Protection under Rule 43 of the Kerala Education Rules is a statutory entitlement that must be considered in appointment approvals.

J U D G M E N T

I have heard Sri.T.R. Rajan, the learned counsel for the petitioner, as well as Sri.N.B.Sunil Nath, the learned Government Pleader.

2. The petitioner was appointed as UPSA in the year

2001, and admittedly, her appointment as above was also approved. Subsequently, pursuant to Ext.P1 order, she was promoted and posted as HSA (SS) with effect from 01.08.2011, based on a claim under Rule 43 of Chapter XIV-A of the Kerala Education Rules , 1959 ( KER ). However, her appointment as HSA as above was not approved essentially on the basis of the fact that no staff fixation was granted to the school. As against the refusal to approve the appointment as above, both the petitioner and the management of the school went up in appeal before the 2^nd respondent. By Ext.P6 appellate order, the appeals filed as above came to be rejected by the 2^nd respondent - Joint Director. Though a further revision was presented before the Government by the petitioner, the Government, by Ext.P8, has also rejected the afore revision, pointing out that those who have been appointed on the basis of Rule 43 protection could not claim protection of approval of such appointment. Therefore, for the period from 01.08.2011 to 14.07.2012, the petitioner's appointment as HSA was approved, and still later, for the period from 03.06.2013, also her appointment as HSA was approved. However, for the interregnum from 15.07.2012 to 02.06.2013, the appointment having not been approved, the petitioner is before this Court seeking to challenge Exts.P6 and P8 orders as well as seeking a direction to approve the appointment as HSA (SS) for the period from 15.07.2012 to

02.06.2013 as well.

3. Sri T.R. Rajan, the learned counsel for the petitioner, has brought to the notice of this Court the subsequent Government Circular dated 19.11.2018, produced as Ext.P13 along with the reply affidavit, wherein it has been held by the Government that, even with reference to the promotion granted as stated above, protection under Rule 43 , being a statutory entitlement under the provisions of the KER , is required to be extended to such claims. In the light of the Circular at Ext.P13, the consideration made in Ext.P8 does not appear to be correct.

Therefore, I am of the opinion that the matter requires reconsideration at the hands of the Government.

Resultantly, this writ petition would stand allowed, setting aside Ext.P8. There will be a direction to the Government to consider the matter afresh, also taking into account the Circular at Ext.P13 dated 19.11.2018. Fresh orders are to be passed as above, as expeditiously as possible, at any rate, within a period of eight weeks from the date of receipt of a copy of the judgment, after granting the petitioner also an effective opportunity of being heard.

Sd/-