Judgment :-

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 pre-requisite for raising a claim for re-appointment under Rule 51A of Chapter XIV A of the Kerala Education Rules, 1959 (for short ‘ the 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 by 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 re-appointment 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.

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.”

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