Interpretation of statutory rights under rule 51A and 51B in the context of teacher appointments in Kerala schools.

Koshy, J.

The petitioner (appellant in W.A.No.1989 of 2004) claimed appointment as a teacher in the school of the first respondent (appellant in W.A.No.1169 of 2004) under rule 51B of Chapter XIV A of Kerala Education Rules (for short ‘KER’). Rule 51B provides as follows:

“51B/ The Manager shall give employment to a dependent of an aided school teacher dying in harness. Government orders relating to employment assistance to the dependents of Government servants dying in harness shall mutates mutandis, apply in the matter of such appointments.”

Her father while working as a teacher in the first respondent school died on 28-6-2000. A vacancy of teacher arose on 31-3-2004. Petitioner was fully qualified and entitled to apply invoking rule 51B and she applied in time. Appointments in the schools are made after mis-summer vacation from the starting of new academic year. But, instead of appointing the petitioner, first respondent manager appointed additional third respondent with effect from 2-6-2004 on the ground that he has got a better claim under rule 51A, KERs. He was also fully qualified to hold that post. Rule 51A, KERs. Reads as follows:

“51A. Qualified teachers who are relieved as per Rule 49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in schools under the same Educational Agency or an Educational Agency to which the school may be subsequently transferred provided they have not been appointed in permanent vacancies in schools under any other Educational Agency.”

Additional third respondent had an approved service from 4-10-1999 to 15-12-1999. Petitioner’s claim under rule 51B arose only on 28-6-2000 when her father died. Before that, Additional third respondent got a vested right under rule 51A. Hence, as rightly held by the learned single Judge, petitioner is not entitled to appointment in the vacancy which was filed up by Additional third respondent.

2. Contention of the petitioner is that rule 51A only obligates the management to give some preference. He relied the observations of Mr. Jawahar Lal Gupta, CJ., in paragraph 17 of the Full Bench decision reported in Manager, Trikkur Panchayat Sarvodaya High School v. Suma (2003 (2) KLT 62 (FB)) is as follows:

“17. In its ordinary sense, ‘preference’ implies a priority. A favoured treatment. If a retrenched teacher competes with another from the open market and both are found to be equal in merit, the retrenched employee may be preferred to the other. Thus, the person is given priority and shown a favour. It does not, however, mean reservation. Preference should not imply the exclusion of all the other candidates irrespective of their merit.”

It is also contended that giving preference of appointment under rule 51A is violative of article 16 of the Constitution of India. But, same argument can be raised for appointment under rule 51B and both are statutory powers giving reasonable restriction under Article 16 of the Constitution of India. In he above case, Full Bench was considering the question whether temporary teachers appointed by the Panchayat will get right of reappointment under rule 51A. By majority view. Full Bench held that if temporary appointments are made as per rules by Public Service Commission, they will get statutory right and teachers who were appointed by the Panchayat dehors the rule will not get right under rule 51A. The view expressed by Hon’ble Chief Justice in paragraph 17 was not accepted by the other two learned Judges who wrote separate judgments. In para 74(2) Mr. K.S. Radhakrishnan, J. also considered the scope of articles 14 and 16 of the Constitution and held as follows:

“R.51A read alongwith Notes 1 and 2 confers a statutory right for appointment to those qualified teachers who are relieved as per R.49 or 52 on account of termination of vacancies in the school under the same Educational Agency or an Educational Agency to which the school may be subsequently transferred provided th