IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 WA.No. 71 of 2009 ------------------- AGAINST THE JUDGEMENT IN WPC.23049/2007 Dated 26/03/2008 .................... APPELLANTS/RESPONDENTS 1 TO 3: --------------------------------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. DISTRICT EDUCATIONAL OFFICER, THRISSUR. BY GOVERNMENT PLEADER, SMT. BINDU RESPONDENTS/PETITIONERS & 4TH RESPONDENT: -------------------------------------------------------- 1. JAYAN, NOW WORKING AS PEON, V.V.S.HIGH SCHOOL, MANNUTHY. 2. RACHANA MENON, NOW WORKING AS F.T.M. V.V.S.HIGH SCHOOL, MANNUTHY, 3. MANAGER, V.V.S.HIGH SCHOOL, MANNUTHY. R1 & R2 BY ADV.SRI.BENOY THOMAS SRI.PAULSON THOMAS THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13/01/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No. 71 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of January, 2009 JUDGMENT BALAKRISHNAN NAIR, J Aggrieved by the judgment of the learned Single Judge in WP (C) No.23049 of 2007, the appellants who were respondents 1 to 3 in that writ petition have preferred this writ appeal. The brief facts of the case are the following. 2. Respondents 1 and 2 herein have filed the above writ petition. They have approached this Court challenging Exts.P1 and P2 orders of the District Educational Officer(DEO), Thrissur. A vacancy arose in the school of the 3rd respondent in the post of Peon on 01.10.03 as a result of the retirement of the existing Peon on 30.09.03. The 2nd respondent who was working as FTM was clamouring for promotion, but, because of the dispute regarding management and the orders of the Government restraining the Manager from making appointment, he was not promoted. Finally, the Manager by order dated 25.10.06, promoted the 1st respondent as Peon. In the resultant vacancy, the manager appointed the 2nd WA No. 71 of 2009 -:2:- respondent as FTM on 08.11.2006. The DEO rejected the approval of appointment of the 1st respondent by Ext.P1, on the ground that the incumbent holding the post of Manager at the relevant time, though he was permitted by the Government to function as Manager, was restrained from making any appointments. The DEO declined to approve the appointment of 2nd respondent on the same ground mentioned in Ext.P1. Feeling aggrieved by Exts.P1 and P2 the writ petition was filed by respondents 1 and 2. The learned Judge quashed Exts.P1 and P2 and directed the DEO to approve their appointments, provided, they are otherwise qualified and eligible. It was observed that the dispute regarding the management cannot affect the appointments of the staff. 3. The official respondents have preferred this appeal contending that Annexure-II order of the Government dated 22.10.01, provided that, all posts lying vacant for more than one year should be abolished forthwith. The appellants would submit that relying on Annexure-II order, the Deputy Director of Education(DDE), Thrissur has issued Annexure-I order dated 28.07.07 abolishing the post of Peon in VVS HS (3rd respondent's school), which was lying vacant WA No. 71 of 2009 -:3:- for more than one year. So, there is no post of Peon with effect from 28.07.07, it is submitted. In view of Annexures I and II, the appellants would submit that the direction of the learned Single Judge given in the judgment under appeal is unsustainable. 4. We notice that creation of posts, abolition and retrenchment of staff etc. in aided schools are governed by the provisions of Chapter XXIII and XXIV A KER. Of course, Rule 9 of Chapter XXIV A enables the Government to extend any ban in the creation of posts, retrenchment of staff etc. concerning government scools to aided schools also. The said Rule reads as follows: “9. Notwithstanding anything contained in these rules, if it is found necessary, Government may by orders extend any ban on the creation of posts, retrenchment of staff etc. affected by them in Government schools to aided schools.” 5. The appellants relied on the said rule and Annexures I & II to support their contentions. A close reading of Annexure II would show that it is a general order applicable to all Government departments and therefore the same would apply to Government Schools also. Since the creation of posts, retrenchment of staff etc. WA No. 71 of 2009 -:4:- in aided schools are governed by statutory rules, if the Government wanted to apply Annexure II to aided schools also, there should have been a separate order. In this case, there is no such separate order. Therefore, we are of the view that, Annexure II order does not apply to aided schools. If that be so, Annexure I is ab initio void and unenforceable. Further the said order has been passed on 28.07.07 reviewing the staff strength of the year 2006-07 long after the said academic year was over. Such an order by the Deputy Director is without jurisdiction in view of the time limit fixed for review of strength of teaching staff contained in Chapter XXIII, which applies mutatis mutandis to the fixation of the strength of non-teaching staff also by virtue of Rule 9 A of Chapter XXIV A. 6. We notice that whoever be the Manager, the 1st respondent is entitled to get promotion. In the resultant vacancy of FTM, the Manager can appoint any qualified hand from the open market. Government is not concerned whether 'A' is appointed or 'B' is appointed and the appointment is made by the Manager 'C' or Manager 'D'. Regarding the fresh appointment made, the rival claimant to the post of Manager may have grievance. But, WA No. 71 of 2009 -:5:- Government have no locus standi to voice that. In view of the above position, we find no reason to interfere with the directions issued in favour of respondents 1 and 2 by the learned Single Judge, at the instance of the appellants. Therefore, the writ appeal fails and it is dismissed. Having regard to the facts of the case, the appellants are given one month's time from today to implement the directions of the learned Single Judge. K. BALAKRISHNAN NAIR, JUDGE K.SURENDRA MOHAN, JUDGE ttb