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REPORTBLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1643 OF 2013
(Arising out of SLP(C) No.22332 of 2009
State of Kerala and others ……
Appellants
Versus
Sneha Cheriyan and another …..Respondents
WITH
C. A. NO. 1644 OF 2013 @ SLP(C) No.22260 of 2009
C. A. NO. 1645 OF 2013 @ SLP(C) No.22326 of 2009
C. A. NO.1646 OF 2013 @ SLP(C) No.22558 of 2009
C. A. NO.1647 OF 2013 @ SLP(C) No.22674 of 2009
C. A. NO.1648 OF 2013 @ SLP(C) No.22742 of 2009
C. A. NO.1649 OF 2013 @ SLP(C) No.22843 of 2009
C. A. NO.165O OF 2013 @ SLP(C) No.22404 of 2009
C. A. NO.1651 OF 2013 @ SLP(C) No.22416 of 2009
C. A. NO.1652 OF 2013 @ SLP(C) No.22422 of 2009
C. A. NO.1653 OF 2013 @ SLP(C) No.22423 of 2009
C. A. NO.1654 OF 2013 @ SLP(C) No.22393 of 2009
C. A. NO.1655 OF 2013 @ SLP(C) No.22352 of 2009
C. A. NO.1656 OF 2013 @ SLP(C) No.22493 of 2009
C. A. NO.1657 OF 2013 @ SLP(C) No.23037 of 2009
C. A. NO.1658 OF 2013 @ SLP(C) No.23689 of 2009
C. A. NO.1659 OF 2013 @ SLP(C) No.25745 of 2009
C. A. NO.1660 OF 2013 @ SLP(C) No.29317 of 2009
C. A. NO.1661 OF 2013 @ SLP(C) No.29310 of 2009
C. A. NO.1662 OF 2013 @ SLP(C) No.26998 of 2009
C. A. NO.1663 OF 2013 @ SLP(C) No.29318 of 2009
C. A. NO.1664 OF 2013 @ SLP(C) No.27014 of 2009
C. A. NO.1665 OF 2013 @ SLP(C) No.29320 of 2009Page 2
2
C. A. NO.1666 OF 2013 @ SLP(C) No.27016 of 2009
C. A. NO.1667 OF 2013 @ SLP(C) No.27022 of 2009
C. A. NO.1668 OF 2013 @ SLP(C) No.27086 of 2009
C. A. NO.1669 OF 2013 @ SLP(C) No.27156 of 2009
C. A. NO.1670 OF 2013 @ SLP(C) No.27165 of 2009
C. A. NO.1671 OF 2013 @ SLP(C) No.27359 of 2009
C. A. NO.1672 OF 2013 @ SLP(C) No.29308 of 2009
C. A. NO.1673 OF 2013 @ SLP(C) No.29321 of 2009
C. A. NO.1674 OF 2013 @ SLP(C) No.27659 of 2009
C. A. NO.1675 OF 2013 @ SLP(C) No.27761 of 2009
C. A. NO.1676 OF 2013 @ SLP(C) No.29311 of 2009
C. A. NO.1677 OF 2013 @ SLP(C) No.27857 of 2009
C. A. NO.1678 OF 2013 @ SLP(C) No.27959 of 2009
C. A. NO.1679 OF 2013 @ SLP(C) No.28106 of 2009
C. A. NO.1680 OF 2013 @ SLP(C) No.29322 of 2009
C. A. NO.1681 OF 2013 @ SLP(C) No.1099 of 2010
C. A. NO.1682 OF 2013 @ SLP(C) No.1100 of 2010
C. A. NO.1683 OF 2013 @ SLP(C) No.17087 of 2009
C. A. NO.1684 OF 2013 @ SLP(C) No.23817 of 2009
C. A. NO.1685 OF 2013 @ SLP(C) No.23820 of 2009
C. A. NO.1686 OF 2013 @ SLP(C) No.24136 of 2009
C. A. NO.1687 OF 2013 @ SLP(C) No.24862 of 2009
C. A. NO.1688 OF 2013 @ SLP(C) No.1662 of 2010
C. A. NO.1689 OF 2013 @ SLP(C) No.1014 of 2010
C. A. NO.1690 OF 2013 @ SLP(C) No.1020 of 2010
C. A. NO.1691 OF 2013 @ SLP(C) No.1017 of 2010
C. A. NO.1692 OF 2013 @ SLP(C) No.1021 of 2010
C. A. NO.1693 OF 2013 @ SLP(C) No.1022 of 2010
C. A. NO.1694 OF 2013 @ SLP(C) No.1015 of 2010
C. A. NO.1695 OF 2013 @ SLP(C) No.2502 of 2010
C. A. NO.1696 OF 2013 @ SLP(C) No.791 of 2010
C. A. NO.1697 OF 2013 @ SLP(C) No.2503 of 2010
C. A. NO.1698 OF 2013 @ SLP(C) No.2504 of 2010
C. A. NO.1699 OF 2013 @ SLP(C) No.2505 of 2010
C. A. NO.1700 OF 2013 @ SLP(C) No.2507 of 2010
C. A. NO.1701 OF 2013 @ SLP(C) No.2508 of 2010
C. A. NO.1702 OF 2013 @ SLP(C) No.2509 of 2010
C. A. NO.1703 OF 2013 @ SLP(C) No.2510 of 2010Page 3
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C. A. NO.1704 OF 2013 @ SLP(C) No.2511 of 2010
C. A. NO.1705 OF 2013 @ SLP(C) No.2512 of 2010
C. A. NO.1706 OF 2013 @ SLP(C) No.2513 of 2010
C. A. NO.1707 OF 2013 @ SLP(C) No.2514 of 2010
C. A. NO.1708 OF 2013 @ SLP(C) No.2516 of 2010
C. A. NO.1709 OF 2013 @ SLP(C) No.2517 of 2010
C. A. NO.1710 OF 2013 @ SLP(C) No.2518 of 2010
C. A. NO.1711 OF 2013 @ SLP(C) No.2521 of 2010
C. A. NO.1712 OF 2013 @ SLP(C) No.5768 of 2010
C. A. NO.1713 OF 2013 @ SLP(C) No.7768 of 2010
C. A. NO.1714 OF 2013 @ SLP(C) No.5881 of 2010
C. A. NO.1715 OF 2013 @ SLP(C) No.7767 of 2010
C. A. NO.1716 OF 2013 @ SLP(C) No.11036 of 2010
C. A. NO.1717 OF 2013 @ SLP(C) No.10786 of 2010
C. A. NO.1718 OF 2013 @ SLP(C) No.11730 of 2010
C. A. NO.1719 OF 2013 @ SLP(C) No.10787 of 2010
C. A. NO.1720 OF 2013 @ SLP(C) No.29677 of 2009
C. A. NO.1721 OF 2013 @ SLP(C) No.32905 of 2009
C. A. NO.1722 OF 2013 @ SLP(C) No.32903 of 2009
C. A. NO.1723 OF 2013 @ SLP(C) No.29823 of 2009
C. A. NO.1724 OF 2013 @ SLP(C) No.32907 of 2009
C. A. NO.1725 OF 2013 @ SLP(C) No.32908 of 2009
C. A. NO.1726 OF 2013 @ SLP(C) No.12190 of 2010
C. A. NO.1727 OF 2013 @ SLP(C) No.4963 of 2010
C. A. NO.1728 OF 2013 @ SLP(C) No.19574 of 2010
C. A. NO.1729 OF 2013 @ SLP(C) No.19787 of 2010
C. A. NO.1730 OF 2013 @ SLP(C) No.32653 of 2009
C. A. NO.1731 OF 2013 @ SLP(C) No.19585 of 2010
C. A. NO.1732 OF 2013 @ SLP(C) No.19576 of 2010
C. A. NO.1733 OF 2013 @ SLP(C) No.26647 of 2010
C. A. NO.1734 OF 2013 @ SLP(C) No.13246 of 2010
C. A. NO.1735 OF 2013 @ SLP(C) No.25151 of 2010
C. A. NO.1736 OF 2013 @ SLP(C) No.21164 of 2009
C. A. NO.1737 OF 2013 @ SLP(C) No.30941 of 2009
AND
C.A. No.5620/2010, C.A. No.5621/2010, C.A. No.5622/2010,
C.A. No.5623/2010, C.A. No.5624/2010, C.A. No.5625/2010,
C.A. No.5626/2010 C.A. No.5627/2010, C.A. No.5628/2010, Page 4
4
C.A. No.5629/2010, C.A. No.5630/2010, C.A. No.5631/2010,
C.A. No.5632/2010, C.A. No.5633/2010, C.A. No.5634/2010,
C.A. No.5635/2010, C.A. No.5636/2010, C.A. No.5637/2010, C.A.
No.5638/2010, C.A. No.5639/2010, C.A. No.5640/2010, C.A.
No.1104/2011, C.A. No.1106/2011, C.A. No.1107/2011, C.A.
No.1105/2011,
C. A. NO.1738 OF 2013 @ SLP(C) No.18259 of 2010
C. A. NO.1739 OF 2013 @ SLP(C) No.18260 of 2010,
C.A. No.245 of 2011, C.A. No.247 of 2011,
C.A. No.248 of 2011, C.A. No.2846 of 2011,
C. A. NO.1740 OF 2013 @ SLP(C) No.5624 of 2010
C. A. NO.1741 OF 2013 @ SLP(C) No.4465 of 2010
C. A. NO.1742 OF 2013 @ SLP(C) No.5625 of 2010
C. A. NO.1743 OF 2013 @ SLP(C) No.3760 of 2010
C. A. NO.1744 OF 2013 @ SLP(C) No.3786 of 2010
C. A. NO.1745 OF 2013 @ SLP(C) No.3788 of 2010
C. A. NO.1746 OF 2013 @ SLP(C) No.3787 of 2010
C. A. NO.1747 OF 2013 @ SLP(C) No.3789 of 2010
C. A. NO.1748 OF 2013 @ SLP(C) No.3790 of 2010
C. A. NO.1749 OF 2013 @ SLP(C) No.3792 of 2010
C. A. NO.1750 OF 2013 @ SLP(C) No.3793 of 2010
C. A. NO.1751 OF 2013 @ SLP(C) No.3794 of 2010
C. A. NO.1752 OF 2013 @ SLP(C) No.3796 of 2010
C. A. NO.1753 OF 2013 @ SLP(C) No.3797 of 2010
C. A. NO.1754 OF 2013 @ SLP(C) No.3798 of 2010
C. A. NO.1755 OF 2013 @ SLP(C) No.3801 of 2010
C. A. NO.1756 OF 2013 @ SLP(C) No.3802 of 2010
C. A. NO.1757 OF 2013 @ SLP(C) No.3803 of 2010
C. A. NO.1758 OF 2013 @ SLP(C) No.3804 of 2010
C. A. NO.1759 OF 2013 @ SLP(C) No.3805 of 2010
C. A. NO.1760 OF 2013 @ SLP(C) No.3807 of 2010
C. A. NO.1761 OF 2013 @ SLP(C) No.3808 of 2010
C. A. NO.1762 OF 2013 @ SLP(C) No.3812 of 2010
C. A. NO.1763 OF 2013 @ SLP(C) No.3761 of 2010
C. A. NO.1764 OF 2013 @ SLP(C) No.3762 of 2010
C. A. NO.1765 OF 2013 @ SLP(C) No.3763 of 2010
C. A. NO.1766 OF 2013 @ SLP(C) No.3764 of 2010
C. A. NO.1767 OF 2013 @ SLP(C) No.3765 of 2010
C. A. NO.1768 OF 2013 @ SLP(C) No.3766 of 2010Page 5
5
C. A. NO.1769 OF 2013 @ SLP(C) No.3767 of 2010
C. A. NO.1770 OF 2013 @ SLP(C) No.3768 of 2010
C. A. NO.1771 OF 2013 @ SLP(C) No.3769 of 2010
C. A. NO.1772 OF 2013 @ SLP(C) No.3770 of 2010
C. A. NO.1773 OF 2013 @ SLP(C) No.3771 of 2010
C. A. NO.1774 OF 2013 @ SLP(C) No.3772 of 2010
C. A. NO.1775 OF 2013 @ SLP(C) No.3773 of 2010
C. A. NO.1776 OF 2013 @ SLP(C) No.3774 of 2010
C. A. NO.1777 OF 2013 @ SLP(C) No.3775 of 2010
C. A. NO.1778 OF 2013 @ SLP(C) No.3776 of 2010
C. A. NO.1779 OF 2013 @ SLP(C) No.3777 of 2010
C. A. NO.1780 OF 2013 @ SLP(C) No.3780 of 2010
C. A. NO.1781 OF 2013 @ SLP(C) No.3783 of 2010
C. A. NO.1782 OF 2013 @ SLP(C) No.3781 of 2010
C. A. NO.1783 OF 2013 @ SLP(C) No.3782 of 2010
C. A. NO.1784 OF 2013 @ SLP(C) No.3779 of 2010
C. A. NO.1785 OF 2013 @ SLP(C) No.3785 of 2010
J U D G M E N T
K.S. Radhakrishnan, J
Delay condoned.
1. Leave granted.
2. We are in these cases called upon to decide
whether a
minimum continuous service in an academic year is a prerequisite for raising a claim for re-appointment under Rule 51A of Chapter XIV A of the Kerala Education Rules, 1959 (for short ‘ thePage 66 KER’) in view of sub-rule (3) of Rule 7A of the same chapter of the KER.
3. In the State of Kerala, the power for appointment of teachers
in aided schools is conferred on Managers of such schools under
Section 11 of the Kerala Education Act, 1958 (for short ‘the Act’)
while the salary and other benefits are to be borne by the State
Government under Section 9 of the Act. Qualified teachers who
are so appointed when relieved as per Rule 49 or 52 or on
account of termination of vacancies shall have preference for
appointment to future vacancies as per Rule 51A of Chapter XIV A
of the KER. Therefore, when vacancy arises, the Manager is
bound to comply with the procedure under Rule 51A and cannot
deny that statutory claim. When once a valid appointment is
given to the teachers and such appointments are approved ipso
facto they become entitled to the benefits under Rule 51A.
4. The Management and the teachers, it is generally known,
started misusing the above statutory provisions for getting
preference for future appointments by effecting appointments byPage 7
7
creating vacancies during the academic year. Such unethical and
unhealthy practices led to creation of anticipatory vacancies and
multiple claimants under Rule 51A causing drain on State
exchequer since the State is paying the salary. The Government
in order to check such practices issued an order G.O.(P)
No.169/04.G.Edn. dated 15.06.2004 stating that the claim for reappointment under Rule 51A of the KER would be limited to those
who had been appointed against regular/ leave vacancies having
a duration of not less than one academic year. Further, it was
also stated that vacancies having duration of less than one
academic year would be filled up on daily wage basis and in order
to give effect to that Government order, it was ordered that
necessary amendments would be made to sub-rule (3) of Rule 7A,
Chapter XIV A of the KER.
5. The Government of Kerala in exercise of the powers
conferred under Section 36 of the Act amended the KER vide its
notification dated G.O.(P) No. 121/2005/G. Edn. Dated
16.04.2005. Page 8
8
Unamended sub-rule (3) of Rule 7A reads as follows:
“Vacancies the duration of which is two months or less
shall not be filled up any appointment”
Amended sub-rule (3) of Rule 7A reads as follows:
“Vacancies the duration of which is less than one
academic year shall not be filled up.”
The explanatory note to the above-mentioned Rules reads as
follows:
“(This does not form part of the notification but is
intended to indicate the general purpose).
Under the existing sub-rule (3) of Rule 7A Chapter XIV A,
General Education Rules vacancies the duration of which
is two months or less shall not be filled up by any
appointment. Managements of aided schools are
appointing teachers in short leave vacancies the
duration of which is more than two months and it results
in huge financial commitment to Government. After
detailed examination of the matter Government inter alia
issued order as per G.O.(P) 169/2004/G. Edn dated
15.06.2004 to the effect that claim for appointment
under rule 51A of the Kerala Education Rule be limited to
those who have been appointed against regular/leave
vacancies having a duration of not less than one
academic year. The Government has now decided to
give statutory validity to the above Government order.
The notification is intended to achieve the above object.”Page 9
9
6. The Government issued another clarificatory order G.O.(P)
No. 31/06GE dated 19.01.2006 dealing with the appointment of
teachers in short vacancies which is not of much relevance, but
for completeness, the operative portion of the same is given
below:
“In the above circumstances, Government are pleased
to clarify that the condition in Para 6 of G.O. (P) No.
169/2004/GE dated 15.06.2004 shall not apply to the
appointments on promotions to the post of Head
Master, to the appointments given under Rule 43,
Chapter XIV A KERs and to the reappointments of those
who had acquired the claim under Rule 51A, Chapter
XIV A KERs, if the reappointment is to a vacancy having
the duration of more than 2 months as existed prior to
the amendment. Necessary amendment to the rules
shall be made to this effect and the Director of Public
Instruction shall furnish proposals for the same.”
7. The Government of Kerala later issued a clarificatory order
vide G.O. (P) No. 104/2008/G Edn. Dated 10.06.2008 regarding
the nature of appointment and admissibility of vacation salary as
per Rule 49 of Chapter XIV A of the KER to teachers appointed in
leave / regular vacancies making it applicable to appointments in
both leave vacancies and regular vacancies. The operative
portion of clauses 5, 6 and 7 reads as follows:Page 10
10
“5. As per rule 7A (3) of Chapter XIV A KER, if the
period of appointment is less than one academic year,
the appointment cannot be approved on regular basis.
This has caused many doubts among various quarters,
requiring clarification regarding the nature of
appointment and admissibility of vacation salary as per
Rule 49 of Chapter XIVA KER to teacher appointed in -
leave / regular vacancies. In view of the above, the
following orders are issued with immediate effect.
These are applicable to appointments in both leave
vacancies and regular vacancies:-
(i) If the period of appointments does not cover
one academic year (i.e. from the re-opening
day of the school after summer vacation to
the closing day for summer vacation), the
appointment shall be made only on daily
wages.
(ii) If the period of appointments commences
after the beginning of the re-opening day but
extends over the next academic year/years,
the period up to the first vacation shall be
approved on daily wages only. Reappointment can be approved on regular
basis, only if the duration of the period of reappointment completes one academic year. If
the period of re-appointment is also less than
one academic year, that re-appointment will
also be considered only on daily wages basis.
In short, fractions of an academic year will not
be considered for approval on regular basis;Page 11
11
(iii) In the case of appointment of Rule 51A
claimants, promotion of Rule 43 claimants and
appointment / promotion of teachers as
Headmasters, temporary
Headmaster/teachers-in-charge, approval will
be granted on regular basis if the period of
appointment is more than 2 months;
(iv) The appointments made against training
vacancies shall also be filled up on daily
wages only except in the case of (iii) above;
(v) If a leave substitute, appointed on daily wages
continues in service without any break for one
full academic year consequent to extension of
leave, the appointment shall be revised and
approved as on regular basis. However, if
different leave substitutes are appointed to
the same post, this benefit shall not be
extended to them;
(vi) Appointments in leave vacancy and regular
vacancy shall be treated separately;
(vii) The admissibility of vacation salary as
provided in rule 49 Chapter XIV A KER will not
be applicable to appointments on daily wage
basis. Necessary amendments to this effect in
the KER shall be made separately.Page 12
12
6. The claim under Rule 51A Chapter XIVA KER will
not be admissible to those teachers appointed on daily
wage basis.
7. This order will take effect from the date of the
order only. The approval of appointments given prior to
this order shall not be reviewed.”
8. The main challenge is with regard to the validity of clause
5(i) and (ii) of the above mentioned that Government order which
according to the respondents go contrary to sub-rule (3) of Rule
7A, Chapter XIV A of the KER and hence ultra vires and
unenforceable.
9. Shri, C.S. Rajan, learned senior counsel appearing for some
of the respondents submitted that sub-rule (3) of Rule 7A speaks
of “vacancies” the duration of which is less than one “academic
year” which means if the vacancy is having a duration of one
academic year or more, appointment can be made to fill up the
same. Learned senior counsel pointed out that the term of
appointment need not be co-terminus with the term of the
vacancy. Further, it was pointed out that if in fact, the vacancy isPage 13
13
having a duration of one academic year or more, even if, there is
some delay in making the appointment, such appointment will
have to be approved since Rule 7A speaks of duration of vacancy
and not duration of appointment.
10. Shri P.A. Noor Muhamed, learned counsel appearing for some
of the respondents while submitting written arguments pointed
out that as per the scheme of the KER and conjoint reading of the
provisions of Chapter XXIII and sub-rule (3) of Rule 7A and Rule 49
under Chapter XIV A of the KER it is clear that “time of
appointment” is immaterial and what is material is the “duration
of vacancies”. Further, it was pointed out that as per the scheme
contemplated under the provisions in Chapter XXIII of the KER,
appointments in regular vacancies can be made only after the
receipt of orders of departmental authorities on staff fixation
which is in turn based on the students’ strength as well, which can
be ascertained only after the beginning of the academic year. It
was pointed out that merely because appointment was not made
in consonance of the first academic year, approval of
appointments cannot be denied ignoring the fact that the vacancyPage 14
14
in which the appointment made runs to more than one academic
year. The delay, if any, in making appointment is not due to the
fault of the teachers and hence they shall not be penalized.
11. Learned counsel appearing for the respondents therefore
submitted that the impugned G.O. dated 10.06.2008 is contrary
to sub-rule (3) of Rule 7A of the KER and has rightly been declared
so by the High Court which calls for no interference by this Court.
12. Shri V. Giri, learned senior counsel appearing for the State of
Kerala submitted that the Government have issued the
notification dated 14.06.2005 amending Sub rule (3) of Rule 7A
followed by the Government order dated 10.06.2008, so as to
avoid the unhealthy practices followed by certain aided school
managers by appointing teachers in short spells thereby creating
more 51A claimants creating multiple claims. Learned senior
counsel submitted that the Government Order is only a
clarification to the statutory amendment made in sub-rule (3) of
Rule 7A of the Rules. Learned senior counsel also submitted that
there is no restriction in the matter of appointment of teachers inPage 15
15
anticipated vacancies due to retirements, promotions,
resignations etc. provided it is an established vacancy which
could be anticipated well in advance. Learned senior counsel
submitted that the Managers of the aided schools are free to
appoint teachers on regular basis from the starting of the
academic year against regular/established vacancies and they
need not wait for appointments till completion of staff fixation as
per the provisions under KER. Learned senior counsel also
submitted that the Managers can make appointments in
anticipation of sanction of additional posts by the educational
authorities as per Rule 12B Chapter XXIII of the KER and such
posts shall be deemed to have been created from the date of
appointments.
13. Learned senior counsel also submitted that
permanency/promotional vacancy which are in existence on the
beginning of the academic year though filled up during the
academic year is also not covered by the impugned notification so
also the vacancies which arise due to death are also not hit by the
impugned notification. Further, it is also pointed out that leavePage 16
16
vacancies which are in existence on the beginning of the
academic year can also be filled up during the academic year
which also are not covered by the impugned notification.
14. We have heard learned counsel on either side at length. WP
(C) No. 2563 of 2009 against which SLP (C) No. 22332 of 2009
arises was treated as the main case by the High Court, hence we
treat that case as the leading case for disposal of these batches
of appeals since questions of law arise for consideration are the
same.
15. Shri Shinoj T. Elias, High School Assistant (HSA) (English) who
was working in St. Mary’s Higher Secondary School, Morakkala, an
aided school, applied for leave from 08.07.2008 to 07.07.2013
and the leave was granted by the Manager of that school. The
first respondent (herein) who was the writ petitioner before the
High Court was appointed in that vacancy on 06.10.2008 and the
period of her appointment would normally expire only on
07.07.2013. The Manager of the school forwarded that
appointment order for approval to the District Educational OfficerPage 17
17
(DEO). But the DEO approved the appointment from 06.10.2008
to 31.03.2009 only on daily wage basis based on the Government
order dated 10.06.2008. Based on the impugned G.O. dated
10.06.2008, it was pointed out by the first respondent before the
High Court that the vacancy had duration of five years and
therefore her appointment should have been approved without
any time limit in the same scale of pay applicable to HSAs.
Reliance was placed on sub-rule (3) of Rule 7A of the Rules which
was found favour by the Division Bench of the High Court.
16. We may before examining the scope of sub-rule (3) of Rule
7A and the proviso to Section 51A read with the Government
Order dated 10.06.2008 examine the scheme of the Act and the
KER and the object and purpose of sub rule 3 of Rule 7A as well as
the impugned order dated 10.06.2008. We have already
indicated that as per the Kerala Education Act and the KER, the
Manager of the aided School is free to make appointment of
teachers in their respective schools who are qualified according to
the Rules and the entire salary and other allowances have to be
borne by the State Government.Page 18
18
17. Rule 51A of the Chapter XIVA of the KER states qualified
teachers in aided schools who are relieved on account of
termination of vacancies shall have preference for re-appointment
in future vacancies in the aided schools. Rule 43, Chapter XIV A
of the KER states that the vacancies in any higher grade of pay
shall be filled up by promotion in the lower grade according to the
seniority.
18. We cannot read sub rule (3) of Rule 7A in isolation, it has to
be read in the light of the proviso to Section 51A, they have to be
read as parts of an integral whole and as being interdependent.
Legislature has recognized that interdependency since both sub
rule (3) of Rule 7A and the proviso to Section 51A were inserted
by the same amendment in the year 2005.
19. The expression “vacancies” used in sub-rule (3) to Rule 7
means ‘posts which remain unoccupied”. Rule does not say that
the duration of vacancy is to be determined from the time whenPage 19
19
the vacancy occurs to the time when it expires. Duration means
the time during which something continues, i.e the continuance of
the incumbent. As stated in the Notification dated 15.06.2004 the
vacancies having a duration of less than one academic year can
be filled up on daily wage basis. Sub-rule (3) to Rule 7A uses the
expression “academic year”. Rule 2A of Chapter VII of the KER
refers to the academic year, which reads as follows:
“2A. Academic year shall be deemed to commence on
the re-opening day and terminate on the last day
before the summer vacation.”
20. Rule 1 of Chapter VII says “all schools shall be closed for the
summer vacation every year on the first working day on March
and re-opened on the first working day of June unless otherwise
notified by the Director.” The Notification dated 10.06.2008 only
says if the period of appointment does not cover one academic
year i.e. the re-opening of the school after summer vacation to
the closing day for summer vacation, the appointment shall be
made only on daily wage basis. So also if the period commences
after the beginning of the re-opening day, but extends either nextPage 20
20
academic year/years the period upto the first vacation shall be
approved on daily wages only which does not take away the right
of the managers of the aided schools to appoint teachers in
vacancies that may arise by way of promotion, death, resignation
etc. Restriction is only with respect to the minimum tenure/period
for a new appointee to become a 51A claimant, that is the object
and purpose of sub-rule (3) to Rule 7A read with proviso to Rule
51A of Chapter XIV-A of the KER.
21. The object and purpose of the Notification dated 16.04.2005
issued by the Government in exercise of the powers conferred
under Section 36 of the Kerala Education Act is to curb the
unhealthy practices adopted by certain managers of aided
schools by creating short-term vacancies or appointing several
persons in a relatively long leave vacancies itself thereby making
several 51A claimants against one and the same vacancy. The
object and purpose of the above-mentioned notification is also to
end the practice of creation of multiple claimants in anticipatory
vacancies creating more 51A claimants imposing huge financial
commitment to the Government.Page 21
21
22. Sub-rule (3) to Rule 7 does not restrict the right of the
managers of various schools in making the regular appointments
in the established vacancies, what it does is to prevent the
misuse of that provision and to prevent the aided school
managers in creating short-term vacancies and appointing several
persons in those vacancies so as to make them claimants under
Rule 51A. Looking to the mischief or evil sought to be remedied,
we have to adopt a purposive construction of sub-rule (3) of Rule
7A read with proviso to Rule 51A of Chapter XIV-A of the KER.
23. We are inclined to adopt such a construction since the stand
of the respondents is that Rule 7A speaks of “duration of
vacancies” and not “duration of appointment”. The expression
“vacancy” used in sub-rule (3) to Rule 7A has to be read along
with the expression “academic year” so as to achieve the object
and purpose of the amended sub-rule (3) to Rule 7A so as to
remedy the mischief. Evil, which was sought to be remedied was
the one resulting from vide spread unethical and unhealthy
practices followed by certain aided school managers in creatingPage 22
22
short term vacancies during the academic year. We are adopting
such a course, not because there is an ambiguity in the statutory
provision but to reaffirm the object and purpose of sub-rule (3) to
Rule 7A read with proviso to Section 51A and the Government
Order dated 10.06.2008.
24. We notice later the Government passed yet another GO(P)
56/11/Gen.Edn dated 26.02.2011 clarifying the earlier GO dated
15.06.2004 and 10.06.2008. The operative portion of the same
reads as under:
“1. Approval can be granted subject to the conditions
under Rule 49 Chapter XIV-A of the K.E.R. for the
appointments to the vacancies arising due to the
existing teachers’ retirement, resignation, death long
leave etc. and to the approved vacancies arising and
continuing beyond 31
st
March due to sanctioning of
additional divisions.
2. Appointments for a duration of less than 8 months
in an academic year can be approved on daily wage
basis and appointments of a duration of more than that
are to be approved as regular (on pay scale).”
25. We have referred to the above GO, for the sake of
completeness, which has of course no bearing on thePage 23
23
interpretation which we have placed on sub-rule (3) to Rule 7A
read with the proviso to Rule 51A of Chapter XIV-A of the KER, but
may have application on facts in certain cases which have to be
decided independently.
26. We are, therefore, inclined to allow these appeals and set
aside the judgment of the Division Bench with the following
directions:
(i) A teacher, who was relieved from service under Rules
49 and 53 of Chapter XIVA of the KER, is entitled to
get preference for appointment under Rule 51A only
if the teacher has a minimum prescribed continuous
service in an academic year as on the date of relief.
(ii) The Manager of an aided school can, however,
appoint teachers in vacancies occurred due to death,
retirement, promotion, resignation, long-term leave
etc. provided they are established vacancies and the
approval can be granted subject to the conditions
under Rule 49 of Chapter XIV A of the KER.Page 24
24
(iii) Approval can also be granted to appointments made
to the approved vacancies arising and continuing
beyond 31
st
March due to sanctioning of additional
divisions.
(iv) The Manager can make appointments in school even
if the duration of which is less than one academic
year but on daily wages basis and if the duration of
vacancy exceeds one academic year that can be
filled up on scale of pay basis.
(v) The Manager is free to appoint teachers on a regular
basis from the re-opening date itself against regular
established vacancies and need not wait for the
appointments till completion of the staff fixation as
per the KER.
(vi) Teachers who have been appointed in the midst of
the academic year and not completed the requisite
minimum continuous service before vacation will not
be entitled to get vacation salary.Page 25
25
27. Appeals are accordingly allowed and disposed of as
above setting aside the judgment of the High Court but there
will be no order as to costs.
………………………….J.
(K.S. Radhakrishnan)
…………………………J.
(Dipak Misra)
New Delhi,
February 22, 2013
