Kerala High Court
Manager, N.S.S. Karayogam U.P. School vs Soumya Nair on 22 March, 2005
Equivalent citations: 2005(2)KLT867
Author: J.B. Koshy
Bench: J.B. Koshy, M. Sasidharan Nambiar
JUDGMENT J.B. Koshy, J.
1. The petitioner (appellant in W.A.No. 1989 of 2004) claimed appointment as a teacher in the school of the first respondent (appellant in W.A.No. 1169 of 2004) under Rule 51B of Chapter XIVA of Kerala Education Rules (for short, 'KER'). Rule 51B provides as follows:
"51B. The Manager shall give employment to a dependent of an aided school teacher dying in harness. Government orders relating to employment assistance to the dependents of Government servants dying in harness shall mutatis mutandis, apply in the matter of such appointments".
Her father while working as a teacher in the first respondent school died on 28.6.2000. A vacancy of teacher arose on 31.3.2004. Petitioner was fully qualified and entitled to apply invoking Rule 51B and she applied in time. Appointments in the schools are made after mid-summer vacation from the starting of new academic year. But, instead of appointing the petitioner, first respondent manager appointed additional third respondent with effect from 2.6.2004 on the ground that he has got a better claim under Rule 51A, KERs. He was also fully qualified to hold that post. Rule 51A, KERs. reads as follows:
"51 A. 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 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".
Additional third respondent had an approved service from 4.10.1999 to 15.12.1999. Petitioner's claim under Rule 51B arose only on 28.6.2000 when her father died. Before that, Additional third respondent got a vested right under Rule 51A. Hence, as rightly held by the learned Single Judge, petitioner is not entitled to appointment in the vacancy which was filled up by Additional third respondent.
2. Contention of the petitioner is that Rule 51A only obligates the management to give some preference. He relied the observations of Mr. Jawahar Lal Gupta, C.J. in paragraph 17 of the Full Bench decision reported in Manager, Trikkur Panchayat Sarvodaya High School v. Suma, 2003 (2) KLT 62 (FB), is as follows:
"17. In its ordinary sense, 'preference' implies a priority. A favoured treatment. If a retrenched teacher competes with another from the open market and both are found to be equal in merit, the retrenched employee may be preferred to the other. Thus, the person is given priority and shown a favour. It does not, however, mean reservation. Preference should not imply the exclusion of all the other candidates irrespective of their merit".
It is also contended that giving preference of appointment under Rule 51A is violative of Article 16 of the Constitution of India. But, same argument can be raised for appointment under Rule 51B and both are statutory powers giving reasonable restriction under Article 16 of the Constitution of India. In the above case, Full Bench was considering the question whether temporary teachers appointed by the Panchayat will get right of reappointment under Rule 51A. By majority view, Full Bench held that if temporary appointments are made as per Rules by Public Service Commission, they will get statutory right and teachers who were appointed by the Panchayat dehors the rule will not get right under Rule 51A. The view expressed by Hon'ble Chief Justice in paragraph 17 was not accepted by the other two learned Judges who wrote separate judgments. In para 74(2) Mr. K.S. Radhakrishnan, J. also considered the scope of Articles 14 and 16 of the Constitution and held as follows:
"Rule 51A read alongwith Notes 1 and 2 confers a statutory right for appointment to those qualified teachers who are relieved as per Rule 49 or 52 on account of termination of vacancies in the school 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 and not a mere preference, weightage or priority".
Mr. Cyriac Joseph, J. at paragraph 57 held as follows:
".......... Why should a qualified teacher who was fortunate to get an appointment as per the rules and who unfortunately had to be relieved under the circumstances mentioned in Rule 51 A, be denied the right to appointment to a future vacancy, enabling the Manager to appoint a fresh candidate of his choice? In my view, if the preference for appointment under Rule 51A is not construed as a right to appointment to future vacancies rather than a mere preference; it will lead to grave injustice and more arbitrariness in making appointment of teachers by the Manager of a private aided school. Hence, the preference for appointment to future vacancies under Rule 51A is a statutory right to appointment in future vacancies and is not a mere preference or weightage."
But, agreeing with Chief Justice, Mr. K.S. Radhakrishnan, J. held that the right is available only to teachers who were appointed through proper channel. The Additional third respondent was appointed in the earlier occasion as per KER and that service was approved also. Hence, Additional third respondent who is fully qualified is entitled to statutory benefit under Rule 51A.
3. Since petitioner is entitled to the benefit of Rule 51B, the next question is who is entitled to be appointed on the vacancy that was filled on 2.6.2004. This question was considered by a learned Single Judge in Deepthy Susan Jacob v. State of Kerala, 1996 (2) KLT 1033, and held that when conflicting claimants are there under Rule 43, 51A and 51B, the Rule 51B claimants must wait till all the persons who have already acquired a vested right for appointment under Rule 43 and 51A. It was held in Mary v. Regional Deputy Director of Public Instruction & Ors., ILR 1974 (2) Kerala 274, by a Division Bench of this Court that the claim of a teacher for promotion to a higher grade under Rule 43 will prevail over Rule 51A when there is a conflict between the two rules. Rule 43 will prevail over Rule 51B also. A claimant under Rule 51B is entitled to appointment only after satisfying the claimants who have already acquired a vested right for appointment under Rule 51 A. Additional third respondent had already acquired a vested statutory right for appointment under Rule 51A in the next arising vacancy before the death of the petitioner's father and only after that date petitioner can claim appointment under Rule 51B.
4. The grievance of the first respondent Manager, who filed W.A.No. 1169 of 2004, is that there is a direction to appoint the petitioner in the next arising vacancy. We make it clear that in the next arising vacancy also petitioner can get appointment after satisfying the claims of qualified candidates who got already vested rights under Rule 51A apart from the claims under Rule 43.
5. Learned counsel for the petitioner submitted that petitioner's father had worked in Government U.P.School from December, 1975 to 11.11.1998 and 18.11.1998 to 21.6.2000 as he was a protected teacher. Hence, she can raise claim for compassionate appointment in Government Schools. This is not arising in the Writ Appeal. Hence, we are not looking the correctness of the contentions or legal rights in that behalf. If she has got such a right, it is for her to file suitable representation to the Government and we are not expressing any opinion regarding that matter.
With the above observations, both Writ Appeals are disposed of.