The petitioner herein was appointed as an Upper Primary School Assistant in an Aided School, by the Manager, in a promotion vacancy. Ext.P1 is the order of appointment. One Smt.Sreekala K. was promoted as High School Assistant which paved way for the petitioner's appointment as U.P.S.A in the resultant vacancy. The school was upgraded as High School in the Academic year 2006-07. As regards the appointment of High School Assistants, pursuant to the judgment of this Court, in W.P.(C). No.2067/2007, the Government passed Ext.P2 order according sanction of five posts of High School Assistants (core subjects) for the year 2006-07. Thereafter, by Ext.P3, the Government passed orders directing the District Educational Officer to take steps for the approval of appointed teachers. Accordingly, orders of approval were issued in respect of H.S.As'. But as regards the petitioner, the approval was rejected by Ext.P5, which is under challenge in this writ petition.

2. The core issue is whether, the reasons stated in Ext.P5 that, the Manager should have appointed a protected Teacher in the place of the petitioner.

3. The petitioner submits that the Manager has executed an agreement in terms of Rule 6 (viii) of Chapter V, K.E.R. The copy of the agreement is produced as Ext.P6. The obligation of the Manager under the said agreement is to appoint a protected Teacher from the Educational Sub- district. As far as Wandoor Educational District is concerned, there was no protected Teacher available and Ext.P7 is produced to show that no protected U.P.S.A was available or was deployed to any other school.

4. In the counter affidavit filed on behalf of the first and second respondents, it is averred that since the Upper Primary section was opened before 1990, appointment in that section can be considered only if the Manager absorbed one protected Teacher in that section as per G.O.(P). No.46/2006, dated 01/02/2006. It is also admitted that Ext.P6 is a true copy of the agreement executed by the Manager in terms of the relevant Rules. The stand taken is that as per G.O.(P).No.83/88/G.Edn., dated 18/04/2008, it is obligatory on the part of the Managers of newly opened/Upgraded schools to appoint Protected Teachers from the list of protected teachers to be obtained from the Educational Officer concerned and that the protected teachers need not necessarily belong to the same Educational Sub-district. It is accordingly contended that as per Rule 9 of Chapter III, K.E.R the Manager shall abide by the orders that may be issued from time to time by the Government and the Department. In paragraph (9) of the counter affidavit it is admitted that there were no protected Teachers in Wandoor Sub-district. But, there were more than 30 protected Upper Primary School Assistants in Malappuram Revenue District.

5. Heard the learned counsel for the petitioner and the learned Government Pleader. It is submitted by the learned counsel for the petitioner that going by Rule 6 (viii) of Chapter V, K.E.R, the obligation of the Manager is to absorb a protected Teacher from Aided Primary Schools in Educational Sub-district. The same alone need be satisfied. It is therefore, submitted that the prescriptions in G.O.(P).No.83/88/G.Edn., dated 18/04/1988 goes against the said Rule.

6. Firstly, this aspect will have to be examined. The Sub-Rule (viii) of Rule 6 of Chapter V of Kerala Education Rules is extracted below:-

"viii. An agreement duly executed by the applicant to the effect that he is prepared to absorb qualified teachers/non teaching staff who, after putting in service of 2 years and drawing 2 vacation salaries, have been retrenched from any of the aided high schools in the Education district or aided primary school in the Education Sub-district in which the applicant proposes to open/upgrade the school."

Going by the same, the Manager will have to execute an agreement that he is prepared to absorb qualified teachers/non teaching staff who have been retrenched f