Kerala High Court
K.V.Rajendra Prasad vs General Manager on 25 June, 2008
Author: M.N.Krishnan
Bench: M.N.Krishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 999 of 2005()
1. K.V.RAJENDRA PRASAD,
... Petitioner
Vs
1. GENERAL MANAGER,
... Respondent
2. ALEXANDER THOMAS,
For Petitioner :SRI.V.B.PREMACHANDRAN
For Respondent :SRI.SAJEEVKUMAR K.GOPAL, SC, KSRTC
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :25/06/2008
O R D E R
? IN THE HIGH COURT OF KERALA AT ERNAKULAM
+WA.No. 455 of 2008()
#1. T.N.SANDHYA, HSA(MALAYALAM)
... Petitioner
Vs
$1. JALAJA KUMARI V.V., UPSA, IGMHS,
... Respondent
2. THE MANAGER, IGMHS, MANJAKKALA PO.,
3. THE DEO, KOTTARAKKARA.
4. THE D.P.I., THIRUVANANTHAPURAM.
5. STATE OF KERALA, REP. BY THE SECRETARY
! For Petitioner :SRI.O.D.SIVADAS
^ For Respondent :GOVERNMENT PLEADER
*Coram
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.N.RAVINDRAN
% Dated :02/07/2008
: O R D E R
C.R. K.Balakrishnan Nair & P.N.Ravindran, JJ.
======================== W.A.Nos.455 & 461 of 2008 ======================== Dated this the 2nd day of July, 2008.
JUDGMENT Ravindran,J.
These writ appeals arise from the judgment of the learned Single Judge in W.P.(C)No.26810 of 2007. They were therefore heard together and are being disposed of by this judgment. The appellant in W.A.No.455 of 2008 is the fifth respondent and the appellant in W.A.No.461 of 2008 is the first respondent in the Writ Petition. The first respondent in both the appeals is the writ petitioner. For the sake of convenience, the parties are referred to as they are arrayed in the writ petition. The main question that arises in these Writ Appeals is as regards the effect of the amendments introduced in Rules 43 and 51A of Chapter XIV-A of the Kerala Education Rules, 1959, hereinafter referred to as the "K.E.R." for short on the rights of a teacher thrown out of service vis-a-vis, a teacher in service awaiting promotion to the higher post. The brief facts are as follows:
WA Nos.455 & 461/08 -: 2 :-
2. The writ petitioner possesses B.Sc. degree in Chemistry, M.A. degree in Malayalam and B.Ed. degree in Physical Science.
The fifth respondent possesses B.A. degree in Malayalam and B.Ed. degree in Malayalam. The writ petitioner was initially appointed as U.P.S.A. by the first respondent/Manager as per Ext.P1 appointment order dated 23.7.1991 in a short term leave vacancy from 23.7.1991 to 11.10.1991. The said appointment was duly approved. The writ petitioner was relieved from service on 11.10.1991. Thereafter, a leave vacancy of H.S.A. (Malayalam) arose in the first respondent's school during the period from 11.1.1993 to 31.3.1993. In the said vacancy, the writ petitioner was appointed as H.S.A. as per Ext.P2 appointment order dated 11.1.1993. The said appointment was also duly approved. On the cessation of the said leave vacancy, the writ petitioner was relieved from service. Thereafter, the writ petitioner was regularly appointed as U.P.S.A. with effect from 20.7.1993. While the writ petitioner was thus working as U.P.S.A., a leave vacancy of H.S.A. (Malayalam) arose during the period from 9.1.1995 to 31.3.1995. By Ext.P3 appointment order dated 9.1.1995 the writ petitioner was appointed in that vacancy WA Nos.455 & 461/08 -: 3 :- and the said appointment was also approved. On the cessation of the said leave vacancy, the writ petitioner was reverted back as U.P.S.A. While the writ petitioner was thus working as U.P.S.A., a vacancy of H.S.A. (Physical Science) arose in the first respondent's school in June, 2001. The writ petitioner was promoted and appointed in that vacancy. The writ petitioner worked as H.S.A. (Physical Science) from June, 2001 till 15.7.2004. On account of reduction in the staff strength in the High School for the academic year 2004-2005, the writ petitioner was reverted back as U.P.S.A.
3. The fifth respondent was initially appointed as U.P.S.A. in the first respondent's school in a leave vacancy during the period from 14.9.1998 to 11.12.1998. The said appointment was approved. Later, the fifth respondent was reappointed as U.P.S.A. in another leave vacancy during the period from 14.12.1998 to 9.3.1999 and the said appointment was also approved. She was regularly appointed as U.P.S.A. in the first respondent's school with effect from 30.7.1999. During the academic year 2004-2005, due to reduction in the staff strength, the fifth respondent was retrenched from service. Thereafter, the WA Nos.455 & 461/08 -: 4 :- fifth respondent was appointed as H.S.A. (Malayalam) in a leave vacancy for the period from 5.6.2006 to 28.2.2007. On the cessation of the said vacancy, she was retrenched from service.
4. While the matters stood thus, a regular vacancy of H.S.A. (Malayalam) arose in the first respondent's school with effect from 1.7.2007. In the said vacancy, the first respondent/Manager appointed the fifth respondent with effect from 14.7.2007. The writ petitioner thereupon submitted Ext.P4 representation dated 31.7.2007 to the second respondent - District Educational Officer staking her claim for the post. Thereafter, she filed W.P.(C) No.26810 of 2007 in this Court seeking the following reliefs:
"(i) to issue a writ of certiorari or other writ or order or direction calling for the records connected with the case and quash the appointment order issued by the first respondent to the fourth respondent as HSA (Malayalam) in the first respondent's school during this Academic year.
(ii) to issue a declaration that the petitioner is fully qualified to be promoted/appointed as HSA (Malayalam) notwithstanding Ext.P5 govt. order and that the qualifications required for appointment as WA Nos.455 & 461/08 -: 5 :- HSA (Malayalam) are as prescribed under Rule 2 Chapter XXXI KER. and further declare that the appointment of the fourth respondent as HSA (Malayalam) in preference to the petitioner is arbitrary and violative of the rules.
(iii) to issue a writ of mandamus or other writ or order or direction directing the respondents 1 to 3 to appoint the petitioner as HSA (Malayalam) against the retirement vacancy from 1.6.2007 with all consequential benefits."
5. The first respondent/Manager and the fifth respondent teacher contested the writ petition. By judgment delivered on 8.1.2008, the learned Single Judge held that the writ petitioner is entitled to be appointed as H.S.A. (Malayalam) in the vacancy, which arose on 1.7.2007. The writ petition was accordingly allowed, the appointment of the fifth respondent to the post of H.S.A. (Malayalam) was quashed and the first respondent/ Manager was directed to appoint the writ petitioner as H.S.A. (Malayalam) in the vacancy which arose on 1.7.2007 and to accommodate the fifth respondent in the vacancy of U.P.S.A. that would fall vacant on the appointment of the writ petitioner as H.S.A. (Malayalam). The first respondent/Manager and the fifth WA Nos.455 & 461/08 -: 6 :- respondent/teacher have in these appeals challenged the correctness of the judgment of the learned Single Judge.
6. We heard Sri.O.D.Sivadas, the learned counsel appearing for the fifth respondent (appellant in W.A.No.455 of 2008) and Sri.George Poonthottam, the learned counsel appearing for the first respondent/Manager (appellant in W.A.No.461 of 2008). The learned counsel for the appellants contended that as the writ petitioner is not a graduate in Malayalam though she possesses a post graduate degree in Malayalam, she is not qualified to be appointed as H.S.A. (Malayalam) in the vacancy that arose on 1.7.2007. It was also contended that in the light of Note 1A to Rule 51A of Chapter XIVA of the K.E.R., the writ petitioner, who is in service in the school can claim appointment to the higher category of teaching post only after the teachers thrown out from service are reappointed. It was submitted that for these reasons, the fifth respondent was rightly appointed as H.S.A. (Malayalam) in preference to the writ petitioner in the vacancy that arose on 1.7.2007. It was also submitted that the writ petitioner cannot claim a right under Rule 51A of Chapter XIV-A of the K.E.R. as she is a teacher in service and cannot also claim WA Nos.455 & 461/08 -: 7 :- a superior right for promotion as H.S.A. under Rule 43 of Chapter XIV-A of the K.E.R., in view of Rule 51A as amended. The learned counsel for the appellants contended that Rules 43 and 51A of Chapter XIV-A of the K.E.R. were amended by Ext.R5(a) government order dated 17.6.2005 published in the Kerala Gazette Extraordinary No.1411 dated 25.6.2005 and by reason of the said amendment, a claim under Rule 43 of Chapter XIV-A of the K.E.R. must yield to a claim under Rule 51A thereof and therefore, the writ petitioner, who is not a 51A claimant, but a Rule 43 claimant in service as U.P.S.A., cannot aspire for promotion as H.S.A. in the vacancy that arose on 1.7.2007 in preference to the fifth respondent. The learned counsel contended that by virtue of the amendment introduced by Ext.R5
(a) government order, the rights of Rule 51A claimants have been enlarged giving them priority for appointment in preference to Rule 43 claimants awaiting promotion to higher posts.
7. We have considered the submissions made at the Bar by the learned counsel appearing for the appellants. The first question is whether the writ petitioner is qualified to be appointed as H.S.A. (Malayalam). The qualifications for the post of H.S.A. WA Nos.455 & 461/08 -: 8 :- (Malayalam) are prescribed in Rule 2(2)(b)(i) of Chapter XXXI of the K.E.R., which reads as follows:
"(b) High School Assistant (Languages)
(i) High School Assistant (Malayalam):- A Degree in Malayalam or Malayalam as one of the two optional Subjects under Pattern II of (sic - Part II or) Part III and B.Ed/B.T./L.T. conferred or recognised by the Universities in Kerala; or A title of Oriental learning in Malayalam awarded by the Universities in Kerala and certificate in Language Teachers Training issued by the Commissioner for Government Examinations, Kerala."
8. By G.O.(Ms) 177/87/G.Edn. dated 22.8.1987 the State government ordered as follows:
"In the Government Order read as 1st paper above, Government ordered a grouping of Subjects for the post of H.S.As (Subjects). In the said grouping of subjects, the qualifications prescribed therein for appointment of H.S.As is only graduation in various subjects. Subsequently as per the G.O. read as second paper above, post graduation in the concerned subjects was also included as a qualification for appointment as H.S.As (Subjects). WA Nos.455 & 461/08 -: 9 :- On the above analogy, the Director of Public Instruction has now recommended to Government to approve the appointments of persons possessing post graduate qualification in the concerned subject or language as HSA (subject) or HSA (Language).
Government have examined the matter in detail and are pleased to order that candidates possessing post graduate qualification in the concerned subject or language are also eligible for appointment as H.S.A. (Subject) or H.S.A. (Language).
The Director of Public Instruction will forward necessary proposals for making provisions in the KER empowering the Educational Officers to approve the appointment of persons possessing post graduation in the concerned subjects or language as HSA (Subject) or HSA (Language) as the case may be."
9. The validity of the government order dated 22.8.1987 was the subject matter of challenge in O.P.No.4429 of 1998 filed by the Manager of a private aided school who had questioned the orders issued by the District Educational Officer concerned, accepting the claim of a teacher who possessed only a post graduate degree in English Language & Literature and did not possess a degree in History/ Economics/ Geography/ Politics/ WA Nos.455 & 461/08 -: 10 :- Music as main subject for appointment to the post of H.S.A. (Social Studies). By judgment delivered on 14.2.2002 in Bose William v. State of Kerala - 2002(2) K.L.T. 34, a learned Single Judge of this Court held interpreting Rule 2(2)(a) of Chapter XXXI of the K.E.R. that the rules do not specify whether the degree should be at graduate level or post graduate level. Reliance was placed on the decision of a Division Bench of this Court in W.A.No.213 1997 to hold that the word "degree" would take in a Bachelors degree as well as a Masters degree. The learned Single Judge held that as the word "degree" in Rule 2(2)(a) is not defined as either Bachelor or Post graduate, a restricted view is not called for and that the government was justified in issuing the government order dated 22.8.1987 to clarify that the word "degree" would take in a Bachelor or Post graduate degree, so as to give full meaning and certainty to the expression used in the rules. The learned Single Judge also upheld the validity of the government order dated 22.8.1987, which was marked as Ext.P12 in the said writ petition. The correctness of the decision of the learned Single Judge in Bose William v. State of Kerala was canvassed in W.A.No.961 of 2002. By judgment delivered WA Nos.455 & 461/08 -: 11 :- on 21.5.2003, a Division Bench of this Court affirmed the judgment of the learned Single Judge in Bose William v. State of Kerala. The Division Bench while affirming the judgment of the learned Single Judge also took note of the fact that Rule 2(2) of Chapter XXXI of the K.E.R. was amended with effect from 22.8.1987 by introducing the following proviso to the said rule:
"Provided that a post graduate degree in the subject or language concerned shall be considered as an alternative qualification of degree in such subject or language concerned for appointments as High School Assistant (Subject) or High School Assistant (Languages) as case may be."
The Division Bench of this Court in W.A.No.961 of 2002 held that the amendment makes manifest what was clearly implicit in the original rule and that it clarifies the real intention of the rule making authority. We are in respectful agreement with the reasoning of the Division Bench in W.A.No.961 of 2002.
10. In the case on hand, it is not in dispute that the writ petitioner possesses a post graduate degree in Malayalam. In the light of the government order dated 22.8.1987, which is only clarificatory in nature, the writ petitioner was qualified and WA Nos.455 & 461/08 -: 12 :- eligible to be appointed as H.S.A. (Malayalam) and in fact, the first respondent/Manager had by Ext.P2 order dated 11.1.1993 appointed her as H.S.A. (Malayalam) in a leave vacancy for the period from 11.1.1993 to 31.3.1993. Again, by Ext.P3, Manager appointed her as H.S.A. (Malayalam) in a leave vacancy for the period from 9.1.1995 to 31.3.1995. The said appointments were approved by the second respondent - District Educational Officer. So, it ill comes from the mouth of the Manager that the writ petitioner is not qualified to be appointed as H.S.A. (Malayalam). In the light of Rule 2(2)(b)(i) of Chapter XXXI of the K.E.R. and the proviso to the said rule introduced with effect from 22.8.1987, we hold that the writ petitioner is qualified and eligible to be appointed as H.S.A. (Malayalam). We accordingly overrule the contention of the appellants that the writ petitioner who does not possess a Bachelors degree in Malayalam is not eligible or qualified to be appointed as H.S.A. (Malayalam).
11. The next point urged is that the writ petitioner's claim for appointment to the post of H.S.A. in the vacancy that arose on 1.7.2007 must yield to the claim of the fifth respondent under Rule 51A of Chapter XIVA of the K.E.R. The fifth respondent WA Nos.455 & 461/08 -: 13 :- claims that she is a Rule 51A claimant in terms of Ext.R5(a) amendment to the K.E.R. As per the amended Rule 51A, an incumbent who worked for one academic year alone will be treated on retrenchment as a Rule 51A claimant. The academic year is defined in Rule 2A of Chapter VII of the K.E.R. as follows:
"Academic year shall be deemed to commence on the re-opening day and terminate on the last day before summer vacation." In this case the fifth respondent worked from 5.6.2006 to 28.2.2007. It is not clear whether 28.2.2007 was the last day before summer vacation during that year. Without deciding whether the fifth respondent has worked for one academic year, we are proceeding on the assumption that she has worked for one academic year as was done by the learned Single Judge.
12. It has been consistently held by this court in a series of decisions including the decision in Mary v. The Regional Deputy Director of Public Instruction and others - ILR 1974 (2) Kerala 274 that the claim of a teacher for promotion to the higher grade under Rule 43 of Chapter XIV-A of the K.E.R. will prevail over a claim under Rule 51A thereof when there is conflict between the two claims. The decision of the learned Single Judge WA Nos.455 & 461/08 -: 14 :- in Mary v. The Regional Deputy Director of Public Instruction and others (supra) was approved by a Division Bench of this Court in Babu v. Manager, S.N.V.H. School, Paravur and others - ILR 1978 Kerala 40.
13. In Mary v. The Regional Deputy Director of Public Instruction and others (supra), a learned Single Judge of this Court held as follows:
"It is a fundamental principle of interpretation of statutes inclusive of subordinate legislation that the attempt of the court should be, as far as possible, to harmonise the different provisions contained in the statute or in the rule so long as it is possible to achieve the same without doing violence to the language used by the Legislature or by the rule- making authority. A construction which leads to a direct conflict between different provisions should be as far as possible, be avoided. If the said principle is kept in mind I think the correct way of interpreting and reconciling rules 43 and 51A is to limit the applicability of rule 51A to cases where vacancies arising in the school are to be filled up otherwise than by promotion of personnel already in the service of the school, i.e., by recruiting persons from outside. Thus, on this interpretation, rule 51A will come into WA Nos.455 & 461/08 -: 15 :- operation in the matter of filling up vacancies of posts in a higher grade only when no qualified hands are available in the lower grade in the institution and where consequently the vacancies have to be filled up by recruitment of persons from outside. In such a case a person who has put in a previous temporary service in the school will be preferred over everyone else in the matter of filling up a vacancy by direct recruitment. If rule 51A is to be understood as conferring a right on an outsider to be appointed to a vacancy in a higher grade merely on the ground of his having acted in the school on a previous occasion when there was no qualified hand in the lower grade, the provisions of rule 43 will be rendered entirely nugatory. Such an interpretation will also leave the door open for misuse of the provisions of rule 51A by the manager since it will be possible for him to circumvent the mandatory terms of rule 43 by merely appointing an outsider in a short term vacancy which may even be deliberately created by inducing a higher grade teacher to take leave at a time when the person working in a lower grade is not yet fully qualified. By the said device the teacher in the lower grade can be effectively deprived of the benefit conferred by rule 43 and divested of all prospects of promotion, even though such person may have WA Nos.455 & 461/08 -: 16 :- acquired the requisite qualifications by the time a permanent vacancy arises in the school. I do not think that this was the intention of the rule-making authority when it framed rule 51A."
14. But, the learned counsel for the appellants relying on the decision of a learned Single Judge of this Court in Jannet Varghese v. State of Kerala - 2006(3) K.L.T. 435 pointed out that after the amendment introduced by Ext.R5(a) government order, if there is a conflict between a claim under Rule 43 and Rule 51A, the claim under Rule 51A will prevail and that the basis of the earlier view taken by this Court has been taken away. We also notice that a similar view has been taken by another learned Single Judge of this Court in Saleena v. State of Kerala - 2008 (1) K.L.T. 437. The learned counsel for the appellants contended relying on the decision in Jannet Varghese (Supra) that after the amendment introduced by Ext.R5(a) government order, Rule 43 is subject to Rule 51A and therefore, the right of a teacher to be promoted to the higher post is subject to the rights of Rule 51A claimants.
15. Even after the amendments to Rule 43 and Rule 51A, a WA Nos.455 & 461/08 -: 17 :- fresh hand can be appointed as H.S.A. only if on the date of occurrence of the vacancy there is no Rule 43 claimant. When the fresh hand who has completed continuous service of one academic year as H.S.A. is retrenched he becomes a Rule 51A claimant. When a vacancy arises in future in the cadre of H.S.A., any Rule 43 claimant among the U.P.S.A's will be one who was appointed as U.P.S.A. and was having at the time of his appointment, the qualifications of H.S.A. also or an existing U.P.S.A. who acquired the qualification for promotion as H.S.A., after the date of initial appointment of the Rule 51A claimant to the post of H.S.A. The writ petitioner does not come under this category of Rule 43 claimants as she was having all the requisite qualifications for appointment as H.S.A. when the fifth respondent was first appointed as H.S.A. on 5.6.2006. It is not in dispute that the writ petitioner has earlier approved spells of service as H.S.A.(Malayalam) from 11.1.1993 to 31.3.1993 and from 9.1.1995 to 31.3.1995 and as H.S.A. (Physical Science) from June 2001 to 15.7.2004. In our opinion, on the facts of this case, the question whether after the amendment introduced with effect from 17.6.2005, a claim under Rule 43 of Chapter XIV-A of WA Nos.455 & 461/08 -: 18 :- the K.E.R. must yield to a claim under Rule 51A thereof does not really arise for determination in these Writ Appeals. The fifth respondent was first appointed as H.S.A. (Malayalam) in a leave vacancy for the period from 5.6.2006 to 28.2.2007. When the vacancy of H.S.A. (Malayalam) arose on 5.6.2006, the writ petitioner who had prior approved spells of service as H.S.A. (Malayalam) and H.S.A. (Physical Science) in the school was a Rule 51A claimant for the post. The fifth respondent had no such claim for the post.
16. The Apex Court has in Mary Oommen v. Manager, MGMHS v. - 1987(1) K.L.T. 686 held that a teacher who had worked earlier in the school has a preferential claim over a teacher who had worked later in the same school. It was held that preference among Rule 51A claimants should be based on priority of title. However for reasons best known to him, the Manager of the school, without complying with Note 2 to Rule 51A of Chapter XIV-A of the K.E.R., chose to appoint the fifth respondent, as H.S.A. (Malayalam). No one has a claim that the writ petitioner's right under Rule 51A was forfeited in terms of Note 2 to Rule 51A. In this context it is apposite to refer to the WA Nos.455 & 461/08 -: 19 :- decision of the Division Bench of this Court in Lakshmikutty Amma v. Vijayalakshmikutty- 1992(2) K.L.T. 341, the relevant portions of which read as follows:
"8. Yet another reason which could be attracted to the situation is the following. As stated by the learned Single Judge there is no provision in the Rules which specifically permits relinquishment of a right accrued under R.51A to a teacher. On the other hand Note 2 to Rule 51A refers to the procedure to be followed by the manager which could result in forfeiture of an existing or accrued right under R.51A to a teacher. The Note contemplates that initially the manager should issue an order of appointment to the teacher concerned by Registered Post acknowledgment due and give 14 clear days to the teacher to join duty. If the teacher did not join duty in time, the manager is bound to give a further notice to the teacher stating that another person would be appointed instead and that the preferential right under R.51A would be forfeited if not exercised within seven clear days. If nothing is heard during that time also, the preferential right under the Rule will be regarded as forfeited. In other words, Note 2 requires two registered notices to be issued as stated above, and under the second notice, the manager WA Nos.455 & 461/08 -: 20 :- has to give the option to the teacher to exercise the preferential right within seven clear days. It is only when such an option is not exercised by the teacher, her or his preferential right would be forfeited. It is now well settled that if a statute prescribes that an act has to be done in a particular manner, that act can be done only in that manner, and in no other manner. If a statute gives a power to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden. Taylor v. Taylor, (1875) 1 Ch.D. 426 quoted in State of Gujarat v. Shantilal, AIR 1969 SC 634 and Kashmir University v. Mohd. Yasin, AIR 1974 SC 238.
9. A case more directly on the point is the one in Ramachandran v. Govind, AIR 1975 SC 915, as it relates to surrender of rights by a tenant under the Bombay Tenancy and Agricultural Lands Act, and the rules made thereunder. We say that the said decision is more apposite because in the present case, we are dealing with relinquishment of a right of a teacher in respect of his or her preferential claim under R.51A of the Kerala Education Rules, while in the Bombay case, surrender by tenant of his tenancy rights was the subject of consideration under the Bombay Act and Rules. Surrender would be valid WA Nos.455 & 461/08 -: 21 :- only if the following conditions were satisfied: (1) it must be in writing; (2) it must be verified before the Mamlatdar; (3) while making such verification the Mamlatdar must satisfy himself in regard to two things, namely, (a) that the tenant understands the nature and consequences of the surrender, and (b) that it is voluntary; (4) the Mamlatdar must endorse his findings as to such satisfaction upon the document of surrender. The High Court of Bombay held that surrender by the tenant in that case which did not conform to the above procedure was a nullity, and was not a valid surrender. On appeal, the Supreme Court affirmed the said view observing that the question whether the procedure was mandatory or not has to be gathered from a review of the language, subject matter, and importance of the provision in relation to the general object intended to be secured, the mischief, if any, to be prevented and the remedy to be promoted by the Act. In that context, the Supreme Court observed that the imperative language, the beneficient purpose and importance of those provisions would unerringly lead to the conclusion that they were intended to be mandatory. Neglect of any of these statutory requisites would be fatal. Disobedience of even one WA Nos.455 & 461/08 -: 22 :- of these mandates would render the surrender invalid and ineffectual. In that context, the Supreme Court referred to Taylor v. Taylor, referred above and other cases as follows:
"A Century ago, in Taylor v. Taylor, (1875) 1 Ch.D. 426 Jessel M.R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council in Nazir Ahmed v. Emperor, 63 Ind. App. 372 = AIR 1936 P.C. 253(2) and later by this Court in Several cases, Shiv Bahadur Singh v. State of U.P., AIR 1954 SC 322 Deep Chand v. State of Rajasthan, AIR 1961 SC 1527...."
We accordingly hold that the procedure contained in Note 2 to Rule 51A is mandatory, and that there cannot be forfeiture of a right accrued under R.51A in any manner otherwise than by the procedure provided by Note 2 and that consequently the relinquishment letters even executed voluntarily by the teacher relinquishing his or her right under R.51A cannot result in the forfeiture of the preferential right to appointment. R.51A and Note 2 thereunder are based upon public policy and they are intended to prevent malpractices. Therefore the judgment of the learned Single Judge is correct and is liable to be confirmed. In this context we may state that a WA Nos.455 & 461/08 -: 23 :- learned Single Judge of this Court in Pathuma's case, 1986 KLT 166 has taken the same view as the one we have taken in this case. We may also add that in the decisions in Punnen v. Vasudeva Kurup, 1955 KLT 924, and Muralidar v. State of U.P., AIR 1974 SC 1924, it has been held that a tenant cannot relinquish his rights under the Tenancy Act. The said principle is based upon public policy and the same will apply to the cases on hand."
17. Further, as on 5.6.2006, the writ petitioner was a senior claimant under Rule 43 also for promotion as H.S.A. The said claim was overlooked while appointing the fifth respondent as H.S.A. (Malayalam) on 5.6.2006. We are, therefore, of the opinion that the appointment of the fifth respondent as H.S.A. (Malayalam) in the leave vacancy during the period from 5.6.2006 to 28.2.2007 was an illegal appointment. It is based on the said illegal appointment of the fifth respondent as H.S.A. (Malayalam) on 5.6.2006 that she claims appointment as H.S.A. (Malayalam) in the vacancy which arose on 1.7.2007. The fifth respondent, who was illegally appointed as H.S.A. (Malayalam) ignoring the legitimate claim of the writ petitioner for WA Nos.455 & 461/08 -: 24 :- appointment as H.S.A. (Malayalam) in the vacancy which arose on 5.6.2006, cannot in our opinion claim any preference over the writ petitioner for appointment to the post of H.S.A. (Malayalam) that arose on 1.7.2007, as her claim is founded on an illegal appointment. In that view of the matter, the question whether after 17.6.2005, a claim under Rule 43 must yield to a claim under Rule 51A when competing claims arise under the said rules does not really arise for determination in these Writ Appeals. Further, as noticed by the learned Single Judge, Note 1A to Rule 51A of Chapter XIV-A of the K.E.R. introduced with effect from 17.6.2005 prohibits only fresh appointments to vacancies before reappointing thrown out/protected teachers available under the educational agency. The embargo is on fresh appointments only and not on reappointing teachers having existing claims under Rule 51A.
18. We also notice that there is no provision in the Kerala Education Act, 1958 or in the K.E.R. which interdicts a Rule 43 claimant from claiming appointment to the higher post under Rule 51A as well, where such a claim also exists. A Division Bench of this Court in W.A.No.658 of 1988, Elizabath Oommen WA Nos.455 & 461/08 -: 25 :- v. Beena Mariam George - 2000(2) K.L.T. SN 47 had recognized such a situation and directed the Manager to consider the claim of the appellant therein either under Rule 51A or Rule 43 as and when vacancies arise in the school. Such a direction was issued evidently on the premise that a teacher can claim appointment to the higher post either under Rule 43 or under Rule 51A of Chapter XIV-A of the K.E.R. The appellant in W.A.No.658 of 1998 (Elizabath Oommen's Case) had approved service as H.S.A. from 7.8.1978 to 7.10.1978. Thereafter, she had approved service as U.P.S.A. during the period from 6.6.1979 to 14.7.1980 and from 15.7.1980 to 22.8.1980. She was thereafter appointed as Clerk on 28.4.1982 and held that post till 12.8.1983. She was again appointed as U.P.S.A. from 13.6.1984 to 13.8.1984 and as Clerk on 1.12.1987. She was on leave from 17.9.1990 to 2.6.1995 and on the expiry of the leave she was reappointed as U.P.S.A. on 5.6.1995 and held that post till 9.7.1995. The first respondent therein was appointed as U.P.S.A. on 2.1.1989 and was promoted as H.S.A. from 28.6.1990 to 31.8.1990 and again from 2.1.1995 to 30.3.1995. She was reverted as U.P.S.A. thereafter. When a vacancy of WA Nos.455 & 461/08 -: 26 :- H.S.A. arose in the school on 10.7.1995, the Manager appointed the appellant. The District Educational Officer declined to approve the appointment on the ground that the first respondent in the Writ Appeal had a claim under Rule 43 for promotion while appellant had only a claim under Rule 51A for appointment as U.P.S.A. The Director of Public Instruction upheld the claim of the appellant on the ground that she had a claim under Rule 43 to be promoted to the post of H.S.A. which arose on 10.7.1995. The first respondent in the Writ Appeal thereupon filed O.P.No.7500 of 1997 in this Court. The learned Single Judge held that the first respondent in W.A.No.658 of 1998 had a vested right under Rule 51A of Chapter XIV-A of the K.E.R. by virtue of her appointment as H.S.A. in the year 1990 for reappointment in the vacancy which arose on 10.7.1995. The learned Single Judge also held that the first respondent in the Writ Appeal had a preferential right under Rule 43 for promotion to the post of H.S.A. for the reason that she was working as U.P.S.A. when the vacancy arose. On appeal, reversing the decision of the learned Single Judge, a Division Bench of this Court held that the appellant is a senior claimant by virtue of her WA Nos.455 & 461/08 -: 27 :- earlier approved service as U.P.S.A. and as H.S.A. and that the Manager ought to have considered her claim either under Rule 51A or Rule 43 as and when vacancies arose in the school. It was held that as the appellant had not relinquished her claim, her earlier approved service as H.S.A. would prevail over that of the first respondent and that the appellant was the rightful claimant for the post of H.S.A. which arose on 10.7.1995. The decision in Elizabath Oommen v. Beena Mariam George (supra) is an authority for the proposition that a teacher who is a Rule 43 claimant can also have and seek to enforce a claim under Rule 51A as well. We therefore hold that besides and dehors the right under Rule 43 of Chapter XIV-A of the K.E.R., the earlier approved spells of service which the writ petitioner had as H.S.A. (Malayalam) and H.S.A. (Physical Science) in the first respondent's school undoubtedly confers on her a preferential claim under Rule 51A thereof for appointment to the post of H.S.A. (Malayalam) which fell vacant on 1.7.2007 and that her claim is superior to the claim that the fifth respondent has under
Rule 51A.
For the reasons aforesaid, we hold that there is no merit in WA Nos.455 & 461/08 -: 28 :- the writ appeals. The writ appeals accordingly fail and they are dismissed in-limine.
K.Balakrishnan Nair, Judge.
P.N.Ravindran, Judge.ess 13/5
WA Nos.455 & 461/08 -: 29 :- WA Nos.455 & 461/08 -: 30 :- see para 13 after first sentence at page 15 add. WA Nos.455 & 461/08 -: 31 :- See page 16 - Add.(x) We also.....
WA Nos.455 & 461/08 -: 32 :-
18. Prior to the amendment to Rule 43 introduced by Ext.R5(a) government order, a teacher promoted to a higher post who had WA Nos.455 & 461/08 -: 33 :- to face retirement from service for want of vacancy had to remain out of service as a Rule 51A claimant. This was for the reason that there was no express provision in the K.E.R to revert a teacher promoted under Rule 43 to the lower post if the vacancy in the higher post ceases to exist. The Explanatory Note to Ext.R5(a) states that as a result thereof, promotees who were thrown out for want of vacancies had to remain out of service for a long period till a vacancy in the higher post again arose. In view of the interpretation placed by this Court on Rule 51A of Chapter XIV-A of the K.E.R., a teacher thrown out from the higher post was disabled from seeking reappointment in the lower post even if a vacancy in the lower post existed or arose later. Further, as noticed earlier, there was no specific provision in the K.E.R. to revert the teacher thrown out of service from the higher post to the lower post. It was to obviate these difficulties that Rule 43 of Chapter XIV-A of the K.E.R. was amended by Ext.R5(a) government order. The effect of the amendment to Rule 43 is that if a teacher who is promoted faces reversion for want of vacancy in the higher post, he or she shall be reverted to the lower post, provided he or she is not eligible for protection in WA Nos.455 & 461/08 -: 34 :- the retrenched post as per the government orders in force. Even under the amended rules, reversion to the lower post is contemplated only in a situation where the teacher thrown out from the higher post is not eligible for protection. The introduction of the second proviso to Rule 43 does not therefore take away the basis of the earlier decisions of this Court that a claim under Rule 43 will prevail over a claim under Rule 51A in the event of a conflict between the two claims.
The introduction of Note 1A in Rule 51A or the amendment to the main part of Rule 51A giving a thrown out teacher preference for reappointment to vacancies in the same or higher or lower category of teaching posts, is not in our opinion an amendment which takes away the basis of the decisions of this Court that a claim under Rule 43 will prevail over a claim under Rule 51A. The amendments to Rules 43 and 51A were introduced in the wake of the decisions of this Court to the effect that reappointment can only be to the same post and not to a higher or lower post. To that extent, the appellants are right in contending that the basis of the earlier decisions of this Court WA Nos.455 & 461/08 -: 35 :- relating to identity of posts in relation to a claim under Rule 51A has been taken away by the rule making authority by clarifying that the intention of the rule is to enable a Rule 51A claimant to claim reappointment even against a lower or higher post. In other words, after the amendment introduced to Rule 51A by Ext.R5(a) government order, identity of posts is no longer relevant.
20. We are afraid, the same is not the situation with reference to Rule 43. Rule 43 as amended states that subject to rules 44, 45 and 51A and considerations of efficiency and any general order that may be issued by the Government, vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade, according to seniority, if such hands are available. Does this mean that if a vacancy in the higher post exists/arises, it shall be filed up by promotion of qualified hands in the lower grade according to seniority only if thrown out teachers are not awaiting reappointment. Though at first blush it may appear that in all situations a claim under Rule 43 must yield to a claim under Rule 51A, a close scrutiny of Rule 51A, especially Note 1A thereof, will clearly establish that the WA Nos.455 & 461/08 -: 36 :- amendments to Rules 43 and 51A introduced by Ext.R5(a) government order do not have the said effect. The main part of Rule 51A as amended provides that qualified teachers who are thrown out of service under Rule 49 for the reason that they do not have eight months continuous service as on the closing day of the academic year or are thrown out under Rule 52 on account of reduction in the number of posts or due to withdrawal of recognition to the school by the department shall have preference for appointment in future vacancies in the same or higher or lower category of teaching posts for which he is qualified, that may later arise in the schools under the Educational Agency or the Educational Agency to which the school may be subsequently transferred. The question to be decided is whether Note 1A to Rule 51A of Chapter XIV-A of the K.E.R. has the effect of enlarging the right of a thrown out teacher by giving him/her preference for appointment over a teacher awaiting promotion. The answer lies, in our opinion, in Note 1A itself. As noticed by us earlier, the embargo in Note 1A is against "fresh appointments". Note 1A does not state that appointments to vacancies arising in the same or higher or lower category of teaching posts under the WA Nos.455 & 461/08 -: 37 :- Educational Agency shall be made only after providing re- appointment to teachers thrown out of service and protected teachers available in the Educational Agency. In other words, Note 1A does not prohibit a Rule 43 claimant from being promoted to a higher post.
On the terms of Rule 51A it is not possible to hold that the amendment introduced by Ext.R5(a) government order is one intended to give priority to Rule 51A claimants over claims under Rule 43. If the interpretation placed on Rules 43 and 51A by the learned Single Judge in Jannet Varghese v. State of Kerala - 2006(3)K.L.T. 435 is accepted, it will lead to a situation where a teacher working in the lower grade can never aspire for promotion to the higher post. We do not therefore agree with the view expressed by the learned Single Judge in Jannet Varghese v. State of Kerala that after the amendment to Rule 43, the right conferred on an employee of an aided school to be promoted to a higher post is in all situations subject to the right WA Nos.455 & 461/08 -: 38 :- available to a claimant under Rule 51A.
21. In our opinion, the interpretation to be placed on the main part of Rule 43 as amended is that it is subject to Rule 51A as amended which prohibits fresh appointments being made to vacancies in the higher category of teaching post and does not prohibit the Educational Agency from promoting qualified hands in the lower grade of post to the higher grade according to seniority. As noticed by this Court Mary v. The Regional Deputy Director of Public Instruction and others (supra) and in Babu v. Manager, S.N.V.H. School, Paravur and others (supra), the attempt of the court should be, as far as possible to harmonise the different provisions contained in the statute or in the rules so long as it is possible to achieve the same without doing violence to the language used by the Legislature or the rule making authority. We agree with the view expressed by this Court in the aforesaid decisions that the applicability of Rule 51A has to be limited to cases where the vacancies arising in the school are to be filled up otherwise than by promotion. The intention underlying Rule 51A is to provide for WA Nos.455 & 461/08 -: 39 :- reappointment of teachers having approved service who were thrown out for the reasons envisaged in Rule 51A. Thrown out teachers may belong to the higher/lower category of posts and if a teacher in the lower category like a U.P.S.A. is thrown out from service for want of vacancy or for any other reason referred to in Rule 51A, and thereafter a vacancy in the higher category of post like H.S.A. arises in the school, he/she cannot in our opinion claim reappointment under Rule 51A to the post of H.S.A., relying on Note IA to Rule 51A. This is for the reason that among the lower category of posts, in the event of vacancies ceasing to exist it is the juniormost who will be thrown out of service. The junior cannot in our opinion steal a march over his/her seniors in service by claiming appointment against a vacancy in the higher category of post. Even among teachers in the higher category like H.S.A. if a promotee H.S.A. is to be thrown out for want of vacancy, in view of the second proviso to Rule 43 as amended, he/she can be reverted back as U.P.S.A. if he/she is not eligible for protection. On the other hand, an H.S.A. directly recruited will however have to face retrenchment and await his/her turn for reappointment till a vacancy in the same or lower category of WA Nos.455 & 461/08 -: 40 :- post arises. The amendment is not intended to enlarge the right of preference for reappointment in future vacancies into a claim over those already in service and awaiting promotion. When competing claims under Rules 43 and 51A arise, the claimant under Rule 51A can claim reappointment in the same or higher or lower category of posts, only if he/she is not eligible for protection under the relevant orders in force and there is no claimant awaiting promotion under Rule 43.
It is also not in dispute that the fifth respondent who also has approved service as H.S.A. (Malayalam) during the period from 5.6.2006 to 28.2.2007, is much junior to the writ petitioner in service. When the vacancy of H.S.A. (Malayalam) arose on 1.7.2007 in the first respondent's school, the writ petitioner was in service as U.P.S.A. on being reverted from the post of H.S.A. (Physical Science) and the fifth respondent was a teacher who was thrown out from service on the cessation of her appointment as H.S.A. (Malayalam) for the period from 5.6.2006 to 28.2.2007. Relying on Ext.R5(a) government order and Note 1A to Rule 51A of Chapter XIV of the K.E.R., the learned counsel for WA Nos.455 & 461/08 -: 41 :- the appellants contend that appointment to the post of H.S.A. (Malayalam) that arose on 1.7.2007 can be made only by re- appointing the fifth respondent, who is a teacher thrown out from service and that the writ petitioner's claim for promotion to the higher post of H.S.A. (Malayalam) under Rule 43 is subservient to the said claim.
14. We shall for the purpose of easy reference, extract Rules 43 and 51A of Chapter XIV-A of the K.E.R. as amended.
"43. Subject to rules 44,45 and 51A and considerations of efficiency and any general order that may be issued by the Government, vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority, if such hands are available.
Provided that in the case of promotion to the post of High School Assistant (Subject), the minimum subject requirements alone need be satisfied, to safeguard the interests of trained graduates who are awaiting promotions as High School Assistants.
Provided further that where a Headmaster or a teacher who has been promoted under this rule faces retrenchment for want of vacancy, he shall be reverted to the category of post from which he has WA Nos.455 & 461/08 -: 42 :- been promoted provided he is not eligible for protection in the retrenched post as per the orders issued by the Government from time to time.
Note:- (1) 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.
(i) he has the prescribed qualifications; and
(ii) 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.
Note:- (2) Promotion under this rule shall be made from persons possessing the prescribed qualifications at the time of occurrence of vacancy."
"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 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 WA Nos.455 & 461/08 -: 43 :- schools under any other Educational Agency.
Provided that a teacher who was relieved under rule 49 or rule 52 shall not be entitled to preference for appointment under this rule unless such teacher has a minimum continuous service of one academic year as on the date of relief.
Provided further that the first preference under this rule shall be given to protected teachers.
Note 1:- If there are more than one claimant under this rule the order of preference shall be according to the date of first appointment. If the date of first appointment is the same, then preference shall be decided with reference to age, the older being given first preference. In making such appointments, due regard should be given to the requirement of subjects and to the instructions issued by the Director under sub-rule (4) of rule 1 as far as High Schools are concerned.
Note 1A:- Fresh appointments to vacancies arising in the same or higher or lower category of teaching posts under the Educational Agency shall be made only after providing re-appointment to such teachers thrown out from service and protected teachers available under the Educational Agency.
Explanation:- For the purpose of this clause. "Protected teacher" means, a teacher who has been WA Nos.455 & 461/08 -: 44 :- retrenched for want of vacancy after putting such length of regular service that may be specified by the Government or who is eligible for such Protection as per G.O.(Ms.No.104/69/Edn. dated 6.3.1969 or G.O. (Ms.)No.231/84/G.Edn. dated 27.10.1984 or any other orders issued by Government from time to time."
Note 2:- Manager should issue an order of appointment to the teacher by Registered post acknowledgement due and give a period of 14 (fourteen) clear days to the teacher to join duty. If the teacher does not join duty in time the Manager should give a further notice to the teacher stating that another person would be appointed instead and that the preferential right under this rule would be forfeited if not exercised within another 7 (seven) clear days. If nothing is heard during that time also, the preferential right under the rule will be regarded as forfeited."
15. Rule 43 of Chapter XIV-A of the K.E.R. as amended stipulates that subject to Rules 44, 45 and 51A and considerations of efficiency and any general order that may be issued by the government, vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower WA Nos.455 & 461/08 -: 45 :- grade according to seniority, if such hands are available. By the amendment introduced by Ext.R5(a) government order, besides incorporating a reference to Rule 51A in the main part of Rule 43, the second proviso was also incorporated in Rule 43, which stipulates that "where a Headmaster or a teacher who has been promoted under Rule 43 faces retrenchment for want of vacancy, he shall be reverted to the category of post from which he has been promoted, provided he is not eligible for protection in the retrenched post as per the orders issued by the government from time to time."
16. By Ext.R5(a) government order, Rule 51A of Chapter XIV-A of the K.E.R. was also amended by incorporating the words "in the same or higher or lower category of teaching posts, for which he is qualified that may arise" in the main part of Rule 51A. By the said government order, Note 1A was also inserted in Rule 51A which stipulates that fresh appointments to vacancies arising in the same or higher or lower category of teaching posts under the Educational Agency shall be made only after providing re- appointment to such teachers thrown out from service and protected teachers available under the Educational Agency. An WA Nos.455 & 461/08 -: 46 :- Explanation has also been incorporated in Note 1A to define the meaning of the term "protected teacher".
17. We shall now consider the effect of the amendments introduced in Rules 43 and Rule 51A of Chapter XIV-A of the K.E.R. As noticed earlier, it has been the consistent view of this Court that a claim under Rule 51A is subservient to a claim under Rule 43 of Chapter XIV-A of the K.E.R. This Court has also taken the consistent view that to claim the benefit of Rule 51A, there must be identity in regard to the nature of the post claimed and the post previously held by the claimant. This Court has consistently taken the view that a thrown out U.P.S.A. can seek reappointment under Rule 51A only as U.P.S.A. and not as H.S.A. and vice versa. The explanatory note to Ext.R5(a) government takes note of these facts. The question therefore arises as to whether Ext.R5(a) government order takes away the basis of the decisions of this Court as regards the superiority of claims under Rules 43 and the nature of the right under Rule 51A.
18. We shall now consider whether the opening words of Rule 43, namely, "Subject to rules 44, 45 and 51A" introduced by Ext.R5(a) government order take away the basis of the earlier WA Nos.455 & 461/08 -: 47 :- decisions of this Court that a claim under Rule 43 will prevail over a claim under Rule 51A. As regards the decisions of this Court which had taken the view that there should be identity of posts in order to enable a Rule 51A claimant to seek reappointment, it is evident from the wording of the rules as amended that the intention of the rule making authority was to take away the basis of the earlier decisions of this Court which took the view that there must be identity of posts in order to claim reappointment under Rule 51A. In our opinion, the question whether the insertion of the word "51A" in the main part of Rule 43 has the effect of taking away the basis of the earlier decisions of this Court that a claim under Rule 51A must yield to a claim under Rule 43 does not really arise for determinarion in the case on hand. We notice that the embargo in Note 1A of Rule 51A against appointments being made before reappointing thrown out teachers, is confined only to "fresh appointments" and not to promotions. Note 1A to Rule 51 of Chapter XIV A of the K.E.R. prohibits only "fresh appointments to vacancies arising in the same or higher or lower category of teaching posts under the Educational Agency." The embargo is only on "fresh WA Nos.455 & 461/08 -: 48 :- appointments" being made to vacancies arising in schools under the Educational Agency. The rule making authority therefore did not intend to prevent the Educational Agency from promoting Rule 43 claimants against vacancies that exist or may arise in the higher grades in the schools under the Educational Agency. The rule making authority only intended to prohibit the Educational Agency from making fresh appointments to vacancies arising in the schools administered by it. As noticed by the learned Single Judge in the judgment under challenge, a fresh appointment can only mean a fresh appointment from the open market. Note 1A does not say that a promotion under Rule 43 shall not be made if there is a thrown out teacher awaiting reappointment. In our opinion, Note 1A does not confer on a protected teacher or a thrown out teacher the right to seek reappointment by giving him/her preference over a Rule 43 claimant when the Manager proceeds to fill up the vacancies in the higher grade by promoting qualified hands in the lower grade according to seniority. In Mary v. The Regional Deputy Director of Public Instruction and others - ILR 1974(2) Kerala 274, it was held that a harmonious interpretation has to be placed on Rules 43 and 51A of Chapter WA Nos.455 & 461/08 -: 49 :- XIV-A of the K.E.R. and that if Rule 51A is understood as a provision conferring a right on an outsider to be appointed to a vacancy in the higher grade merely on the ground of his having worked in the school on a previous occasion when there was no qualified hand available for promotion, Rule 43 will be rendered otiose. This Court held in the aforesaid decision that if such an interpretation is placed on Rule 51A it will lead to misuse of the provisions of Rule 51A and that it would enable Managers of aided schools to circumvent Rule 43 by appointing an outsider in a short term vacancy, which may even be deliberately created so as to stifle the claims of teachers awaiting promotion. We therefore agree with the learned Single Judge that Note 1A to Rule 51A of Chapter XIV-A of the K.E.R. prohibits only fresh appointments from the open market, overlooking the existing claims under Rule Rule 51-A. Even earlier, such claims could not have been overlooked and fresh appointments made from the open market, except after complying with Note 2. Note 1A in our opinion only clarifies the position. In our opinion the amendment to Rule 51A introduced by Ext.R5(a) government order is one intended to ensure that thrown out teachers are reappointed in WA Nos.455 & 461/08 -: 50 :- the schools under the same Educational Agency in the same or higher or lower category of teaching posts.
19. We have already held that the writ petitioner is qualified to be appointed as H.S.A. (Malayalam). Her appointment as H.S.A. (Malayalam) for the period from 11.1.1993 to 31.3.1993 and from 9.1.1995 to 31.3.1995 by Exts.P2 and P3 appointment orders was validly made and was approved. She was again appointed as H.S.A. (Physical Science) in June 2001 and continued in that post till 15.7.2004 when, for want of vacancy she was reverted back as U.P.S.A. That spell of service as H.S.A. was also approved. On the other hand, the fifth respondent was first appointed as H.S.A. (Malayalam) only on 5.6.2006, at a time when the writ petitioner was in service as H.S.A. The writ petitioner is therefore a senior Rule 51A claimant. That being the situation, the writ petitioner who is a senior claimant, is entitled to preference over the fifth respondent for reappointment as H.S.A. (Malayalam) in view of Note 1 to Rule 51A of Chapter XIV-A of the K.E.R.