JUDGMENT : The Petitioner who is the widow of a Peon who died while in service under the 4th respondent is challenging the denial of appointment to her by the 4th respondent and the order passed by the DEO saying that there is no vacancy to accommodate her, when the vacancy which occurred on the death of her husband continues to remain vacant without promoting the Full Time Menial (FTM) in the sanctioned post against that vacancy and appointing her against the consequential vacancy. 2. The question to be considered is whether a claimant under Rule 9A of Chapter XXIVA/Rule 51 B of chapter XIVA or an FTM who was appointed but not approved consequent to reduction of post is entitled to preference against the first vacancy which arises in the School. 3. The petitioner's husband died on 06.01.2016, while he was working as a Peon in the 4th respondent School. Petitioner aged 51 and 2 minor girl children aged 15 and 13 lost the only breadwinner of the family and are finding it difficult to survive. Petitioner submitted Ext.P4 application along with all the requisite documents before the 4th respondent on 14.01.2016. She thereafter approached the Educational Authorities also along with Ext.P7 and Ext.P8 letters. The petitioner submits that application was again submitted before the Manager, requesting for compassionate appointment. 4. As no action was taken, she filed this writ petition. On the basis of the interim order passed by this Court on 18.05.2016, the 3rd respondent considered the case of the petitioner and passed Ext.P10 order. Petitioner amended the writ petition incorporating the challenge against Ext.P10 order. 5. In Ext.P10 the DEO, after hearing the petitioner as well accommodate the petitioner under the 4th respondent School. It was further stated that there is a Rule 43 claimant against the vacancy of Peon. The total number of posts of non teaching staff, sanctioned in the staff fixation proceedings of 2015-2016 are 1 post of Clerk, 2 posts of Office Attender and 1 post of FTM. The DEO found that there was reduction in the strength of pupils in the year 2015-2016 and accordingly one post of FTM became surplus and the only available vacancy of Peon was liable to be filled up by the rule 43 claimant. It was further stated that the Manager had informed that petitioner would be granted appointment against the next arising vacancy. 6. It was further stated that the Manager had informed that petitioner would be granted appointment against the next arising vacancy. 6. The order Ext.P10 is challenged stating that the finding of the DEO that there is no established vacancy to accommodate petitioner is factually incorrect. It is her case that the vacancy of Peon held by her husband remains vacant. Sri. Suresh, the incumbent in the sanctioned post of FTM is eligible for promotion against that vacancy and she is liable to be appointed against the consequential vacancy of FTM. She points out that appointment of 5th respondent as Full Time Menial (FTM) as per order dated 22.05.2015 was null and void on several reasons and he has no right for that vacancy in preference to her. 7. The 4th respondent Manager has filed a counter affidavit. According to him, 2 posts of FTM were sanctioned in the School in the staff fixation proceedings for the year 2010-11. In G.O.(P) No.199/2011/G.Edn dated 1.10.2011, Government ordered to follow the staff fixation order for the year 2010-11 for the subsequent years. It was only when Ext R4(a) staff fixation order for the year 2015-16 was issued on 27.4.2016, that there was reduction of 1 post of FTM. At the same time in 2014-15 there were 2 posts. According to the Manager the appointment of 5th respondent was made against a vacancy which arose on promotion of the then incumbent as Clerk. In para.5 of counter affidavit it is stated as follows: "A regular vacancy of FTM has to be occurred in the School on promotion of Sri. Suresh Babu the senior FTM as Peon against the vacancy occurred on the death of Sri. Aniyan Pillai, Peon, the husband of petitioner on 6.1.2016.The 5th respondent is entitled to continue till 27.4.2016 and he is liable to be shifted against the vacancy of Full Time Menial which is arose due to promotion of Sri. P.V. Suresh Babu, senior Full Time Menial as Peon against the death vacancy ----" Thus the case of the Manager is that he is bound to accommodate the 5th respondent in the vacancy arising on promotion of the senior full time menial Sri.Suresh as Peon against the vacancy caused by the death of petitioner's husband. P.V. Suresh Babu, senior Full Time Menial as Peon against the death vacancy ----" Thus the case of the Manager is that he is bound to accommodate the 5th respondent in the vacancy arising on promotion of the senior full time menial Sri.Suresh as Peon against the vacancy caused by the death of petitioner's husband. Therefore there is no vacancy to accommodate the petitioner and the petitioner cannot have any right over the 5th respondent against any of the vacancy especially held by the 5th respondent. 8. According to the 4th respondent, the Government has in Ext.R4(b) order approved the appointment of a teacher who was appointed in 2012, in the light of the fact that the staff fixation ordered in 2010-11 was to be applied in subsequent years also. The 4th respondent submits that the case of 5th respondent also is liable to be considered as done in Ext R4(b). The 4th respondent claims that that Govt has by Ext R4(c) order - G.O.(P) No. 213/2015/G.Edn dated 6.8.2015 ordered approval of appointments made during 2011-12 to 2014-15 against regular vacancies which arose on retirement, promotion, etc against posts allowed in 2010-11. Therefore the 5th respondent's appointment is liable to be approved as per Ext R4(c) also. Ext R4(c) order dated 6.8.2015 order permits continuance in posts sanctioned in 2010-11 only till 2014-15. Therefore the 4th respondent could have continued only till July 2015. 9. The contention of Smt. T.B.Remani, the learned Counsel for the petitioner, is that the appointment of the 5th respondent on 22.05.2015 was null and void. According to her, as per Rule 7A(2) of Chapter XIVA of KER, no appointment can be made against vacancies which arise between the closing date and re-opening of the School. Moreover under Rule 7A(3) permits only appointments, against vacancies with duration of not less than one academic year. An appointment made in May 2015 will not have duration of one academic year, since going by Rule 2A of Chapter VI KER, academic year commences on the re-opening day of the school and terminates on the closing day for summer vacation. Therefore according to her appointment made in May 2015 itself was contrary to Rule 7, 7A(2) and (3). An appointment made in May 2015 will not have duration of one academic year, since going by Rule 2A of Chapter VI KER, academic year commences on the re-opening day of the school and terminates on the closing day for summer vacation. Therefore according to her appointment made in May 2015 itself was contrary to Rule 7, 7A(2) and (3). She relies of the judgment of the apex court in State of Kerala V Sneha Cheriyan: 2013(1) KLT 755(SC) in support of her contention that the appointment should have been made from the commencement of the academic year. It is her further contention that the Manager was very well aware of the number of pupils in the School at the time of appointment of 5th respondent, because admissions in the School were to be over before re-opening and there were only 550 pupils for which the number of posts of FTM admissible under Rule 1 of Chapter XXIVA is only one. According to her if at all an appointment could be made he could have continued only till July 2015, i.e till the staff fixation for the year 2015-16, which takes effect from from 15.7.2015 as provided under Rule 12 of chapter XXIII KER. Such an appointment was not liable to be approved and therefore the 5th respondent cannot have any statutory preference for appointment and at any rate over the petitioner. 10. On the other hand the learned Counsel for the 4th respondent relies on Ext R4(b) order passed by Govt for approval of a teacher claiming that her appointment was also under similar circumstances. He further claims that appointments made against posts sanctioned in 2010-11 are liable to be approved in terms of Ext R4(c) order and relies on the judgments of this Court in Joshi v. Krishna P. Rajan: [2007 (2) KLT SN 63], Geetha v. Geo Thomas: [2009 (4) KLT 514] and Soman v. Manager, A.K.M. High School: [ 2013 (2) KLT 215 ]. The learned Counsel submitted that the Manager would appoint the petitioner against the next arising vacancy in the School. 11. The 5th respondent has not entered appearance. The official respondents have not filed any counter affidavit. 12. I heard the learned counsel appearing for the petitioner, learned Government Pleader and the learned counsel appearing for the 4th respondent-Manager. 13. The petitioner's husband died on 6.1.2006. 11. The 5th respondent has not entered appearance. The official respondents have not filed any counter affidavit. 12. I heard the learned counsel appearing for the petitioner, learned Government Pleader and the learned counsel appearing for the 4th respondent-Manager. 13. The petitioner's husband died on 6.1.2006. Petitioner submitted her application for compassionate employment under Rule 9A of Chapter XXIVA before the Manager on 14. 1.2016. The 5th respondent was appointed as FTM on 22.5.2015. The 2nd post was admissible as on the date of his appointment i.e. in the year 2014- 2015. That post was reduced in the staff fixation for the year 2015-16. The vacancy of Peon which arose on account of the death of petitioner's husband on 6.1.2016 is to be filled up by promotion. It is stated by either side that promotion is not so far made. The claim of the petitioner as well as 5th respondent is against the consequential vacancy of FTM, which is to arise on promotion of Sri. Suresh Babu, the present incumbent of the only sanctioned post of FTM. 14. There cannot be any doubt over the fact that petitioner is a statutory claim holder for appointment against the vacancy which arises in the School subsequent to 14.1.2016. 15. Appointment of 5th respondent is not approved. Even if it is not approved, it has to be considered whether the said appointment was liable to be approved. Appointment was made on 22.5.2015, against the vacancy which arose on promotion of the then incumbent. 2 posts of FTM were admissible for the year 2014-15. In the light of the contentions raised as against the appointment made during summer vacation it is necessary to examine whether the Manager was right in appointing the 5th respondent on 22.5.2015 i.e. before the re-opening of the School. 16. As per Rule 7 of Chapter XXIVB of KER, the provisions in chapter XIVA of KER relating to appointment, probation, etc are applicable to the non-teaching staff also. Therefore going by Rule 7 of chapter XIVA of KER, an appointment would be effective from the date on which the teacher/non teaching staff is admitted to duty only if it is approved. Therefore going by Rule 7 of chapter XIVA of KER, an appointment would be effective from the date on which the teacher/non teaching staff is admitted to duty only if it is approved. Rule 7A(2) reads as follows: "Posts that may fall vacant on the closing day shall not be filled up till the re-opening date except in the case of non- vacation staff." As non-teaching staff of Schools coming under the Director of Public Instructions are non-vacation staff, there was no prohibition for appointing the 5th respondent on 22.05.2015, going by sub Rule 2 of 7A." 17. Sub Rule 3 of Rule 7A reads as follows: "Vacancies, the duration of which is not less than one academic year, shall not be filled up." 18. The appointment of 5th respondent was made against a vacancy which arose on promotion. In Sneha Cheriyan's case, the Apex Court in paragraph 26 of the judgment, held as follows: (ii) The Manager of an aided school can, however, appoint teachers in vacancies occurred due to death, retirement, promotion, resignation, long-term leave etc., provided they are established vacancies and the approval can be granted subject to the conditions under R.49 of Chapter XIVA of the K.E.R. As far as non-teaching staff is concerned there is no vacation for them. Rule 49 provides for vacation salary for those who continued in vacancies which exceeded 8 months before summer vacation. The issue whether the restriction applies against an appointment made in a regular vacancy made on 31.12.2012 was considered by this court in the judgment dated 10.12.2015 in W.P.(C) No.20919/2015 and this court held that the restriction is applicable only against short term vacancies and not regular vacancies. Therefore, it cannot be said that the appointment of the 5th respondent was contrary to Rule 7A(3). 19. The next question to be looked into is whether the Manager should have made the appointment knowing fully well the reduction in strength of pupils from 700 to 550, consequent to which one post of FTM was liable to be retrenched. 20. Rule 1 of Chapter XXIVA provides for the number and categories of non-teaching posts which are admissible to a High School. Number of Full Time post of Sweepers and other Staff (FTM) admissible to a High School with less than 700 pupils is only one. Apart from that there are one post each of Clerk and Peon. 20. Rule 1 of Chapter XXIVA provides for the number and categories of non-teaching posts which are admissible to a High School. Number of Full Time post of Sweepers and other Staff (FTM) admissible to a High School with less than 700 pupils is only one. Apart from that there are one post each of Clerk and Peon. It is true that Manager should be aware of the number of pupils and in such circumstances it was only proper that he should have waited for the staff fixation orders which has to be issued on verification of strength of pupils as on the 6th working day in accordance with Rule 12 of Chapter XXIII KER. 21. It is equally true that there was no staff fixation for the years from 2011-12 onwards and the Government had issued orders allowing to follow the staff fixation order of 2010-11. But this was allowed only upto 2014-15. The staff fixation order for the year 2015-16 is already issued as per Ext R4(a) which shows there is no post for 5th respondent. Such a contingency could have been avoided if the Manager had made appointment taking into account the number of students in the School. Even assuming that the staff fixation order of 2010-11 could be continued till July 2015, then also 5th respondent could have continued only till 15th July 2015. An appointment made in such circumstances against which the post ceased to exist within less than 2 months of the appointment cannot enure any benefit to the 5th respondent and the appointment was not liable to be approved. 22. It is in this context that the claim of the petitioner is to be considered. The rival claims are between statutory claimant under Rule 9A of Chapter XXIV A of KER and non-statutory claimant. In that view of the matter it is the petitioner who is entitled to be appointed against the vacancy arising on promotion of the FTM as Peon. 23. The learned Counsel for the 4th respondent relied on the judgments Joshi v. Krishna P. Rajan: [2007 (2) KLT SN 63] and Geetha v. Geo Thomas: [2009 (4) KLT 514]. All those were cases in which approval of appointment was belated, though due. In those cases the teachers who were appointed on short term vacancies claimed appointment in regular vacancies. Managers denied it on the ground that there was no approval. All those were cases in which approval of appointment was belated, though due. In those cases the teachers who were appointed on short term vacancies claimed appointment in regular vacancies. Managers denied it on the ground that there was no approval. In both these cases appointments were liable to be approved, though orders were not issued. In both the cases there was no statutory claimant who was seeking appointment. 24. But in this case it is clear that the appointment was not liable to be approved for want of strength of pupils. Thus when the competing claims of 5th respondent who does not have any statutory claim and petitioner who is a statutory claimant are considered, petitioner is the rightful claimant. 25. In this context it is also to be noted that petitioner is a widow aged 51, who has to look after her 2 school going girl children, who does not have any source of livelihood, as the only bread winner of the family left her leaving her in distress. Under the above circumstances, the order Ext.P10 is quashed. There shall be a direction to the respondents to see that the petitioner is given appointment under Rule 9A of Chapter XXIVA as FTM, after promoting Sri Suresh Babu from the post of FTM, if not already promoted, within a period of one month from the date of receipt of copy of the judgment. The writ petition is allowed accordingly.