Kerala High Court
V.Soumya vs State Of Kerala
Author: P.R. Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
THURSDAY, THE 20TH DAY OF DECEMBER 2012/29TH AGRAHAYANA 1934
WP(C).No. 33811 of 2009 (V)
---------------------------
PETITIONER:
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V.SOUMYA,
JUNIOR SANSKRIT TEACHER (PART TIME), A.B.U.P.SCHOOL
KANNADI, PALAKKAD DISTRICT.
BY ADVS.SRI.KRB.KAIMAL (SR.)
SRI.B.UNNIKRISHNA KAIMAL
SRI.V.MADHUSUDHANAN
SRI.T.ISSAC
RESPONDENT(S):
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1. STATE OF KERALA, REPRESENTED BY
THE SECRETARY TO GOVERNMENT, GENERAL
EDUCATION DEPARTMENT, SECRETARIAT
THIRUVANANTHAPURAM.
2. THE DISTRICT EDUCATIONAL OFFICER,
PALAKKAD.
3. THE ASSISTANT EDUCATIONAL OFFICER,
KUZHALMANNAM, PALAKKAD DISTRICT.
4. THE MANAGER, A.B.U.P.SCHOOL,
KANNADI, PALAKKAD DISTRICT.
5. SMT.R.GIRIJA, KALATHIL HOUSE,
KANNADI P.O., PALAKKAD DISTRICT.
R5 BY ADV. SRI.KALEESWARAM RAJ
R1,2,3 BY GOVERNMENT PLEADER SMT LOWSY A.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29.10.2012 THE COURT ON 20.12.2012 DELIVERED THE FOLLOWING:
SKV
WP(C).No. 33811 of 2009
APPENDIX
PETITIONER'S EXHIBITS:-
P1: COPY OF THE APPOINTMENT ORDER DATED 2.6.2008 ISSUED BY THE 4TH
RESPONDENT.
P2: COPY OF THE REVISION PETITION DATED 21.8.2008 FILED BY THE
PETITIONER BEFORE THE DP1.
P3: COPY OF THE ORDER NO.L.DIS.D/1029/2008 DATED 26.08.2008 ISSUED BY
THE 3RD RESPONDENT.
P4: COPY OF THE APPEAL DATED 8.9.2008 FILED BY THE 4TH RESPONDENT
BEFORE THE 2ND RESPONDENT.
P5: COPY OF THE JUDGMENT DATED 24.11.2008 OF THIS HON'BLE COURT IN WP
(C)NO.26016 OF 2008.
P6: COPY OF THE ORDER NO.K.DIS/B.6/6005/08 DATED 12.1.2009 ISSUED BY
THE 2ND RESPONDENT.
P7: COPY OF THE REVISION PETITION DATED 30.1.2009 FILED BY THE 5TH
RESPONDENT BEFORE THE 1ST RESPONDENT.
P8: COPY OF THE ARGUMENT NOTE DATED 26.6.2009 SUBMITTED BY THE
PETITIONER.
P9: COPY OF THE ORDER G.O.(RT)NO.4531/09/G.EDN DATED 30.10.2009 ISSUED
BY THE 1ST RESPONDENT.
RESPONDENTS EXHIBITS: NIL
/TRUE COPY/
P.A TO JUDGE
SKV
[CR]
P.R. RAMACHANDRA MENON, J.
..............................................................................
W.P. ) No.33811 OF 2009
.........................................................................
Dated this the 20th December, 2012
J U D G M E N T
Whether the amendment to Rule 51A Chapter XIV A KER, brought into force w.e.f. 2005 onwards, enabling the Rule 51A claimant to have no necessity to establish 'identity with the post held' and to get appointed in any future vacancies in the "same, higher or lower category of teaching posts" contemplates only the 'vertical movement' (as to the widening of the zone) or it contemplates 'lateral expansion' as well, is the point to be considered and decided.
2. The petitioner herein, who is a graduate in Sanskrit, having B.Ed in Sanskrit as well, came to be appointed as a junior Sanskrit Teacher (Part-Time) in the 4th respondent's school, against a retirement vacancy of one Mr.P.C. Ramachandran which arose on 31.03.2008. By virtue of the relevant rules, the vacancy arising on the closing date of the academic year, or during the vacation, can be filled up only on or after the commencement of the next academic year and it was W.P. ) No.33811 OF 2009 2 accordingly, that the petitioner came to be appointed in the vacancy, as per Ext. P1 appointment order dated 02.06.2008.
3. In the meanwhile, the 5th respondent, who had worked in the 4th respondent's school earlier as a Lower Grade Hindi Teacher, in a leave vacancy during the period from 02.07.2003 to 17.09.2003, had filed a representation before the 4th respondent, referring to the vacancy which was to arise on 31.03.2008 and sought to appoint her, she being a Rule 51A claimant. Her case was that, though her earlier appointment was as a Lower Grade Hindi Teacher, she had passed the Sanskrit Teacher's Examination held in April 2004 and at the time when the vacancy arose on 31.03.2008, she was fully qualified for the post and hence was liable to be appointed. After filing the said representation, the 5th respondent approached this Court by filing W.P.(C) 16885 of 2008 , which was disposed of directing the 3rd respondent to consider the representation and to pass appropriate orders in accordance with law. Pursuant to the said verdict, the matter was considered by the third respondent, who passed an order dated 14.08.2008 holding that the 5th W.P. ) No.33811 OF 2009 3 respondent was a Rule 51A claimant, qualified to be appointed to the vacancy of Part-time Junior Sanskrit Teacher which arose on 31.03.2008 and directed the 4th respondent to appoint her to the said vacancy. Being aggrieved of the order dated 14.08.2008 passed by the third respondent, the petitioner preferred Ext.P2 Revision Petition under Rule 8A of Chapter XIV A KER before the DPI.
4. When approval of Ext.P1 appointment of the petitioner was sought for, the same came to be rejected by the third respondent as per Ext.P3 order dated 26.08.2008, in view of his order dated 14.08.2008 upholding the claim of the 5th respondent. This was challenged by the 4th respondent /Manager by filing Ext.P4 appeal before the second respondent.
5. The 5th respondent approached this Court by filing W.P.(C)No. 26016 of 2008 seeking for a direction to implement the order dated 14.08.2008 passed by the third respondent. After considering the pleadings and proceedings, the said writ petition was disposed of by this Court as per Ext.P5 judgment dated 24.11.2008, directing the second respondent/DEO to consider W.P. ) No.33811 OF 2009 4 and finalise the appeal preferred by the Manager, after giving an opportunity of hearing to all the parties; simultaneously making it clear that the DPI need not consider the Revision Petition filed by the petitioner. In furtherance to the above verdict, all the parties were heard by the second respondent, who passed Ext.P6 order dated 12.01.2009 holding that the 5th respondent was not a Rule 51A claimant for the post of Sanskrit Teacher and directed the third respondent to approve the appointment of the petitioner as Junior Sanskrit Teacher(Part-time), if the appointment was otherwise in order. Pursuant to the said order, the third respondent approved the petitioner's appointment w.e.f. 02.06.2008 and she is continuing as above, and is drawing her salary.
6. Being aggrieved of Ext.P6 order, the fifth respondent approached the first respondent by filing Ext.P7 Revision Petition under Rule 92 of Chapter XIV A KER . W.P.(C) 4079 of 2009 filed by the 5th respondent was disposed of, as per the judgment dated 16.02.2009 passed by this Court, directing the first respondent to consider and finalise Ext.P7 Revision petition as W.P. ) No.33811 OF 2009 5 specified. The parties were heard accordingly and Ext.P9 order came to be passed on 30.10.2009, whereby Ext.P6 order passed by the 2nd respondent was set aside and the concerned departmental authorities were directed to give effect to the order dated 14.08.2008 passed by the third respondent upholding the claim of the 5th respondent. Ext.P9 order is under challenge in this writ petition; mainly contending that the scope of amendment of Rule 51A of Chapter XIVA KER is limited and that the 5th respondent was not duly qualified for the post in question as on the date of the arising of 'Rule 51A claim' and hence that, acquisition of qualification subsequent to the loss of employment cannot be pressed into service under any circumstance.
7. A counter affidavit has been filed on behalf of the first respondent seeking to sustain Ext.P9 order passed by the Government and trying to explain the circumstances under which the amendment was brought about to Rule 51A in the year 2005. It has been asserted that, on the date of occurrence of the vacancy of Sanskrit Teacher , the 5th respondent was fully W.P. ) No.33811 OF 2009 6 qualified for that post and was eligible to be appointed, by virtue of amendment to the Rule as aforesaid. The fifth respondent has filed a counter affidavit pointing out that the idea and understanding of the petitioner as to the scope of Rule 51A, as amended, is thoroughly wrong and misconceived. It is the case of the 5th respondent that there cannot be any differentiation among the 'Language Teachers', who come under a 'common category', as enumerated under Chapter XXXI of Rule 3(2) of KER. The teachers under the said category occupy different posts based on the particular Language concerned. The reliance sought to be placed on the decision rendered by a Division Bench of this Court in Anilkumar vs. Beena (2000 (1) KLT 286) from the part of the petitioner is also stated as not correct or sustainable, being not applicable to the case in hand, in relation to the situation prevailing after the amendment to Rule 51A in the year 2005. The 5th respondent seeks to rely on the dictum in ILR 2009(2) Kerala 258 (Manager vs. State of Kerala) and ILR 2009 (1) Kerala 864 (Abdurahiman N.K. vs. Government of Kerala), in support of her case. W.P. ) No.33811 OF 2009 7
8. Mr. K.R.B. Kaimal, the learned Sr. Counsel appearing for the petitioner submits that, the scope of the amendment to Rule 51A has to be analysed and understood in the light of the other provisions of the Statute as well, particularly in relation to Chapter XXXI dealing with the qualifications of the private school teachers and such other provisions. The learned Counsel submits that, the post of 'Sanskrit Teacher' is one category, while that of 'Hindi Teacher' is another category. What is contemplated by the amendment is only an appointment in the Same or Higher or Lower category of post, which in no way does enable the 5th respondent, who was a Lower Grade 'Hindi Teacher', to raise a claim for appointment against the vacancy of a 'Sanskrit Teacher'. The qualifications prescribed for the post of Sanskrit Teacher and Hindi Teacher are obviously different and there is 'no identity of category' at all, to have movement within the same group, to the Same, Higher or Lower levels. This aspect has been properly considered by the DEO in Ext.P6, which however came to be wrongly intercepted by the Government, passing Ext.P9 order and hence under challenge. W.P. ) No.33811 OF 2009 8
9. The next point highlighted by the learned Sr. Counsel for the petitioner is that, the claim under Rule 51A arose in the year 2003, when the 5th respondent was having qualification to teach only in 'Hindi' and admittedly, not qualified to teach 'Sanskrit'. The scope of Rule 51A (before the amendment in 2005) was considered and explained by a Division Bench of this Court in Anilkumar vs. Beena (2000(1) KLT 286), holding that a subsequent qualification under a different category is of no use. The verdict passed by the Division Bench was followed by a Single Bench of this Court in the decision in Jayarama Bhat vs. State of Kerala (2001(1) KLJ 534). It is contended that the present post of 'Sanskrit Teacher' (Part-Time) is not the Same, Higher or Lower post to that of the post of 'Lower Grade Hindi Teacher' held by the 5th respondent in the year 2003.
10. The third point stressed by the learned Sr. Counsel for the petitioner is that, qualification has to be reckoned as on the 'date of raising of the claim' and not as on the 'date of occurrence of the vacancy'. It is contended that at the time of acquiring the status as a Rule 51A claimant (to be considered for W.P. ) No.33811 OF 2009 9 appointment in the future vacancy), the petitioner was having only the requisite qualification in 'Hindi' and not in 'Sanskrit', which she admittedly acquired only much later in 2004. The learned Counsel submits that, these vital aspects have not been considered by the Government while passing Ext.P9 order and hence is liable to be interfered.
11. Mr. Kaleeswaram Raj, the learned Counsel appearing for the 5th respondent submits that, under the pre-amended rule (Rule 51A), the word used is 'vacancy', which is always attached to the 'post'; whereas after amendment, the word used is 'category' which does not appear to be defined anywhere in the Statute. The learned Counsel submits that, HSA, UPSA and LPSA are different categories, which may consist of different posts and that the 'Language Teachers' (Sanskrit, Hindi, Malayalam, Tamil, Urdu etc) enlisted under Chapter XXXI Rule 3(2) are to be treated as a 'common category', with different posts in the concerned subjects. The word 'category' as it now appears under the Rules has to be given its worth and meaning, which was not there in the earlier rules, submits the learned W.P. ) No.33811 OF 2009 10 Counsel. It is also pointed out that, the Rule Making Authority was very much aware of the description of the categories and posts under Chapter XXXI and the existence of the various judgments rendered earlier, including 2000(1) KLT 286 (cited supra) and 2001(1) KLJ 534 (cited supra). Still, a conscious decision was taken to dispense with the 'identity of posts', so as to meet the desired objective, thus amending the rule in the year 2005. The learned Counsel also makes a reference to the contents of Chapter XXIII dealing with the fixation of strength of teachers in the Departmental and Aided Schools and the various provisions thereunder; particularly Rule '3', showing the various categories of posts like Headmaster, High School Assistant, High School Assistant (Languages), UPSA, LPSA, Language Teachers , Specialist Teachers, Craft Teachers etc. It is added that, if the date of vacancy is given a 'go-bye' in reckoning the qualifications, it will always be open for the Manager to violate/frustrate the provisions by waiting for a desired person to get qualified and get appointed, which is not the scheme of the Statute .
W.P. ) No.33811 OF 2009 11
12. Mrs.Lowsy, the learned Government Pleader appearing for the State/Departmental authorities submits that the amendment brought about to Rule 51A was with a specific intent, to cross the hurdle as to the 'identity of post' fixed by this Court earlier and to make the vacancies available to the thrown out/protected hands before any fresh recruitment is notified (as discernible from the 'Note' added under the Rule). It is pointed out that Ext.P9 order passed by the Government is in conformity with the above intention of the law makers and hence not assailable under any circumstance.
13. To have an effective analysis of the consequences of the amendment brought about to Rule 51A, it is necessary to have a look at the provision, as it existed earlier and the position, as it remains after the amendment. Rule 51A, as it existed earlier, reads as follows:
"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 schools under the same educational Agency or an Educational Agency W.P. ) No.33811 OF 2009 12 to which the school may be subsequently transferred provided they have not been appointed in permanent vacancies in schools under any other Educational Agency.
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 appointments 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 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 W.P. ) No.33811 OF 2009 13 the rule will be regarded as forfeited. "
14. After the amendment made in the year 2005, the provision stands as given below:
"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 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.
W.P. ) No.33811 OF 2009
14
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 appointments 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 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)
W.P. ) No.33811 OF 2009
15
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. "
(Subsequently, another amendment was also brought about vide G.O.(P) No.192/2012 dated 16.06.2012, whereby some modification with regard to priority of Rule 43 claimants over the Rule 51A claimants was also stipulated, which is not much relevant to the case in hand).
15. The very incorporation of Rule 51A into the Statute Book (in the year 1966) was to see that the employment lost to W.P. ) No.33811 OF 2009 16 the persons appointed in the schools, due to division fall or such other adverse circumstances, for which they were not responsible in any manner, was restored. But then, the benefits stood restricted to appointment to be given in the vacancy concerned, so as to bring him/her back to the stream, had the contingency not occurred .
16. The scope of Rule 51A has been considered and explained by this Court on many an occasion, including by a Division Bench, in Anilkumar vs. Beena (2000(1) KLT 286). Paragraphs 10 to 13 are very relevant and hence are extracted below:
".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 W.P. ) No.33811 OF 2009 17 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 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 W.P. ) No.33811 OF 2009 18 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.
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 non-teaching 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 W.P. ) No.33811 OF 2009 19 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 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 W.P. ) No.33811 OF 2009 20 appointment approved."
17. Referring to the facts and circumstances, the Bench observed that the petitioner in the said case had acquired the qualification to teach UPSA (Hindi) only in the year 1998; whereas the petitioner was appointed in a leave vacancy as UPSA (Science) and therefore approved service was in the post of UPSA (Science) and not as UPSA (Hindi). It was accordingly held that, the petitioner therein was not eligible to have any preferential right for appointment as UPSA (Hindi) in the vacancy which arose in the school from 01.06.1999 under Rule 51A of Chapter XIV-A of KER. From the above, it is clear that, under the unamended rule, 'identity of post' was to be established and it could only be in respect of the subsequent vacancy in the particular post, that a claim was to be put forth by an eligible claimant under Rule 51A.
18. The change brought about in the Kerala Educational (Amendment) Rules 2005 after the amendment in the year 2005, is in the following lines:
W.P. ) No.33811 OF 2009 21 "In rule 51A:-
(i) after the words "to future vacancies", the following words shall be inserted, namely:-
" in the same or higher or lower category of teaching posts, for which he is qualified, that may arise"
(ii) after Note I, the following Note and Explanation shall be inserted, namely:
"Note 1A:-Fresh appointment 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 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".
19. It is to be noted that there is a conscious change in the W.P. ) No.33811 OF 2009 22 usage of words, when, after the words " to future vacancies", the words "in the same or higher or lower category of teaching posts, for which he is qualified that may arise"
were inserted. To put it more clearly, when reference was made in the earlier Rules to 'future vacancies' alone, there is a conscious change in the amended Rules by referring to the different category of teaching posts as the Same, Higher or Lower level. It has to be borne in mind, that there may be several vacancies in the same post (due to retirement, dismissal , promotion, transfer etc.). Under the earlier Rules, since nothing else was mentioned except the reference to 'future vacancies, it had necessarily to be confined /restricted to the 'particular post' he/she was holding before coming out from service. The vacancy naturally differs from post to post and as such, a Rule 51A claimant in respect of UPSA (Hindi) could aspire to a vacancy in the post of UPSA (Hindi) and nothing else. But after the amendment , the Government thought it fit to cut open a wider spectrum of posts for considering the Rule 51A claimants, by a conscious usage of the terms 'category of teaching posts at W.P. ) No.33811 OF 2009 23 the same, higher or lower level'. There is an ocean of difference between the 'future vacancy' in a post, as it existed under the old rules and the 'future vacancy, that may arise in the category of teaching posts at the Same or Higher or Lower level, as envisaged after the amendment. The category of teaching posts takes in several types of posts as grouped together like LPSAs (of different faculties) UPSAs ( of different faculties), HSAs ( of different faculties), Language Teachers (of different languages) and so on. 20. The purpose of amendment is discernible also from the 'Note 1A' added to Rule 51 A, holding that fresh appointment to the vacancies arising in the Same, Higher or Lower level of category of teaching posts under the educational agency shall be made, only after providing reappointment to such teachers thrown out from the service and protected teachers available under the educational agency. The 'Explanatory Note' to the SRO 638/2005 dated 17.06.2005 bringing about the amendment also throws some light in this regard, though it does not form part of the Notification. By virtue of the law declared by this Court in respect of the 'identity W.P. ) No.33811 OF 2009 24 of posts', a Rule 51A claimant has to wait till a vacancy occurs in the same post previously held by the teacher. This virtually caused hardships to teachers who were promoted in short term vacancies, in higher posts. It was considering the same, that the Government thought it fit to accommodate the teachers thrown out from the service and protected teachers, as entitled for appointment, against the vacancies arising in future, in the Same , Higher or Lower level of teaching posts under the concerned educational agency, provided the Teacher/s is/are fully qualified to be appointed to the post . Thus after the amendment, the necessity to have identity with the post previously held by the teacher has virtually disappeared. The intention of the Rule Making Authority is obviously to extend the benefit to the teachers already thrown out, as above, thus with a clear object to bring down the number of persons standing in the queue as Rule 51A claimants. The only stipulation is, as to the possession of the necessary qualification.
21. After the amendment was brought into effect in the year 2005, the scope of re-appointment originally provided to the W.P. ) No.33811 OF 2009 25 future vacancies 'in a post' came to be thrown open to 'a category of posts', which may be in the Same, Higher or Lower levels. The words 'category of posts' have to be considered and given a liberal interpretation with regard to the similar nature of posts as arrayed in different categories as to the classification of posts referring to the staff strength mentioned in Chapter XXIII-Rule-3. The only requirement is that the concerned teacher has to be duly qualified to hold the post. As mentioned herein before, it has been held by this Court in crystal clear terms, on many an occasion, that the relevant date is 'date of occurrence of vacancy' and one has to be qualified as on the date of occurrence of the vacancy. If the contention of the petitioner, that the Rule 51A claimant has to be qualified as on the date of raising of the claim, is to be accepted, that will again lead to the concept of 'identity of posts', which was decided to be done away with, by virtue of the conscious decision taken by the Law makers.
22. It is also relevant to note that the Law makers have also consciously used the terms/expressions with reference to the W.P. ) No.33811 OF 2009 26 'present tense':
" 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 schools under any other Educational Agency .
It is with this intent , enabling the concerned claimants to contest for different posts at different levels and thus to reduce the number of Rule 51A claimants, that 'Note 1A' also came to be incorporated as per the Government Order dated 17.06.2005, published in the Gazette dated 25.06.2005, stipulating that fresh appointments to vacancies arising in the Same or Higher or Lower level category of teaching posts under the Educational Agency W.P. ) No.33811 OF 2009 27 shall be made, only after providing reappointment to such teachers thrown out from service and protected teachers available under the Educational Agency. Therefore, the purpose is very evident and it has to be seen, whether any qualified hand, is available to be accommodated in a vacancy in the concerned category of posts in the three different levels ( Same or Higher or Lower levels as on the date of arising of the vacancy) and only if no Rule 51A claimant is available, as above, that it will be open for the Educational Agency to go for fresh recruitment.
23. Coming to the case in hand, it is true that the 5th respondent was not qualified to hold the post of 'Sanskrit Teacher' when she was relieved from service, on expiry of the leave vacancy of Lower Grade Hindi Teacher on 17.09.2003; acquiring the status of a Rule 51A claimant . But it also remains a fact that the 5th respondent passed the Sanskrit Teacher's Examination held in April, 2004 and that the vacancy of Sanskrit Teacher (Part-time ) arose in the 4th respondent's School only on 31.03.2008. It was after considering the facts and figures as above, that the legal provision (as amended) was applied to the W.P. ) No.33811 OF 2009 28 given set of facts and circumstances, thus leading to Ext.P9 order passed by the first respondent/Government, arriving at a finding in favour of the 5th respondent and setting aside the order passed by the DEO vide Ext.P6. This Court finds that Ext.P9 order is perfectly within the four walls of law and is not assailable under any circumstances.
In the above facts and circumstances, this Court finds that no tenable ground has been made out, to call for interference. The writ petition fails and it is dismissed accordingly.
P.R. RAMACHANDRA MENON, JUDGE.
lk