The right to appointment under educational service provisions is contingent on prior approved service and seniority, overriding later claims.

J U D G M E N T

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The 7^th respondent is the Manager of three Schools, the Koorikuzhi AMUP School, the Aided Upper Primary School, Pallikkal and the Janakeeya Vidyalayam, Machadu. The petitioner is working as UPSA in AUPS, Pallikkal. The petitioner seeks to set aside Exts.P3 and P7 to P9 and to declare that the petitioner is entitled to get appointment covered by Ext.P2 approval.

2. The petitioner was appointed as UPSA on

02.06.2014 in AMUP School, Koorikuzhi, as per Ext.P1. The petitioner was appointed against an anticipated post of UPSA on granting independent charge to the Headmaster. For want of established post, the appointment as per Ext.P1 was not approved.

3. While continuing in the said post, the petitioner was again appointed as UPSA in Koorikuzhi AMUP School with effect from 01.06.2016 against a transfer vacancy, as per Ext.P2. The AEO rejected approval to Ext.P2 appointment as per Ext.P3 noting certain defects. The Manager moved a revision petition before the Director which revision petition was rejected as per Ext.P4 order dated 03.03.2020 of the Additional Director General of Education (Academic).

4. The petitioner states that she was appointed against a transfer vacancy of Sri. Victor Prince. The transfer of Sri. Victor Prince stands approved. Moreover, one more Division in UP Section was sanctioned during 2016-2017. Thus, there were two vacancies available during 2016-2017. During the subsequent year, the petitioner was transferred to AUPS, Pallikkal as per Ext.P6 order dated 29.05.2017 and she is continuing as such.

5. Aggrieved by Exct.P3 rejection of approval, the petitioner moved a revision petition before the Government. By Ext.P7 order dated 05.01.2021, the Government ordered to approve the appointment of the petitioner covered by Ext.P1, if there is vacancy available after approving senior appointees. The Manager resubmitted the proposal. Again, the AEO rejected the proposal as per Ext.P8 on the ground that three LPSAs, who were excess during the Staff Fixation Order, 2016, have to be accommodated against the UPSA vacancy.

6. The petitioner challenged Ext.P8 order filing a revision petition. The Government rejected the revision petition as per Ext.P9 order dated 04.07.2023 holding that the three LPSAs, who became excess during 2016-2017, have to be accommodated against the vacancy in which the petitioner was appointed. The petitioner states that the reason for rejection of the proposal for approving the appointment of the petitioner is legally unsustainable. The petitioner was appointed against a transfer vacancy with effect from 01.06.2016. It is true that three LPSAs became excess during 2016-2017. But, they continued to work in the School till 14.07.2016. At the time of appointment of the petitioner, the LPSAs had no status of retrenched Teachers, in view of Ext.P10 Government Order.

7. This Court, in the judgment in Fasalurahiman V. v. Manager, BTMHSS, Thuravoor and others [ 2013 (3) KHC 675 ] has held that it is only after retrenchment that a claim under Rule 51A would arise. The petitioner is therefore entitled to his appointment ordered by Ext.P2 approval.

8. The 6^th respondent-AEO filed counter affidavit. The 6^th respondent submitted that the appointment of the petitioner with effect from 01.06.2016 was rejected by the 5^th respondent as per order dated 04.08.2016 and the petitioner was transferred to AUPS, Pallikkal with effect from 16.06.2017. Th