- (1.) This appeal is directed against the order passed by the Division Bench of Kerala High Court in W.A.No.413 of 2001 dated 11.1.2001 whereby the appeal filed by the respondent No.1 herein was allowed by the Division Bench and the judgment of learned Single Judge of the High Court was set aside.
(2.) Brief facts which are necessary for disposal of this appeal are that the respondent No.1 V.Ananthakumari ( hereinafter referred to as respondent ) was working as a Peon in Viswabharathi Model High School. She was appointed as a Peon on 19.6.1984 and the appointment was approved. She possessed all necessary qualification for being considered for appointment as High School Assistant (Hindi). On account of retirement, a vacancy in High School Assistant (Hindi) arose in the School on 1.4.2000. Since other incumbents in the School were not eligible and respondent alone was eligible for being considered for appointment to the said post, therefore, she made a request to management to consider her case but the Management did not accede to her request and rejected the same. Appointment was given to one P.Rajeev- the appellant herein vide Ext.P1 dated 1.8.2000. This appointment of the appellant herein was approved by the District Education Officer by order dated 23.9.2000. Thereafter the respondent (herein) approached the Kerala High Court by filing a writ petition and direction was given by the Court in O. P.No.19512 of 2000 to the District Education Officer to consider the candidature of the respondent. The District Education Officer rejected her claim. The matter was taken up in appeal before the Director of Public Instructions and the Director of Public Instructions allowed the appeal of the respondent and set aside the appointment of appellant herein. Aggrieved against the order of the Director of Public Instructions, the appellants herein filed a writ petition before the High Court of Kerala. Learned Single Judge allowed the writ petition and quashed the order of the Director of Public Instructions. Aggrieved against the order passed by learned Single Judge, the respondent herein filed a writ appeal before the Division Bench. The Division Bench set aside the order of learned Single Judge and held that the respondent herein was qualified to be appointed as High School Assistant (Hindi). Aggrieved against aforesaid order present appeal was filed.
(3.) Service condition of such employees is regulated by The Kerala Education Rules, 1959 (hereinafter to be referred to as "the Rules") and we are concerned with Chapter XIV which deals with conditions of service of aided school teachers. The Rules were framed under the Kerala Education Act, 1958 (hereinafter to be referred to as "the Act"). Rule 1 empowers the Managers of the Private Schools to make appointment of a candidate who possesses prescribed qualification. Rule 1 reads as under : " 1. (1) Managers of Private Schools shall appoint only candidates who possess the prescribed qualification. As far as High School classes are concerned the appointment shall be made with due regard to the requirement of subjects as determined by Director of Public Instruction with reference to the curricula of studies. Whenever vacancy occurs, the manager shall follow the directions issued by Government from time to time, for ascertaining the availability of qualified hand and for filling up vacancy. Note:- (1) A member of the non-teaching staff under the category of Clerks, Peons, Sweepers and other staff shall also be eligible for appointment as teacher provided he has the prescribed qualifications and that there is no teacher eligible for promotion or for appointment to such post under these rules. Note:-(2) If there are more than one claimant for appointment as teacher under these categories, preference shall be given in the order of clerks, peons, sweepers and other staff. If there are more than one claimant under a particular category, the order of preference shall be according to the date of their first appointment. If their date of first appointment be the same, then preference shall be given with reference to age, the older being given first preference. (2) The age limit and the relaxation thereof for appointment applicable to teachers of Government Schools shall apply mutatis mutandis to teachers of aided schools. The date of determination of age for eligibility for appointment shall be the 1st January of the year in which the appointment is to be made. (3) Subject to rule 51-A, the appointment of teachers in schools managed by Panchayats shall be made from among the qualified hands advised by the Employment Exchange. (4) In determining the requirement of subjects, the Director shall also issue such instructions as he may deem necessary for giving protection to teachers- (i) who are in service and would have continued in service; and (ii) who stand relieved as per rule 49 or 52 or on account of termination of vacancies and who would have been eligible for reappointment under rule 51A had there been no change in requirement of subjects.";