Manager, Trikkur Panchayat … vs Suma on 10 February, 2003

JUDGMENT

Jawahar Lal Gupta, C.J.

1. What is the true ambit and scope of Rule 51A of the Kerala Education Rules, 1959?

Does the Rule entitle a teacher, whose tenure has not been extended at the expiry of

the original period of appointment, to claim that he is entitled to continue in service? Two Division Benches have taken different views. In Secretary, Payyannur Municipality, Payyannur v. Jayavani K. V. and Ors., (W.A. 1919/2000 decided on January 22, 2001), a Division Bench of this Court (K.K. Usha, C.J. and Kurian Joseph, J.) took the view that “even if regular appointment is through Kerala Public Service Commission, the claim of candidates under Rule 51A is well protected.” Less than two months later, another Division Bench (Sankarasubban and Kum. A. Lakshmikutty, JJ.) in Sasikala v. Vrinda (2001 (2) KLT 278) held that “Rule 51A has been enacted for the purpose of providing preference for teachers who were appointed in the vacancies which were not permanent or which stood abolished or which ceased to exist. Rule 51A does not depict a situation where a person was appointed to a permanent vacancy temporarily.” Noticing the conflict of opinion, a Division Bench, of which one of us (K.S. Radhakrishnan, J.) was a Member, has referred the matter to a Full Bench. The counsel have referred to the facts as emerging from the record of W.A. No. 32 of 2001. The relevant facts may be noticed.

2. The respondent Nos. 1 and 2 were appointed as Upper Primary High School Assistants (a designation for teachers) in the Trikkur Panchayat Sarvodaya High School, vide orders dated November 21 and 20, 1997 respectively. The first respondent was appointed as a temporary teacher for the period from November 21, 1997 to March 31, 1998. Her appointment was against a vacancy, which had become available on the retirement of the original incumbent. The second respondent was appointed as a temporary teacher for the period from November 20, 1997 to March 31, 1998. This appointment was made against a vacancy created under the orders dated August 30, 1997 passed by the District Educational Officer, Thrissur. The District Educational Officer had duly approved both the appointments. Copies of the orders of appointment have been produced as Exts. P2 and P3 respectively. The School is managed by the Panchayat.

3. On October 6, 1995, the State Government circulated a decision that appointments in the schools managed by the Panchayats shall be made through the Kerala Public Service Commission. Various other conditions were also laid down. A copy of this circular is on record as Ext.P4. It was specifically directed that the vacancies in schools should be filled up, in urgent cases, by making temporary appointments only. In pursuance to the order dated October 6, 1995, the Manager terminated their services with effect from March 31, 1998. The two respondents claimed that they were entitled to the protection of Rule 51A. The action was contrary to the provisions of the Rules. Thus, they approached the Court through a petition under Article 226 of the Constitution. They prayed that a writ in the nature of mandamus directing the authorities to allow them to continue in service as regular staff be issued.

4. The learned Single Judge disposed of the writ petition with the following observations:-

“The petitioners claim the benefit in terms of Rule 51A Chap.XIV A of the Kerala Education Rules for appointment to the post of High School Assistant in the school managed by the third respondent. If the third respondent violates that right, the petitioners are free to represent before the second respondent and the second respondent shall consider the representation filed by the petitioner after hearing the petitioners and the third respondent”.

Aggrieved by this order, the third respondent in the writ petition, who is the Manager of the Trikkur Panchayat has filed the appeal viz. W.A. No. 32 of 2001.

5. A number of other cases relating to the admissibility of benefits under Rule 51A have also been posted for hearing along with this case. However, the issues and the arguments were similar.

6. Learned counsel for both sides were heard. On behalf of the appellant viz. the School Manager, it was contended by Mr. Ranjit Thampan that the teachers who had been appointed for a fixed term were not entitled to claim any preference under Rule 51A. In their cases, the provision was not attracted. This claim was endorsed by Mr. V.K. Beeran, learned Additional Advocate General for the Stale of Kerala. On the other hand, learned counsel for the teachers claimed that the benefit of Rule 51A was admissible. Mr. Chitambaresh, learned counsel for respondents 1 and 2 contended that Rule 51A covers termination of all kinds. The appointments had been made temporarily on account of the order dated October 6, 1995. This order was invalid and contrary to the rules. A right conferred under the statutory rules could not be taken away by an executive order. Rule 51A entities the teachers to claim appointment to the exclusion of the other candidates from the open market. Still further, Ms. Seemanthini, learned counsel for the teachers in certain other cases, contended that in view of the provisions of Rule 1(3) contained in Chap.XIV A, it is clear that recruitment through the Public Service Commission is subject to the provisions of Rule 51A. This Rule entitles the teachers whose services had been terminated to be appointed to the available posts. The order of 1995 was bad in law. The counsel for the parties in the connected cases reiterated the arguments of the learned counsel.

After hearing learned counsel for the parties, it appears that the following questions arise for consideration:

(1) What is the scope and ambit of the provision in Rule 51A?

(2) Is the order of October 6, 1995 contrary to the statutory rules and thus illegal?

(3) Are the teachers entitled to the relief as claimed by them in the present set of cases?

Regarding (1) :- What is the scope and ambit of the provision in Rule 51A?

7. The Kerala Education Act, 1958 was enacted to “provide for the better organisation and development of educational institutions in the State.” It has been

periodically amended. Section 3 empowers the State Government to “regulate the primary and other stages of education and courses of instructions in Government and private schools.” Under Clause (2), the State can take “such steps as they may consider necessary or expedient for the purpose of providing facilities for general education …” For the purpose of providing such facilities, the Government is authorised to “establish and maintain schools; or permit any person or body of persons to establish and maintain aided schools; or recognise any school established and maintained by any person or body of persons,” Section 6 places restrictions on the right of the management to alienate the property of an aided school without the prior sanction of the competent authority. Under Section 9, the Government has to “pay the salary of all teachers and other staff in the aided schools.” Under Section 10, the Government can prescribe the qualifications of persons for appointment as teachers in Government and private schools.

8. Section 10A was inserted by notification dated May 12, 2000. It empowers the local authority to make “temporary appointment to any temporary vacancy of a teacher in any school under its management through the Employment Exchange from among persons who possess qualification prescribed under Section 10…” Such appointment can be made “only up to the date of closing of the school for the annual vacation or till aregular candidate is appointed against such vacancy, whichever is earlier”. The provision also empowers the Government to prescribe the terms and conditions for such appointment Under Section 11, the appointment of teachers in aided schools is regulated. Section 12 provides that the conditions of service of the teachers appointed in aided schools “shall be such as may be prescribed by the Government. No teacher can be dismissed, removed or reduced in rank without the previous sanction of the authorised officer.” By Section 12A, the Government or such officer as may be authorised has been empowered to take disciplinary action against a teacher working in an aided school. Section 13 provides for the absorption of teachers on retrenchment. Under Section 14, the Government is competent to take over the management of schools. Provision has also been made for the establishment of district educational authorities. Their functions can be laid down. These are broadly, the relevant provisions of the Act. These indicate that in case of the schools run by the Panchayats or those receiving aid from the State, the Government has an effective control.

9. Section 36 of the Act empowers the Government to make rules. These can be made effective either prospectively or even retrospectively. In exercise of this power, the Government has framed the Kerala Education Rules, 1959 (hereinafter referred to as the ‘Rules’). The Rules are divided into various Chapters. The provisions relevant for the decision of these cases are primarily contained in Chap.XIVA. This Chapter embodies the conditions of service of teachers in aided schools. Under Rule 1(1), the Managers of private schools are authorised to appoint only such candidates who possess the prescribed qualification. Still further, they have to “follow the directions issued by the Government from time to time, for ascertaining the availability of qualified hand and for filling up the vacancy.” Under Rule 3, the initial appointment of qualified

teachers has to be on probation. The provisions for confirmation, determination of seniority and promotion have also been made. Learned counsel for the parties have made particular reference to the provisions of Rules 49, 51A and 52. These provisions deserve to be noticed in extenso. These are:-

“49. Qualified teachers except Headmasters appointed in vacancies which are not permanent which extend over the summer vacation and who continue in such vacancies till the closing date shall be retained in the vacancies during the vacation, if their continuous service as on the closing day is not less than eight months. The teachers so retained shall be entitled to the vacation salary. These teachers shall be relieved on the closing day if their continuous service as on that day is less than the aforesaid period. This rule shall not apply to teacher appointed in training vacancies.

Explanation:- For the purposeof misrule, “headmaster” includes Teacher-in-charge also.”

“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.

Note 1. If there are more than one claimant under this rule the order of preference shall be according to the date of first appointment. If the date of first appointment is the same then preference shall be decided with reference to age, the older being given first preference. In making such appointments, due regard should be given to the requirement of subjects and to the instructions issued by the Director under Sub-rule (4) of Rule 1 as far as High Schools are concerned.

Note 2. Manager should issue an order of appointment to the teacher by Registered post acknowledgement due and give a period of 14 (fourteen) clear days to the teachers to join duty. If the teacher does not join duty in time the Manager should give a further notice to the teacher stating that another person would be appointed instead and that the preferential right under this rule would be forfeited if not exercised within another 7 (seven) clear days. If nothing is heard during that time also, the preferential right under this rule will be regarded as forfeited.”

“52. (1) Teachers who are relieved on account of any reduction in the number of posts under orders of the department shall on reappointment in the same school or in another school under the same management or a different management start on the same pay as they were getting at the time of relief, whether the new appointment is permanent or not.

(2) Teachers thrown out from service due to the withdrawal of recognition of schools by the Department shall also be eligible to draw the pay which they were getting at the time of withdrawal of recognition of the school on re-appointment in another school.”

10. A perusal of Rule 49 shows that a person is entitled to continue in service during the vacation period, only if he has been appointed against a permanent vacancy or after he has served for a continuous period of eight months. Under Rule 52, a teacher who is

relieved on account of reduction in the number of posts is entitled to the protection of the pay that he was drawing at the time of his being relieved, on re-appointment.

11. Rule 51A was added to the Rules by notification dated July 17, 1966. What is the exact purport of Rule 51A? The provision takes within its fold three categories of qualified teachers. The first are those who have been relieved under Rule 49. These would be the persons who were not working in a permanent vacancy and had not completed eight months of continuous service. The second category of persons are those covered by Rule 52 viz. the teachers who are relieved on account of the reduction in the number of posts. Clause (2) of Rule 52 also covers the case of teachers whose services are terminated on account of the withdrawal of recognition of the school. At this stage, a fact, which deserves notice, is that the Rule as originally enacted inter alia provided that “the permanent teachers who are relieved on account of any reduction in the number of posts…” shall be entitled to the benefit. By two notifications issued in April, 1970, the word ‘permanent’ was omitted. The obvious intention could have been to make the benefit available to the permanent as well as temporary teachers who were relieved on account of the reduction in the number of posts. The rule making authority could not have intended that the pay of only the temporary teachers shall be protected. The third category of persons falling within the ambit of Rule 51A is the qualified teachers who are relieved “on account of termination of vacancies.” The question arises as to when can a vacancy be treated as having been terminated?

12. A clue can be found in Chap.XXIII. It provides for fixation of strength of teachers in departmental and aided schools. Under Rule 12, the strength of the teaching staff has to be fixed in each school once in a year. It depends on the number of students. Thus, it can happen that a person who is continuing in service for more than the maximum period of probation may have to be retrenched on account of the revision and reduction in the number of posts. Such a person would be entitled to preference at the time of appointment in future vacancies in schools under Rule 51A. His case would also be covered under Rule 52. He would be entitled to protection of pay.

13. Thus, it appears that Rule 51A provides for preference for recruitment to qualified teachers whose services have been terminated on account of the non-availability of a vacancy, whether permanent or temporary. The view to the contrary as expressed by the Division Bench in Sasikata’s cannot be sustained.

14. It was contended on behalf of the employer and the State Government that persons who had been initially appointed against permanent posts oron permanent basis are not covered by the provision of Rule 51A. I am unable to accept this contention. The rights of a permanent employee cannot be inferior to those of a temporary employee. If at all, in service jurisprudence, a permanent employee has a better position than a temporary employee.

15. However, it must be added that every employee whose services have been terminated cannot claim a preferential treatment. Why? The illustration should clarify the position. Rule 3 postulates that a teacher, on appointment, shall be on probation. Rule 6 lays down the period of probation etc.. Thus, it would be reasonable to assume that the appointment of every teacher who fulfils the qualifications and is appointed in accordance with the Rules shall be on probation. His services shall be liable to be terminated if his performance is not found to be satisfactory. When the services of a person are terminated on account of unsatisfactory performance, he should not be entitled to claim any preferential treatment at the time of appointment to a future vacancy. In this context, it deserves notice that in case of the availability of more than one candidate, the offer has to be made “in the order of the date of appointment”. A person who has been found wanting cannot be preferred to a person who was subsequently appointed in his place. Consequently, it would be safe to say that Rule 51A does not embody a rule of preference in case “of employees whose services have been terminated.” It only provides for a benefit to persons whose services have been terminated on account of the non-availability of a vacancy or for reasons beyond their control.

16. The next question that arises for consideration is – Can a qualified teacher covered by the provisions of Rule 51A claim appointment to the exclusion of all others? In other words, the issue is – Does the Rule provide for reservation or mere preference?

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.

18. It deserves mention that under our Constitution, every citizen is.entitled to an equality of opportunity in the matter of employment. In the case of aided schools, and especially those maintained out of the State funds by statutory bodies, the guarantee under Article 16 cannot be violated. The rule of equality shall be clearly infringed if aperson who has merely worked in a leave vacancy for a short time as envisaged under Rule 49 is appointed without even considering the claim of a more meritorious candidate despite the fact that the latter has better qualifications and a higher merit. A short stint of service against a leave or any other temporary vacancy, which may have occurred on account of the suspension of the original incumbent, cannot overshadow the rights and merit of all else.

19. It was contended on behalf of the teachers that the Rule has been consistently interpreted to mean that a retrenched employee shall be appointed to the exclusion of

all others. It may be so. However, it appears that such a liberal construction of Rule 51A may attract the criticism of its being violative of Articles 14 and 16 of the Constitution. I am of the opinion that the Rule envisages a limited advantage to the persons falling within its ambit. It provides for the grant of a ‘weightage.’ Under the rule, a person who has already served can be given a few extra marks. It lays down a rule of preference amongst equals. It does not envisage a denial of equality of opportunity to other qualified candidates. I think, it would be unfair to interpret the rule in such a way that it allows reservation under the garb of preference.

20. The apex court has considered the exact import of a rule of preference. In Yogender Pal Singh and Ors. v. Union of India and Ors., (AIR 1987 SC 1015), the question regarding the interpretation of the Punjab Police Rules 1934 fell for consideration before Their Lordships. Rule 12.14(3) of the said Rules provided as under:

“Sons and near relatives of persons who have done good services in the Punjab Police or in the Army shall, subject to the consideration imposed by Rule 12.12 have preference over the other candidates for police employment”.

While considering the claim for preference under the above provision, it was, inter alia, observed as under:

“17. While it may be permissible to appoint a person who is the son of a police officer who dies in service or who is incapacitated while rendering service in the Police Department, a provision which confers a preferential right to appointment on the children or wards or other relatives of the police officers either in service or retired merely because they happen to be the children or wards or other relatives of such police officers would be contrary to Article 16 of the Constitution. Opportunity to get into public service should be extended to all the citizens equally and should not be confined to any extent to the descendants or relatives of a person already in the service of the State or who has retired from the service…….”

Again in Secretary (Health) Department of Health & F. W and Anr. v. Dr. Anita Puri and Ors., (1996 (6) SCC 282), the question of preference arose in the context of educational qualifications. The advertisement “inviting applications for the post of Dental Officers prescribed B.D.S as the minimum qualification, but stipulated preference for higher educational qualification. The question was whether the first respondent, who had M.D.S degree, was, in terms of the said advertisement, entitled to be selected and appointed as of right”. While considering this question, their Lordships were pleased to hold as under:-

“When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference would be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher candidates with higher qualification. It cannot he construed to mean that a person with a higher

qualification is automatically entitled to be selected and appointed. In adjudging the suitability of person for the post, the expert body like Public Service Commission in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection of the candidate. The competence and merit of a candidate is adjudged not on the basis of the qualification he possesses but also taking into account the other necessary factors like career of the candidate throughout his educational curriculum, experience in any field in which the selection is going to be held, his general aptitude for the job to be ascertained in course of interview, extracurricular activities like sports and Ors. allied subjects, personality of the candidate as assessed in the interview and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held. Hence the High Court was wholly in error in holding that a person possessing M.D.S degree like Respondent 1 was entitled to be selected and appointed”.

21. In Bibhudatta Mohanty v. Union of India and Ors., (2002 (4) SCC 16), the above view was reiterated.

22. Ms. Seemanthini contended that preference implies ‘precedents’. A prior claim to something. The practical favouring of one customer before others. She also placed reliance on the decision of their Lordships of the Supreme Court in Sher Singh v. Union of India and Ors., (AIR 1984 SC 200). In this case, their Lordships were considering the validity of Section 47(1-H) of the Motor Vehicles Act, 1939. It was held that the provisions providing for preference to a Government undertaking was not violative of the freedom to carry on trade under Article 19(1)(g) of the Constitution. In this context, it was observed as under:-

“A transport operator has not been denied his freedom to carry on trade. He is entitled to make an application under Chap.IV for a stage carriage permit and must compete with other private operators as also the undertaking. It is too late in the day to contend that a preference in favour of the Undertaking would be violative of Article 19(1)(g) for the obvious reason that Undertaking like all other applicants for permit has to compete for a permit. The Undertaking whose net profits are required to be spent for the provision of amenities to the passengers using road transport services, welfare of labour employed by the Undertaking, for financing the expansion programmes of the Undertaking, and the balance to be made over to the State Government for the purpose of road development must receive in large public interest preference for a permit compared to a private operator whose profits would go to augment his private income.”

A perusal of the above observations would clearly show that the factual situation and the issue involved in the two cases were materially different. Thus the appellants cannot derive any advantage from this decision.

23. In view of the above, it is held that:-

1. Rule 51-A covers the cases of persons appointed against temporary as well as permanent vacancies. The view taken by a Bench of this Court in Sasikala’s case does not embody the correct enunciation of law. It is, therefore, overruled.

2. Rule 51-A only provides for preference. It cannot mean reservation. In other words, if the merit of two candidates if found to be equal, a teacher, who has served earlier can be given preference. He can also be given weightage for his past experience at the time of consideration for selection. However, he cannot be appointed by excluding others. If Rule 51-A is interpreted in the manner suggested by learned counsel for the respondents, it may invite criticism of violative of Articles 14 and 16 of the Constitution.

Regarding 2. Is the order of October 6, 1995 contrary to the statutory rules and thus illegal?

24. It was contended on behalf of the teachers that the order dated October 6, 1995 is wholly illegal. It is violative of the rules. The Government could not have issued instructions for the appointment of the teachers on a purely temporary basis. The Managers had acted illegally in making the appointments on a short-term basis. Is it so?

25. The Government is not a stranger in the matter of regulation of appointments to the posts in the aided schools or those governed by the provisions of the rules. The Kerala Education Act was promulgated to provide for better organisation and development of educational institutions. The State has reserved to itself the power to take over management of schools and to regulate their functioning. Similarly, in Section 10A, it has been specifically provided as under:

“10A. Temporary appointment of teachers-Subject to such terms and conditions as may be prescribed by the Government, the local authority may make temporary appointment to any temporary vacancy of a teacher in any school under its management through the employment exchange from among persons who possess qualifications prescribed under Section 10 and such appointment shall be made only up to the date of closing of the school for the annual vacation or till a regular candidate is appointed against such vacancy whichever is earlier.”

26. A perusal of the above provision shows that the local authority can make appointment to a temporary vacancy of a teacher through Employment Exchange. Such appointment can be up to the date of the closing of the school for annual vacation or “till a regular candidate is appointed against such vacancy whichever is earlier.” It is, thus, clear that according to the scheme of the statute, a person can be appointed for a short duration and he can hold appointment till a regular candidate is appointed. Such an arrangement is clearly provided for under Section 10A.

27. It is true that Section 10A was promulgated by the Legislature on May 12, 2000. However, as of today, it is clear that when a person is temporarily appointed to a post, he can continue in service only “till a regular candidate is appointed.” In this situation,

it cannot be held that the provisions of the Act and the Rules are violated when an appointment is made only for a limited period. Equally, it cannot be said that a candidate who has been appointed on temporary basis gets an indefeasible right to be appointed at the time of selection or to continue in service despite the fact that a regular candidate has been chosen. The provision as made in Section 10A is indicative of the legislative policy. Similarly, Section 13 of the Act postulates absorption of teachers on retrenchment. A perusal of the provision shows that retrenchment can become necessary “consequent on orders of the Government relating to the course of studies of scheme of teaching or of such other matters…” When considered cumulatively, it is clear that under the Act, the Government has been empowered to issue general instructions. These can relate to the appointment, retrenchment and absorption in service.

28. The rules which constitute a subordinate legislation have to be interpreted in such a way that they conform to the provisions of the Act. When so construed, it is clear that Rule 51A cannot be invoked in a case where a person has been appointed up to the date of closing of the school for vacation or subject to the appointment of a regular candidate.

29. This intention as made manifest by the introduction of Section 10A and the other provisions of the Act, is also borne out from the provision in the Rules. In Rule 1 of Chap.XIV A, it has been inter alia provided that “whenever vacancy occurs, the manager shall follow the directions issued by Government from time to time for ascertaining the availability of qualified hand and for filling up vacancy.” Thus, the Government is competent to give directions and the Manager has to follow them.

30. In this context, it may also be noticed that Rule 43 empowers the Government to issue any general order even for the purpose of appointment to the post of teachers. It has been specifically provided that subject to Rules 44 and 45 and considerations of efficiency and “any general order that may be issued by the Government”, vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to the seniority. Thus, it is clear that the Government can issue general orders regarding recruitment to the various posts of teachers.

31. On a cumulative consideration of the Act and the Rules, it is clear that the Government is competent to issue instructions or general orders. It is in this background that the validity of the order issued by the Government on October 6, 1995 has to be considered.

32. A perusal of the order shows that the Government had taken a policy decision to entrust the appointment of staff in Panchayat Schools to the Public Service Commission. In order to ensure that there was no complication, it had directed the Panchayat Secretaries who are admittedly managing the schools and are designated as Managers, to make appointment only on temporary basis. In doing so, the Government did not violate any provision of the Act or the Rules.

33. On behalf of the teachers, it was contended that the amendment in Rule 3 of Chap.XIV-A was incorporated only on April 6, 2000. However, it deserves notice that the provision authorising the Government to issue directions “from time to time” has existed since July 1972. As already noticed, the provision requires the Managers to make appointment by following the directions issued by the Government. This being so, it cannot be said that merely because the amendment was made in the year 2000, the direction issued by the Government that the appointments be made on temporary basis was illegal.

Thus, the second question is answered against the teachers.

Regarding (3). Are the teachers entitled to the relief as claimed by them in the present set of cases?

34. It is contended on behalf of the teachers that the action of the Panchayat Secretaries in making the appointments on temporary basis was illegal. Thus, a direction entitling the petitioners to continue in service deserves to issue. Is it so?

35. The facts as detailed in the Original Petition from which W.A. 32/2001 has arisen, have been already noticed. It is clear that the two respondents were appointed as Primary High School Assistants (teachers who teach in primary schools) vide orders dated November 21 and November 20, 1997 respectively. The appointments were till March 31, 1998. Such appointments have not been shown to be violative of the Rules. The two respondents had accepted these appointments without any demur. They had joined the posts without any reservation. It was only after the expiry of the period of appointment that the petitioners had approached this Court through O.P.13977/99. Having accepted the appointments, the respondents were bound by the orders. That being the factual position they are estopped from contending that the order dated October 6, 1995 or that the terms of appointment were illegal. It is true that the jobs being limited and the candidates being large in numbers, everyone is tempted to grab an offer. However, it must be equally recognised that having accepted an offer without any reservation, the candidates cannot be permitted to say, at a later point of time, that they had a better right than the one conferred by the order.

36. Learned counsel were at pains to point out that the vacancies were permanent. It is indeed so. Yet, the fact remains that the appointments had been made for a temporary duration of time. In this behalf, it has to be borne in mind that every appointment begins with a contract. The employer makes an offer. The candidate has the choice to accept or to reject it. The choice may be difficult. But, once the offer is accepted, the parties are bound by the terms of appointment. If, in view of the exigencies of a situation, a certain employer thinks that the appointment can be made for a limited period only and it actually does so, the employee, who accepts the employment, shall be bound by the terms of the contract. Resultantly, even the answer to the third question has to be against the teachers.

37. That brings me to the consideration of some of the other cases. In O.P. No. 17269/2001, Mr. Jaju Babu, learned counsel for the petitioner contended that the petitioner had worked from November 27, 1996 to March 26, 1997. Thereafter, the Department had accepted the petitioner’s claim for preference under Rule 51A. However, in view of the order of the Division Bench in W.A. No. 23/2000, she was not allowed to join duty.

38. In view of the conclusions recorded above, there appears to be no infirmity in the action of the respondents. Thus, the claim as made in this petition cannot be sustained.

39. In W.A. 3375/2001, the appointment had been made with effect from October 26, 1999. However, while granting approval, the competent authority had restricted the appointment to the period till March 31, 2000. Mr. Vinod Madhavan, learned counsel for the aggrieved teachers, contended that the amendment to Rule 1(3) having been notified in April 2000, the action restraining the appointment to the period till March 31, 2000 was illegal. For the reasons already stated, I do not find any merit in the contention as sought to be raised by the learned counsel for the teachers.

40. In W.A. No. 3307/2001, Mr. Vinod Madhavan, learned counsel for the appellant submitted that the appellant was still continuing in service. If that be so, the competent authority shall consider and decide his case in accordance with the rules.

41. In W.A. No. 1844/2001, Mr. Mohandas contended that there was a binding judgment between the parties. Thus, the relief as claimed by the appellant deserves to be granted.

42. A copy of the judgment has been produced as Ext.P1. This judgment was given in O.P. 302/2000. It was disposed of with the following observations:-

“The petitioner claims the benefit of Rule 51A of Chap.XIVA K.E.R. in the school belonging to the Gram Panchayat. This Court has already declared the above claim in the ruling reported in Vrindha v. State of Kerala, (2000 (1) KLJ 49). Therefore, the third respondent is directed to consider the claims of the petitioner for future appointment on the basis of Rule 51A of Chap.XIVA K.E.R.”

43. A perusal of the above would show that the appellant had claimed the benefit of Rule 51A in view of the decision in Vrinda’s case. The learned Judge had directed his claim to be considered. There was no final pronouncement on the rights of the parties. Thereafter, the appellant was appointed from June 16, 2000. However, in view of the order of the Division Bench, her services were terminated. Aggrieved by the order of termination, the appellant had filed O.P. 15638/01. In this case, the learned Single Judge, while disposing of the petition, had relegated the appellant to the remedy of appeal.

44. It was not disputed before us that the remedy is available under Rule 64 of the Rules contained in Chap.XIV-A. I find no infirmity in the view taken by the learned Single Judge. Thus, no grounds for interference are made out.

No other point was raised.

In view of the above, it is held that:-

1. Rule 51 -A covers the cases of persons appointed against temporary as well as permanent vacancies. The view taken by a Bench of this Court in Sasikala’s case does not embody the correct enunciation of law. It is, therefore, overruled.

2. Rule 51-A only provides for preference. It cannot mean reservation. In other words, if the merit of two candidates is found to be equal, a teacher, who has served earlier, can be given preference. He can be given weightage for his past experience at the time of consideration for selection. However, he has no right to claim appointment by excluding others. If Rule 51-A is interpreted in the manner as suggested by learned counsel for the respondents, it may invite the criticism of being violative of Articles 14 and 16 of the Constitution.

3. Under the Act and the Rules, the Government has the power to issue directions. The order of October 6, 1995 does not violate any law. It is not contrary to the statutory rules. It is, thus, legal.

4. The teachers arenotentitled to the relief asclaimed by them in the present setof cases. Thus, the appeals/petitions are dismissed. However, there will be no order as to costs.

Cyriac Joseph, J.

45. I have carefully read the very learned and detailed judgments written by the Hon’ble Chief Justice and the Hon’ble Mr. Justice K.S. Radhakrishnan. Since I cannot fully agree with either of them, I write this separate judgment to state my own views on the Issues involved.

46. Necessary facts and circumstances of the cases have been stated in the judgments of the learned Chief Justice and my learned Brother K.S. Radhakrishnany, (J). Hence I need not repeat them here. I shall straight away deal with the issues involved in these cases.

47. Section 11 of the Kerala Education Act, 1958 (hereinafter referred to as “the Act”) provides that subject to the rules and conditions laid down by the Government, teachers of aided schools shall be appointed by the managers of such schools from among persons who possess the qualifications prescribed under Section 10 of the Act. As per Section 10 of the Act the Government shall prescribe the qualifications to be possessed by persons for appointment as teachers in Government and private schools. In exercise of the powers conferred by Section 36 of the Act, the Government of Kerala have made the Kerala Education Rules, 1959 (hereinafter referred to as ‘the K.E.R.’).

48. The provisions in Chap.XIV-A of the K.E.R. deal with conditions of service of aided school teachers. As per Rule 1(1) in Chap.XIV-A of the K.E.R. managers of private schools shall appoint only candidates who possess the prescribed qualification and as far as High School classes are concerned the appointment shall be made with due regard to the requirement of subjects as determined by the Director of Public Instruction with reference to the curricula of studies. Whenever vacancy occurs, the manager shall follow the directions issued by Government from time to time, for ascertaining the availability of qualified hand and for filling up vacancy. Thus the right of the manager of a private aided school to appoint teachers in the school is subjected to two conditions or restrictions; (i) the candidate should possess the prescribed qualification and (ii) as far as High School classes are concerned, the appointment shall be made with due regard to the requirement of subjects as determined by the Director of Public Instruction. Even if more than one candidate possessing the prescribed qualification are available as against one vacancy of teacher, in the absence of any candidate who has got a right under the K.E.R. for preference for appointment in that vacancy, the manager has the freedom to choose one of such candidates for appointment. The said freedom shall be exercised with due regard to the requirement of subjects if the vacancy is in the High School. No other restriction is imposed on the said freedom of the manager to choose the candidate. However, if a candidate who has got a right for preference for appointment in that vacancy is available the manager is bound to appoint him.

49. The claims for preference for appointment are dealt with in Rules 1 (1), 5, 5A, 43, 43B, 43C and 51A in Chap.XIV-A of the K.E.R. In the present cases the dispute is regarding the claim for preference under Rule 51A only. Hence it is sufficient to deal with only Rule 51A here.

50. Rule 51A in Chap.XIV-A of the K.E.R. reads thus:

“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.

Note 1. If there are more than one claimant under this rule the order of preference shall be according to the date of first appointment. If the date of first appointment is the same then preference shall be decided with reference to age, the older being given first preference. In making such appointments, due regard should be given to the requirement of subjects and to the instructions issued by the Director under Sub-rule (4) of Rule 1 as far as High Schools are concerned.

Note 2. Manager should issue an order of appointment to the teacher by Registered post acknowledgement due and give a period of 14 (fourteen) clear days to the teacher to join duty.

If the teacher does not join duty in time the Manager should give a further notice to the teacher staling that another person would be appointed instead and that the preferential right under this rule would be forfeited if not exercised within another 7 (seven) clear days. If nothing is heard during that time also, the preferential right under the rule will be regarded as forfeited.”

It can be seen that the claim for preference under Rule 51A is available only to qualified teachers who are relieved as per Rule 49 or 52 or on account of termination of vacancies.

51. Rule 49 in Chap.XIV-A of the K.E.R. reads thus:

“49. Qualified teachers except Headmasters appointed in vacancies which are not permanent which extend over the summer vacation and who continue in such vacancies till theclosing date shall be retained in the vacancies during the vacation, if theircontinuous service ason theclosing day is not less than eight months. The teachers so retained shall be entitled to the vacation salary. These teachers shall be relieved on the closing day if their continuous service as on that day is less than the aforesaid period. This rule shall not apply to teacher appointed in training vacancies.

Explanation:-For the purpose of this rule, ‘Headmaster’ includes Teacher-in-charge also.”

Hence as per Rule 49, qualified teachers appointed in vacancies which are not permanent and which extend over the summer vacation and who continue in such vacancies till the closing date shall be retained in the vacancies during the vacation, if their continuous service as on the closing day is not less than eight months; but they shall be relieved on the closing day if their continuous service as on that day is less than eight months. Qualified teachers appointed in vacancies which are not permanent and which extend over the summer vacation and who continue in such vacancies till the closing date and whose continuous service as on that day is not less than eight months, are entitled to be retained in the vacancies during the vacation and to be paid vacation salary. Since Rule 49 refers only to ‘teachers appointed in vacancies which are not permanent’ it is obvious that qualified teachers appointed in permanent vacancies are entitled to be retained in the vacancies during the summer vacation and are entitled to vacation salary, even if their continuous service on the closing day is less than eight months. There is no rule providing for relieving such teachers on the closing day. Thus a teacher can be relieved as per Rule 49 only if his appointment was in a vacancy which was not permanent and if his continuous service on the closing day is less than eight months. Rule 49 is not attracted when the appointment of the teacher was in a permanent vacancy or when the appointment was in a vacancy which was not permanent and the continuous service on the closing day is not less than eight months. The purpose of Rule 49 is to deny retention in service during vacation and payment of vacation salary to teachers who are appointed in vacancies which are not permanent and whose continuous service on the closing day of the school is less than eight months. Therefore ‘qualified teachers who are relieved as per Rule 49’ are qualified teachers appointed in vacancies which are not permanent and

which extend over the summer vacation and who continue in such vacancies till the closing date but are relieved on the closing day since their continuous service as on the closing day is less than eight months. The claim of such teachers for preference for appointment in future vacancies is protected under Rule 51A.

52. Rule 52 in Chapter IV-A of the K.E.R. reads thus:

“52.(1). Teachers who are relieved on account of any reduction in the number of posts under orders of the department shall on reappointment in the same school or in another school under the same management or a different management start on the same pay as they were getting at the time of relief, whether the new appointment is permanent or not.

(2) Teachers thrown out from service due to the withdrawal of recognition of schools by the Department shall also be eligible to draw the pay which they were getting at the time of withdrawal of recognition of the school on re-appointment in another school.”

It is to be noted that no distinction is made between permanent teachers and temporary teachers who are relieved on account of reduction in the number of posts. In fact the rule was amended in 1970 to omit the word ‘permanent’. Hence ‘teachers who are relieved as per Rule 52’ are permanent or temporary teachers who are relieved on account of any reduction in the number of posts under the orders of the Department.

53. The third category entitled to preference for appointment under Rule 51A is ‘qualified teachers who are relieved on account of termination of vacancies’. Though the termination could be of temporary or permanent vacancies, no distinction is made between permanent vacancies and vacancies which are not permanent. In other words, qualified teachers who are relieved on account of termination of temporary or permanent vacancies are entitled to the benefit under Rule 51A.

54. A related question is whether a teacher appointed permanently or temporarily in a permanent vacancy and relieved on the closing day of the school is entitled to the benefit under Rule 51A. Ordinarily, a teacher appointed in a permanent vacancy is entitled to continue in service so long as the vacancy continues and he is not liable to be relieved on the closing day of the school as per Rule 49 and hence there is no occasion or need for him to seek the benefit under Rule 51A. However, in spite of the continuance of the vacancy if he happens to be relieved for some reason other than termination of service on disciplinary grounds, or on enforcement of the specific conditions of appointment he should get preference for appointment to future vacancies. As pointed out by my learned Brother K.S. Radhakrishnan, J., the rule making authority would not have envisaged an anomalous situation where a teacher appointed in a leave vacancy will have preference for appointment to future vacancies and a teacher appointed in a permanent vacancy will not have such preference. Hence the benefit under Rule 51A cannot be denied to a teacher merely because he was appointed in a permanent
vacancy. It is not just or fair to say that the teacher could or should challenge the action of the manager in relieving him from service, though such a course also may be available to the teacher.

55. Thus ‘preference for appointment to future vacancies’ under Rule 51A is available to:

(a) qualified teachers appointed in vacancies which are not permanent and which extend over the summer vacation and who continue in such vacancies till the closing date but are relieved on the closing date since their continuous service as on the closing day is less than eight months;

(b) qualified permanent or temporary teachers who are relieved on account of any reduction in the number of posts under the orders of the Department; and

(c) qualified teachers who are relieved on account of termination of vacancies irrespective of whether such vacancies are permanent or not permanent.

In spite of the continuance of the vacancy, if a qualified teacher appointed in a permanent vacancy happens to be relieved from service for some reason other than termination of service on disciplinary grounds or on enforcement of the specific conditions of appointment, preference for appointment to future vacancies cannot be denied to him merely because his appointment was in a permanent vacancy.

56. The next question is regarding the nature of the right under Rule 51A. Notes 1 and 2 under Rule 51A show that the teacher who is entitled to have preference for appointment to future vacancies need not even make an application to the Manager claiming appointment in a future vacancy. As and when a vacancy arises in future, the Manager is bound to issue an appointment order to the teacher by Registered Post Acknowledgement Due giving aperiod of 14 clear days to him to join duty. If the teacher does not join duty in time, the Manager should give a further notice to the teacher stating that another person would be appointed instead and that the preferential right under Rule 51A would be, forfeited if not exercised within another 7 clear days. Only if nothing is heard during that time also, the preferential right under the rule can be regarded as forfeited. It is significant that the expression used at both the places in Note 2 under Rule 51A is “preferential right” and not mere preference. It is also significant that Note 1 under Rule 51A stipulates even the order of preference when there are more than one claimant under Rule 51A. This is sufficiently indicative of the legislative intention to confer a right for appointment in a future vacancy and not a more preference while being considered along with other candidates. It should be noted there is no rule which stipulates that the Manager of a private aided school should advertise the vacancies inviting applications from candidates. A selection based on competition or assessment of relative merit is not contemplated under the K.E.R. The Manager of a private aided school is free to appoint any candidate who possesses the prescribed qualification if there is no other person having a right for preference for appointment to the vacancy.

57. Is there anything wrong or unjust in giving such a preferential right for appointment to teachers who are relieved as per Rule 49 or 52 or on account of termination of vacancies? I am of the view that it is only just and fair to confer a right on a qualified teacher relieved as per Rule 49 or 52 or on account of termination of vacancies, for appointment to a future vacancy in the schools under the same educational agency or an educational agency to which the school may be subsequently transferred provided that he has not been appointed in a permanent vacancy in a school under any other Educational Agency. It is more so when the Manager of a private aided school can make appointments without advertising the vacancies and without making any selection based on competition or assessment of relative merit. Why should a qualified teacher who was fortunate to get an appointment as per the rules and who unfortunately had to be relieved under the circumstances mentioned in Rule 51A, be denied the right to appointment to a future vacancy, enabling the Manager to appoint a fresh candidate of his choice? In my view, if the preference for appointment under Rule 51A is not construed as a right to appointment to future vacancies rather than a mere preference, it will lead to grave injustice and more arbitrariness in making appointment of teachers by the Manager of a private aided school. Hence, the preference for appointment to future vacancies under Rule 51A is a statutory right to appointment in future vacancies and is not a mere preference or weightage.

58. Another question raised is whether the benefit under Rule 51A is available to teachers appointed in schools established and maintained by Panchayats. As per Rule 2(1) of the Kerala Panchayats (Spread of Education) Rules, 1964, aPanchayat may, subject to the provisions of the Kerala Education Act, 1958 and the Rules made thereunder, establish and maintain schools for providing facilities for the spread of education within the Panchayat area. As per Rule 2(2) of the said Rules, for the purpose of the Kerala Education Act, 1958 and the Rules made thereunder, such schools shall be considered as aided schools and the Panchayat shall be the educational agency and the Executive Officer of the Panchayat shall be the manager in respect of such schools. As per Rule 2(3) of the said Rules, every appointment to a school established and maintained by a Panchayat shall be made by the Manager with the approval of the educational agency in accordance with the provisions of the Kerala Education Act, 1958 and the Rules made thereunder. As per Rule 1(3) in Chap.XIV-A of K.E.R. as it now stands: “Subject to Rule 51A, candidates advised by the Kerala Public Service Commission shall be appointed as teachers in Schools managed by local self Government institutions”. Prior to the amendment effected as per G.O.(P) No. 110/2000/G.Edn. dated 3rd April, 2000, Rule 1 (3) of Chap.XIV-A of K.E.R. reads as follows: “Subject to Rule 51A, the appointment of teachers in Schools managed by Panchayats shall be made from among the qualified hands advised by the Employment Exchange”. Thus, the rule making authority through a conscious decision incorporated the above mentioned provisions in the Kerala Panchayats (Spread of Education) Rules and the Kerala Education Rules stipulating

that all appointments shall be in accordance with the provisions of the Kerala Education Act and the Kerala Education Rules and also extending the benefit under Rule 51A In Chap.XIV-A of K.E.R. to teachers appointed in the schools managed by local self Government institutions. Hence, there cannot be any doubt that the provisions in Rule 51A are applicable to appointments in schools established and maintained by Panchayats. I am also of the view that if the benefit under Rule 51A can be extended to teachers appointed inprivate aided schools, there is nothing unreasonable or illogical or arbitrary in extending the said benefit to teachers appointed in Panchayat Schools which are considered as aided schools for the purposes of the Kerala Education Act and the Rules made thereunder in view of Rule 2(2) of the Kerala Panchayats (Spread of Education) Rules. Moreover all appointments so far made in Panchayat Schools would have been made only on the basis of and in terms of the Government Order dated 6.10.1995 and such appointees are not entitled to the benefit under Rule 51A. All appointments can be made now only on the advice of the Kerala Public Service Commission as per Rule 1 (3) of Chap.XIV-A of K.E.R. There will not be any injustice or illegality if a teacher who was appointed in a Panchayat School on the advice of the Public Service Commission and was later relieved under circumstances mentioned in Rule 51A, is given preference for appointment to future vacancies.

59. The next question is whether the Government Order dated 6th October, 1995 is contrary to the statutory rules and hence illegal. I agree with the learned Chief Justice that the Government was competent to issue such an order and that it is not contrary to the statutory rules or illegal. I also agree with the reasons stated by the learned Chief Justice for arriving at such a conclusion.

60. Another question arising for consideration is whether the teachers appointed on the basis of the Government Order dated 6.10.1995 are entitled to preference for appointment to future vacancies under Rule 51A. Having regard to the entire facts and circumstances and to the rules as explained earlier, I am of the view that teachers appointed on the basis of and in terms of the Government Order dated 6.10.1995 will be governed by the specific terms and conditions of their appointment and they will not be entitled to the benefit under Rule 51A. Having accepted the appointment subject to the terms and conditions contained in the Government Order dated 6.10.1995 or mentioned in the appointment order, they cannot now contend that those terms and conditions will not apply to them. The teachers in these cases are not teachers who were relieved as per Rule 49 or 52 or on account of termination of vacancies. They were relieved or are sought to be relieved by enforcing the specific conditions contained in the Government Order dated 6.10.1995. Hence they cannot get the benefit un’der Rule 51A.

61. In the light of the above discussion it is held that:

(i) The preference for appointment to future vacancies under Rule 51A in Chap.XIV-A of K.E.R. is a statutory right to appointment in future vacancies and is not a mere preference or weightage.

(ii) The preference for appointment to future ‘vacancies’ under Rule 51A is available to;

(a) qualified teachers appointed in vacancies which are not permanent and which extend over the summer vacation and who continue in such vacancies till the closing date but are relieved on the closing date since their continuous service as on the closing day is less than eight months;

(b) qualified teachers who are relieved on account of any reduction in the number of posts under the orders of the Department; and

(c) qualified teachers who are relieved on account of termination of vacancies irrespective of whether such vacancies are permanent or not permanent.

(iii) The ‘preference for appointment to future vacancies’ under Rule 51A cannot be denied to a teacher merely because his appointment was in a permanent vacancy.

(iv) The benefit under Rule 51A is available to teachers appointed in schools established and maintained by Panchayats.

(v) The Government order dated 6.10.1995 is not illegal or invalid.

(vi) The teachers appointed on the basis of and in terms of the Government Order dated 6.10.1995 and later relieved on the expiry of the period of such appointment, are not entitled to the benefit under Rule 51A.

K.S. Radhakrishnan, J.

62. I had the advantage of going through the erudite and well considered judgment of the learned Chief Justice. I thought of expressing my own views for my conclusions on the various issues raised.

63. The Government of Kerala have taken a policy decision to entrust the appointments in the schools managed by the Local Self Government Institutions with the Kerala Public Service Commission. Panchayats in the State of Kerala is now governed by the Kerala Panchayat Raj Act, 1994, (Act 13 of 1994) which replaced the various enactments relating to Panchayats and District Councils so as to establish a three-tier Panchayat Raj System in the State in line with the Constitution (Seventy-third Amendment) Act, 1992 for securing a greater measure of participation of the people in planned development and in local governmental affairs. Article 243(d) of the Constitution defines ‘Panchayat’ as an institution of self government constituted under Article 243B for rural areas. Article 243G stipulates that subject to the provisions of the Constitution, the Legislature of a State may, by law, endow the Panchayats with such powers and authority and may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the, devolution of powers and responsibilities upon Panchayats at the appropriate level subject to such conditions as may be specified therein with respect to the preparation of plans and implementation of schemes for economic development and social justice such as education including primary and secondary level listed in the Eleventh Schedule to the Constitution.

64. There are 19 High Schools, 29 Upper Primary Schools and 63 Lower Primary Schools functioning under the management of various Panchayats in the State of Kerala. Panchayat Schools are governed by the Kerala Panchayat (Spread of Education) Rules 1964. Rule 2 enables the Panchayat to establish and maintain schools for providing facilities for the spread of education within the Panchayat area subject to the provisions of Kerala Education Act and the Rules made thereunder. As per Rule 2(2) the Panchayat Schools are considered as aided schools for the purpose of the Kerala Education Act. Panchayat is the Educational Agency and the Secretary of the Panchayat is the Manager. Every appointment to the Panchayat School shall be made by the Manager with approval of the educational authority in accordance with the provisions of Kerala Education Act and the Rules. Rule 1(3) of XIV-A KER which was in force prior to 6.4.2000 enabled the Panchayat to appoint teachers from among the qualified candidates advised by the Employment Exchange.

65. The Government in the year 1995 took a policy decision vide G.O.(MS) No. 218/95/L.A.D. dated 6.10.95 to entrust the appointments of staff in the Panchayat Schools with the Kerala Public Service Commission. However, to bring into practice this policy decision necessary amendments were to be made to the Kerala Panchayat Raj Act, Kerala Education Rules and also the Kerala Public Service Commission (Additional Functions) Act. The Government also gave certain directions to various departments to take immediate steps to make necessary amendments in the related Acts and Rules to implement the said decision. Till the necessary amendments are made in the rules Government took a decision to effect temporary appointments in urgent cases in Panchayat Schools, subject to certain conditions which are as follows:

1. Appointments should be made only from the list of candidates supplied by the
Employment Exchange.

2. The candidate should be selected by a committee consisting of District Panchayat Officer and the Deputy Director of Education.

3. Appointments effected would be purely on temporary basis.

4. All appointments shall be subject to the rules governing the appointment of teachers
to Government Schools through Employment Exchange. Further it was also made
clear that the rules regarding the temporary appointments in private management
schools would not be applicable.

5. The Panchayat Director should be kept informed of such appointments as and when they are made.

Writ petitioners were appointed by the Secretaries of various Panchayats strictly in accordance with the above mentioned Government Order. First petitioner in OP. 13977/99 was appointed from 21.11.1997 to 31.3.1998 in a retirement vacancy. Appointment order was also approved. Similar is the case of other writ petitioners as
well. Petitioners contended since they were appointed from amongst the list of candidates sponsored by Employment Exchange they are entitled to get preference for appointment in future vacancies in the school under Rule 51-A of Chap.XIV-A of KER. The contention is that neither the executive order dated 6.10.1995 nor Rule 1(3) of Chap.XIV-A of K.E.R. as amended would take away their statutory rights under Rule 51-A. Further they contended even the amendment effected to Rule 1(3) of Chap.XIV-A leaving the appointments to Public Service Commission was also made subject to Rule 51A, consequently their rights under Rule 51-A stood protected.

66. Counsel appearing for the various Panchayats as well as Additional Advocate General Sri. V.K. Beeran contended all the writ petitioners were appointed in various Panchayats not in accordance with Rule 2(3) of the Kerala Panchayats (Spread of Education) Rule 1964 or under Rule 1(3) as it was then in force, but purely on the basis of the Government Order dated 6.10.1995. Appointments were purely on a temporary basis till necessary amendments are effected to the provisions in the Act and Rules and were made subject to the rules governing the appointments of teachers to Government Schools where Rule 51A is not applicable. Counsel submitted those teachers formed a class by themselves and cannot be equated with those persons who were appointed either under Rule 2(3) of the Kerala Panchayats (Spread of Education) Rules 1964 or under the unamended Rule 1(3) of Chap.XIV-A K.E.R.

67. The conditions of service of aided school teachers are dealt with in Chap.XlV-A of the K.E.R. Rule 1(1) is of considerable importance, which is extracted below:

1(1). Managers of Private Schools shall appoint only candidates who possess the
prescribed qualification. As far as High School classes are concerned the appo-nlment shall be
made with due regard to the requirement of subjects as determined by Director of Public
Instruction with reference to the curricula of studies. Whenever vacancy occurs, the manager
shall follow the directions issued by Government from time to time, for ascertaining the
availability of qualified hand and for filling up vacancy.

The words “and for filling up vacancy” was inserted vide G.O.(P) 157/72/G.Edn. dt 17.9.1973 published in the Gazette dt. 23.10.1971 Rule 1(1) of Chap.XIV-A specifically stated that whenever vacancy occurs the manager shall follow the directions issued by Government from time to time for ascertaining the availability of qualified hand and for filling up vacancy. Therefore in the matter of filling up vacancy also the Secretary of Panchayat School is statutorily bound by the directions issued by the Government from time to time.

68. The State Government as rule making authority has decided that necessary amendments have to be made in the rules, viz., Kerala Panchayat Raj Act, Kerala Education Rules and also the Kerala Public Service Commission (Additional Functions) Act and the rules made thereunder. Pending amendments of the rules the Rule making

authority have issued an executive order dated 6.10.95 stating that appointments in 19 High Schools, 29 Upper Primary Schools and 53 Lower Primary Schools functioning under the management of various Panchayats in the State of Kerala be made only temporary basis. It was made clear that those appointments would be subject to the rules governing the appointment of teachers to Government schools through the Employment Exchange thereby those appointments cannot be subject to provisions of the Kerala Education Act and the Rules made thereunder and consequently those appointees would not get benefit of provisions of the Kerala Education Act and the Rules, especially Rule 51-A.

69. The Government as a rule making authority has taken a conscious decision, which is reflected in the order dated 6.10.95 to effect only temporary appointments and that such appointments be effected pending framing of Rules. It was further decided that such appointments would be subject to the rules governing the appointment of teachers to Government schools through the Employment Exchange, consequently Rule 51-A would not apply. Policy decisions taken pending framing of rules or amending rules has been sustained by the Apex Court in various decisions such as Shankarsan Dass v. Union of India ((1991) 3 SCC 47), Dr. K. Ramalu v. Dr. S. Surya Prakash Rao ((1957) 3 SCC 59), State of Bihar and Ors. v. MD. Kalimuddin and Ors., (1996 (2) SCC 7) etc. Pending amendment of rules or framing of new rules the rule making authority could take a decision either to fill up the vacancies on a temporary basis or not to effect appointments at all. Appointees would not acquire any vested right since they are governed by the policy decision taken by the Government, pending framing of rules, in the instant case the rule making authority has taken a conscious decision not to effect any appointment to various Panchayat schools in accordance with the Kerala Panchayat (Spread of Education) Rules 1964 or in accordance with Rule 1(3) of the Kerala Education Rules pending finalisation of rules. Consequently the petitioners are not entitled to the benefit of Rule 51-A of Chap.XIV-A of the K.E.R. Rule making authority has also not validated the various temporary appointments effected by the Panchayat in the interregnum

70. The Division Bench in Sasikala v. Vrindha, (2001 (2) KLT 278) took the view Rule 49 would apply if the vacancy is not permanent. The Bench also took the view that Rule 51A would not apply when a person is appointed to a permanent vacancy temporarily. I find it difficult to subscribe to the view. If Rule 49 so interpreted it will lead to anomaious situation. For example if a teacher is appointed to a permanent post (vacancy) like vacancy occurred due to retirement, death etc. would not get this benefit, at the same time a teacher works in a short term leave vacancy and then get relieved would get the benefit. The legislature would not have envisaged such a situation. Rule 49 has used the expression “vacancies which are not permanent” and not “posts which are not permanent”. Vacancy means an unoccupied post or office. The Apex Court in R.K. Sabharwal v. State of Punjab ((1995) 2 SCC 745) examined the meaning of the words post and vacancy and held as follows:

“The expressions ‘post’ and ‘vacancies’, often used in the executive instructions providing for reservations, are rather problematical. The word ‘post’ means an appointment, job, office or employment; a position to which a person is appointed. ‘Vacancy’ means an unoccupied post or office. The plain meaning of the two expressions makes it clear that there must be a ‘post’ in existence to enable the ‘vacancy’ to occur.

The word ‘vacancy’ used in Rule 49 means, an unoccupied post whether temporary or permanent. I also therefore endorse the view that Rule 51-A covers the cases of persons appointed against temporary as well as permanent vacancies.

71. Learned Chief Justice while examining the scope of Rule 51-A has opined that Rule 51-A speaks of only preference and not reservation and a liberal construction of Rule 51-A would attract criticism of it being violative of Articles 14 and 16 of the Constitution of India. On a reading of Rule 51-A in its entirety, in my view, what the rule making authority has envisaged, is not a mere preferential treatment for appointment of those qualified teachers who are relieved as per Rule 49 or Rule 52 or on account of termination of vacancy but actually rule of reservation. Note 1 to Rule 51-A states that if there are more than one claimant under Rule 51-A the order of preference shall be according to the date of first appointment. If the date of first appointments is the same then preference shall be decided with reference to age, the older being given first preference. In making such appointment due regard should be given to the requirement of subjects and to the instructions issued by the Director under Sub-rule (4) of Rule 1. Note 2, which was introduced by G.O.(P)55/77/G.Edn dated 23.3.1977 and published in the Government gazette dated 26.4.1977 obliges the Manager to issue order of appointment to the teacher by registered post acknowledgment due and give a period of fourteen clear days to the teacher to join duty. If the teacher does not join duty the Manager should give further notice to the teacher stating that another person would be appointed instead and that the preferential right under the rule would be forfeited if not exercised within another seven days. If nothing is heard during that time also, preferential right under the rule will be regarded as forfeited. The expression “preference” used in Rule 51-A is not in the ordinary sense like priority or a favoured treatment or a weightage. Qualified teacher who is relieved under Rule 49 or under Rule 52 or on account of termination of vacancy is not expected to compete with others from open market. Such a situation has not been envisaged by the rule making authority when Rule 51-A was enacted or when Notes 1 & 2 were introduced to Rule 51-A. In my view, Rule 51-A read along with Notes 1 and 2 confers qualified teachers who are relieved as per Rule 49 or Rule 52 or on account of termination of vacancy a statutory legal right to claim appointment in future vacancies in the school under the same educational agency or an educational agency to which school was subsequently transferred provided they have not been appointed in permanent vacancies in schools under any other Educational Agency. This legal position has been well settled by a catena of decisions of this court, such as Gopalakrishnan Nair v. D.E.O. (1988 (1) KLT 644), Hymavathy v. Addl. Secretary, (1988 (2) KLT 71), Sobhana v. Manager

Cholapurath A.U.P.S (1997 (2) KLJ 700), State v. Elsy (1987 (2) KLT 882), Mary George v. State of Kerala (1999 (3) KLT 912), Anilkumar v. Beena (2000 (1) KLT 286) and Usha Ratnam v. State of Kerala (2001 (3) KLT 161), with which I concur.

72. The question however, to be considered is whether the above mentioned statutory right if conferred on the petitioners would violate Articles 14 and 16(1) of the Constitution of India. Rule 1(3) of Chap.XIV-A is extracted below for easy reference.

1(3). Subject to Rule 51A, candidates advised by the Kerala Public Service Commission shall be appointed as teachers in Schools managed by local self Government institutions.

The rule making authority vide Rule 1(3) of Chap.XIV-A KER has decided that the appointment of teachers in schools managed by local self government institutions would be by Kerala Public Service Commission. The object is laudable, but made subject to Rule 51-A. I may examine whether that rider would violate Article 14 and 16 of the Constitution of India if the intention is to effect appoint candidates otherwise than through Public Service Commission. The right conferred by Article 14 postulates that all persons similarly circumstanced should be treated alike both in privileges conferred and liabilities imposed. Article 14 enjoins the State not to deny any person equality before the law or the equal protection of the laws. If Rule 1 (3) of Chap.XIV-A allowed to stand by effecting appointment otherwise than through Public Service Commission, it will create two types of teachers in the various Panchayat Schools in the State. One group of teachers appointed on the advice given by P.S.C. and the other group of persons appointed by a Committee from those teachers who are relieved under Rule 49 or 52 or on account of termination of vacancies. Reasonable classification is permissible under the equality clause provided the classification made should be based on intelligible differentia and there should be a nexus in such differentia with the objects sought to be achieved by the particular law. I am of the view the object sought to be achieved by the rule making authority leaving the appointments of teachers of the Panchayat Schools to Public Service Commission would be effectually defeated if another set of persons like the petitioners who happened to work in the Panchayat Schools for aperiod in a permanent or temporary vacancy are appointed. In order to consider the question as to the reasonableness of the distinction and classification, it is necessary to take into account the objective for such distinction. Every State action in order to survive, must not be susceptible to the vice of arbitrariness which is the basis of Article 14 and the rule of law, the system which governs us. The object behind leaving appointment to the Public Service Commission, a constitutional body is to see the appointment must be transparent and competitive. Article 16(1) guarantees equality of opportunity for all citizens in the matter of employment or appointment to any office under the State. In the matters relating to public employment the only requirement to be complied with is the mandate of Articles 14 and 16 of the Constitution. The eligible candidate has a right to have his case considered in accordance with law.

73. I am of the view the mere fact that a few of the persons like the petitioners could function for a few months in a Panchayat School shall not confer any legal right on them for future appointment defeating the rights of rests of the citizens who are equally eligible and competent to stand for the selection through Public Service Commission, There is no intelligible differentia between those persons who are seeking the benefit under Rule 51-A and those who are seeking appointment through Public Service Commission. In order to pass test of permissible qualification a candidate has to show that the classification must be founded on an intelligible differentia which distinguishes persons or things which are grouped together from others left out of the group and that the differentia must have a rational relation to the object sought to be achieved by the statute in question. I have therefore no doubt in my mind that rule of Chap.XIV-A of the K.E.R. if made subject to Rule 51A by giving benefit to those appointed otherwise than through Public Service Commission would defeat the purpose of social justice which is sought to be achieved by the Constitution (Seventythird Amendment) Act 1992.

74. My conclusions in view of the above mentioned discussions are as follows:

1. Rule 51A covers the cases of persons appointed against temporary as well as permanent vacancies. I am in agreement with the learned Chief Justice that the Bench decision of this Court in Sasikala’s case does not embody the correct enunciation of law. To that extent the said decision would stand overruled.

2. Rule 51A read along with Notes 1 and 2 confers a statutory right for appointment to those qualified teachers who are relieved as per Rule 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 they have not been appointed in permanent vacancies in schools under any other Educational Agency and not a mere preference, weightage or priority.

3. The amendment effected to Rule 1(3) of Chap.XIV-A entrusting the appointment of teachers in schools managed by the local self Government to Public Service Commission is upheld.

4. Statutory right accrued under Rule 51-A of Chap.XIV-A would be available only to those teachers who have been appointed in Panchayat schools through Public Service Commission. However, if any person is appointed in Panchayat school otherwise than through Public Service Commission that person would not get the benefit of Rule 51-A since the same would be violative of Articles 14 and 16 of the Constitution of India.

5. The Government Order dated 6.10.1995 is upheld. Rule making authority have taken a conscious decision to effect appointment pending framing of rules. Such decision of the rule making authority is sustainable in law and no legal rights have been conferred on the appointees on the basis of the Government Order dated 6.10.1995.

In view of the above, we hold that:-

(1) The order dated October 6, 1995 passed by the Government is valid.

(2) The persons appointed in terms of the order dated October 6, 1995 are not entitled to the benefit of Rule 51A.

(3) Rule 51A gives a statutory right to the teachers, whose services are terminated in accordance with Rules 49, 52 or on account of termination of vacancies, for preference for appointment to future vacancies in schools under the same educational agency or an educational agency to which the school was subsequently transferred. However, this preference shall not be available to a teacher who has been appointed in a permanent vacancy in schools under another educational agency. (As per majority.)

(4) The benefit under Rule 51A is available to teachers appointed on the advice of the Public Service Commission in schools established and maintained by Panchayats.

(5) The judgment in Sasikala’s case (supra) does not lay down the correct principle of law insofar as it has been held that Rule 51A does not depict a situation where a person was appointed to a permanent vacancy temporarily.

75. As a result of the above, the Writ Appeals filed by the managements are allowed and the cases filed by the teachers are dismissed.