Back
2016 Supreme(Online)(KER) 14641
HIGH COURT OF KERALA
, J
RESMI KRISHNA.S. – Appellant
Versus
MANAGER – Respondent
WP(C)/37350/2004
SRI.M.R.HARIRAJ, SRI.P.A.KUMARAN, SRI.SURAJ.S, SMT.VINEETHA B, SRI.NIRMAL V NAIR, SRI.K.RAJAGOPAL, SRI.ANISH JAIN, SMT.SARITHA NANDANAN.
Temporary appointments under Rule 51A do not create an inherent right to claim subsequent regular vacancies, particularly when administrative changes affect core subjects.
Headnote:
Rule 51A - Kerala Education Rules - [1959] Section List - The court examined the implications of temporary appointments under the Kerala Education Rules, specifically Rule 51A, and clarified that such appointments do not guarantee entitlement to regular vacancies created thereafter, particularly concerning the introduction of new core subjects.
Fact of the Case:
The petitioner claimed appointment based on temporary spells under Kerala Education Rules. Following a vacancy due to a prior incumbent's retirement, the petitioner was denied regularization due to a governmental prohibition on fresh appointments in the context of other core subjects and a lack of crystallized claims.
Finding of the Court:
The court found that the petitioner's temporary appointments under Rule 51A did not establish a right to the subsequent regular vacancy, which was designated for another core subject, despite a Division Bench judgment historically protecting rights of certain positions.
Issues: Whether the petitioner, having held temporary positions, has a claim to a regular appointment vacancy that arose after a change in the educational structure and in light of specific governmental orders prohibiting certain appointments.
Ratio Decidendi: The crux of the decision lay in the interpretation of Rule 51A, confirming that prior temporary appointments do not justify claims to newly established regular vacancies designated under changed administrative circumstances.
Final Decision: The writ petition was dismissed.
JUDGMENT
The petitioner, on the basis of her temporary appointments, with certain breaks, claims appointment under Rule 51A of the Kerala Education Rules , 1959 [for brevity “ KER ”].
2. The petitioner was appointed in four different spells, starting from 18.12.2001 to 30.03.2003 [i.e., (i) 18.12.2001 to 20.02.2002, (ii) 25.06.2002 to 22.09.2002, (iii) 23.09.2002 to 19.12.2002 and (iv) 20.12.2002 to 30.03.2003]. On 31.03.2003, a vacancy arose, when the incumbent Headmaster retired. Though the petitioner was appointed on 02.06.2003, the same could not be approved, since there was a fall in division and the vacancy was not a sanctioned one in the particular academic year.
3. The leave vacancy in which the petitioner had continued earlier, became a regular vacancy for reason of the incumbent, who was on leave, having expired. The death occurred on 10.07.2003; upon which the post was conceded to the Core Subject in English, since in the interregnum the Government had come out with a notification; which was subject of challenge in a series of litigation’s, which eventually were rejected. The specific claim raised by the petitioner is on the basis of the Division Bench judgment in Baiju v. Suguna Prakash [2003 (2) KLT 182], which, according to the petitioner, saved all appointments made under Rule 51A and Rule 43 of KER . The Government has a different stand, insofar as the petitioner being not entitled, for reason of her Rule 51A claim having not been crystallized into a regular appointment before the Division Bench judgment.
4. A fresh Core Subject in English was introduced by G.O.(MS).No.11/2002/G.Edn. dated 07.01.2002, which created a post of High School Assistant [English]; however taking the periods from the other Core Subjects. Noticing the resultant fall of divisions in the other core subjects and the threatened retrenchment of those teachers, who were teaching English before the introduction of the fresh core subject, English; the Government cautiously had introduced a condition that the implementation would be in a phased manner and that no teacher, in any other Core subject, would be retrenched in a subject year and a fresh appointment made to the post of HSA [English]. The prohibition in making fresh appointments as HSA [English] was only in the context of another regular teacher in another core subject being retrenched in an academic year, for reason only of the creation of that post.
5. The said Government Order was subject of challenge and there was a stay, which facilitated Rule 51A appointments and Rule 43 appointments to the other Core Subjects when the stay was operative. The challenge to the said Government Order was negatived and the Division Bench protected the rights of all those persons who were promoted in the interregnum. The petitioner claims such protection.
6. It is to be noticed that when the Division Bench decision came, the petitioner had not been in a regular appointment and the protection granted, insofar as retrenchment, is only with respect to those persons who are continued in the regular rolls of the aided schools. The petitioner's regular appointment as against the claim under Rule 51A having not crystallized, the petitioner cannot have a claim for the vacancy which arose on 10.07.2003 by the death of the incumbent in the post of HSA (Maths), in whose leave vacancy the petitioner continued. At that point of time, the vacancy was conceded to HSA (English) and regular appointment has to be made to that vacancy and the petitioner, who was appointed to a temporary vacancy, could not have been accommodated in that post. In such circumstance, the petitioner's claim cannot be countenanced on the basis of the Division Bench judgment. Further, it is to be noticed that the 3rd and 4th spells of the petitioner's appointment was not approved by the Educational authorities.
7. However, there is a further contention raised that the future appointments were not granted to the petitioner; which, the Manager count
