Point of Law: a teacher who has obtained a right to preferential appointment to future vacancies in identified posts, based on past service rendered in a teaching post in the school prior to retrenchment therefrom, need to possess the qualification required for the same, lower or higher post, in which future vacancies arise, only on the date of arising of the vacancy or on the date of filling up of the post, as the case may be.

ORDER :

A.K. Jayasankaran Nambiar, J.

I have gone through the well articulated judgment authored by my learned brother Sri.Raja Vijayaraghavan, J. on behalf of himself and learned brother Sri.C.P. Mohammed Nias, J. While I agree with that part of the judgment that encapsulates the sequence of events leading to the amendment of Rule 51A of Chapter XIV-A of the Kerala Education Rules [hereinafter referred to as the “KER” for brevity], I find myself unable to accept the answer it provides to the question referred to us for our opinion and the reasoning leading to it.

2. As per the scheme of Chapter XIV-A of the KER, the appointment of teachers to private aided schools can be only of candidates possessing prescribed qualifications. An exception was carved out in earlier years for appointment of unqualified teachers on temporary basis, probably on account of the then perceived dearth of qualified candidates, and in such cases the unqualified candidate was given a preferential right to permanent appointment to the post, as and when he/she acquired the necessary qualification. In later years, however, through an amendment brought about in Rule I of Chapter XIV-A with effect from 18.7.1972 (G.O.(P) 94/72/G.Edn. Dated 4.7.1972), the provision for appointment of unqualified candidates was dispensed with. While the provision was in force, the nature of the right held by an unqualified appointee for preferential appointment to future vacancies in the post, and the object of the provision that conferred the said right was clarified by this Court in Poulose K.V. v. Assistant Educational Officer - [1967 KHC 316] in paragraph 4, which reads as follows:

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R.5, among many other provisions of the rules, was made for the protection of unqualified teachers from exploitation by the managers of aided schools. It is a notorious fact that the managers of the aided schools traffic in the appointment of teachers. They try to create as many vacancies as possible by making temporary and short-term appointments, and receive large amounts of money from the candidates for making the appointment. For this purpose they always look for a new victim. The purpose of Rule 5 is obviously to remedy this evil, as far as possible. It gives a right for preferential appointment to a person, who was once an unqualified teacher and who subsequently acquired the prescribed qualifications. In other words, if a person has once secured an appointment in an aided school, he could subsequently claim it as a matter of right, provided there is a vacancy and he has acquired the prescribed qualifications. The manager is thus prevented from having a second opportunity from making' an illegal profit; in respect of such a vacancy, either from the teacher or from a fresh, candidate.”

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3. Although the decision in Poulose (supra) was disapproved by a later Division Bench in Rev. Fr. Xavier v. State of Kerala - [1971 KHC 208], on another point, the above observations with regard to the object sought to be achieved through the provision still hold good. As already noted, post 1972, the practice of appointing unqualified candidates was discontinued and, in the meanwhile, by G.O.(P) 287/66/Edn. dtd. 20.6.1966, Rule 51A was introduced into Chapter XIV-A to confer a preferential right of appointment to future vacancies in the respective posts in the School to qualified teachers who had to be relieved from the post on account of the circumstances envisaged in Rule 49 (having less than 8 months service in a temporary vacancy), Rule 52 (reduction in number of posts) or on account of termination of vacancies. The Rule, as it stood prior to its amendment in 2005, read as follows:

"51A. Qualified teachers who are relieved as per R.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 Agenc