HELEN THILAKOM Vs. STATE OF KERALA
HIGH COURT OF KERALA
STATE OF KERALA
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(1.) O. P. No. 36563 of 2002 is filed for implementing the order, G. O. (Rt) No. 4119/2002/g. Edn. dated 22. 11. 2002. O. P. No. 36789 of 2002 is filed challenging that order. Therefore, they are heard and disposed of by a common judgment.
(2.) O. P. No. 36789/2002 The petitioner in this Original Petition is a part-time music Teacher working in the Light to the Blind School at Varkala. She was appointed by Ext. P2 order dated 2. 1. 1992. The said appointment was approved by ext. P3 order of the DEO dated 2. 1. 1997 with retrospective effect from 2. 1. 1992 to 31. 3. 1992 and thereafter with effect from 1. 6. 1992 without any time limit. The petitioner's school is run by a Corporate Educational Agency. It is having a few other schools also. One of them is Samuel LMS HS Parassala. A vacancy arose in the said school in the post of Music Teacher during the academic year 1999-2000. The Manager invited applications for appointment to that vacancy. The petitioner also submitted an application for that post. But, the 5th respondent Manager selected the 6th respondent and appointed her by Ext. P4 order dated 12. 7. 1999. Against Ext. P4 appointment order, the petitioner submitted a representation before the DEO The DEO by Ext. P6 order dated 17. 2. 2000 upheld the petitioner's claim and directed the Manager to appoint the petitioner to the vacancy in which the 6th respondent was appointed. The manager filed an appeal against Ext. P6 before the Deputy Director. That appeal was dismissed by Ext. P7 order dated 16. 3. 2001. Against Ext. P7, the Manager filed a revision before the D. P. I. That revision was allowed by the D. P. I. by ext. P8 order dated 27. 11. 2001. The D. P. I. rejected the claim of the petitioner and directed the approval of appointment of the 6th respondent. The D. P. I. held that the petitioner's school is a separate unit for the purpose of appointment governed by G. O. (P) No. 412/69/edn. dated 3. 11. 1969. Therefore, according to the d. P. I. , the provisions contained in R. 43 of Chap. 14-A KER will not apply to the petitioner's school. The petitioner filed Ext. P9 revision before the Government against Ext. P8. That was dismissed by Ext. P11 order, G. O. (Rt) No. 4119/02/g. Edn. dated 22. 11. 2002. The Government affirmed the view taken by the D. P. I. This Original Petition is filed challenging Exts. P8 and p11, and also seeking consequential reliefs. The 5th respondent Manager has filed a counter affidavit resisting the prayers of the petitioner.
O. P. No. 36563/2002 This Original Petition is filed seeking implementation of ext. P11 Government Order in O. P. No. 36789/2002, and also payment of salary due to the petitioner herein, who is the 6th respondent in that Original Petition.
Heard both sides. O. P. No. 36789/2002 is treated as the main Original Petition. The parties and the Exhibits mentioned hereafter are those in O. P. No. 36789/2002.
(3.) THE learned counsel for the petitioner submitted that the petitioner's school is also a school covered by the provisions of the kerala Education Act and the Rules. In support of that contention, he referred to S. 3 (5) of the Kerala Education Act and also R. 1 (iii) and 4 (i) of Chap. II of the Kerala Education Rules. It is also submitted relying on R. 35 of Chap. 14-A of ker that all the teachers working in various schools under the same Management should be treated as one unit for the purpose of seniority. THErefore, the staff of the petitioner's school should be treated as part of the unit and so the petitioner has a claim for appointment to the vacancies arising in higher grades in other schools by virtue of R. 43 of Chap. 14-A KER. In support of this contention, the learned counsel relied on Exts. P12 to P15 transfer orders transferring teachers from the petitioner's school to other schools.
Learned counsel for the Manager and the learned counsel for the 6th respondent submitted that the petitioner's school is always treated as a separate unit for the purpose of seniority, appointment and retrenchment. Further, the vacancy of Music Teacher in Samuel LMS High School was filled up after inviting applications. The petitioner had also applied. When she was not selected, she could not turn round and say it should have been filled up by promotion. It is also submitted that the special schools like the blind Schools are not covered by the provisions of the Kerala Education Rules. Therefore, the Government have issued G. O. (P) No. 412/69/edn. dated 3. 11. 1969 providing for recognition of special schools for the deaf, dumb and blind etc. Various posts are sanctioned by the Government in those schools. Separate qualifications are also prescribed for those posts. So, the provisions of chap. 23 KER governing staff fixation and those of Chap. 31 dealing with the qualifications of teachers will not apply to them. It is also submitted that the provisions of Chap. 14-A KER are also not applicable to these special schools. It is also contended that the transfers made as per Exts. P12 to P15 were made as special cases and they were not strictly authorised by the rules contained in the Kerala Education Rules.;
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