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1999 DIGILAW 625 (KER)

Anilkumar v. Beena

1999-12-01

ARIJIT PASAYAT, K.S.RADHAKRISHNAN

body1999
Judgment :- K.S. Radhakrishan, J. Question that has come up for consideration in this case is whether a qualified Upper Primary School Assistant (Science) retrenched from service for want of vacancy could claim the benefit of rule 51A of Chapter XIV-A of the Kerala Education Rules for appointment in the post of a language teacher i.e. U.P.S.A. (Hindi) Learned single judge accepted the plea on the ground that the post of UPS A (Science) and the language teacher (UPSA-Hindi) carried the same scale of pay, in the same cadre, and included in the same seniority list. Appellant, aggrieved by the said finding, has come up in appeal. 2. We refer to the parties as they are arrayed in the Writ Petition. Petitioner was appointed as UPSA (Science) in the St. Mary's U.P. School on 15.7.1992. Her appointment was approved and later she was retrenched from the school for want of vacancy during 1995-96 staff fixation. She was again appointed in a leave vacancy as UPSA (Science) from 12.9.1995 to 13.12.1995, from 6.1.1997 to 26.3.1997 and from 4.6.1997 to 1.9.1997. All the appointments were approved. Accordingly petitioner acquired a right under Rule 51A of Chapter XIV-A of the K.E.R. for future appointment in the school. Petitioner, after being retrenched from the service for want of vacancy, passed Rashtra Bhash Visharad Degree Examination of Dakshina Bharat Hindi Prachara Sabha in August, 1998. She therefore became fully qualified for getting appointment to the post of language teacher ie.U.P.S.A. (Hindi). A retirement vacancy of a language teacher in Hindi arose in the school from 1.6.1999. 3. Manager took steps to appoint fresh hand in the post of language teacher in Hindi, in the vacancy which arose with effect from 1.6.1999. Petitioner filed a representation before the Assistant Educational Officer claiming appointment to the post of U.P.S. A. (Hindi) as a rule 51A claimant stating that she is fully qualified for appointment in the post. Request of the petitioner was rejected by the Assistant Educational Officer stating that she is not entitled to get appointment to the post of language teacher in Hindi since her claim is only for appointment in the post of UPS A (Science). Aggrieved by the said order, petitioner has approached this Court. 4. Request of the petitioner was rejected by the Assistant Educational Officer stating that she is not entitled to get appointment to the post of language teacher in Hindi since her claim is only for appointment in the post of UPS A (Science). Aggrieved by the said order, petitioner has approached this Court. 4. Learned singly judge allowed the Writ Petition taking the view that Manager is bound to appoint the petitioner in the vacancy of language teacher in Hindi since UPS A (Hindi) and UPS A (Science) carried the same scale of pay in the same cadre and included in the same seniority list and held the petitioner has got claim under Rule 51-A Chapter XIV-A of the K.E.R. 5. Counsel for the addl. fourth respondent (appellant) Sri. T.M. Abdul Latiff submitted that petitioner has no claim for appointment to the post of UPSA (Hindi), since she never held the post of a language teacher. According to counsel, she can claim appointment only to the post of UPSA (Science) and not as a language teacher, since there is no identity of post. 6. Counsel appearing for the petitioner (first respondent herein) Sri. M.R. Rajendran Nair on the other hand submitted that management is bound to appoint the petitioner in the post of language teacher in Hindi since she is a Rule 51A claimant. Counsel submitted UPSA (Science) and UPSA (Hindi) are having same scale of pay and grade and included in the same seniority list. Counsel submitted on acquisition of the required qualification for teaching Hindi she is entitled to get appointment to the post of language teacher. In other words, counsel submitted in order to claim the benefit of Rule 51A of Chapter XIV-A of the K.E.R. a teacher need not hold an identical post earlier, but need only acquire the qualification to hold any post. 7. In order to examine the rival contentions, it is necessary to consider the scope and ambit of rule 51A of Chapter XIV-A of the K.E.R. in the background of various other provisions in the Kerala Education Rules. The strength of the teaching staff in Upper Primary and Secondary School is fixed on the basis of the number of recognised class divisions and period of work. Rule 3 of Chapter XXIII refers to various posts of teachers with designations. The strength of the teaching staff in Upper Primary and Secondary School is fixed on the basis of the number of recognised class divisions and period of work. Rule 3 of Chapter XXIII refers to various posts of teachers with designations. Rule 3(iii) and (v) deal with Upper Primary School Assistant and language teacher respectively Rule 1 of Chapter XIV-A states that Managers of Private Schools can appoint only candidates who possess prescribed qualification. Qualification of private school teachers are dealt with in Chapter XXXI of the K.E.R. which says that teachers in private schools shall have the educational and professional qualifications prescribed in that Chapter. Rule 3 of Chapter XXXI prescribes qualification for Upper Primary School. Sub-rule 1 of rule 3 of Chapter XXXI inter alia says that in order to get appointment to the post of UPSA, applicant should pass SSLC examination conducted by the Commissioner for Government Examinations, Kerala or its equivalent and T.T.C. examination conducted by the Commissioner for Government Examinations, Kerala. Sub-rule (2) or Rule 3 of Chapter XXXI of the Rules deals with qualifications of language teacher. Qualification prescribed for UPSA Hindi inter alia is a pass in Rashtra Bhash Visharad Degree Examination of the Dakshina Bharat Hindi Prachar Sabha with a pass in SSLC examination conducted by the Commissioner for Govt. Examinations, Kerala or its equivalent, or other qualifications prescribed therein. 8. Rr. 8(1) of Chapter XIV-A of the K.E.R. requires the Manager to send appointment orders to educational officer and the Educational Officer under Rule 8(2) may approve the appointment, if it is in accordance with the provisions of the Act, the rules and orders issued. The approval shall therefore be effective from the date on which the teacher is admitted to duty, provided the appointment is duly approved. Rule 1(4) of Chapter XIV-A says in determining the requirement of subjects, the Director shall also issue such instructions as he may deem necessary for giving protection to teachers who are in service and would have continued in service and who stand relieved as per rule 49 or 52 on account of termination of vacancies and who would have been eligible for reappointment under rule 51A had there been no change in the requirement of subject. 9. Petitioner herein was having the necessary qualification for being appointed as UPSA (Science). 9. Petitioner herein was having the necessary qualification for being appointed as UPSA (Science). Accordingly she was appointed as UPSA (Science) and that appointments were approved by the Assistant Educational Officer under rule 8(2) of Chapter XIV-A of the K.E.R. Since petitioner was relieved for want of vacancy, as per Rule 51A of Chapter XIV-A of the K.E.R. she is entitled to get preference for appointment to future vacancies. In this connection it is profitable to refer to the said provision: "51A. Qualified teachers who are relieved as per Rule 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 1:- 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 the requirement of subjects and to the instructions issued by the Director under sub-rule (4) of rule 1 as far as High Schools are concerned. Note 2:- Manager should issue an order of appointment to the teacher by Registered post acknowledgement due and give a period of 14 (fourteen) clear days to the teacher to join duty. If the teacher does not join duty in time, the Manager should give a further notice to the teacher stating that another person would be appointed instead and that the preferential right under this rule would be forfeited if not exercised within another 7 (seven) clear days. If nothing is heard during that time also, the preferential right under the rule will be regarded as forfeited. Rule 51A gives preference for appointment to qualified teachers who were relieved on account of termination of vacancies or under rule 49 or 52 to future vacancies in the school. The rule empathises the words "qualified teachers relieved" and not a teacher who subsequently acquires qualification. 10. The object and purpose of the rule is to restore to those qualified persons relieved of the appointment, the post they lost for want of vacancies. The rule empathises the words "qualified teachers relieved" and not a teacher who subsequently acquires qualification. 10. The object and purpose of the rule is to restore to those qualified persons relieved of the appointment, the post they lost for want of vacancies. Rule was enacted to restore to him the same type of post which he would have occupied but for the termination of vacancy. Qualification obtained by a teacher to teach a particular subject and the consequent experience gathered by him by holding the post and the approval obtained from the department would give rise to those persons a preference for holding identical posts in the school on a future occasion. A teacher who obtained such a preference for appointment under Rule 51A cannot go on acquiring various other qualifications subsequent to his relief from the school and stake claim for a post which he never held in the school on previous occasions. If the contention of the petitioner is accepted, that would lead to an anomalous situation and would defeat the claims of various qualified persons relieved from other posts. Note 1 to Rule 51A amply makes it clear that if there are more than one qualified persons preference shall be according to the date of first appointment. Rule never emphasises that preference will be given to those persons who have acquired subsequent qualification. 11. Petitioner submits that on acquisition of Rashtra Bhash Visharad Degree, she gets preferential claim under rule 51A of Chapter XIV-A to be appointed in the post of UPS A (Hindi) though she had no approved service in the post of UPS A (Hindi) in the school. A Division Bench of this Court in Saramma v. D'.E. O., Kothamangalam 1991(2) K.L.T. 883 considered the scope of Rule 51A of Chapter XIV-A of the K.E.R. That was a case where a teacher, who was appointed as Lower Grade Hindi Teacher in a U.P. School, claimed the right to appointment in the post of H.S.A. (Hindi). Division Bench held that the words "future vacancies" in Rule 51A though of wide import have to be read in the context as vacancies of the same nature as that from which the teacher was thrown out and not any and every vacancy that may arise in the school. Division Bench held that the words "future vacancies" in Rule 51A though of wide import have to be read in the context as vacancies of the same nature as that from which the teacher was thrown out and not any and every vacancy that may arise in the school. Bench held that it is not possible to carry the width and ambit of expression "future vacancies" to its logical extent and apply it to all vacancies of whatever nature or quality that may arise in the school. 12. A Division Bench of this Court in Gopalakrishnan Nairv. District Educational Officer, 1988(1) K.L.T. 644 dealt with the claim of a non-teaching staff an erstwhile clerk to be appointed as a peon in the school. Bench interpreting rule 51A of Chapter XIV-A of the Rules held that 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 to be made to put him back in the same position which he would have occupied but for termination, for want of vacancy, etc. Bench held 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. It was held the preferential right conferred by rule 51A of Chapter XIV-A thus stands restricted to the nature of the post held earlier by the person concerned. Similar is the view taken by another Division Bench of this Court in Sreekumari Amma v. State of Kerala 1988(2) K.L.T. 359. Court held that for invoking the protection under rule 51-A of Chapter XIV-A there must be identity in respect to the nature of the post. 13. We are in agreement with the principle laid down in the above mentioned decisions. If the contention raised by the petitioner is accepted, the very object of rule 51A would be defeated. Preferential claim of various thrown out teachers must be in tune with their qualification on the basis of which they held the post earlier. 13. We are in agreement with the principle laid down in the above mentioned decisions. If the contention raised by the petitioner is accepted, the very object of rule 51A would be defeated. Preferential claim of various thrown out teachers must be in tune with their qualification on the basis of which they held the post earlier. In other words, a thrown out teacher could aspire for getting appointment only i n respect of those types of posts which they held earlier and their appointment approved. 14. In the instant case admittedly petitioner acquired the qualification to teach UPSA (Hindi) only in the year 1998. Petitioner was appointed in a leave vacancy as UPS A (Science) and therefore approved service was in the post of UPS A (Science) and not UPSA (Hindi). Petitioner therefore cannot claim preferential right for appointment as UPSA (Hindi) under Rule 51A of Chapter XIV-A of the K.E.R. in the vacancy which arose in the school with effect from 1.6.1999. We are of the view that the scale of pay, grade, or inclusion in the same seniority list, etc., are not decisive when question of preferential claim is determined under Rule 51A of Chapter XIV-A of the K.E.R. 15. For the above mentioned reasons, the judgment of the learned single judge cannot stand in the eye of law, and the same is accordingly set aside. Writ Appeal is allowed as above.