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2009 Supreme(Online)(KER) 8946
HIGH COURT OF KERALA
HARUN-UL-RASHID, J
SUJAKUMARI.K. – Appellant
Versus
STATE OF KERALA – Respondent
WP(C)/36766/2007
ADV.MR.S.SUBHASH CHAND, GOVT PLEADER SMT. T.B.REMANI, ADV. MR.A.N.RAJAN BABU, SC, S.N.TRUST
The ruling highlights that appointments in newly opened educational institutions must adhere to specific government criteria prioritizing protected hands over provisional or non-protected appointments.
Headnote:
Employment - Appointment Approval - G.O.(P) No. 178/07/GE; G.O.(MS) No. 19/2009 - The court interpreted the provisions of government orders regarding appointment approvals and promotions in educational institutions, determining that the petitioner was not eligible for LD Clerk position due to the status of the school and the absence of protected hands.
Fact of the Case:
The petitioner was appointed as a Peon and later as Laboratory Assistant, seeking approval for her promotion as LD Clerk. Her appointment was denied based on the school being new and not having protected hands, alongside another candidate's approval which was contested.
Finding of the Court:
The court found that G.O.(P) No. 178/07/GE restricted appointments in newly opened schools to protected hands, thereby upholding the Government's regard for applicants, including the petitioner, as non-compliant with promotion guidelines and other related government orders.
Issues: The core issue was whether the denial of the petitioner’s appointment as LD Clerk was valid, given the policies governing such appointments, particularly concerning the status of the school and applicable government directives.
Ratio Decidendi: The court's decision hinged on the interpretation of government orders presiding over appointments, concluding that newly opened schools must fill positions from protected hands, and thereby validating the government’s refusal to approve the petitioner’s application.
Final Decision: The court directed the approval of the petitioner’s appointment with retroactive effects per applicable government orders.
JUDGMENT
Petitioner is appointed as Peon in PHSS, Mezhuveli under the management of S.N.Trust with effect from 11/10/2000. Ext.P1 is the appointment order. Subsequently, she was appointed as Laboratory Assistant in the Higher Secondary School in a regular vacancy. By Ext.P2 order the appointment was approved with effect from 28/3/2003. Ext.P2 order was passed at a time when writ petition and writ appeal are pending before this Court regarding the method of appointment and the ratio between the recruitment by transfer and direct recruitment. The approval of appointment is purely on temporary and provisional basis, which still continues. Subsequently, by Ext.P3 order dated 20/09/2005 the petitioner was provisionally promoted as LD Clerk with effect from 1/10/2005 along with several other candidates in the High School Section. Approval was in force till the petitioner was appointed as LD Clerk in the High School Section.
2. The learned counsel for the petitioner submitted that as per explanation (ii) of Rule 3 of Chapter 24A KER, the post of LD Clerk shall be filled up by promotion of peons, sweepers and other staff, if they possess the requisite qualification. It is true that the petitioner and five other candidates were promoted and appointed as LD Clerks in the High W.P.(C) No. 36766 of 2007 -2-
School Sections of different schools under the same management.
3. It is contended by the learned counsel for the petitioner that by Ext. P8 order the approval of appointment of the petitioner was denied. In Ext. P8 it is stated that there were no protected hands available in the category of non-teaching staff in Kollam District to be appointed as Clerk. Relying on Ext.P8 order and the fact that there were no protected hands available in the category of non- teaching staff in Kollam district, the 3rd respondent approved the appointment of Sri.V.C. Baiju, who was promoted and appointed as LD Clerk in SNT HSS, Chathannur along with the petitioner in Kollam District. It is further submitted that though Sri.V.C. Baiju was promoted and appointed as LD Clerk, the appointment of the petitioner was rejected holding that the school was a newly opened school. According to respondents 3 and 4, the approval of appointment of the petitioner is liable to be rejected on the ground that the school is a newly opened school during 2003-04 and as per G.O (P) No. 1178/07/GE dated 28/6/2002 the vacancies should have been filled up by protected hands. Another reason stated by the Government is that the petitioner was not a Rule 43 claimant for appointment as a Clerk. On the very same reasons the 2nd respondent by Ext. P4 order rejected the approval of appointment of the petitioner. Ext.P18 is the revision petition filed against Ext.P4 order. This Court by judgment in W.P.(C) No. 16257/2007 directed the Government to dispose of Ext.P18 revision petition. Accordingly, the matter was heard and Ext.P20 order was passed by the Government. It is W.P.(C) No. 36766 of 2007 -3-
stated that since the school is a newly opened school, the vacancy shall be filled up by protected hands. The Government in Ext. P20 stated that even though the petitioner has approved service in the post of Lab Assistant, she cannot be considered as Rule 43 claimant, since the post of Lab Assistant in Higher Secondary School is not the channel of promotion of clerk in the High School . It is also stated that the post of Lab Assistant in Higher Secondary School and clerk are separate establishments. Hence the claim of the petitioner is not sustainable. G.O.(P) No. 178/07/GE dated 28/6/2002, which stipulates that all the vacancies in newly opened/upgraded schools shall be filled in from the protected hands, is in force. For all these reasons the appointment made by the Manager in the newly created posts cannot stand. In the circumstances,Ext.P20 order was passed by the Government dismissing the revision petition filed by the Manager and the petitioner.
4. The petitioner produced G.O.(MS) No. 19/2009
