~~~~~~~~~~~ Antony Dominic, J.
This appeal is filed by the petitioner in W.P.(C) No.23166/2010, who is aggrieved by the judgment of the learned Single Judge in dismissing the Writ Petition.
2. Appellant was appointed as Lower Primary School Assistant, as per Ext.P1 order. That appointment was approved by the department. Subsequently, in an inspection it was revealed that the school is an uneconomic school and that in terms of Circular dated 18.5.2007, vacancies in such schools ought to have been filled up only with protected teachers and that the appointment of the appellant was in violation thereof. Based on the above, the AEO issued Ext.P2 directing to stop all payments including salary to the appellant. In such circumstances, the appellant filed the Writ Petition seeking to quash Ext.P2 and to declare that her appointment and its approval are not liable to be interfered with. The learned Single Judge by the impugned judgment dismissed the Writ Petition, but, however, ordered that the payment of the salary for the period the appellant worked cannot be withheld. It is aggrieved by this judgment, the appellant has filed this appeal.
3. We heard the learned counsel for the appellant and the learned Government Pleader appearing for the respondents.
4. The first contention raised by the counsel for the appellant is that the appointment having been approved by the department, the AEO could not have cancelled the same in the absence of any power to do so in the KER. Insofar as this aspect of the matter is concerned, admittedly, at the time when the appellant was appointed on 1.6.2007, the circular dated 18.5.2007 was already in existence. The Manager and the AEO were bound by the said circular and, if that be so, they could not have appointed anybody other than a protected teacher. Since the appellant is not a protected teacher, her appointment is in violation of the circular and hence is illegal. In such a situation, the AEO, at best, was only correcting the mistake he committed and, he was entitled to do such correction of mistake, even in the absence of any specific provision in the Act or Rules.
5. Learned counsel for the appellant then contended that the Manager was not communicated with the list of protected teachers and that, therefore, there was no obligation to appoint protected teachers. In support of this contention, the learned counsel referred us to the judgment of this court in State of Kerala v. V.S.Haseena [2013(2)KHC 103]. It is true, to make a Manager bound to appoint protected teachers in uneconomic schools, the list of protected teachers should be supplied to him and in the absence of which, as held in the above judgment, the Manager is under no obligation to make such appointment. However, the question whether such a list was communicated to the Manager or not, is a question of fact which has to be pleaded and proved by the party concerned. In the Writ Petition or in the appeal, the appellant has not raised the plea and in such circumstances, we are not inclined to take cognizance of this contention. Therefore, this contention raised by the counsel for the appellant also cannot be accepted.
For the aforesaid reasons, we do not find any reason to disagree with the view taken by the learned Single Judge. The appeal fails and accordingly it is dismissed.
Sd/-
ANTONY DOMINIC, JUDGE.
Sd/- ALEXANDER THOMAS, JUDGE.
ps/23/6/2014 //True copy// PA to Judge