K. S. Meenakshy v. Komalakumari — 1980 DIGILAW 9 (KER)

JUDGMENT K. Bhaskaran, J. 1.The contest between the petitioner Meenakshi, on the one hand, and the 1st respondent Komalakumari, on the other, is for appointment to the post of High School Assistant (Hindi) which fell vacant during the academic year 1974-75 in the school of which the 2nd respondent is the Manager. The 3rd respondent is the District Educational Officer concerned, and the 4th respondent, the State of Kerala. 2.Between 6th July 1965 and 31st March 1966 the 1st respondent had worked as a Higher Grade Hindi Teacher in that school though she had not then acquired any one of the alternative training qualifications prescribed in Chap.31, R.2(b)(iv)(B) of the Kerala Education Rules, 1959, hereinafter referred to as the Rules. For the periods from 8th June 1966 to 4th July 1967 (according to the petitioner, 4th July 1966) and 3rd August 1970 to 14th January 1971 the 1st respondent had also worked as a lower grade part-time Hindi Teacher in that school. On the appointment of the 1st respondent in that school as a full-time lower grade Hindi Teacher from 15th January 1971, the petitioner was appointed to the post of part-time lower grade Hindi Pandit which she had to vacate on 31st March 1971, on reversion of the 1st respondent to that post. The petitioner was subsequently appointed for the periods from 14th July 1971 to 11th October 1971 and from 19th December 1973 to 4th March 1974 to the post of full-time higher grade High School Assistant in that school. In May 1974 the 1st respondent obtained the training qualification after having attended, from 12th October 1971 to 10th April 1972, the Language Teachers' Training Certificate Course in Kerala Varma College, Trichur. 3. A vacancy for the post of High School Assistant (Hindi) arose in that school in the academic year 1974-75. Aggrieved by the appointment of the petitioner in that vacancy by the 2nd respondent, the 1st respondent came up to this Court with O.P. No. 3139 of 1975; and that resulted in Ext. P-1 judgment dated 8th April 1976, wherein the observation was that the petitioner therein (the 1st respondent herein) might make a fresh representation before the Government (5th respondent therein) in regard to the claim for protection under G.O. MS. P-1 judgment dated 8th April 1976, wherein the observation was that the petitioner therein (the 1st respondent herein) might make a fresh representation before the Government (5th respondent therein) in regard to the claim for protection under G.O. MS. 104/69/Edn., dated 6th March 1969, and also one to the District Educational Officer (2nd respondent therein) in regard to the claim, if any, founded on R.51A of Chap.14A of the Rules. Taking advantage of those observations the 1st respondent herein submitted her representations to the District Educational Officer as well as to the Government. The representation received by the Government was sent down to the District Educational Officer for disposal along with the representation received by him. Ext. P-2 is the copy of the proceedings dated 16th June 1976 of the District Educational Officer (3rd respondent herein) disposing of the representations. In Ext. P-2 order the District Educational Officer took the view that the 1st respondent herein was not entitled to the protection under G.O. Ms. 104/69/Edn., dated 6th March 1969. He also held that the 1st respondent herein was not entitled to any preference over the petitioner herein on the ground of her having entered service of that school prior to the petitioner inasmuch as the petitioner was a teacher qualified for appointment to the post of High School Assistant (Hindi) when she was relieved for want of vacancy, whereas she was not. 4.The appeal preferred by the 1st respondent against Ext. P-2 order was disposed of by the 4th respondent, the Government of Kerala, by its order G.O. Rt. No. 2360 of 1977/G. Edn., dated 30th May 1977, a true copy of which is Ext. P-3, whereby the decision of the 3rd respondent, the District Educational Officer, contained in Ext. P-2 order, was reversed, and the 1st respondent was declared to have had preference over the petitioner for the appointment in the vacancy that arose in 1974-75. In pursuance of Ext. P-3 order the 1st respondent herein got the appointment to the post at the commencement of the academic year 1977-78. What is in challenge in this writ petition is Ext. P-3 order in so far as it affects the petitioner' claim for preference over the 1st respondent to the post in question. 5. In pursuance of Ext. P-3 order the 1st respondent herein got the appointment to the post at the commencement of the academic year 1977-78. What is in challenge in this writ petition is Ext. P-3 order in so far as it affects the petitioner' claim for preference over the 1st respondent to the post in question. 5. Sri K. P. Dandapani, the counsel for the writ petitioner, submitted that the 4th respondent, the Government of Kerala, came to a hasty conclusion that under R.51A, Chap.14A, of the Rules the 1st respondent was entitled to preference over the petitioner in the matter of appointment to the post without making any endeavour to consider or to understand the real object behind the rule. R.51A reads as follows: "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-rule (4) of R.1 as far as High Schools are concerned." According to Sri Dandapani, the benefit of R.51A would be available only to qualified teachers relieved, not to teachers who acquired the qualification subsequently. He pointed out that admittedly when the 1st respondent was finally relieved on 31st October 1973, she was not a teacher fully qualified for appointment to the post of High School Assistant (Hindi), Whereas the petitioner had acquired all the qualifications as early as in 1968; and all her service in the school was as a teacher qualified for appointment to the post of an High School Assistant (Hindi). 6. Sri N. Raghava Kurup, the counsel for the 1st respondent, on the other hand, took the stand that the expression "qualified teacher" in R.51A has to be read and understood in relation to the post held by the teacher before being relieved from service. 6. Sri N. Raghava Kurup, the counsel for the 1st respondent, on the other hand, took the stand that the expression "qualified teacher" in R.51A has to be read and understood in relation to the post held by the teacher before being relieved from service. His submission is that if the teacher was having the qualifications for holding the post from which he was relieved, that would satisfy the requirement of the expression "qualified teacher" used in the rule, and would entitle him to claim preference in the matter of appointment in any vacancy arising in future, in terms of the Note to the Rule, provided he had by then acquired the qualifications for the post falling vacant. 7. The language of the rule cannot be said to be totally free from ambiguity; all the same, there are indications to suggest that the qualification for the post to which claim is subsequently put forward by the teacher relieved earlier is co-related to the point of time at which he was relieved for want of vacancy. In that context reference to R.5 of the same Chapter (14A) which reads as follows would be some assistance: The object of R.5 is to protect the interest of teachers liable to be relieved for want of qualification; and the object of R.51A is to protect the interest of teachers relieved for want of vacancy. 8. Sri Raghava Kurup emphasised that the expression " future vacancies " has been used in R.51A without any restriction, and in that view the rule has to be so construed as to enable any teacher relieved from service to claim preference for appointment to future vacancies, provided on the date of occurrence of the vacancy he is found to be fully qualified for that post; and that order of preference has to be worked out in accordance with the Note to that Rule. As has already been pointed out, the purpose of the rule, it appears, is to protect the interest of a teacher who. though was qualified to hold the post, had to be thrown out of service for the sole reason that there was no vacancy, or as provided under R.49 to 52 of the Rules. As has already been pointed out, the purpose of the rule, it appears, is to protect the interest of a teacher who. though was qualified to hold the post, had to be thrown out of service for the sole reason that there was no vacancy, or as provided under R.49 to 52 of the Rules. The purpose of the rule would be defeated in very many cases if it is so construed as to give an expanded application to bring within its ambit even those who were not qualified, at the time when they were relieved, to hold the post subsequently claimed by them, I am therefore, of the view that the decision of the Government in Ext. P-3, that because of her entry into the temporary service of the school earlier, the 1st respondent was entitled to preference over the petitioner in the matter of appointment in the vacancy that arose in the school in the academic year 1974-75, cannot be upheld. 9. Sri Dandapani also submitted that Ext. P-3 order is vitiated by mala fides inasmuch as the 1st respondent's brother, who was, during the material time, an M.L.A., and who was appearing for her in the proceedings before the Government, had managed not only to get a decision in her favour, but also got Ext. P-3 order passed on 30th May 1977 to facilitate her appointment in the school at the reopening without giving any chance for the petitioner to file a writ petition in this Court and obtain an effective order staying the operation of Ext. P-3. It is also pointed out that after the hearing of the matter, there was considerable interval before the passing of Ext. P-3 order on 30th May 1977. No proof regarding mala fides having been established I wish to make no comments or draw any adverse inference. I have no doubt that the Secretaries to the Government would conduct themselves in such a way as to give no room for suspecting their sense of impartiality or integrity in cases of the nature alleged by the petitioner. 10. Sri Dandapani also submitted that the order Ext. P-3 is vitiated inasmuch as there is no provision for filing an appeal to the Government from Ext. P-3 order. 10. Sri Dandapani also submitted that the order Ext. P-3 is vitiated inasmuch as there is no provision for filing an appeal to the Government from Ext. P-3 order. Sri Raghava Kurup, on the other hand, maintained that inasmuch as R.92 of Chap.14A of the Rules clothes the Government with vide jurisdiction to revise any order passed by a subordinate authority which is made or is appealable under the Rules, what is purported to be the appeal by the 1st respondent could be treated as a revision. He submitted that at any rate there was no jurisdictional error and, therefore, no interference on that ground is called for. As I am inclined to quash Ext. P-3 order for other reasons, I do not propose to examine here the merits of this contention. " Unqualified teachers appointed after 2nd February 1963 and who acquire the prescribed qualification shall have preference for appointment to future vacancies in schools under the same Educational Agency. * * * * From a combined reading of R.5 and 51A it appears that the intention of the rulemakers was to confer right of preference under R.51A only on those whose service had to be terminated for want of vacancy though they had the prescribed qualification for holding the post. What is stated in R.51A is that "qualified teachers who are relieved .......... shall have preference for appointment to future vacancies". On a proper construction, it would be reasonable to hold that the word "are", not 'were', has been used in the Rule to indicate that right to get appointed in future vacancies to post for which he is qualified accrues to him at the time when he is relieved; what he has to await is the occurrence of vacancy to absorb him. He cannot invoke R.51A unless he was, at the time when he was relieved, having the requisite qualifications for the post which he aspires to get later. If the real intention is anything other than this, there was no need to have the two separate rules, R.5 and 51A, as one R.couched in general terms would have been enough. He cannot invoke R.51A unless he was, at the time when he was relieved, having the requisite qualifications for the post which he aspires to get later. If the real intention is anything other than this, there was no need to have the two separate rules, R.5 and 51A, as one R.couched in general terms would have been enough. The real distinction is that in the case covered by R.5, for availing of the benefit, two conditions have to be fulfilled - the acquisition of qualification and the occurrence of vacancy; whereas in the case covered by R.51A, the only condition to be fulfilled is the occurrence of vacancy. 11. With reference to the averments made in Para.9 of the 1st respondent's counter affidavit, Sri Raghava Kurup submitted that the petitioner was holding as appointment against a permanent vacancy in the S.N.G.S. U.P. School, Karamukku, when the vacancy in issue arose; and, therefore, in terms of R.51A the petitioner was not entitled to the protection contemplated in that Rule. Sri Dandapani drew my attention to the averment made in Para.7 and 8 of the reply affidavit that the post held by the petitioner in S.N.G. S.U.P. School was only an additional one, not permanent, and as a matter of fact she had left it before the vacancy arose on 18th June 1976 in Panangad High School. The question whether the petitioner was barred from invoking R.51A would be decided by the Government on a factual consideration as to whether the petitioner was holding a post in a permanent vacancy in S.N.G.S.U.P. School, Karamukku on the relevant date. For the foregoing reasons Ext. P-3 order in so far as it declares that the 1st respondent is entitled to appointments to the post of High School Assistant (Hindi) in the vacancy that arose in the academic year 1974-75 in the school in preference to the petitioner, is quashed; and the matter is remanded to the Government for fresh disposal according to law and in the light of the observations contained in this judgment after affording a reasonable opportunity of being heard to the petitioner and the 1st respondent. The questions whether there is sufficient ground for the Government to exercise the revisional jurisdiction, without the 1st respondent exhausting other statutory remedies, if any available to her, and whether on the relevant date the petitioner had been appointed in a permanent vacancy in a school under another Educational Agency, so as to deprive her of the protection under R.51A of the Rules are left open to be considered and decided by the Government. The writ petition is allowed as above. There will be no order as to costs.