Research › Search › Judgment

Kerala High Court · body

2002 DIGILAW 531 (KER)

G. Lilly v. The Manager (MVUP School)

2002-08-05

J.B.KOSHY, K.K.DENESAN

body2002
Judgment :- Denesan, J. These three writ appeals are directed against the common judgment in O.P.Nos.7504, 8535 & 9049 of 1993. The matter arises under the Kerala Education Act and the Rules. The appellant is common in all the three writ appeals. 2. Petitioner in O.P.No.7504 of 1993 is the Manager of an aided private school known as M.V.U.P. School, hereinafter referred to as the ‘school’. Appellant is respondent No.5 in that writ petition. She was appointed in the school on 25.7.1977 by the Manager as a Lower Grade Hindi Teacher. It is not disputed that she did not have the requisite technical/training qualification for appointment to the above post. Initially, the appointment was not approved by the educational authorities. Pending consideration of the approval, she absented from the school from 7.10.1977 onwards. In terms of the appointment order, her tenure of service would have come to an end only on 24.10.1977. Thus even before the termination of the vacancy, appellant abandoned the post. Subsequently the educational authorities approved her appointment from 25.7.1977 to 7.10.1977 as underqualified on the strength of G.O.No.5361/78/O.Edn. dated 24.11.1978 (produced as Ext.P2 in OP.No.9049/1993) 3. After the appellant abandoned the post, the manager appointed one Vilasini Amma as Lower Grade Hindi Teacher with effect from 25.10.1977 till 31.3.1978. This appointment was approved by the Assistant Educational Officer. Later, she left the service and joined another school. Thereafter a vacancy of Lower Grade Hindi Teacher arose in the school with effect from 25.10.1985. The Manager appointed one J.Saraswathi (petitioner in OP.No.8535/93) against that vacancy. Her appointment was approved for the period from 25.10.1985 to 31.3.1986. The appointment of J.Saraswathi as also the approval of that appointment was objected by the appellant before the Manager and the departmental officers. Though the Manager rejected the request of the appellant to appoint her from 25.10.1985, the educational authorities issued orders upholding the claim. Those orders are under challenge in OP.No.8535 of 1993 filed by J.Saraswathi. 4. The appellant filed OP.No.9049 of 1993 seeking directions to the Manager and the educational authorities to appoint her as Lower Grade Hindi Teacher and to grant consequential benefits. 5. The learned Single Judge allowed OP.No.7504/1993 filed by the Manager and OP.No.8535/1993 filed by J.Saraswathi and quashed the orders impugned in those writ petitions and dismissed OP.No.7094 of 1993 filed by the appellant. Aggrieved, the appellant has filed these three writ appeals. 6. 5. The learned Single Judge allowed OP.No.7504/1993 filed by the Manager and OP.No.8535/1993 filed by J.Saraswathi and quashed the orders impugned in those writ petitions and dismissed OP.No.7094 of 1993 filed by the appellant. Aggrieved, the appellant has filed these three writ appeals. 6. The only question to be considered is whether the appointment of J.Saraswathi as Lower Grade Hindi Teacher in the school against the vacancy that arose with effect from 25.10.1985 is in accordance with law and whether the orders passed by the Educational authorities in favour of the appellant are legally sustainable. 7. We have heard the learned counsel for the appellant, the learned Govt. Pleader for the State and the learned counsel for the party respondents. 8. In exercise of the powers conferred on the Government under Section 10 of the Kerala Education Act, qualifications have been prescribed for the various teaching posts by introducing Chapter XXXI of the Kerala Education Rules with effect from 5.12.1972. Rule 1 of the said Chapter mandates that teachers in private school shall have the educational and professional qualifications prescribed in that Chapter. Section 11 of the Education Act says that teacher of aided schools shall be appointed by the managers of such schools from among persons who possess the qualifications prescribed under Section 10. Appellant has passed S.S.L.C. and therefore she has got the minimum academic qualification. But the professional or technical qualification which she possesses is not the one prescribed by the Rules in Chapter XXXI of K.E.R. Hence she is not qualified for appointment to the post of Lower Grade Hindi Teacher in the school. Reference is made to Rule 5 of Chapter XXXI to contend that teachers who do not possess the qualifications prescribed in that chapter can continue as underqualified teachers till 31.3.1980 and as fully qualified from the date of their appointment in 1980-81. But this rule does not come to the aid of the petitioner since the condition stated therein, that is, the teacher should possess the qualification prescribed for teachers in Departmental schools is not satisfied. The temporary service of the appellant came to an end on 7.10.1977 and thereafter another teacher was appointed. 9. Petitioner’s appointment from 25.7.1977 to 7.10.1977 was approved as underqualified only. The temporary service of the appellant came to an end on 7.10.1977 and thereafter another teacher was appointed. 9. Petitioner’s appointment from 25.7.1977 to 7.10.1977 was approved as underqualified only. Hence this appointment will not confer any preferential right for appointment against future vacancies arising in the school since Rule 51A of Chapter XIV A which confers the right for preferential appointment to teachers having previous approved service specifically provides that the previous service shall not only be approved but it should be qualified service also. Rule 51A speaks of qualified teachers. As rightly held by the learned Single Judge the appellant is not a teacher who stands relieved as per Rule 49 or Rule 52 or on account of termination of vacancies. Appellant does not have the length of service as required in Rule 49. She is not a qualified teacher. She was not relieved from the post, much less, on account of any reduction in the number of posts. Since she abandoned the post, the other condition mentioned in Rule 51A that the relieving should be on account of termination of vacancies also does not apply. Thus in any view of the matter, the claim made by the appellant for preferential right under Rule 51A of Chapter XIV A, K.E.R. is liable to be rejected. Appellant as well as the Educational Authorities placed reliance on Ext.P3 Government Order. We agree with the learned Single Judge that the reliance placed by the appellant and the Department on Ext.P3 is without any force. What Ext.P3 says is that the Government is “pleased to direct that the appointments of all aided school teachers not possessing qualifications prescribed under Chapter XXXI, K.E.R. but possessing qualifications for appointment to corresponding posts in departmental schools be approved as underqualified till 31.3.1980 and as fully qualified from the date of their appointment in 1980-81. Fresh appointments in 1980-81 will be strictly from persons possessing the qualifications laid down in Chapter XXXI, K.E.R.” To claim the benefit of that order for the purpose of appointments against future vacancies, the teacher concerned should be in service on 30.5.1980 ie., the date of that Order. The appellant who abandoned the post in October, 1977 is not at all eligible to claim the benefit of Ext.P3 also. We uphold the judgment of the learned single Judge and dismiss the writ appeals.