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2000 DIGILAW 115 (KER)

Reghu v. State of Kerala

2000-02-21

ARIJIT PASAYAT, K.S.RADHAKRISHNAN

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Judgment :- Arijith Pasayat, C.J. Heard. 2. An interesting question as to the effect of Note (1) to R.1(1) of Chapter XTV-A of the Kerala Education Rules, 1959 (in short 'the rules') falls for determination in this Writ Appeal. Before learned Single Judge, appellant as petitioner laid a claim for appointment as a teacher in preference to respondents 5 and 6. Learned Single Judge observed that the moot question was whether a claimant under R.51A of Chap. XTV-A of the rules would come within the term "teacher" mentioned in Note (1) to sub-r.(1) of R.1 of the same Chapter. After noticing the factual aspects, learned Single Judge observed that appellant's claim was untenable. 3. Stated in brief, appellant's case, as set out in the petition, is as follows:- He was appointed as a peon in the school under the management of the 4th respondent in July, 1978. He acquired graduate qualification in 1986 and B.Ed, degree in May, 1989. During the relevant time, 5th respondent, a trained graduate, was working in the school in the leave vacancy of an Upper Primary School Assistant (in short'U.P.S.A.') which arose in 1988 and which was to expire on 1.6.1993. On 25.7.1989, another leave vacancy arose, of a primary teacher, for a period of 72 days. A representation was filed by appellant before Manager requesting him to appoint him to the above post. He placed reliance on Note (1) to sub-r.(1) of R.1 of Chap. XIV-A of the Rules. But Manger did not fill up the vacancy. Thereafter two permanent vacancies arose on 4.6.1990 in the post of U.P.S.A. Again, appellant put forward a claim for one of the two posts. But Manager shifted 5th respondent from the leave vacancy to one of the permanent vacancies and appointed 6th respondent, as a claimant under S.51A of Chap. XIV-A of the Rules, in the second vacancy. At the time of staff fixation, one Division was reduced and therefore there was only one permanent vacancy available. Manager accommodated 6th respondent in the leave vacancy in which 5th respondent was originally working. A complaint was lodged before educational authority who directed Manager to appoint appellant with effect from 4.6.1990 against the regular vacancy. 4. Manager and respondents 5 and 6 preferred appeals before the District Educational Officer (in short 'the D.E.O.'). Manager accommodated 6th respondent in the leave vacancy in which 5th respondent was originally working. A complaint was lodged before educational authority who directed Manager to appoint appellant with effect from 4.6.1990 against the regular vacancy. 4. Manager and respondents 5 and 6 preferred appeals before the District Educational Officer (in short 'the D.E.O.'). By his order the D.E.O. held that the action of the Manager in shifting 5th respondent from the leave vacancy to the permanent vacancy was in order. But he held that in the leave vacancy which was originally occupied by 5th respondent, appellant had a better claim. Appointment of 6th respondent to the leave vacancy was found unsustainable. Reasoning of D.E.O. was that appellant had a claim under R.43 of Chap. XFV-A of the Rules for promotion to the post of teacher and therefore he should be given preference over 6th respondent who is a claimant under R.51A. 5. Matter was taken in revision by appellant as well as the Manager and 6th respondent. Government, by a common order, allowed the revision filed by Manager and 6th respondent, and dismissed the appellant's revision. It was observed that a member of the non-teaching staff gets only eligibility under Note (1) to sub-r.(1) of R.1 and no right for being appointed as a teacher. On the other hand, a right is given under R.51A to a teacher who was relieved from service either under R.49 or R.52 of Chapter XIV¬A. Accordingly 6th respondent was held to have a better claim than appellant in the leave vacancy. 6. Learned Single Judge observed that Note (1) as referred to above does not only deal with mere eligibility but also confers a right. It was further observed that claimant for promotion under R.43 has a better claim for appointment compared to one whose claim is referable to R.51A. But that was not held to be sufficient to bring relief to appellant. Reference was made to Note (1.) to sub-r.(1) of R.1 of Chap. XIV¬A to hold that eligibility for appointment as a teacher is subject to certain riders and unless they were fulfilled, appellant could not get any relief. After noticing the object of incorporating R.51A, learned Single Judge dismissed the Original Petition. 7. Stands taken before learned Single Judge were reiterated by learned counsel for the parties in this Writ Appeal. 8. XIV¬A to hold that eligibility for appointment as a teacher is subject to certain riders and unless they were fulfilled, appellant could not get any relief. After noticing the object of incorporating R.51A, learned Single Judge dismissed the Original Petition. 7. Stands taken before learned Single Judge were reiterated by learned counsel for the parties in this Writ Appeal. 8. R.43 Note (1) provides that a teacher in a lower grade of pay in one category of post is eligible for promotion to a higher grade of pay in another category of post provided he has the prescribed qualifications and there is no teacher with the prescribed qualifications in the lower grade of pay of the category of post to which promotions are to be made. In other words, promotion to a post with higher grade in a different category is also contemplated under R.43. Similar provision is found in Note (1) to R.1(1) of Chap. XIV-A. In a fairly large number of cases it has been held by this Court that claimant for promotion under R.43 has a better claim for appointment compared to those whose claims are referable to R.51A. Note (1) to sub-r.(1) of R.1 of Chapter XIV-A of the Rules which is the pivotal provision for promotion, so far as the present dispute is concerned, reads as follows: "1RWH:- (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." Eligibility for appointment in respect of a person with prescribed qualifications is hedged by two conditions: i.e., (1) there must not be any other teacher eligible for promotion; and (2) there is no other teacher eligible for appointment to such post under the Rules. As promotion is one of the methods of appointment, appellant's case has to be considered in the background as to whether there was any other teacher eligible for appointment to the post under the Rules. As promotion is one of the methods of appointment, appellant's case has to be considered in the background as to whether there was any other teacher eligible for appointment to the post under the Rules. As has been indicated in Note (1) to R.43, a teacher with prescribed qualification can claim appointment by promotion to a post in a higher grade in different category, provided 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. Similarly, a member of the non-teaching staff with prescribed qualification can claim appointment as a teacher provided the two conditions referred to above are satisfied. We find no substance in the plea of appellant that while considering his case under R.43, provisions contained in Note (1) to sub-r.(1) of R.1 have to be kept aside. A claimant under R.51A is also a teacher. Therefore, in the background of Note (2) to R.51A, a teacher contemplated under sub-r.(1) of R.1 also covers a R.51A claimant. 9. Another plea urged by the appellant is that a teacher eligible for appointment should be one who is already in the services of the school. Such a plea has no substance as Note (1) nowhere provides that the eligibility for appointment shall be in respect of one who is already in the services of the school. A teacher who had worked for sometime and had to be relieved either under R.49 or R.52 does not cease to be a teacher for the purpose of the Note. Such a person is encompassed by the expression "teacher" in Note (2) of R.51A. We are therefore in agreement with the view expressed by learned Single Judge that in the matter of appointment to the post of a teacher, claimant under R.51A has to be preferred to a member of a non-teaching staff with prescribed qualifications. We do not think it necessary to go into the larger question whether there is mere eligibility or right for appointment to the post of a teacher. On the fact situation highlighted, appellant is not entitled to any relief. The appeal fails and is dismissed.