IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 OP.No. 25482 of 2002(H) ----------------------- PETITIONER: ------------ PRASAD KUMAR P.K., FULL TIME MENIAL, V.K.N.M.H.S., VAYYATTUPUZHA, PATHANAMTHITTA DISTRICT. (PERUMPATTETHU HOUSE, MALAYALAPUZHA, THAZHAM P.O., PATHANAMTHITTA DISTRICT). BY ADV. SRI.P.HARIDAS RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPTT. SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, DIRECTORATE OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, THIRUVALLA, PATHANAMTHITTA DISTRICT. 4. DISTRICT EDUCATIONAL OFFICER, PATHANAMTHITTA. 5. THE MANAGER, V.K.N.M.H.S., VAYYATTUPUZHA, PATHANAMTHITTA DISTRICT. 6. N.SANTHOSH KUMAR, L.D.CLERK, V.K.N.M.H.S., VAYYATTUPUZHA,PATHANAMTHITTA DIST. ("USHUS", ERATHU, VADAKKEKKARA, MANIMALA, KOTTAYAM DISTRICT). BY ADV. SRI.GIGIMON ISSAC G.P. SMT.M.R.SREELATHA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 13/02/2008, A/W. W.P.C.NO.28854/06 THE COURT ON 20.2.2008 DELIVERED THE FOLLOWING: O.P.25482/02. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE APPOINTMENT ORDER BY R5 DTD.18.11.96. P2. COPY OF THE -DO- DTD.1.4.00. P3. COPY OF THE REPRESENTATION DTD.9.7.00 BEFORE R4. P4. COPY OF THE ORDER BY R5 DTD.21.11.00. P5. COPY OF THE ORDER PASSED BY R3 DTD.20.2.01. P6. COPY OF THE GOVT. ORDER DTD.28.1.99. P7. COPY OF THE ORDER BY R1 DTD.22.10.98. P8. COPY OF THE GOVT. ORDER DTD.31.5.2002. P9. COPY OF THE AGREEMENT. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P..No.25482/2002 & W.P(C).No.28854/2006 ================== Dated this the day of February, 2008 J U D G M E N T These two petitions relate to the same subject matter and therefore, are disposed of by this common judgment. The rank of parties and Exhibits referred to in this judgment are as obtaining in W.P(C).No. 28854/2006. The petitioner herein was originally appointed as a Full Time Menial in the 5th respondent's school in leave vacancies for the periods from 18.11.96 to 17.11.1999 and from 1.4.2000 to 24- 3-2003 by Exts.P1 and P2 appointment orders, which appointments were duly approved. However, on account of fall in division he was retrenched from service on 15.7.2001 ie., before the expiry of the period of appointment. The petitioner was also a member of the educational agency who was running the school and by Ext.P3 dated 7.10.1999 the school was transferred to the present educational agency. In Ext.P3 there was a clause by which a duty was cast upon the transferee to ensure the appointment of the petitioner. Before the retrenchment of the o.p.25482/02 & cc 2 petitioner on 15.7.2001 a vacancy of clerk arose in the school on 27.5.2000 to which the petitioner claimed promotion, which was not granted to him. Instead the 7th respondent was appointed to that vacancy. Petitioner's complaint in this regard before the 4th respondent was rejected by Ext.P5. Petitioner's appeal to the 2nd respondent was also rejected by Ext.P6. Government rejected his revision by Ext.P7. Petitioner filed O.P.No.25482/2002 challenging those orders. Subsequently, the 7th respondent resigned. The petitioner therefore, filed W.P(C).No. 28854/2006 seeking appointment in the vacancy arising on account of the resignation of the 7th respondent. Subsequently, the 8th respondent was appointed, on whose resignation the 9th respondent was appointed in his place. Therefore, the petitioner impleaded them also in the writ petition. 2. The petitioner's contention is that at the time when the vacancy of clerk arose, the petitioner was working as an approved Full Time Menial and is therefore, entitled to be promoted to the vacancy of clerk by virtue of Rule 43 of Chapter XIV-A of the Kerala educational Rules read with Rule 7 of Chapter o.p.25482/02 & cc 3 XXIV-B. The petitioner submits that the reasoning in the impugned orders that he is not entitled to promotion since he was only temporarily holding the post of Full Time Menial in a leave vacancy is erroneous in view of the decision in Reghu v. State of Kerala [1993 (2) KLT 82]. He also relies on the decision of this court in K.J.Sulatha and Ors. v. State & Ors. [1993 (2) KLJ 370] and that of the Punjab and Haryana High Court in Tek Chand Jain & Ors. v. The State of Haryana and others [1991 (1) SLR 236). 3. The respondents contest the claim of the petitioner on the ground that the petitioner, who was appointed only against a temporary leave vacancy, does not have any right for promotion under Rule 43 of Chapter XIV-A of KER. 4. I have considered the rival contentions of parties. 5. The facts are admitted. The only question to be considered is whether by virtue of his temporary appointment as a Full Time Menial in a leave vacancy, the petitioner has a right to claim promotion under Rule 43. Rule 43 stipulates that subject to the other conditions therein (which are not relevant for our o.p.25482/02 & cc 4 purpose) 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. I am of opinion that going by the scheme of the Kerala Education Rules only a person appointed permanently to a regular post can claim promotion to a higher post. Otherwise, the same would result in an anomalous situation. If a person appointed in a leave vacancy is promoted to a higher post, the right of the person in whose leave vacancy the other person is holding the post, for promotion would be affected. Further, the other provisions of the KER for regular appointment are not made applicable to temporary appointments. Rule 2 states that appointments of qualified hands shall be deemed acting till they are confirmed. Rule 3 states that initial appointment of qualified teachers shall be on probation. Rule 6, inter alia states, that teachers appointed under rule 3 shall be on probation for a total period of one year within a continuous period of two years. Rule 20 requires service books to be maintained in the prescribed form for all teachers. Rule 34 requires every management to prepare and maintain in the o.p.25482/02 & cc 5 prescribed form a staff list called as the seniority list teachers. Rule 36 deals with finalisation of the list after considering the representations, if any. Rule 37 provides that seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit, provided he is qualified for the post. Rule 41 deals with confirmation and promotion of teachers who have completed probation satisfactorily. Rule 47 requires every teachers appointed in a permanent vacancy to provide health certificate in the prescribed form on confirmation. Rule 49 states that qualified teachers (except Headmaster) appointed in vacancies which are not permanent, which extent over the summer vacation and who continue in such vacancies till the closing date are to be retained in the vacancy during the vacation if they have service as on the closing date of not less than 8 months. I am of opinion that only those persons to whom these rules are also applicable can claim the benefit of Rule 43. For persons temporarily appointed these provisions are not applicable. They have only the right to receive emoluments attached to that post and no other rights of the o.p.25482/02 & cc 6 regular incumbent of that post. 6. In fact another Single Judge had occasion to consider similar claim of a teacher for promotion under Rule 43B, which is a provision analogous to Rule 43, but applicable to language teachers. In Padmavathi v. Manager S.M.H. School, Cherai, [ILR 1982(2) Kerala 407], after elaborately considering the right of an appointee in a temporary vacancy, the learned Judge held thus in paragraph 7 of that judgment. '7. The above rules give us the indication that when-ever a reference is made to a “teacher” in the above rules it is intended to refer to “teacher regularly appointed”. Teachers not regularly appointed but appointed in a short term vacancy have no probation or confirmation, etc. It is doubtful if they will figure in the seniority list either. It cannot be that such temporary hands can have any claim superior to regular hands. Rule 43 refers to seniority being a fact. It does not appear that there will be any question of seniority between a regular appointee and a short term or temporary appointee. Viewed in this lights it must follow that reference to teachers in rule 43-B could only be treated as reference to “teacher appointed on a regular basis” and not in a short term or temporary vacancy.' I am in full agreement with that decision. The principles enunciated in that decision are equally applicable to promotion under Rule 43 and non-teaching staff of an aided school. Therefore, the words “qualified hands” appearing in Rule 43 is intended to refer to a “qualified regularly appointed hand” and not to a person holding a post temporarily for a limited period in o.p.25482/02 & cc 7 the place of a person temporarily absent on leave. 7. The other decisions of this court relied upon by the petitioner does not deal with this subject at all and are therefore, not relevant to decide this issue. Of course in the Punjab and Haryana decision, it appears that that court had recognised a right to be considered for promotion in persons holding ad-hoc appointments. First of all that case does not deal with any rules akin to the Kerala Education Rules. Secondly, I do not agree with that decision if that decision recognises in persons appointed temporarily a right to be considered for promotion along with regular appointees. Thirdly, the decision in Padmavathi's case (supra) of this court directly applies to the fact situation obtaining in this case. 8. In view of the above findings, I do not find any merit in the contention of the petitioner in this case and accordingly the original petition and writ petition are dismissed, but without costs. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.25482/02 & cc 8