental quota and completed the same in 1964. He passed the examination in 7-7-1980. There-after his qualified regular service in the school started on 6-7-1981. When the staff strength was fixed for the academic year 1983-84 as per Ext.P1 order dated 25-7-1983 two teachers were thrown out of service. Those teachers were given protection as per G.O.(MS) 104/82/G. Edn. dated 23-7-1982. Of the two teachers so given protection 5th respondent was the junior most. They were continued in the school belonging to the petitioner as protected teachers. By Ext.P2 order dated 25-2-1985 those protected teachers were deputed to Government Schools. First teacher, Smt. M. J. Elisamma was deputed to Konattuseri Lower Primary School. Fifth respondent was posted at Ariad Lower Primary School. Ext.P2 order by which the protected teachers were deployed to other schools inter alia provided:

"The protected teachers may be relieved of their duties within 2 days on receipt of this order positively to join duty in the new station. The protection and posting given to teachers as per this order will cease unless they join duty forthwith."

5th respondent, it is conceded on all sides, did not join the school to which he was deployed eventhough he was relieved from the parent school on 28-2-1985. He challenged the order deploying him to the other school before this court in O.P. 1806/85. This court ordered to maintain the status quo and directed the Director of Public Instruction to pass fresh orders after considering his representation. The Director took a decision against 5th respondent and consequently he was ordered to be relieved from the school with effect from 29-7-1985. Thereafter he was not attending to any school. It appears that he had put in applications for leave. A vacancy of Headmaster arose in the school belonging to the petitioner with effect from 1-4-1985. The senior-most teacher was appointed in that post. Subsequently, disciplinary actions were initiated against the Headmistress. She was consequently reverted as Upper Primary School Assistant with effect from 4-5-1987. One Shri K.C. Sebastian who was the senior most teacher in the school, was appointed teacher-in-charge with effect from 4-7-1987. The Educational Authorities approved that appointment. Shri Sebastian acquired the test qualifications on 28-11-1988. He was, thereupon regularly appointed as Headmaster. That appointment has also been approved by the Educational Authorities.

3. The staff strength for the academic year, 1988-89, was fixed by Ext.P6 order dated 6-7-1988. During that year one vacancy of Upper Primary School Assistant arose. To that vacancy Smt. Elisamma, who was sent on protection to another school under Ext.P2, was directed to be accommodated 5th respondent was ordered to continue in the Government School on protection for 1988-89.

4. 5th respondent put forward a claim for getting the post of Headmaster which fell vacant in the school with effect from 4-5-1987. His claim was that he was the only qualified teacher in the staff of the school to hold the post of Headmaster and that he should be given the post even though he is on protection and deployed to the other school. This claim of 5th respondent has been accepted by the Deputy Director of Education in Ext.P16 order. Th