The main legal point established in the judgment is that the Government's power under R.3 of Chap.1 of the Kerala Education Rules cannot be used to sanction appointments in contravention of the mandatory provisions of the Kerala Education Rules, and such exercise of power would be illegal.

V. Balakrishna Eradi, J.

1. The petitioner was appointed as a part time menial with effect from 21-2-1970 in an aided school managed by the 2nd respondent. The said appointment of the petit 6ioner was approved as probationary with effect from 21-2-1970 by the District Educational Officer, Badagara (3rd respondent). During the academic year 1969-70 one permanent post of peon and two permanent posts of part time menials had been sanctioned for the school. The 6th respondent and the petitioner were holding the two posts of part time menials, the former being the senior of the two. In the staff fixation for 1970-71 an additional post of peon was sanctioned for the school. The Manager thereupon appointed the 5th respondent to that post and moved the District Educational Officer for approval of the said action. The said request was refused by the 3rd respondent on the ground that the new post of peon had to be filled up by promoting the senior hand in the lower category of part time menials A and that the appointment of the 5th respondent who was an outsider, was in contravention of R.43 of Chap.14(A) of the Kerala Education Rules, 1959. Against the said order passed by the 3rd respondent the Manager preferred an appeal before the Regional Deputy Director of Public Instruction, Kozhikode (4th respondent). The 4th respondent agreed with the view expressed by the District Educational Officer and rejected the appeal. Thereupon the Manager preferred a revision petition before the State Government under R.92 of Chap.14(A) of the Kerala Education Rules. That was disposed of by the Government as per the order Ex. P2 dated 6-9-1971 which reads as follows:

"In the circumstances reported by the Manager, sanction is accorded under R.3(1) Chap.1 of the K.E.R. for the approval of appointment of Sri U. K. Kassim, peon, Nochat Secondary School, Nochat with effect from 3-8-1970. Government however order that the Manager of the school will promote as Peon in the next arising vacancy, the senior most qualified menial from among the non teaching staff in the school".

In the meantime, the academic year 1971-72 had commenced and in the staff fixation made for the school for that year the two posts of part time menials were abolished and in their place only one post of full time menial was sanctioned. The additional post of peon that was sanctioned during 1970-71 was allowed to be continued in 1971-72 also. The direct effect of implementation of the Government order Ex. P2 was that the 5th respondent became entitled to be appointed in the additional post of peon sanctioned for the year 1970-71 and the petitioner became liable to be thrown out of service since in the place of the two posts of part time menials that originally existed in the school, only one post of full time menial was available in 1971-72 and the 6th respondent had to be absorbed in that post. The Manager of the school accordingly terminated the petitioner's service in the school as per his proceedings evidenced by Ex. P1 dated 18-10-1971. The petitioner has come up with this writ petition seeking to quash Exs. P1 and P2.

2. It is contended on behalf of the petitioner that as per the mandatory provision contained in R.43 of Chap.14(A) of the Kerala Education Rules the new post of peon sanctioned during 1970-71 had to be filled up only by promoting the 6th respondent who was the senior amongst the two part time menials working in the school and when in the place of the part time menials posts a full time post was substituted in 1971-72 the petitioner, who was working as part time menial, was entitled to be promoted to the full time post. It is submitted on behalf of the petitioner that the orders passed by the 2nd and 3rd respondents declining to grant approval for the Manager's action in appointing the 5th respondent to the post of peon were perfectly in accordance with law and the Government acted illegally in interfering with those orders as per its proceedings evidenced by Ex. P2