1. The first petitioner is the Manager of a High School and petitioners 2 to 5 are teachers working therein. As the proposal for approval of appointment of the teachers stands rejected, the Writ Petition has been filed. Ext.P7 is the order under challenge. The reason stated therein to reject the approval is that the Manager has to absorb a protected teacher in the high school section, as it is newly upgraded one.

2. Petitioners 2 and 4 have been appointed by promotion from the post of U.P.S.A. as H.S.A (Physical Science) and H.S.A. (Natural Science). The said vacancies arose when Shri V.Sivan, H.S.A. (Physical Science) retired on 30.6.2008 and Shri A.K. Sreekumaran, H.S.A. (Natural Science) retired on 31.3.2009. In the consequential vacancies petitioners 3 and 5 have been appointed as U.P.S.As. with effect from 1.7.2008 and 1.6.2009 respectively.

3. The petitioners’ case is that petitioners 2 and 4 are claimants for promotion under R.43 of Chapter XIV-A K.E.R. Various Government Orders providing for absorption of protected hands are specific that the same is subject to the right of claimants under Rr.43 and 51 A. Exts.P8 to P17 are relied upon in this context. It is submitted that the Government Orders, if any, providing for preference for appointment of protected teachers, cannot go against the statutory provisions, viz. Rr.43 and 51A of Chapter XIV-A K.E.R. Therefore, the claimants under R.43 have got a better right for promotion. It is pointed out that the U.P. School, viz. the pre upgraded school was established prior to 1979.Therefore, R.6(viii) of Chapter XIV-A or the Government Orders with regard to the absorption of protected teachers, cannot have any application for filling up of vacancies in the pre upgraded portion of the U.P. School and the appointment of petitioner 3 and 5 have therefore to be approved.

4. Heard learned counsel for the petitioners Shri Sajan Varghese and learned Government Pleader Smt. Nisha Bose.

5. Learned counsel for the petitioners invited my attention to R.43 of Chapter XIV-A K.E.R. as well as the various Government Orders produced in the Writ Petition. My attention was also invited to Exts.P19 judgment as well as P20 Government Order which was issued recently, to contend for the position that the claim for promotion under R.43 cannot be denied at all. It is also pointed out that no list of protected teachers has been forwarded and nobody was available for deployment also and reliance is placed on Ext.P.21 reply given under the Right to Information Act.

6. I will consider the main argument that petitioners 2 and 4 are claimants under R.43 and their claim cannot be objected on the ground of non appointment of any protected hands. Ext.P8 Government Order, viz. G.O.(MS) No.20/82/G.Edn. dated 15.2.1982 relates to filing up of vacancies during the year 1982-83 by protected hands. Therein, paragraphs 1 and 2 protect the right of claimants under Rr.51A and 43 of Chapter XIV-A K.E.R. It is stated in para (ii) as follows:

“If any of the said vacancies have been filled up by persons claiming under Rule 43 of Chapter XIV-A K.E.R. then the post vacated by persons so promoted shall be also taken into account for being filled up with protected teachers.” In Ext.P9 Government Order dated 16.11.1989, which concerns protection to teachers and non teaching staff, it is ordered that “the appointments made by promotion (R.43), re-appointment (51-A) and fresh appointments (new recruitments) made by the Managers of newly upgraded or newly opened schools during the academic year 1988-89 will be approved by the Educational Officers.” Ext.P10 Government Order dated 25.5.1990 which is applicable for the year 1989-90 directs the Managers to execute an agreement in writing in a stamp paper that “all the vacancies arising in future shall be filled up by protected teachers provided there are no R.43 and 51A claimants under the Educational Agency.” Ext.P11 relates to approval of appointment made in newly u