Kerala High Court
Jannet Varghese vs State Of Kerala on 27 June, 2006
Equivalent citations: 2006(3)KLT435
Author: K.M. Joseph
Bench: K.M. Joseph
JUDGMENT K.M. Joseph, J.
1. The seminal issues that arise for consideration in this Writ Petition are whether in the wake of Ext. P10 amendment effected to Rules43 and 51A of Chapter XIVA. a claimant under Rule 51A is to be preferred to the claimant under Rule 43 and further when two vacancies arise on the same day, one of which is the very same post, which was held by the claimant under Rule 51A and another, which is a lower post, whether the claimant under Rule 51A can claim the post which he held earlier. The bare facts necessary to appreciate the contentions are as follows:
Petitioner is a claimant under Rule 51A. She was originally appointed as High School Assistant in Social Studies for various spells in St. Joseph's High School, Kannimala, which was subsequently taken over by the third respondent Corporate management. She was again appointed by the third respondent as HSA, which was also approved (Ext. P4). By Ext. P7, the third respondent management issued an order dated 21.4.2006 stating that it is decided to appoint the petitioner as UPSA in St. Johns Convent, U.P. School, Meloor. Petitioner, on receipt of Ext. P7, filed Ext. P8 reply stating her objections and requested the management to appoint her in the next arising permanent vacancy of HSA (Social Studies). But by Ext. P9 the Manager took the view that the claim of the petitioner under Rule 51A cannot be allowed, as there are claimants under Rule 43 under the same management.
2. Ext. P10 is an amendment to Rules 43 and 51A. By Ext. P10, in Rule 43 of Chapter XIVA for the words and the figures "Subject to Rules 44 and 45" the words and figures "Subject to Rules 44, 45 and 51 A" has been substituted. In Rule 51 A, again after the words "to future vacancies" the following words were inserted, namely, "in the same or higher or lower category of teaching posts, for which he is qualified, that may arise." Ext. P11 is the reply sent by the petitioner to Ext. P9. She filed Ext.P12 memorandum also.
3. The additional 5th respondent is a claimant under Rule 43. Reference is made to the decision reported in Suseela v. The Manager Sreenarayana Dharma Sangam School 1976 KLT 670, Babu v. Manager, S.N.V.H. School Paravur I.L.R. (1978) 2 Ker. 40) and in Catherine v. Manager, M.S. Mundoor 1985 KLT (SN) 34 P.23 : I.L.R. (1985) 2 Ker. 211 to buttress the contention that the claim under Rule 43 will prevail over Rule 51A. It is the contention of the learned Counsel for the additional 5th respondent that it was not the intention of the Government to give a right to Rule 51A claimant over Rule 43 claimant. Reference is made to the explanatory note, which reads as follows:
There is no express provision in the Kerala Education Rules for reverting a teacher promoted under Rule 43 of Chapter XIV(A) to a lower post for want of vacancy. According to the decision of the High Court of Kerala, Rule 43 of Chapter XIV(A) overrides Rule 51A thereof. As a result, if a teacher who has been promoted under Rule 43 is thrownout for want of vacancy, he will be treated only as a Rule 51A claimant and has to wait till a vacancy in the category occurs again. The High Court has also held in certain decisions that in order to attract Rule 51A there must be identity in regard to the nature of the post claimed and previously held by the teacher. The above decisions would cause hardships to senior teachers who were promoted in short vacancies in higher posts. Government consider that a teacher thrownout from service and a protected teacher should be entitled to be appointed against vacancies arising in future, in the same or higher or lower category of teaching post under the Educational Agency, provided the teacher is fully qualified to be appointed to the post.
4. It is no doubt true that this Court has consistently taken the view that the claim under Rule 43 will prevail over the claim under Rule 51A, if the claims conflict with each other. But the question is, whether after Rule 43 has been amended as already referred to, the decisions of this Court continue to hold good? I think it does not hold good. No doubt, Ext. P10 amendment has bestowed upon a promotee under Rule 43 a right to be reverted back to the post from which he was promoted if circumstances arise where he is retrenched in the promoted post. But that is not the only purport of the amendment. By incorporating the words subject to Rule 51A, in the teeth of the plain words used, it is clear that the very basis of the judgments of this Court stand taken away. In other words, after the amendment, if there is a conflict between a claimant under Rule 43 and a claimant under Rule 51A, it is the claimant under Rule 51A, whose claim must be accepted. In the teeth of the clear words of Rule 43 after the amendment, it is clear that the right conferred on an employee to be promoted to a higher post is subject to the right available to the claimant under Rule 51A. In such circumstances, the stand taken by the Manager that as there are claimants under Rule 43, the petitioner's claim cannot be accepted cannot be valid.
5. The further question to be considered is as follows:
A vacancy of UPSA and a vacancy of HSA have arose on the same day. It was the vacancy of UPSA, which was offered to the petitioner vide Ext. P7, about which the petitioner had reservations as articulated in Ext. P8. A vacancy of HSA also arose on the same day. Sri. Kurian George Kannamthanam appearing on behalf of the respondent Manager would contend that the petitioner was offered the post of UPSA recognising the claim under Rule 51A and she cannot have a claim for the post of HSA. He would also contend that in a situation where a vacancy has arisen in the same post and also in a lower or a higher post, the choice should be that of the Manager in view of the amendment effected to Rule 51A of Chapter XIVA. Prior to the amendment brought about by Ext. P10, it is trite law that a claimant under Rule 51A could invoke the said provision only in regard to a vacancy in the same post. This principle no longer holds good after the amendment effected by Ext. P10 with effect from 16.4.2005. After the date of amendment the right of the claimant under Rule 51A is not limited to the same post, which he was holding previously. He has a right to claim a vacancy either in a lower or in a higher post also. The question that arises in this case is in view of the fact, namely that a post of UPSA and USA arose on the same day, whether the petitioner can stake a claim under the said provision in regard to the post of HSA.
6. Sri. T.V. George, learned Counsel for the petitioner would contend that having regard to the wording in Ext. P10 amendment, the teacher or employee under Rule 51A has a right to stake the claim firstly in regard to the very same post, which she was holding previously. His argument would appear to be that having regard to the word 'or' used in Rule 51A, the claim under Rule 51A in regard to a lower or a higher post cannot be considered when the same post is available.
7. The law as it stood prior to the amendment recognises a claim under Rule 51A only in the same post. Ideally, when a person has been appointed in a particular post it is to the said post, if such a vacancy exists, he should be accommodated. If it is a lower post, that is offered to him on the basis that a vacancy in the lower post has also arisen on the same day, I would think that having regard to the interests of both the claimant under Rule 51A as also the students who are to be taught by him, it would be both legal and fair to hold that the claim under Rule 51A must be recognised in relation to the same post when a vacancy has also arisen in the same post on the same day. In the facts of this case, it is the post of UPSA and HSA which have arisen on the same day. Undisputably, petitioner was holding the post of HSA, which was approved also. In the facts and circumstances of this case, learned Counsel for the petitioner is right in submitting that the claim of the petitioner under Rule 51A should be recognised in regard to the post of HSA.
In such circumstances, the Writ Petition is allowed and it is declared that it is the petitioner, who is entitled to be appointed to the post of HSA (Social Studies) consequent on the retirement of Smt. Gracy Thomas with effect from 1.6.2006. There will be a direction to respondent No. 3 to consider the petitioner for the said vacancy of HSA (Social Studies) in the light of the declaration as aforesaid.