C. Kalavathy w/o Bhava Desan v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE D.SESHADRI NAIDU** **MONDAY, THE 7TH DAY OF JULY 2014/16TH ASHADHA, 1936** **WA.No. 63 of 2013 () IN WP(C).25385/2012 ------------------------------------------** **AGAINST THE ORDER/JUDGMENT IN WP(C) 25385/2012 of HIGH COURT OF KERALA DATED 14-11-2012** ## **APPELLANT/PETITIONER:** **--------------------------------------** **C.KALAVATHY W/O.BHAVA DESAN, AGED 39 YEARS UPPER PRIMARY SCHOOL ASSISTANT VADAKKE RAVUNNIYAVATH CHINNA AMMAMEMORIAL UPPER PRIMARY SCHOOL VALLANGHY, KOLLANGODE, PALAKKAD DISTRICT.** **BY ADV. SRI.V.A.MUHAMMED** **RESPONDENT(S)/RESPONDENTS:** **----------------------------------------------------** ## **1. THE STATE OF KERALA** - **REPRESENTED BY ITS SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM - 695 001.** ## **2. THE DEPUTY DIRECTOR OF EDUCATION,** - **PALAKKAD DISTRICT - 678 001.** ## **3. THE DISTRICT EDUCATIONAL OFFICER,** - **PALAKKAD DISTRICT - 678 001.** **4. THE ASSISTANT EDUCATIONAL OFFICER, KOLLANGODE, PALAKKAD DISTRICT - 678 506.** ## **5. THE MANAGER,** - **VADAKKE RAVUNNIYAVATH CHINNA AMMA MEMORIAL UPPER PRIMARY SCHOOL VALLANGHY, KOLLANGODE, PALAKKD DISTRICT678 506.** **6. THE HEAD MASTER, VADAKKE RAVUNNIYAVATH CHINNA AMMA MEMORIAL UPPER PRIMARY SCHOOL VALLANGHY, KOLLANGODE, PALAKKAD DISTRICT 678 506.** **WA NO.63/13** **-2-** ## **7. SRI.C.SAJEEV,** **UPPER PRIMARY SCHOOL ASSISTANT, VADAKKE RAVUNNIYAVATH CHINNA AMMA MEMORIAL UPPER PRIMARY SCHOOL, VALLANGHY, KOLLANGODE, PALAKKAD DT 678 506.** **R6 & 7 BY ADV. SRI.P.NANDAKUMAR** **R1-R4 BY ADV. SR GOVERNMENT PLEADER SRI.S.JAMAL** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WA NO.63/13** ## **APPENDIX** ## **APPELLANT'S EXHIBITS** **ANNEXURE 1: TRUE COPY OF THE DECISION REPORTED IN 2010 (4) KLT SHORT NOTES PAGE 69 CASE NO.80 DT 22.10.2010.** **ANNEXURE II: TRUE COPY OF THE DECISION REPORTED IN 2010 (2) KLT 630 DT 3.5.2010.** **ANNEXURE III: TRUE COPY OF THE GO(RT) NO.4531/09/G.EDN. DT 30.10.2009 OF THE GOVERNMENT.** **ANNEXURE IV: TRUE COPY OF THE JUDGMENT IN WPC NO.33811/09 V DT 20.12.12.** ## **//True Copy//** ## **PA to Judge** **Rp** **“C.R.”** ## **ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ. ================================ Writ Appeal No. 63 of 2013 ====================** ## **Dated this the 7[th] day of July, 2014** ## **J U D G M E N T** ## Antony Dominic, J. This writ appeal is filed by the petitioner in WP(C) No.25385/12 who is aggrieved by the judgment of the learned single Judge dismissing the writ petition filed by her. 2. The appellant was appointed as Lower Grade Hindi Teacher in the 5[th] respondent school for the period from 11/8/04 to 30/6/08 and the appointment was approved by the departmental authorities. Subsequently, a retirement vacancy arose in the school in the category of UPSA w.e.f. 1/6/11 and the appellant was appointed to that vacancy in recognition of her claim under Rule 51A Chapter XIV A KER. However, by Ext.P1 order, the Assistant Educational Officer declined to approve her appointment on the ground that the 7[th] respondent is a senior claimant who had approved service during the period from 1/6/09 to 31/3/10. 3. The DEO and the Deputy Director of Education rejected the appeal and revision filed by the appellant as per Ext.P3 and Ext.P6 orders. Subsequently, the Assistant Educational Officer issued **W.A.No.63/13** ## **: 2 :** Ext.P10 order requiring the Manager to re-appoint the 7[th] respondent and that order was confirmed by the Government in Ext.P12 order rejecting the revision filed by the appellant. It is in the above circumstances, the writ petition was filed by the appellant contending that by the time the vacancy of UPSA arose w.e.f. 1/6/11, she had acquired TTC on 21/8/10 and that therefore, in view of the amendment to Rule 51A Chapter XIV A KER effected in 2005, she was entitled to be appointed to that vacancy. However, interpreting Rule 51A as amended in 2005, learned single Judge held the 7[th] respondent to be the rightful claimant and the impugned orders were also upheld. It is this judgment which is called in question before us. 4. We heard the learned counsel for the appellant, learned Government Pleader appearing for respondents 1 to 4 and also the learned counsel appearing for the 6[th] and 7[th] respondents. 5. The only point that arises for consideration is whether the appellant was entitled to be appointed against the vacancy of UPSA which arose on 1/6/11 in preference to the 7[th] respondent. Rule 51A occurring in Chapter XIV A KER which was inserted in the statute book in 1966 provided that qualified teachers who are relieved as per Rule 49 of 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in schools under the **W.A.No.63/13** **: 3 :** same Educational Agency or an Educational Agency to which the school may be subsequently transferred provided they have not been appointed in permanent vacancies in schools under any other Educational Agency. The scope of this provision was considered and explained in various judgments. In _**Anilkumar v. Beena**_ (2000 (1) KLT 286), a Division Bench of this Court considered the purport of this Rule and held thus in para 10 to 13; _“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_ **W.A.No.63/13** **: 4 :** _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 UPSA (Hindi) though she had no approved service in the post of UPSA (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. 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._ ## **W.A.No.63/13** ## **: 5 :** _12. A Division Bench of this Court in Gopalakrishnan Nair v. District Educational Officer, 1988 (1) K.L.T. 644 dealt with the claim of a nonteaching 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_ **W.A.No.63/13** **: 6 :** _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 in respect of those types of posts which they held earlier and their appointment approved”._ 6. Reading of this judgment shows that the Rule has been understood by the Division Bench as one framed with the object and purpose of restoring to those qualified teachers relieved of their appointment, the post they lost for want of vacancies. According to the Division Bench, a teacher who obtained such a preference under Rule 51A for re-appointment cannot go on acquiring various other qualifications subsequent to his relief from the school and stake claim for a post which he never held on the previous occasions. The Division Bench also clarified that the preferential claim of various thrown out teachers must be in tune with their qualification on the basis of which they held the post earlier. 7. It was subsequently that the rule was amended by S.R.O.No.638/2005. Reading of the explanatory note clarifies the **W.A.No.63/13** **: 7 :** object that was sought to be achieved by the amendment and therefore the explanatory note is extracted below for reference; ## **Explanatory Note** _There is no express provision in the Kerala Education Rules for reverting a teacher promoted under rule 43 of Chapter XIV (A) to a lower post for want of vacancy. According to the decisions of the High Court of Kerala, rule 43 of Chapter XIV (A) overrides rule 51A thereof. As a result, if a teacher who has been promoted under rule 43 is thrownout for want of vacancy, he will be treated only as a rule 51A claimant and has to wait till a vacancy in the category occurs again. The High Court has also held in certain decisions that in order to attract rule 51A there must be identity in regard to the nature of the post claimed and previously held by the teacher. The above decisions would cause hardships to senior teachers who were promoted in short vacancies in higher posts. Government consider that a teacher thrownout from service and a protected teacher should be entitled to be appointed against vacancies arising in future, in the same or higher or lower category of teaching post under the Educational Agency, provided the teacher is fully qualified to be appointed to the post._ _The notification is intended to achieve the above object.”_ ## **W.A.No.63/13** **: 8 :** 8. Reading of the explanatory note shows that the Government considered that a teacher thrown out from service and a protected teacher should be entitled to be appointed against vacancies arising in future, in the same or higher or lower category of teaching post under the Educational Agency, provided the teacher is fully qualified to be appointed to the post. With the above object in mind, Rule 51A was amended and the amended rule to the extent it is relevant reads thus; _“[_ _**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 the same or higher or lower category of teaching posts, for which he is qualified that may arise] [if there is no claimant under rule 43 in the lower category] in schools under the same Educational Agency [or an Educational Agency to which the school may be subsequently transferred] provided they have not been appointed in permanent vacancies in schools under any other Educational Agency]”._ 9. Reading of the above shows that as in the case of rule as it originally stood, it provides that qualified teachers, who are relieved from service, in the circumstances enumerated therein, shall have preference for appointment to future vacancies. However, in addition **W.A.No.63/13** **: 9 :** to what was already provided, Rule also extends that preference for appointment to future vacancies in the same, higher or lower category of teaching posts. This extended benefit is available to the teacher only subject to the further condition that the teacher should be qualified to the teaching posts in which the vacancies that may arise in future and there is no claimant under Rule 43 in the lower category. 10. One cannot have a quarrel that the Rule in question extends the benefit of concession to teachers who are thrown out of employment. The legal position is trite that rules or orders providing concessions should be construed strictly. If the rule is so construed, from the opening part of the rule itself, it is evident that the benefit of the rule is applicable only to qualified teachers who are relieved in the circumstances mentioned in the Rule. Such a qualified teacher who is relieved from service can claim preference for appointment to future vacancies in the same or higher or lower category of teaching posts to which he is qualified. Therefore, for a teacher to claim preference as provided under Rule 51A as amended, the teacher should be qualified at the time of relief and there is nothing in the rule suggesting that a Rule 51A claim can be sustained on the strength of qualifications acquired subsequent to relief from service. If it is otherwise, the words 'qualified teachers who are relieved' mentioned in the rule will be ## **W.A.No.63/13** **: 10 :** otiose. It is such a teacher who is eligible to claim the preferential rights that are provided in the Rule. 11. Further, the extended benefit to such a teacher is to claim preference for re-appointment to the same, lower or higher category of teaching posts. The words lower and higher occurring in the rule should be understood in the context of the word 'same'. This therefore means that the lower and the higher posts should be in the same discipline in which the teacher has rendered service as a qualified teacher. In other words, one cannot work in one discipline and claim the benefit of preference under Rule 51A to a post in a different discipline, be it to a lower or higher post. 12. In so far as this case is concerned, admittedly the appellant worked as Hindi teacher during the period from 11/8/04 to 30/6/08. She acquired TTC only on 21/8/2010 where as the 7[th] respondent worked as an UPSA during the period from 1/6/2009 to 31/3/2010. It was therefore that the departmental authorities have treated the 7[th] respondent as a senior claimant and it was for that reason that the AEO declined approval by Ext.P1 order. 13. Learned counsel for the appellant relied on Annexure IV judgment rendered by the learned single Judge in WP(C) No.33811/09. **W.A.No.63/13** ## **: 11 :** It is true that a claim similar to that of the appellant was upheld by the learned single Judge in the judgment mentioned above. However, we note that in WA No.350/13, taking note of certain subsequent developments, a Division Bench of this Court set aside the judgment although it was without going into the merits of the rival contentions. In such circumstances, we are not in a position to place any reliance on the judgment relied on by the learned counsel for the appellant. 14. In our view, the impugned orders reflect the correct position of law as discernible from the provisions of Rule 51A Chapter XIV A KER. We, therefore, do not find any illegality either in the impugned orders or in the judgment of the learned single Judge calling for interference. Writ appeal fails and is dismissed. Sd/- **ANTONY DOMINIC JUDGE** Sd/- **DAMA SESHADRI NAIDU JUDGE** Rp //True Copy// PA to Judge