Reghu v. State of Kerala — 1993 DIGILAW 279 (KER)

Judgment :- Whether a claimant under R.51 A of Chapter XIV A of the Kerala Education Rules would come within the term 'teacher' mentioned in Note (1) under sub-rule 1 of Rule 1 of the same chapter is the question to be decided in this original petition. The undisputed facts are as follows: - 2. The petitioner was appointed as a Peon in the school under the management of the 4th respondent on 19-7-1978. He acquired graduation in the year 1986 and B.Ed, degree in May 1989. During the relevant time, the 5th respondent, a trained graduate was working in the school in the leave vacancy of an Upper Primary School Assistant which arose in 1988 and which was to expire on 1-6-1993. On 25-7-1989 there arose another leave vacancy of a primary teacher for a period of 72 days. The petitioner made Ext.P1 representation to the manager requesting for appointment to the above post of teacher as provided under the Note (1) to sub-rule 1 of Rule 1 of Chapter XIV A of K.E.R. But the manager did not fill up the vacancy. Thereafter two permanent vacanceis arose on 4-6-90 in the post of UP5A. The petitioner again put forward a claim for one of the above two posts. But the manager shifted the 5th respondent from the leave vacancy to one of the permanent vacancies and appointed 6th respondent who is having a claim under R.51A of Chapter XIVAK.E.R. in the second vacancy. At the time of staff fixation, one division was reduced, therefore, there was only one permanent vacancy available. The manager therefore accommodated the 6th respondent in the leave vacancy in which the 5th respondent was originally working. Petitioner made complaint before the A.E.O. who gave direction to the manager to appoint the petitioner with effect from 4-6-90 against the regular vacancy. 3. The manager and respondents 5 and 6 appealed against the above order of the A.E.O. before the 2nd respondent, District Educational Officer. Under Ext.P3 order, the D.E.O. held that the action of the manager in shifting the 5th respondent from the leave vacancy to the permanent vacancy was correct. But he further held that in the leave vacancy, which was originally occupied by the 5th respondent, should go to the petitioner. The appointment of the 6th respondent to the leave vacancy was found unsustainable. But he further held that in the leave vacancy, which was originally occupied by the 5th respondent, should go to the petitioner. The appointment of the 6th respondent to the leave vacancy was found unsustainable. The reasoning of the D.E.O. was that the petitioner has claim under R.43 of Chapter XIVA K.E.R. for promotion to the post of teacher and therefore he should be given preference to the 6th respondent who is a claimant under R.51 A. The matter was taken in revision by the petitioner, manager and the 6th respondent. Ext.P4 is the common order passed by the Government on the above mentioned revision petitions. While revision filed by the manager and the 6th respondent were allowed, the petitioner's revision was dismissed. According to the 1st respondent, a member of a non-leaching staff gets only eligibility under Note (1) of sub-rule 1 of Rule 1 and no right for being appointed as a teacher. On the other hand, a right is given under R.51 A to a teacher who was relieved from the service either under R.49 or 52 of Chapter XIVA. Therefore according to the 1st respondent, the 6th respondent has a better claim than the pelitioner in the leave vacancy. As far as the claim made by the petitioner to the permanent vacancy occupied by the 5th respondent, the view taken by the D.E.O. was affirmed. 4. I find it difficult to accept the view that member of the non-teaching staff does not get a right under Note (1) for appointment to a teaching post as in the case of a claimant under R.51 A. A reading of the note would show that it was meant not for merely declaring eligility of a member of the non-teaching staff for appointment as a teacher and leave him to the mercy of the Manager. On the other hand, the note is very clear that in the absence of a teacher eligible for promotion or appointment, a qualified member of the non-teaching staff would be entitled to claim promotion to a vacancy which arises in the school in the post of a teacher. 5. The learned counsel appearing on behalf of the 6th respondent put forward a further contention that the petitioner cannot claim promotion to the post of a teacher even if by virtue of the provisions contained under R.7 of Chap.XXIV B, the rules regarding appointment, promotion etc. 5. The learned counsel appearing on behalf of the 6th respondent put forward a further contention that the petitioner cannot claim promotion to the post of a teacher even if by virtue of the provisions contained under R.7 of Chap.XXIV B, the rules regarding appointment, promotion etc. contained in Chapter X1VA are made applicable to non-teaching staff in the aided school mutatis mutandis. R.43 provides that vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority. The contention is that when the above provision is applied to the members of the non-teaching staff, the promotion contemplated is to the posts in the non-teaching category and not to teaching category. Higher grade referred therein do not mean posts in higher grade in a different category. Therefore according to the 6th respondent the petitioner cannot claim promotion to the post of teacher relying on the provisions contained under R.43. The argument is attractive and to some extent supported by judgment of this court in The Manager, Corporate Educational Agency, Kothamangalain v. D.E. O. Muvailupiizliq & others (1973 KLT 603). But a reading of all the provisions under R.43 together can have a different meaning also. Note (1) under R.43 provides that the teacher in a lower grade of pay in one category of post is eligible for promotion in a higher grade of pay in another category of post, provided he has the prescribed qualification and there is no teacher with the prescribed qualification in the lower grade of pay of the category of post to which promotions are to be made. The above would show that a promotion to a post with higher grade in a different category is also contemplated under R.43. Even if the 6th respondent's contention that it is not the R.43 as such is made applicable to the non-teaching staff, but only the spirit of the rule, it can be that the members of the non-teaching staff is also entitled to promotion to a post having higher grade of pay in another category i.e. teaching category. In the light of the amendment to sub-rule 1 of R. I of Chapter X1V-A adding the 'Note', the question whether a member of a non-teaching staff can claim promotion as a teacher under R.43 has become of no consequence. In the light of the amendment to sub-rule 1 of R. I of Chapter X1V-A adding the 'Note', the question whether a member of a non-teaching staff can claim promotion as a teacher under R.43 has become of no consequence. Therefore it is not necessary to consider in this case whether the judgment of this court referred above requires reconsideration. 6. It is contended on behalf of the petitioner that the being a claimant for promo lion under R.43 has a better claim for appointment compared to the 6th respondent whose claim is referable to R.51A. Reliance was placed on the decisions of this court in Mary v. The Regional Deputy Director of Public Instruction, Ernakulam (ILR (1974) 2 Ker. 274, Suseela v. Manager, S.D. School (1976 KLT 670), Calhreena v. Manager, H.S. Mundoor (ILR 1985 (2) Ker. 211). 7. But as far as the petitioner is concerned, the preference given to claimants under R.43 over claimants under R.51A by itself would not be helpful to contend that the vacancy assigned to the 6th respondent should have been given to him, as his eligibility for appointment as a teacher has been made subject to certain conditions under Note (1) to sub-rule 1 of R. I of Chapter XIVA. The note reads as follows: - "(1) A member of the non-teaching staff under the category of Clerks, Peons, Sweepers and other staff shall also be eligible for appointment as teacher provided he has the prescribed qualifications and that there is no teacher eligible for promotion or for appointment to such post under these rules." 8. Promotion is one of the methods of appointment. The petitioner can claim appointment as a teacher even if he is fully qualified only if there is no teacher eligible for promotion or for appointment to such posts under these rules. We have already seen that a teacher with prescribed qualification can claim appointment by promotion to a post in a higher grade in different category only if there is no teacher with the prescribed qualification in the lower grade of pay of the very same category of post to which promotion is sought. In the same manner a member of a non-leaching staff with prescribed qualification can claim appointment as a teacher provided there is no teacher eligible for promotion or for appointment to such post under the rules. In the same manner a member of a non-leaching staff with prescribed qualification can claim appointment as a teacher provided there is no teacher eligible for promotion or for appointment to such post under the rules. It is not possible for the petitioner to contend that while claiming promotion under R.43, the provisions contained under Note (1) to sub-rule 1 to R. I has to be ignored. It is true that the 6th respondent is not a 'teacher' eligible for promotion. Then the question is whether he is a' teacher' eligible for appointment to the leave vacancy, which was originally occupied by the 6th respondent. 9. It was strongly contended by the learned counsel appearing on behalf of the petitioner that the 6th respondent was only a 'claimant' under R.51A and not a 'teacher'. In order to substantiate his contention he referred to the main portion of R.51 A and Note (1) under it. He submits that the incumbent is referred as 'claimant' and not as 'teacher' after he was relieved from the school as per R.49 or 52 under the same chapter. According to him the teacher eligible for promotion mentioned under Note (1) can be only a 'teacher' who is already working in the school in a different category and in the same scale of pay. For example a High School Assistant (Social Studies) in the High School who has acquired qualification necessary for appointment as a High School Assistant (Maths) claiming appointment in a vacancy of H.S.A. (Maths). 10. At first blush the argument is quite attractive. But a reading of Note (2) under R.51 A would show that a 'claimant' under R.51A has been described as a 'teacher' also. Therefore going by the wording of R.51 A a lone one cannot come to a conclusion whether R.51A claimant cannot be treated as a 'teacher' contemplated under Note (1) of sub-rule 1 of Rule 1. The definition of the word 'teacher' under R.2 of Chapter I of K.E.R. is not of much help to resolve the present dispute. The definition, is 'teacher includes the Headmaster'. No provision is brought to my notice from the K.E.R. which gives a right to a 'teacher' who is already in the service of the school to get appointment to a post in a different category carrying the same grade of pay. The definition, is 'teacher includes the Headmaster'. No provision is brought to my notice from the K.E.R. which gives a right to a 'teacher' who is already in the service of the school to get appointment to a post in a different category carrying the same grade of pay. It may be that as in the case of the example quoted by the learned counsel for the petitioner, a High School Assistant (Social Studies) who has acquired the qualification to hold the post of H.S.A. (Maths) can seek appointment in a vacancy in the post of High School Assistant (Maths). But in the absence of a specific rule as mentioned above his request can be treated only as a request from an outsider and not as a claim put forward by a teacher in the service of the school. Under these circumstances, I find it difficult to accept the contention of the petitioner that teacher eligible for appointment referred in Note (1) belong to the above mentioned category. 11. Rule 51A has been incorporated in the statutes not only for the benefit of the teachers whose services are terminated either under R.49 or 52, but also for the benefit of the students. Appointment of candidates who had already acquired experience as teachers in the school would certainly be beneficial to the students than inducting fresh trained graduates. The learned Government Pleader put forward a contention that the wording of the Note (1) would show that the legislature intended to give preference to persons who had worked as teachers in the school to members of the non-teaching staff who had of course acquired the prescribed qualifications, but had no teaching experience. She submitted that interest of the students was the prime concern when such a provision was included in the statute. 12. Note (1) does not say that -the 'teacher' eligible for appointment shall be one who is already in the service of the school. A teacher who had worked in the school for sometime and had to be relieved either under R.49 or under R.52 does not cease to be a teacher for the purpose of the Note. Such a person is referred as a 'teacher' in Note 2 under R.51A. There is no indication in the Note (1) under sub-rule 1 of Rule 1 that the term 'teacher' has to be given a different meaning. Such a person is referred as a 'teacher' in Note 2 under R.51A. There is no indication in the Note (1) under sub-rule 1 of Rule 1 that the term 'teacher' has to be given a different meaning. The interpretation sought to be given by the petitioner, if accepted, would certainly be in the interest of the non-teaching staff. But one should not forget that it is the interest of the student community, which should be the primacy consideration while interpreting any of the provisions of Kerala Educational Rules. By applying a Rule 51 A claimant, the students arc benefited because of the past experience of the candidate. At the same time it would provide with some amount of job security to the teachers who had to be retrenched under R.49 or 52 without sacrificing the interest of the students. On the other hand, appointment of a member of the non-teaching staff who has no previous leaching experience does not give any additional advantage to the students. Taking into consideration all these aspects, it cannot be assumed that the legislature did not intend to include a claimant under R.51A in the term 'teacher' under Note (1). 13. Therefore lam inclined to hold that in the matter of appointment to the post of teacher, a claimant under R.51A has to be preferred to a member of a non-teaching staff with prescribed qualifications. But I hasten to make it clear that what has been given to a member of a the non-teaching staff under Note (1) is not a mere eligibility but a legal claim for appointment to the post of a teacher. A different view taken by the 1st respondent is therefore incorrect. 14. Even though a claim has been put forward by the petitioner to the regular post of a teacher now occupied by the 51h respondent, he could not substantiate his contention by any legal material. Admittedly the 5th respondent also was having a claim under R.51A. Therefore she would be entitled to the regular vacancy in preference to the petitioner even if she was not working in a leave vacancy during the relevant time. In the result I come to the conclusion that the petitioner is not entitled to put forward a claim for appointment as a teacher in preference to respondents 5 and 6. The original petition fails and it stands dismissed.