JUDGMENT
S. Sankarasubban, J.
1. W.A. Nos. 32 and 43 of 2000 are filed against the judgment in O.P. No. 26325 of 1999. W.A. No. 43 of 2000 is filed by the Secretary, Vamanapuram Grama Panchayat, while W.A.No. 32 of 2000 is filed by one Sasikala, who filed the appeal after getting leave from this Court. W.A. No. 2789 of 2000 is filed against the judgment in O.P. No. 7419 of 2000.
2. As already stated W.A. Nos. 32 and 43 of 2000 arise out of O.P. No. of 1999. There, the petitioners are P.S. Vrindha Juli S. Nair. The first petitioner in the Original Petition was appointed as Upper Primary School Assistant from 6.11.1996 to 31.3.1997 against a retirement vacancy of one Mary George in Anakudy U.P.S. under the management of the Vamanapuram Grama Panchayat. The second petitioner was appointed as Upper Primary School Assistant from 8.11.1996 to 31.3.1997 against a retirement vacancy of one P. Radhamani Amma in the same school under the management of the Vamanapuram Grama Panchayat.
3 . The above two appointments were approved by the Educational Authorities. According to the petitioners, they were selected for appointment by a duly constituted Selection Committee, which consisted of Deputy Director of Education and the District Panchayat Officer, Thiruvananthapuram. The vacancies to which the petitioners were appointed were permanent vacancies. Hence, they could have continued in the vacancies. But their services were terminated on 31.3.1997 by the Headmaster. This was based on G.O. (MS) No. 218/95-LAD dated 6.10.1995, copy of which is produced an Ext. P5 in the case. In Ext. P5, it is stated that 19 High Schools, 29 Upper Primary Schools, 63 Lower Primary Schools are functioning under the management of various Panchayat in Kerala. The appointments in the Panchayat Schools are based on the Kerala Panchayat (Spread of Education) Rules. The Panchayat is treated as the Educational Agency and the Secretary is treated as the Manager. Teachers are appointed after getting approval from the Employment Exchange. The Government has decided to entrust the selection of teachers to the Public Service Commission. But for implementing this, the Kerala Education Rules and the Kerala Panchayat (Spread of Education) Rules have to be amended. Since it will take some time to make the appointments, directions have been issued to make temporary appointments. It is stated in the order that till amendments are made, the appointments will be made from the candidates sponsored by the Employment Exchange. The Deputy Director and the District Panchayat Officer will be the members of that Committee. The appointments will be purely on temporary basis. It is made clear that the Rules regarding temporary appointment in private management is not applicable. It is on the basis of Ext. P5 that the appointments were made temporarily, even though the posts were permanent. The prayers made in the Original Petition are for a direction to the respondents calling for the records leading to Exts. P3, P4, P5, P8 and P10 and to quash the same and to issue a direction to the third respondent to re-appoint the petitioners as Upper Primary School Assistant in Anakudy U.P.S. and for other reliefs.
4. W.A. No. 2789 of 2000 is filed against the judgment in O.P. No. 7419 of 2000. There are seven petitioners in the Original Petition. The prayers in the Original Petition are for an appropriate writ or direction quashing the Government Order dated 6.10.1995, copy of which is produced as Ext. P2 and for a declaration that the petitioners having been appointed in permanent sanctioned posts, are entitled to continue to work as HSAs in their retrospective Schools beyond 31.3.2000 and to get approval thereof in unbroken continuity of the approval already granted to them as per Exts. P5 to P11 and to declare that they are entitled to all service benefits and for other reliefs.
5. O.P. No. 26325 of 1999 was disposed of by Rajan, J. The question actually argued before the learned Single Judge was whether the persons, who were appointed temporarily were entitled to the benefit of R. 51A of Chapter XIV(A) of the Kerala Education Rules. His Lordship held that R.51A is applicable, to those persons, who were appointed temporarily. Therefore, the third respondent was directed to fill up any vacancy in the School strictly observing R.51A of Chapter XIV(A) of the Kerala Education Rules. In W.A. No. 2789 of 2000, the judgment appealed against is that of Ramchandran, J. His Lordship directed the Authorities to take note of the petitioners’ claim under R.51A.
6. Appeals were preferred by the Secretary of the Panchayat. W.A. No. 32 of 2000 is filed by a person, who was subsequently appointed. Learned counsel for the appellants submitted that it is on the basis of the Government Order dated 6.10.1995 that the temporary appointments were made. It was contended that the Government wanted to change the recruitment policy of teachers of School managed by the Panchayats by entrusting the selection to the Public Service Commission. But that requires amendment of the Act and Rules. Till such Act and Rules are made, the Government directed that the appointments should be made only temporarily and no permanent appointments should be made. It is in the light of the above Government Order that the appointments were made temporarily. Learned Counsel submitted that even if R.51A is applicable to appointments made by Panchayat Schools, on the facts of this case, R.51A is not applicable. Learned counsel for the respondents submitted that the Government Order dated 6.10.1995 is illegal. According to them, the Kerala Education Rules and the Kerala Panchayat (Spread of Education) Rules give necessary Rules for appointing teachers in Panchayat Schools. In so far as these Rules have not been amended, the appointments can be made only as per the Kerala Education Rules. It is further submitted that no temporary appointments can be made for permanent posts. Hence, it was contended that the appointments made for permanent posts should be made permanent. Further, it was contended that even if the appointments are treated as temporary, the petitioners in the Original Petition are entitled to the benefits of R.51A of Chapter XIV(A) of the Kerala Education Rules.
7. So far as the appointments of Schools managed by the Panchayat are concerned, it is governed by the Kerala Panchayat (Spread of Education) Rules R.2 of the above Rule is as follows:
“R.2. Panchayat may establish and maintain schools subject to the provisions of Kerala Education Act, 1958.
(1) A Panchayat 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.
(2) For the purpose of the Kerala Education Act, 1958 and the rules made thereunder such schools shall be considered as Aided Schools. The Panchayat shall be education agency and the Executive Officer of the Panchayat shall be the Manager in respect of such schools.
(3) 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 Kerala Education Act and the rules made thereunder”.
As per this Rule, the schools managed by the Panchayat are treated as aided schools and the Panchayat is treated as the educational agency and the Executive Officer of the Panchayat shall be the Manager. R.1(3) of Chapter XIV(A) of the Kerala Education Rules states as follows:
“Subject to R.51A, the appointment of teachers in Schools managed by Panchayat shall be made from among the qualified hands advised by the Employment Exchange”.
This was amended as per Government Order, G.O. (P) No. 110/2000/G.Edn. dated 3rd April, 2000 stating as follows:
“Subject to R.51A, candidates advised by the Kerala Public Service Commission shall be appointed as teachers in Schools managed by local self Government institutions”.
Thus, the amendment came into force only from 3.4.2000. Before the amendment, candidates to be appointed to the Panchayat Schools are to be sponsored by the Employment Exchange. In other respects, the Rules in the Kerala Education Rules are to be followed. There is no dispute in both these cases that the appointment shall be for a fixed period and it was said to be a temporary appointment. It is also admitted that the post to which the petitioners are appointed were permanent posts and vacancies arose because of retirement of certain persons. So, the vacancies are permanent. But the appointments were made only temporarily for a fixed period.
8. The first question for consideration is whether after the period is over and since the posts are permanent, the petitioners are entitled to the benefit of R.51A of Chapter XIV(A) of the Kerala Education Rules. R.51A of Chapter XIV(A) of the Kerala Education Rules states as follows:
“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, provided they have not been appointed in permanent vacancies in schools under any other Education Agency”.
As per R.51A, teachers, who are relieved under R.49 or R.52 or on account of termination of vacancies shall have preference for future appointments, provided they have not been appointed in permanent vacancies in the schools under any other Educational agency. Thus, the teachers appointed should have been relieved as per R.49 or R.52 or on account of termination of services. As per R.49, 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. Admittedly, in this case, vacancies are permanent and hence, R.49 does not apply. R.52 deals with a situation where a teacher is relieved on account of reduction in the number of posts. That also does not apply in this case. Then the question is whether the teacher is relieved on account of termination of vacancies. The learned single Judge held as follows: “If the argument of the third respondent is accepted, no teachers who were appointed for a short duration in permanent vacancies will not get the benefit of R.51A. I do not think that such an interpretation is possible in this cases. As already noticed, such narrow interpretation will definitely defeat the very purpose of R.51A, which gives the right of reappointment to teachers who were appointed temporarily for a short duration. Therefore, I am of the definite view that a combined reading of the Kerala Panchayat (Spread of Education) Rules, R.1(3) of Chapter XIVA K.E.R. and R.51A, it cannot be said that the teachers appointed in the Panchayat Schools are entitled to the benefit of R.51A of Chapter XIVA K.E.R.” With great respect, we are not able to agree with the interpretation given by the learned Judge. It is one of the cardinal principles of interpretation that in case there is no ambiguity, the statute or rules should be interpreted as per the words in the statute. R.51A has been enacted for the purpose of providing preference for teachers, who are appointed in the vacancies which were not permanent or which stood abolished or which ceased to exits. R.51A does not depict a situation where a person was appointed to a permanent vacancy temporarily. Here, the vacancy is not temporary. It is permanent vacancy. The question whether the Panchayat can appoint a temporary teacher is a different question. According to us, going by R.51A vacancies to which the petitioners are appointed could not be said to be vacancies mentioned in R.51A. There is no termination of vacancy, as envisaged under R.51A.
9. No doubt, R.1(3) of Chapter XIV(A) says that R.51A applies to Panchayat Schools also. It is true that R.51A applies. But in the facts of the case, we are of the view that the petitioners who were appointed on a short duration in permanent vacancies are not entitled to the benefit of R.51A. The judgment of the learned Single Judge to the above extent is modified.
10. The next question which was argued before us is that the Government Order dated 6.10.1995 is illegal and therefore the petitioners should be deemed to be appointed in the permanent vacancies and their appointment for short duration is illegal. The Government Order dated 6.10.1995 speaks of entrusting the selection of teachers to Panchayat Schools through Public Service Commission. Of course, that Government Order itself says that it will take further time, since the amendments have to be made to the Kerala Education Rules, Kerala Panchayat (Spread of Education) Rules, etc. It is even stated that the Rules have to be promulgated under Art. 320 of the Constitution of India for entrusting the selection to the Public Service Commission. It is true that by the Government Order, the Government cannot resort to selection through Public Service Commission unless the amendments are made to the relevant rules. As a matter of fact, it is not resorted to in these cases. But the Government Order further says that till the Government makes provisions for selection through the Public Service Commission, the appointments shall be made by the Panchayat and the appointments shall be made only temporarily. It is in pursuance of the directions in the above Government Order that the Panchayat appointed persons temporarily.
11. According to us, the petitioners in these cases are estopped from challenging their temporary appointments. They knew that the selection was made as per the new Government Order. Even at the time of selection and appointments, the candidates knew that the vacancies were permanent. But as per the directions of the Government, the appointment ought to be made only temporarily. In such a situation, according to us, the petitioners are not entitled to challenge their appointments for short duration on the principle of estoppel. As was stated in University of Cochin v. N.S. Kanjoonjamma, 1997 (4) SCC 426, “In fact, the first respondent also had applied for and sought selection but remained unsuccessful. Having participated in the selection, she is estopped to challenging the correctness of the procedure.” There are a number of decisions on this aspect. So, first of all, we state that the petitioners cannot now come and challenge their appointments. If the appointments are to be made permanent, many more would have applied.
12. The second aspect is that for the laudable object of entrusting the selection to an impartial agency, it was decided that the selection should be entrusted to the Public Service Commission. But it will take some time to make necessary amendments, it is directed the Panchayat to make appointments only temporarily. Can it be said that such a direction is against the Rules of the Kerala Education Rules or the Kerala Panchayat (Spread of Education) Rules. According to us, there is no prohibition in the Kerala Education Rules or the Kerala Panchayat (Spread of Education) Rules to make appointments temporarily. After all it is left to the discretion of the Appointing Authority as to whether a vacancy should be filled up permanently or temporarily or provisionally. R.9A of the Kerala State and Subordinate Services Rules enables the Government to make provisional appointments when the selection by the normal method is not possible. In the same way according to us, there is nothing wrong in the Panchayat making the appointments temporarily, especially when the Government thought that permanent appointments should be made only through the Public Service Commission as there were many complaints against the selection by the Panchayat. Hence, we reject the contention that the appointments cannot be made temporarily. But we don’t think, this present position can continue for a long time. The Government should take a decision immediately as to whether it is entrusting the selection and appointments in the Panchayat to the Public Service Commission. If that be so, necessary amendments to make selection through the Public Service Commission should be made within two months from today. If such a procedure is not made within two months from today, the Panchayat can make appointments permanently as per the existing Rules. Since we have already held that those who were appointed temporarily after the Government order dated 6.10.1995 are not entitled to preference under R.51A when fresh appointments are made for permanent posts by the Panchayat, no preference can be given to such persons. But such persons can apply for the post. We are told that in some of the cases, the existing persons appointed were allowed to continue and in some other cases, during the pendency of the cases, temporary appointments have been made. We make it clear that the temporary appointments made by the Panchayat will continue for the period for which they were appointed. Those appointed as per the orders of this Court or continuing as per the order of this Court will be allowed to continue till 31.3.2001. If the Government does not lay down the policy for selection through the Public Service Commission within two months from today, the Panchayat shall make appointments to those permanent posts. As the teachers have been working either on the basis of the temporary appointments by the Panchayat or by the orders of this Court, they will be entitled to salary for the period they continued in the post.
Writ Appeals are disposed of as above.
After the judgment was pronounced, some of the counsel appearing in these cases and the connected matters, submitted that the Panchayat may ignore their experience in future appointments. We make it clear that we have only held that the petitioners will not have any preference under R.51A for future appointment. This does not mean that the petitioners’ experience will not be taken into account by the Panchayat.
