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2000 DIGILAW 345 (KER)

Muraleedharan v. State of Kerala

2000-07-06

K.A.ABDUL GAFOOR

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Judgment :- K.A. Abdul Gafoor, J. The petitioner is a full time menial in the service of an added school managed by the 5th respondent. The 6th respondent is a peon in the same scale. The petitioner possesses due qualification for appointment as a Lower Grade Hindi teacher. When temporary vacancies arose she had been appointed on earlier occasions. These facts are not in dispute. A regular vacancy of Lower Grade Hindi Teacher arose on 2.6.97. By that time the 6th respondent also got duly qualified to that post. Who among the petitioner and 6th respondent shall be preferred to that vacancy is the issue involved. 2. The manager preferred the petitioner. The educational authorities approved it; but in revision at the instance of 6th respondent, Govt. reversed that decision and found that the 6th respondent had preferential claim to that of the petitioner. Therefore the 6th respondent shall be appointed against the said regular vacancy. 3. Government took this decision applying Note 2 under R.1(1) Chapter XIV-A KER which reads as follows: "If there are more than one claimant for appointment as teacher under these categories, preference shall be given in the order of clerks, peons, sweepers and other staff." The 6th respondent is a Peon where as the petitioner was a Menial. In such circumstances the preference goes to the 6th respondent. That was the stand adopted by Government in Ext. P9 order which is under challenge in this Original Petition. 4. Assailing Ext. P9 the petitioner contends that the petitioner has been appointed on earlier occasions as Lower Grade Hindi Teacher. At that time the 6th respondent was not at all qualified to the post. Even if the 6th respondent was qualified he did not object to the appointment of the petitioner and the petitioner's appointment was duly approved. Therefore she shall be termed as a teacher coming under Note 1 under R.1(1) Chapter XIV-A KER which reads as follows: "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". (Emphasis supplied) 5. (Emphasis supplied) 5. As the petitioner had already officiated as a teacher with due approval against the very same post, necessarily she shall be considered as a teacher in terms of the said note. In such circumstances the claim of the 6th respondent on the ground that he is a peon shall be subject to the claim of the petitioner, he submits. 6. The petitioner relies on the decision reported in Reghu v. State of Kerala (1993 (2) KLT 82)-and Reghu v. State of Kerala (2000 (2) KLT 29). 7. It is not in dispute that the petitioner had due approval as Lower Grade Hindi Teacher against temporary vacancies and that she had been sent out from that post because of termination of the period of the said temporary vacancies. In Reghu v. State of Kerala (1993 (2) KLT 82), it has been held as follows: "Note (1), does not say that the 'teachers 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.51 A. There is no indication in the Note (1) under sub-r.1 of R.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 primary consideration while interpreting any of the provisions of the Kerala Educational Rules. By applying a R.51A claimant, the students are 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. By applying a R.51A claimant, the students are 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 teaching experience does not give any additional advantage to the students." A teacher who had worked in the school for some time and had to be relieved either-under R.49 or R.52 does not ceases to be a teacher for the purpose of the note. Such a person is referred as a teacher in note (2) under R.51 A. There is no indication in note (1) under sub-r.(1) of R.1 that the term teacher has to be given a different meaning. When the meaning thus ascribed to the word teacher in note 1 is accepted, even though the petitioner is now working as Menial, as she had to her credit, admittedly, approved appointment as lower grade Hindi Teacher on earlier occasions, necessarily, she will have preference over the 6th respondent. She was an approved teacher and she ceased to be teacher only on account of termination of the vacancy against which she was appointed on earlier occasion. Therefore the view taken by the Government in Ext. P9 is not in consonance with note IR. (1) Chapter XIV-A KER as interpreted by this Court. It has further been held by this Court in Reghu v. State of Kerala (2000 (2) KLT 29) that only in the absence of such teacher any other non-teaching staff will be entitled to claim promotion to the post of teaching staff. Thus the view taken in Ext. P9 by Government is not in accordance with the statutory provision referred to above. Therefore Ext. P9 is quashed. O.P. is allowed. Consequences follow.