IMPORTANT POINT
The court ruled that the Government's policy on teacher appointments must be respected, and the Tribunal cannot compel filling vacancies from a ranked list if a valid policy exists.

JUDGMENT :

A.Muhamed Mustaque, J.

These original petitions are filed by the State challenging the order of the Tribunal on different original applications. The issue in all these cases is common. The matter is related to reporting 17 vacancies of L.P School Assistant (Malayalam medium) (LPSA) and 21 vacancies of U.P School Assistant (Malayalam medium) (UPSA) to the Kerala Public Service Commission (PSC) in Alappuzha District. The question espoused in this case is whether the Tribunal was justified in holding that there exist 17 substantive vacancies of LPSA and 21 vacancies of UPSA by reckoning Head Teacher vacancies.

2. The applicants before the Tribunal are included in the ranked list for selection to the post of LPSA and UPSA in Malayalam medium in Alappuzha District. The ranked list came into force on 28/12/2018 and expired on 27/12/2021.

3. The case of the applicants before the Tribunal was that in the light of Rule 5 of Chapter XXIII of Kerala Education Rules (KER), there exist 17 vacancies in LPSA and 21 UPSA vacancies in Alappuzha District.

4. Chapter XXIII of KER is related to the fixation of the strength of teachers in departmental and aided schools. It is based on the exercise referred to in the procedure under Chapter XXIII, the staff strength of the Government school as well as the aided school is fixed. It is appropriate to refer to Rule 5, Chapter XXIII KER which reads thus:

In every Upper Primary School there may be-

(i) One post of Headmaster.

(ii) As many posts of Upper Primary School Assistants as the number of class divisions, reduced by one.

(iii) As many posts of Lower Primary School Assistants as there are divisions in the Lower Primary School classes.

(iv) Subject to item (i) and (ii), if the strength of pupils in an Upper Primary School having Standards V to VII exceeds 100 or in a school having Standards I to VII, if the strength of the pupils exceeds either 150 from Standards I to V or 100 from Standard V to VII, one post of Upper Primary School Assistant shall be sanctioned additionally by exempting the Headmaster from class charge.

5. The last limb of Rule 5(iv) Chapter XXIII KER refers to sanctioning additional posts based on the pupil strength. This additional post is called Head Teacher Vacancy. That means, if a Headmaster is relieved from taking classes based on pupil strength, an additional post will be created to meet the requirements.

6. The applicants before the Tribunal, based on the strength of pupils of various schools in Alappuzha District, argued before the Tribunal that 17 LPSA posts and 21 UPSA posts will have to be sanctioned by exempting the Headmaster from class charge. That has been accepted by the Tribunal. Assailing this order, the learned Government Pleader submits that these vacancies are created for protected teachers and if protected teachers are not available, the same will have to be filled by engaging teachers on daily wages. Protected Teachers are teachers who are retrenched from the aided schools.

7. On the other hand, the learned counsel for the respondents who are applicants before the Tribunal placed reliance on an unreported judgment of this Court in the Deputy Director of Education v. Shyni K. and Others [O.P.(KAT).No.36/2019, dated 17/7/2019] and would submit that the issue is concluded against the State.

8. First, we shall examine whether the issue has been concluded or not.

9. We have gone through the judgment in Shyni’s case (supra). Therein, this Court had no occasion to consider whether the Government can be compelled to appoint teachers from the ranked list. The Division Bench had not adverted to the rule and its impact. Further, the Division Bench noted that the Government order referred therein only indicates the engagement of protected teachers in the absence of a ranked list from the PSC. Therefore, we are of the view that the matter has to be considered in the light of Rule 5, Chapter XXIII KER.

10. As we noted earlier, the provision as such referred under Chapter XX