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2005 DIGILAW 441 (KER)

D. Sarojakumari, Music Teacher v. R. Helen Thilakom, Part-Time Music Teacher

2005-07-06

K.A.ABDUL GAFOOR, K.HEMA

body2005
Judgment :- Abdul Gafoor, J. The appellant, one and same person in both the Writ Appeals, is a candidate preferred by the 6th respondent Manager for appointment as Music Teacher in Samuel LMS High School, Parassala. It is the admitted case by all that the said Manager has other Schools including a Blind School, namely, Light to the Blind School, Varkala. It is also common case that the first respondent-petitioner was appointed by the said Manager as a part time Music Teacher (Instrumental) in that Blind school. At the time when the appellant was appointed by the Manager, the first respondent was already in service working in that Blind School. Her appointment has been duly approved by the Educational Officer concerned. 2. The appellant was appointed based on a notification issued by the Manager pursuant to which the first respondent also responded. When the Manager preferred the appellant, the first respondent objected to it before the Educational Officer, successfully. The appeal by the Manager before the Deputy Director did not succeed. Thereupon the Manager took the matter in revision under Rule 8A chapter XIV(A) KER before the Director. This revision was allowed finding that the first respondent did not have a claim against the post to which the appellant was appointed. Exhibit P8 is the order passed by the Director. This adverse order was challenged by the first respondent before the Government in a revision under Rule 92 chapter XIV(A) KER. It was dismissed as per Exhibit P11 order rejecting the claim of the first respondent-petitioner. She challenged the same before this Court in the Original Petition. It was quashed. Therefore, this Writ Appeal by the sixth respondent in the Original Petition. 3. The only point involved in these appeals is whether the Blind School where the first respondent was appointed and the Samuel LMS High School where the appellant was appointed could be treated as one unit. 4. One and same person is the Manager of both these schools. There are other schools also under the same Manager. It is an admitted position that all these schools are aided schools. The Blind School come within the category-(iii) under Rule 1 relating to the classification of schools in Chapter II K.E.R. which is more specifically dealt with in Rule 4 thereof. There are other schools also under the same Manager. It is an admitted position that all these schools are aided schools. The Blind School come within the category-(iii) under Rule 1 relating to the classification of schools in Chapter II K.E.R. which is more specifically dealt with in Rule 4 thereof. When a teacher is appointed to such school which is admittedly an aided school, his or her service conditions are governed by the rules in Chapter XIV (A) KER, which is captioned as “Conditions of Service of Aided School Teachers” without reference to the category or grade of the school. 5. The Manager is enjoined in terms of Rule 35 of the said Chapter, when he has got more than one school, to constitute all the schools into one unit. Because all the schools are aided schools whether it belong to one or other category mentioned in Rule 1 Chapter II K.E.R. In such a situation, going by Rule 43 in Chapter XIV(A) K.E.R. which governs conditions of service of teachers whether in special school or in general school, the Manager shall fill up the vacancies in higher grade of pay by promotion of qualified hands in the lower grade, according to seniority. 6. When the vacancy in the post of Music Teacher in the Samuel LMS High School, Parassala was notified for appointment, the first respondent-writ petitioner was working in the Special School another aided school under the same management. She does possess the required qualification for the post notified as prescribed in chapter XXXI K.E.R. When the post in LMS High School, Parassala is a full time post, necessarily, it is having a higher grade than the part time post which the first respondent was of occupying at the material point of time. Going by Rule 43 Chapter XIV(A) KER the Manager is enjoined to fill up that post in the higher grade only by promotion of any of the qualified hand working in any of the aided schools in his management. When there was no dispute regarding the qualification possessed by the writ petitioner, necessarily, the Manager had to prefer her following Rule 43 and to offer her appointment rather than appointing the appellant. This is what has been held by the learned Single Judge to quash Exhibits P8 and P11. When there was no dispute regarding the qualification possessed by the writ petitioner, necessarily, the Manager had to prefer her following Rule 43 and to offer her appointment rather than appointing the appellant. This is what has been held by the learned Single Judge to quash Exhibits P8 and P11. According to us, when the school where the first respondent is working is admittedly an aided school and when the first respondent is having the required qualification to the post filled up in the Samuel LMS High School, Parassala and when both schools are in the same unit under the same management, the said judgment cannot be said to unsustainable to invite interference from our hands. The Writ appeals are, Therefore, dismissed.