K. Chandri v. State of Kerala — 1980 DIGILAW 235 (KER)

JUDGMENT K. Bhaskaran, J. 1. The facts are brief and are not in dispute. The petitioner qualified to hold the post of language teacher Hindi) in High School was appointed in a leave vacancy by the 3rd respondent, the Manager, Calicut Girls High School from 23rd November 1972 to 31st January 1973. The petitioner was relieved from that post when the vacancy terminated. During the academic year 1977-78 as per the staff fixation order a post of language teacher (Hindi) was sanctioned for the said High School. The petitioner made an application on 30th May 1977 in anticipation of this post which as a matter of fact was subsequently sanctioned on 15th July 1977, claiming protection under R.51A of Chap.14A of the Kerala Education Rules, 1959 (the rules). She also made a further application dated 20th July 1977, a true copy of which is Ext. P1. The 3rd respondent, however, appointed the 4th respondent as a teacher in the Upper primary section with effect from 14th July 1977, and appointed the 4th respondent as a High School Assistant with effect from 19th September 1977, keeping the post sanctioned from 15th July 1977 vacant till then. The petitioner objected to the appointment of the fourth respondent in the sanctioned post. As the objection was not considered within a reasonable time, she filed O. P. No. 3784 of 1977 before this Court for a direction to the 2nd respondent, the District Educational Officer, Kozhikode, to pass appropriate orders. In pursuance to the direction given by this Court the 2nd respondent disposed of the objection and that decision was in favour of the 4th respondent. Ext. P2 is the copy of the order, dated 21st January 1978 passed by the 2nd respondent. The 2nd respondent, however, cancelled Ext. P2 order, upholding the claim of the petitioner by a subsequent order, dated 27th February 1978, a true copy of which is Ext. P3. The petitioner had also filed an appeal before the Regional Deputy Director of Public Instruction, Kozhikode, and the third respondent also had filed an appeal against Ext. P3 decision of the 3rd respondent. Both the appeals were disposed of by the Regional Deputy Director of Public Instruction by order, dated 2nd May 1978, a true copy of which is Ext. P4. By Ext. P4 order the claim of the petitioner was upheld and the appeal by the 3rd respondent was dismissed. P3 decision of the 3rd respondent. Both the appeals were disposed of by the Regional Deputy Director of Public Instruction by order, dated 2nd May 1978, a true copy of which is Ext. P4. By Ext. P4 order the claim of the petitioner was upheld and the appeal by the 3rd respondent was dismissed. Aggrieved by Ext. P4 decision the 3rd respondent took up the matter before the 1st respondent, the State of Kerala. The Government upheld the contention of the Manager by its order G. O. Rt. No. 2907/79/G. Edn., General Education (E) Department, dated 18th July 1979, a true copy of which, marked Ext. P8, has been produced along with C. M. P. No. 12702 of 1979 before this Court. In the ultimate analysis what is under challenge in this writ petition is Ext. P8. 2. The counsel for the petitioner submitted that the Government ought not to have disturbed the order of the District Educational Officer confirmed by the Regional Deputy Director of Public Instruction inasmuch as the petitioner admittedly had service from 23rd November 1972 to 31st January 1973, whereas the 4th respondent joined the school as a lower primary school teacher only on 14th July 1977, and therefore, in the vacancy which arose on 15th July 1977 the petitioner ought to have been preferred because she is entitled to such preference by virtue of the provisions contained in R.51A in Chap.14(A) of the rules. The said rule reads as follows: - "51A. Qualified teachers who are relieved as per R.49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in schools under the same Educational Agency, provided they have not been appointed in permanent vacancies in schools under any other Educational Agency. Note.- If there are more than one claimant under this rule the order of preference shall be according to the date of first appointment. If the date of first appointment is the same, then preference shall be decided with reference to age, the older being given first preference. In making such appointments, due regard should be given to requirement of subjects and to the instructions issued by the Director under sub-r.(4) of R.1 as far as High Schools are concerned. * * * * 3. In making such appointments, due regard should be given to requirement of subjects and to the instructions issued by the Director under sub-r.(4) of R.1 as far as High Schools are concerned. * * * * 3. In terms of the first Note to R.51A there could be no doubt that the petitioner has to be preferred to the 4th respondent. However, difficulty arises when it becomes necessary to consider the case of the 4th respondent under R.43 of Chap.14(A) of the rules. The relevant portion of the said rule is that -- "Subject to R.44 and 45 and considerations of efficiency and any general order that may be issued by the Government, vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority, if such hands are available." We have already noticed that when the vacancy arose on 15th July 1977 in the High School section, the 4th respondent was in the service of the school, having been posted as a Language Teacher (Hindi) in the U. P. Section on 14th July 1977. 4. The counsel for the petitioner submitted that the 3rd respondent ought to have appointed the petitioner to the post inasmuch as on 15th July 1977, when the vacancy arose, the 4th respondent was only a probationer, having only one day's service in the U. P. Section as a Language Teacher (Hindi). He referred to the provisions contained in R.2 of Chap.14(A) which lay down that appointment of qualified hands shall be deemed to be acting till they are confirmed. R.41 of Chap.14(A) lays down that a teacher who has or is deemed to have completed his probation satisfactorily shall be confirmed in any permanent vacancy that may exist or arise in the grade with effect from the date of commencement of continuous service or the date of occurrence of the vacancy whichever is later. R.6(a) of the same chapter provides that teachers appointed under R.3 shall be on probation for a total period of one year on duty within a continuous period of two years. R.6(a) of the same chapter provides that teachers appointed under R.3 shall be on probation for a total period of one year on duty within a continuous period of two years. The submission made by the counsel for the petitioner is that it is inconceivable that a probationer in the position of the 4th respondent, having only one day's service on the date of the occurrence of the vacancy, or even if the date of appointment is considered to be the relevant date, was having only a little more than two months' service, could be treated to have completed probation to be eligible for promotion to a higher grade. I do not, however, find it possible to agree with this line of reasoning inasmuch as, rightly pointed out by the Government Pleader and the counsel for the 3rd respondent, there is nothing in the rules which requires that it is only those who have completed their period of probation in the post they were holding that could be promoted or appointed in a post higher than the one they were holding. The indication on the other hand appears to be the other way. R.6(a) provides inter alia that qualified teachers in the lower grade promoted to the higher grade under R.43 before completing their probation shall be on probation in the higher grade as if appointed under R.3 in that category; at the end of the period of probation the manager may issue an order declaring him to have satisfactorily completed his probation. Arguments were advanced by the Government Pleader placing reliance on the decision of this Court in Radhakrishna Kamath v. Cochin T. D. Corporation 1976 KLT SN 31 to the effect that unlike R.28(bb) of the Kerala State and Subordinate Services Rules there is no provision in the rules that the qualification should be as on the date of occurrence of the vacancy, not on the date of appointment. The relevant date, according to the Government Pleader, is 19th September 1977 on which date the 4th respondent was appointed, not on 15th July 1977 on which date the post was sanctioned and the vacancy arose. The relevant date, according to the Government Pleader, is 19th September 1977 on which date the 4th respondent was appointed, not on 15th July 1977 on which date the post was sanctioned and the vacancy arose. The counsel for the petitioner submitted that in the light of the dictum laid down by the Full Bench of this Court in a subsequent decision, James Thomas and others v. The Chief Justice, High Court of Kerala and others 1977 KLT 622 (FB) the decision relied on by the Government Pleader would require reconsideration. Referring to the wording in R.28(bb) of the Kerala State and Subordinate Services Rules the Full Bench has held that it affords some indication that the general rule is what is indicated by the concluding part of R.28(bb). It also held that the general rule is that promotion should be made vis a vis the date of occurrence of the vacancy, not of the date of making the appointment. I do not, however, think it necessary to go into this question in this case, because the 4th respondent's qualification remained the same whether it was on 15th July 1977 on which date the vacancy arose, or on 19th July 1977 on which date she was actually appointed. What emerges, therefore, is that when the principle, is that where there is a conflict between a claim under R.51A and a claim under R.43 of Chap.14(A) of the rules, the former should give way to the latter, the Government was justified in preferring the 4th respondent to the petitioner for filling up the vacancy which arose as a result of the sanction granted to the school of the 3rd respondent in the High School section. 5. The counsel for the petitioner then submitted that at any rate the petitioner ought to have been considered for appointment to the post vacated by the 4th respondent on her elevation to the post of High School Assistant. Inasmuch as the petitioner is entitled to preference in future vacancies which include the vacancies in the U.P. section also, this request is only reasonable. However, at this distance of time, it cannot be allowed to interfere with the rights of others if the post has already been filled up and the appointment has already been approved. Inasmuch as the petitioner is entitled to preference in future vacancies which include the vacancies in the U.P. section also, this request is only reasonable. However, at this distance of time, it cannot be allowed to interfere with the rights of others if the post has already been filled up and the appointment has already been approved. If the post has not so far been filled up, the 3rd respondent will appoint the petitioner to the post which fell vacant in the U. P. section on account of the appointment of the 4th respondent in the High School section. If the vacancy exists in the U.P. section the 3rd respondent will issue order of appointment to the petitioner as expeditiously as possible, at any rate within one month from this date. The writ petition is disposed of as above. There will be no order as to costs.