IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 2ND JULY 2008 / 11TH ASHADHA 1930 WA.No. 455 of 2008() ---------------------------- AGAINST THE JUDGMENT IN W.P.(C). NO.26810/2007 DATED 08/01/2008. .......................... APPELLANT/ 5TH RESPONDENT IN WPC ------------------------------------------------------- T.N.SANDHYA, HSA(MALAYALAM) INDIRA GANDHI MEMORIAL HIGH SCHOOL, MANJAKKALA P.O., KOLLAM (DISTRICT). BY ADV. SRI.O.D.SIVADAS SRI.S.SHAJI RESPONDENTS/ PETITIONER AND RESPONDENTS 1 TO 4 ----------------------------------------------------------------------------------- 1. JALAJA KUMARI V.V., UPSA, IGMHS, MANJAKKALA P.O., KOLLAM. 2. THE MANAGER, IGMHS, MANJAKKALA PO., KOLLAM. 3. THE DEO, KOTTARAKKARA. 4. THE D.P.I., THIRUVANANTHAPURAM. 5. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.BENNY GERVACIS -R3 TO R5 ADV. SRI.M.V.THAMBAN – R1 SRI.GEORGE POONTHOTTAM -R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2008, ALONG WITH W.A NO.461 OF 2008, THE COURT ON 02/07/2008 DELIVERED THE FOLLOWING: 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