Decided on May 29,1967

POULOSE K V Appellant


- (1.) THIS original petition raises the question relating to the validity and applicability of Rule 5 in Chap. XIV-A of the Kerala Education Rules, 1959 (hereinafter referred to as the rules), made by the Government in exercise of the powers under Section 36 of the Kerala Education Act, 1958 (hereinafter referred to as the Act ).
(2.) THE petitioner is the manager of an upper primary school. Respondent 4, who was an untrained candidate, was appointed by the petitioner as a teacher in the school during the year 1962-63, after advertising the vacancy and establishing the non-availability of trained hands. Her appointment was approved by respondent 1; and on the basis of this service, she was selected for Teachers' Training course in the department quota. Accordingly, she was relieved from service at the end of the year; and she joined the Teachers' Training course. She completed the course, which is for two years, and passed in the examination held in April 1965. A vacancy arose in the school during the year 1965-66. The petitioner advertised the vacancy in the Malayalam daily, " Deepika," on 17 June 1965. It is stated by respondent 4 that immediately after the school reopened in 1965, she approached the petitioner for appointment, and that the advertisement was made ignoring the same. This is denied by the petitioner. It is also averred by respondent 4 that, on seeing the advertisement, she applied to the petitioner putting forth her claim for the post. Exhibit R. 1 is produced as a true copy of her application ; and it is dated 22 June 1965. She also sent a petition to respondent 1 on 21 June 1966, claiming that the was entitled to the appointment, and complaining against the petitioner's refusal to appoint her, even though she approached him for that purpose. A copy of this petition was also forwarded to the petitioner. However, the petitioner appointed respondent 3 in the vacancy from 2 August 1965, and sought the approval of the department for the appointment. The approval was rejected by respondent 1 as per letter, Ex. P. 1, dated 8 November 1965, on the ground that the appointment of respondent 3 was in violation of Rule 5 in Chap. XIV-A of the rules, and that respondent 4 had preferential right to the post under the said rule. The petitioner filed an appeal before respondent 2, who dismissed it as per order, Ex. P. 2, dated 20 February 1966. This original petition has been filed to quash Exs. P. 1 and P. 2, and for a writ of mandamus directing respondents 1 and 2 to approve the appointment of respondent 3.
(3.) CHAPTER XIV-A of the rules deals with the conditions of service of aided school teachers. Rules 1 to 6 in this chapter were substituted by Notification G. R. O. No. 43 of 1965 published in the Kerala Gazette No. 5, dated 2 February 1965. These rules read as follows: 1. Subject to the qualifications laid down by Government from time to time in respect of teachers of Government and aided schools and subject to the following restrictions, teachers of aided schools may be appointed as: (a) permanent, (b) acting, or (c) temporary. 2. Appointment of unqualified teachers made under Rule 2 (1) of Chap. XXI shall be deemed temporary. Appointments of qualified teachers shall be deemed as acting till they are confirmed. 3. Initial appointment of qualified teachers shall foe on probation: Provided that for the purpose of this rule qualified teachers in service on the date on which this rule comes into force and who have a satisfactory continuous service of not less than one year, shall be deemed to have completed their probation. ;

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