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1988 DIGILAW 365 (KER)

Sreekumar AMMA v. STATE OF KERALA

1988-08-02

BHASKARAN NAMBIAR, MALIMATH

body1988
Judgment :- 1. This appeal is by Sreekumari Amma challenging the judgment of the learned single judge in O. P. No. 3272 of 1987. The appellant was appointed as an Upper Primary School Assistant for different short durations from 1979 to 1981. This is in the Nair Samajam Boys High School, an aided institution governed by the Kerala Education Act and the rules made thereunder. She could not be continued as an Upper Primary School Assistant for want of vacancies and thus acquired protection under R.51A of Chapter XIV¬A of the Kerala Education Rules (for short, the Rules). When such was the position, a permanent vacancy of Upper Primary School Assistant arose in the year 1983 and the manager appointed the appellant in the said vacancy in due recognition of her rights under R.51-A. But by order Ext. P1 dated 29-11-1983, the District Educational Officer refused approval to the said appointment on the ground that there are other High School Assistants who are entitled to the benefit of R.51-A. In other words, approval was refused on the ground that the manager should have appointed the protected High School Assistant in preference to the appellant, who was a protected Upper Primary School Assistant. The decision of the D. E. O. was further affirmed on appeal by the Director of Public Instruction by order Ext. P2 dated 12-9-1984. The said order was affirmed in revision by the State Government by Ext. P9 dated 28-3-1987. It is the said orders that the appellant challenged in the writ petition. The learned single judge has dismissed the writ petition, observing that all doubts in this behalf now stand clarified by the issuance of the Government Order in G. O. (MS) 146/86/G. Edn. dated 14-8-1986. It states that fresh appointment could be approved only after the condition regarding absorption of protected High School Assistant is satisfied. The learned single judge has also relied upon the earlier decisions of this court reported in I. L. R.1973 (2) Kerala 39 between the Manager, V.V.U.P.S. Padoor and another and A.E.O. Mullassery & another, and O.P. Nos. 3326/72, 4424/83 and 8329/84. The learned single judge has also relied upon the earlier decisions of this court reported in I. L. R.1973 (2) Kerala 39 between the Manager, V.V.U.P.S. Padoor and another and A.E.O. Mullassery & another, and O.P. Nos. 3326/72, 4424/83 and 8329/84. The learned single judge has held that in the light of the principles laid down in these cases the respondents were right in taking the view that the appellant could not have been appointed as an Upper Primary School Assistant, though she was entitled to the protection under R.51-A on the ground that there are other High School Assistants also entitled to the protection of R.51-A. It is the said decision that is challenged in this appeal. 2. Sri. Gopalakrishnan Nair, learned counsel for the appellant contended that as the vacancy in this case was that of Upper Primary School Assistant, the appellant has a preferential claim for appointment to the said post, as she is a protected Upper Primary School Assistant under R.51-A. It was his contention that the protection under R.51-A cannot be given in this case to High School Assistants as the vacancy is that of an Upper Primary School Assistant. In support of his contention he relied upon the decision of this, court reported in 1988(1) K.L.T. 644 between Gopalakrishnan Nair and District Educational Officer. As the question raised in this case is fully covered by the said decision, it was contended that the view taken by the learned single judge cannot be sustained. That was a case in which a clerk serving in an aided school had acquired a preferential right for further appointment under R.51-A having regard to the prior service he had as a clerk to his credit in that institution. A vacancy of the post of a peon arose in that school. The clerk who had acquired a preferential right under R.51-A was appointed as a peon. That was challenged before this court on the ground that the clerk who had acquired a preferential right for future appointment under R.51-A can exercise that right only in respect of the vacancy of a clerk and not in respect of any vacancy of a post either superior or inferior to that of a clerk. That was challenged before this court on the ground that the clerk who had acquired a preferential right for future appointment under R.51-A can exercise that right only in respect of the vacancy of a clerk and not in respect of any vacancy of a post either superior or inferior to that of a clerk. This court after examination of R.51-A ruled as follows: "....Rule 51-A of Chapter XIV-A gives a preferential right for appointment in future vacancies in the schools under the same educational agency. The intention of the rule is to restore to the person the appointment which he lost for want of vacancy etc. In other words, an attempt is made to put him back in the same position which he would have occupied but for termination for want of vacancy etc. If a person is once appointed in a particular vacancy for a particular post and his services get terminated on account of want of vacancy or for other similar causes, the rule enables him to lay a preferential claim for appointment when a vacancy in respect of a similar post arises on a future occasion. In other words, there must be identity in regard to the nature of the post. The preferential right conferred by R.51-A of Chapter XIV-A thus stand restricted to the nature of the post held earlier by the person concerned...." Though what was considered in this case was the right of a clerk who had the preferential right under R.51-A to be appointed to the post of a peon in an aided educational institution, the principle laid down in the said decision is of general application and governs appointment to the posts of High School Assistants and Upper Primary School Assistant, for, it has been laid down that for invoking the protection under R.51-A, there must be identity in regard to the nature of the post. Following the said decision it has to be held that as the vacancy in this case is that of an Upper Primary School Assistant, a High School Assistant who has a preferential right conferred by R.51-A cannot exercise that preferential right for seeking appointment to the post of Upper Primary School Assistant, as there is no identity in regard to the nature of the two posts. It is only the Upper Primary School Assistants who have acquired a preferential right under R.51-A that can claim protection for appointment to the said post and not High School Assistants who have acquired a preferential right under 51-A. As the question that has arisen for consideration is thus fully concluded by the decision of this Court, there is really no scope for further debate. 3. But it was contended by Sri. Sugathan, learned High Court Government Pleader, that R.51-A has been interpreted by this court in several decisions in the light of Para.9 of Ext.R1(c), G.O.MS193/82/G.Edn. dated 20th December 1982 as requiring the educational agency to appoint a High School Assistant who has acquired a preferential right under R.51-A when a vacancy of an Upper Primary School Assistant arises in preference to an Upper Primary School Assistant who has a preferential right under R.51-A for appointment to the said post. Our attention was drawn to the judgment of this court reported in 1976 KLT. 506 between Krishna Varma Raja and D.E.O., Kasaragod. But we find on a careful reading of the said judgment that this question was neither debated nor decided in the said case. What has been laid down in the said case is that R.51-A must be understood in the light of the subsequent note added to the said provision by the rule making authority for the purpose of clarifying the said statutory provision. Hence the said decision cannot advance the case of the learned High Court Government Pleader. The next decision relied upon is the one rendered by a learned single judge in O.P.No.4424 of 1983-K. That was a ease in which the Government had directed that the services of a protected teacher in the high school section could be utilised in the upper primary section also. The learned single judge has held that as the Government is paying salary to the teachers, it cannot be said that the Government made any mistake in passing such an order. We find that R.51-A did not really come up for interpretation in the said judgment. 4. The next judgment relied upon is the one rendered by another learned single judge in O.P.No.4005 of 1987. We find that R.51-A did not really come up for interpretation in the said judgment. 4. The next judgment relied upon is the one rendered by another learned single judge in O.P.No.4005 of 1987. That was a case in which the Liaison Officer appearing for the State and the educational authorities submitted that the question is covered by the judgment of the learned single judge in O.P.No. 245/74 and O.P.No.4424 of 1983 to the effect that the Government is free to direct that the protected teachers of high school section should be utilised in upper primary school section. What the learned single judge has done is merely to follow the earlier judgments of the learned single judge and we do not find any discussion in regard to the scope and ambit of R.51-A. Our attention was drawn to one more judgment of a learned single judge in O.P.No.2311/87 and in particular to the observations in Para.9 of the judgment. The only relevant observation to which our attention was drawn says that the question of optional or obligatory nature of G.O.Ms.193/82/G. Edn. dated 20-12-1982 is not a matter which can be reopened before the Government. The learned single judge has not examined the scope and ambit of R.51-A in the said paragraph. Besides, it has to be pointed out that the three judgments relied upon by the learned High Court Government Pleader are all judgments of single Judges. In the light of the decision of the Division Bench directly on the question, expression of any view contrary to the decision of the Division Bench cannot be regarded as good law. 5. As already pointed out, the learned single judge has relied upon the order of the Government Ext.P10, G.O. Ms.146/86/G.Edn. dated 14th August, 1986 wherein the Government has directed that whenever there are protected high school assistants awaiting absorption, the arising vacancies of UPSA/LPSA in the same management should be filled up by those protected H. S. As and that fresh appointment in the arising vacancies of UPSA/LPSA will be approved only if the above condition is also satisfied. It is well settled principle of law that the Government in exercise of its executive powers cannot pass orders to abridge or restrict the scope of the statutory provision. It is well settled principle of law that the Government in exercise of its executive powers cannot pass orders to abridge or restrict the scope of the statutory provision. If as interpreted by this court a high school assistant who has a preferential right of appointment under R.51-A cannot be appointed to the post of UPSA-LPSA, a direction to the contrary issued under Ext.P10 has to be declared as illegal and invalid. By the process of interpretation or by the process of issuing directions of the nature contained in Ext. P2 or Ext.P10, the State Government cannot deny the protection statutorily conferred by R.51-A of the rules. We have therefore no hesitation in taking the view that Ext.P10 which is inconsistent with the decision of this court is illegal and invalid. 6. So far as the facts of this case are concerned, the permanent vacancy that arose in the year 1983 being that of an Upper Primary School Assistant-the manager acted rightly when he appointed the appellant who had a preferential right under R.51-A for appointment as Upper Primary School Assistant, he having held that post on an earlier occasion and displaced from the said post for want of vacancy. The said vacancy of Upper Primary School Assistant could not by invoking R.51-A be filled up by appointment of a High School Assistant who had acquired preferential right for appointment under R.51-A, as that right of his is confined to the post of High School Assistant and will not be available in respect of the post of Upper Primary School Assistant, there being no identity between the two posts. Hence the respondents were clearly in error in not approving the appointment of the appellant. For the reasons stated above, this appeal is allowed, the judgment of the learned single judge is set aside, Ext.P1, P2 and P9 are hereby quashed and the third respondent is directed to pass orders approving the appointment of the appellant as an Upper Primary School Assistant. The appellant is entitled to to his costs. Advocate's fees Rs. 500/-. As the appellant has continued in the post of an Upper Primary School Assistant on the strength of the interim orders made by this court, we direct the respondents to pay the salary and allowances to the appellant for the period during which she has functioned on the strength of the interim orders made by this court.