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Smt. Mary Oommen vs Manager, M.G.M. High School, … on 25 February, 1987

Supreme Court of India
Smt. Mary Oommen vs Manager, M.G.M. High School, … on 25 February, 1987
Equivalent citations: 1987 AIR 1163, 1987 SCR (2) 436
Author: V Khalid
Bench: Khalid, V. (J)
           PETITIONER:
SMT. MARY OOMMEN

	Vs.

RESPONDENT:
MANAGER, M.G.M. HIGH SCHOOL, KURUPPAMPADDY,KERALA & ORS.

DATE OF JUDGMENT25/02/1987

BENCH:
KHALID, V. (J)
BENCH:
KHALID, V. (J)
OZA, G.L. (J)

CITATION:
 1987 AIR 1163		  1987 SCR  (2) 436
 1987 SCC  (2) 214	  JT 1987 (1)	559
 1987 SCALE  (1)437


ACT:
    Kerala     Education     Rules--Chapter	XIV(A)--Rule
51(A)--Teacher--Appointment to a permanent vacancy--Scope of
Note  appended to section--Whether a teacher who had  worked
in a temporary vacancy earlier has a preferential right over
a teacher who worked later in the same school.
    Statutory  Interpretation--Note to a Rule--Although	 not
having binding effect has persuasive force.



HEADNOTE:
    Rule  51(A)	 of Chapter XIV(A) of the  Kerala  Education
Rules  provided that qualified teachers who are relieved  as
per Rules 49 or 52 or on account of termination of vacancies
shall have preference for appointment to future vacancies in
schools under the same Education Agency. A Note was appended
to  this Rule on 4.7.1972 which provided that if  there	 are
more  than  one claimant under this Rule the  order  of	 the
preference shall be according to the date of first  appoint-
ment.  If  the date of first appointment is the	 same,	then
preference shall be decided with reference to age, the older
being  given the first preference. In making  such  appoint-
ment, due regard should be given to 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.
    The appellant, who was duly qualified, was appointed  as
a teacher in a temporary vacancy in the school of the  first
respondent  from 13.1.1970 and her appointment was  approved
by the District Educational Officer, the second	 respondent.
On the vacancy being ceased to exist she went out of job  on
16.3.1970.  She	 again	worked in  a  further  vacancy	from
22.8.70	 to  17.12.1970. She went out of service  when	this
vacancy ceased. Respondent No. 4, another teacher, worked in
the  same school in another leave vacancy from	1.9.1970  to
26.11.1970.
    In	the academic year 1971-72 a permanent vacancy  arose
for  Social  Studies. The appellant being a  Social  Studies
teacher	 made a representation claiming appointment  against
that vacancy. But the first
437
respondent  appointed  the 4th respondent.  On	a  complaint
being made by the appellant, the second respondent found the
appointment  of the 4th respondent irregular and  held	that
the  legitimate	 claimant  for the permanent  post  was	 the
appellant and, therefore, did not approve the appointment of
the  4th respondent. The Regional Deputy Director of  Public
Instructions,  respondent No. 3, allowed the appeal  of	 the
management. The appellant filed a petition under Article 226
challenging  the validity of the order passed by  the  third
respondent, inter alia, contending that she had a  preferen-
tial  claim and that the appointment of the  4th  respondent
was illegal.
     A	Single	Judge dismissed the petition on	 the  ground
that  Rule  51(A)  conferred a right on	 the  appellant	 for
appointment in the future vacancies in the school and it did
not  restrict  the right of the management to make  his	 own
choice	among  the thrown out teachers. The  Division  Bench
also dismissed the appeal preferred by the appellant.
     On	 the question whether a teacher who had worked in  a
vacancy	 earlier has preferential right over a	teacher	 who
worked later in the same school, allowing the appeal,
     HELD:  l.	Rule 51(A) of Chapter XIV(A) of	 the  Kerala
Education  Rules  does not mandate that the one	 who  worked
earlier	 should	 be preferred to the one who  worked  later.
[441B]
       2.1 Although a Note to a Rule does not have any	bind-
ing effect, it does indeed have a persuasive force. [441E]
     2.2  It cannot be ignored that the Note has come as  an
appendage to Rule 51(A) for qualificatory purposes though it
does not form a part of the Rule. [441F]
     3.	 The  preference in Rule 51(A) should  be  based  on
priority of title. [442G]
     4.	 The  High Court while interpreting Rule  51(A)	 was
influenced  more by the words in the abstract  contained  in
the  Rule and not fairness behind the Rule. The	 interpreta-
tion  given  by the High Court to this Rule  can  result  in
abuse  of  discretionary power with the management.  If	 the
Government  wanted to clothe the Manager with the  power  to
choose among rival contendors to a future vacancy, the	Rule
should be suitably amended. [443C-D]
438
    5. The Rule as it stands clearly confers priority to the
earlier appointee. The appellant, therefore, is entitled  to
succeed. The appellant will be entitled to all the  benefits
as  though  she was appointed when the vacancy	in  question
arose. However, this will not enable her to draw salary	 for
the  period she had not worked but only other benefits	such
as seniority, increments etc. [443D-F]



JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1284 of
1973.

From the Judgment and Order dated 18.1. 1973 of the
Kerala High Court in transfer petition No. 45 of 1972.
G. Vishwanath Iyer and N. Sudhakaran for the Appellant.
P.K. Pillai and Miss Lily Thomas for the Respondents.
The Judgment of the Court was delivered by
KHALID, J. This appeal by special leave is directed
against the Judgment dated 18-1-1973, passed by the High
Court of Kerala in Writ Appeal No. 45 of 1972.
This appeal involves the correct interpretation and the
scope and effect of Rule 51(A) of Chapter XIV-A of the
Kerala Education Rules. The Rule reads as follows:

“51-A. Qualified teachers who are relieved as
per Rules 49 or 52 or on account of termina-
tion of vacancies shall have preference for
appointment to future vacancies in schools
under the same Education Agency, provided they
have not been appointed in permanent vacancies
in schools under any other Educational
Agency.”

This Rule gives a teacher, discharged for want of vacancy or
relieved as per Rule 49 or 52, a right to reappointment when
a future vacancy comes into existence. It is usual for
managers of schools to appoint teachers to leave vacancies.
Sometimes more than one teacher get so appointed when there
are more than one vacancies. When such vacancies cease to
exist by the permanent incumbent coming back, the temporary
appointees go out. When thereafter a permanent vacancy
arises, those who had temporarily worked in leave vacancies
get pre-

439

ference to be appointed to that vacancy. The question in
this appeal is whether the Manager who has to appoint a
teacher to a permanent vacancy has to go by the rule of
“last come–first go”, to use the usual industrial jargon,
in reverse, or whether the Manager has a right to choose
between the temporary teachers, ignoring the principle
usually accepted that a person who gets a right to a post by
virtue of earlier appointment should not be ignored in
preference to a person who gets such title later. Before
dealing with this case it will be useful to take note of a
Note to Rule 51(A) which reads as follows:

“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 refer-
ence to age, the older being given the first
preference. In making such appointment, due
regard should be given to 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.”

This note gives the correct guideline based on justice and
fair play.

Now, we will briefly state the facts. The appellant is a
B.A., B .Ed. degree holder. She is fully qualified to be
appointed as a teacher in any Government or aided school in
the State of Kerala. She was appointed in a temporary vacan-
cy in the school of the first respondent, from 13-1-1970 to
16-3-1970, in the academic year 1969-70. The appointment has
to be approved by the District Educational Officer, the
second respondent herein, which was duly done. Since the
vacancy in which the petitioner was working ceased to exist.
She went out of the job on 16-3-1970. A further vacancy
arose on 22-8-1970 and it continued till 17-12-1970. She
worked in this vacancy also. She went out of service when
this vacancy ceased. Respondent No. 4 is another teacher who
worked in the same school in another leave vacancy, from 1-
91970 to 26-11-1970. The appellant thus had a total service
of six months and one day while the 4th respondent had 2
months and 25 days of service, under the 1st respondent.
A permanent vacancy arose in the school for the academic
year 1971-72, for Social Studies when the Head Master in
that school retired. The appellant made a representation to
the Manager for being appointed against that vacancy. The
1st respondent appointed the 4th respondent. The appellant
is a Social Studies teacher. She thereupon
440
complained to the second respondent. The second respondent
found the appointment of the 4th respondent irregular and
held that the legitimate claimant for the permanent post was
the appellant. On this finding he did not approve the ap-
pointment of the 4th respondent. The management took the
matter in appeal before the Regional Deputy Director of
Public Instruction, respondent No. 3, who by his order dated
9-11-1971, allowed the appeal. Aggrieved by this order the
appellant moved the High Court of Kerala by filing Original
Petition No. 5064 of 1971, challenging the validity of the
order passed by the 3rd respondent, inter alia, contending
that as per Rule 51(A), of Chapter XIV(A) of the Kerala
Education Rules, she had a preferential claim and that the
appointment of the 4th respondent was illegal.
The learned Single Judge dismissed the original petition
by his Judgment dated 1-2-1972, on the short ground that
Rule 51(A) conferred a right on the appellant for appoint-
ment in the future vacancies in the school and it did not
restrict the right of the management to make his own choice
among the thrown out teachers. The appellant pursued the
matter by filing Writ Appeal 45 of 1972. The Division Bench
dismissed the appeal agreeing with the learned Single Judge
that the management had a discretion to choose among the
thrown out teachers. Hence this appeal by special leave.
Though long years have passed by since this dispute
arose wherefore we would have normally declined interference
with the Judgment under appeal, we think it necessary to lay
down the law correctly to avoid injustice in cases like this
and to prevent abuse of power of those in whom right is
conferred under Rule 51(A). Now, both the appellant and the
4th respondent are working in the same school. Though the
subject to be taught by the appellant and the 4th respondent
figured at one stage as an additional plea before the
learned Single Judge, it is inconsequential for this Judg-
ment, though the learned Single Judge held in favour of the
appellant on the question of the subject.

Let us read the rule in question. This rule speaks of
qualified teachers. Both the appellant and the 4th respond-
ent satisfy this requirement. It speaks of teachers being
relieved as per Rule 49 or Rule 52 or on account of termina-
tion of vacancies. Rule 49 speaks of termination of teachers
after vacation, when the vacancy in which they work extend
over summer vacation and Rule 52 speaks of teachers relieved
on account of reduction in the number of posts under orders
of the department. We are not concerned with these rules.
Here, both the teachers were relieved on account of termina-
tion of vacancies. The
441
Rule states, that such teachers shall have preference for
appointment to future vacancies in schools under the same
Educational Agency. A future vacancy has arisen. The school
where appointment is sought is under the same Educational
Agency. The proviso is not material in this case. All the
conditions for application of this Rule are satisfied. The
only question that has to be answered is whether a teacher
who had worked in a vacancy earlier has a preferential right
over a teacher who worked later in the same school. It is
true that the rule does not in terms, mandate that the one
who worked earlier should be preferred to the one who worked
later. But would it be in accord with justice and fair play,
to prefer the one who worked later to the one who worked
earlier? In the absence of anything in the Rule giving to
the management a right to choose between the two, on the
ground of suitability, merit or effeciency. The Judgment of
the Division Bench under appeal was delivered on 18-1-1973.
The note quoted above was inserted on 4-7-1972. This note
leaves no doubt as to how Rule 51(A) has to be construed.
The Rule states that preference will be given with reference
to the date of appointment. When the date of appointment is
the same, age should prevail; the eider being given the
first preference. Of course, it contains a rider that due
regards should be given to the requirements of subject as
far as High Schools are concerned. The Division Bench did
not choose to accept the clarification contained in the
note. The learned Judges held against the appellant, on the
wording of the Rule that, in terms, it did not provide for
any preference between two or more persons and did not
consider it proper to read more into this Rule by consider-
ing the note to Rule 5 in the same chapter. Although we do
not say that a note to a Rule has any binding effect, it
does indeed have a persuasive force. It cannot be ignored
that this note has come as an appendage to Rule 51(A) for
clarificatory purposes though it does not form a part of the
Rule. The learned Judges held that propriety and fairness
required a decision in favour of the appellant, when they
observed: “It would be proper no doubt to give an earlier
appointee preference. But seeing the rule as we ought to see
every rule and every section in the Kerala Education Rules
and the Kerala Education Act as restrictions or regulations
in the matter of the free right of the manager to choose and
appoint, it is impossible to read more into the rule.”

With respect, we feel that the learned Judges were
influenced more by the words in the abstract contained in
the rule and not with the fairness behind the rule.
The learned Judges of the Division Bench had before them
442
another Division Bench Judgment where the identical rule
fell for consideration. The relevant portion of that Judg-
ment was extracted by learned Judges. We also find it useful
to extract it here:

“5. Very recently, in Writ Appeal No. 44

of 1970, we had occasion to construe Rule 51-
A. And we then observed that despite its
unhappy wording, in particular, the use of the
words, “preference for appointment” to mean
“right to appointment,” we had little doubt
that what the rule meant was that a person
discharged for want of vacancy had a right to
be appointed in future vacancies, provided, of
course, he had not by word or deed given up
that right or, we might now add, disqualified
himself meanwhile. And we added that the
present tense of the words, “are relieved”
appearing in the rule was the present tense of
logic, not of time, so that, in effect, the
rule should be read as if it said “qualified
teachers who stand relieved” shall have pref-
erence. In that view, it is, no doubt. true
that the petitioner’s appointment’s between
1957 and 1961 furnished here with a title to
re-appointment notwithstanding that they were
made before the rule came into force, and it
is at least arguable that where no priority in
preference is prescribed by the rule, priority
should be determined by priority of title. The
question, then, is whether the plea of aban-
donment to donment taken by the 3rd respondent
is well founded.”

The above observation was got over by the Division Bench
with the observation that “it was obiter and are certainly
not intended to be conclusive observations in the matter. If
so, we would have referred this case to a Full Bench.” We
would have been happy if the appellate Bench had referred
this question to a full Bench and resolved the controversy
since the High Court felt that the appellant’s contention
carried with it the element of fair play and justice and was
at least, to put it mildly, in some measure supported by
another Division Bench of the same Court. We agree that the
preference in Rule 51-A should be based on priority of
title. In this case, we do not have a plea of abandonment or
other disqualification.

The learned counsel for the appellant brought to our
notice how this Rule was understood by the Manager of the
same school when another vacancy arose earlier. At that time
also the present appellant applied to the Manager, seeking
appointment in the vacancy conse-

443

quent on the retirement of a Head Master. The Manager de-
clined the request and sent a reply to the appellant, the
relevant portion of which, eloquent in favour of the appel-
lant, reads as follows:

“Rule 51(A) Chapter XIV-A K.E.R. lays
down that qualified teachers who are relieved
on account of termination of vacancies shall
have preference for appointments to future
vacancies. When two persons apply for a post
by virtue of the concession laid down in Rule
51 A, it is the natural justice to select the
persons who has earlier and longer period of
previous service. Hence considering all the
aspects of the question, the management has
appointed Smt. P.E. Sosamma in the said vacan-
cy.”

The Manager then understood the rule correctly, but
later incorrectly. That is why we said earlier in our Judg-
ment that the interpretation given by the High Court to this
Rule can result in abuse of this discretionary power with
the Manager. If the Government wanted to clothe the Manager
the power to choose among rival contenders to a future
vacancy, the rule should be suitably amended. The rule as it
stands clearly confers priority to the earlier appointee.
The appellant, therefore, is entitled to succeed. We set
aside the order of the Division Bench under appeal and allow
this appeal. The appellant will be entitled to all the
benefits as though she was appointed when the vacancy in
question arose. We would like to make it clear that this
direction of ours will not enable her to draw salary for the
period she had not worked but only other benefits such as
seniority, increments etc. The first respondent will pay
costs of the appellant.

A.P.J.						      Appeal
allowed.
444



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