JUDGMENT
J.B. Koshy, J.
1. The appellant in these appeals filed Original Petitions put forwarding his claim under Note 1 to Rule 1(1) of Chapter XIVA of Kerala Education Rules. The above note reads as follows:
“A member of the non-teaching staff under the category of Clerks, Peons, Sweepers and other staff shall also he eligible for appointment as teacher provided he has the prescribed qualifications and that there is no teacher eligible for promotion or for appointment to such post under these rules”.
2. The appellant was appointed as a Peon in the fourth respondent’s school on 3.5.1982. While he was working as a Peon, he obtained TTC certificate also and therefore he became eligible to be appointed as LPSA in April 1996. According to the appellant, since he became eligible to be appointed in the subsequent vacancies, he was entitled to be appointed as a teacher notwithstanding the fact that there are 51A claimants. His claim was rejected by the learned Single Judge mainly following two Division Bench decisions of this Court reported in Reghu v. State of Kerala (2000 (2) KLT 29) and Krishnan v. Muraleedharan (2000 (3) KLT 320). It was further contended by the learned counsel appearing for the appellant that the decision reported in Rajendran v. State of Kerala, (1993 (1) KLT 893) was not considered and also
stated that the above Division Bench decisions requires reconsideration. In the above referred decision (1993 (1) KLT 893), in paragraph 7, it was observed as follows:
“7. Rule 7 of Chap. XXIV-B of the Kerala Education Rules, provides that Rules regarding appointment, promotion, seniority etc. contained in Chapter XIV-A which are applicable to teachers of aided schools shall mutatis mutandis apply to the non-teaching staff in the aided schools. Therefore, one has to refer to the provisions contained in Chapter XIV-A of the Kerala Education Rules to note the provision regarding promotion to the higher category. Note (1) to Rule 1 of Chapter XIV-A provides that a member of the non-teaching staff under the category of Clerks, Peons, Sweepers and other staff shall also beeligible for appointment as teacher, provided he has the prescribed qualification. Rule 43 of Chapter XIV-A further states that vacancies in the higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority. A combined effect of the above provisions is that a qualified Peon, Sweeper or a member of the other staff shall be eligible for appointment as Clerk. So also, a Clerk, Peon, Sweeper or other staff shall also be eligible for appointment as teacher. The only condition to be satisfied by them is that they must have the prescribed qualification for that post. An identical view was taken by one of us (Sreedharan, J.) in Stella v. State of Kerala (1992 (2) KLT 533). The above mentioned statutory provisions cast a legal duty on the Managers of the aided schools to promote the qualified member of the staff in the above mentioned categories to the highercadres. For giving promotion to those qualified members of the staff, they need not put in any application to the Manager. It is the Managers’ duty to give, them the promotion. Viewed in this light, we find it difficult to accept the contention raised by the appellants that Sathy was not entitled to be promoted to the post of Clerk, which post was sanctioned with effect from 2.6.1986, without an application having been filed by her. Manager of the school was legally bound to promote Sathy to the post of Lower Division Clerk. Therefore, we overrule the second and third contentions raised by the appellants”.
3. In the above case, the Division Bench was considering the case of a Peon for
promotion as Lower Division Clerk and not to the teaching category and was not
considering to the post of a teacher against the claim of a 51A claimant who was a
previous teacher working in the school. The above decision is therefore not in conflict
with other decisions. Those decisions only say that if there is an eligible person to be
appointed and promoted as teacher, in view of the specific conditions in Note 1, the
subordinate staff will be entitled to promotion, in the absence of eligible teachers. In
otherwords, a member of the non-teaching staff will get entitlement for appointment
as a teacher only in the absence of a teacher eligible for promotion or appointment. In
this case, it is hot disputed that respondents were appointed in the vacancies occurred
after the petitioner attained! qualification. Though they were not working as teachers
at that point of time, they were teachers and they had 51A claim. Only after satisfying
that, the claim of subordinate staff can be considered on the basis of Note 1 to Rule 1(1).
Arijith Pasayat, Chief Justice (as he then was) held in Reghu v. State of Kerala
(2000 (5) KLT 29) as follows:
“Eligibility for appointment in respect of a person with prescribed qualifications is hedged by two conditions i.e., (1) there must not be any other teacher eligiblefor promotion; and (2) there is no other teacher eligible for appointment to such post under the Rules. As promotion is one of the methods of appointment, appellant’s case has to be considered in the background as to whether there was any other teacher eligible for appointment to the post under the Rules. As has been indicated in Note (1) to Rule 43, a teacher with prescribed qualification can claim appointment by promotion to a post in a higher grade in different category, provided there is no teacher with the prescribed qualification in the lower grade of pay of the very same category of post to which promotion is sought. Similarly, a member of the non-teaching staff with prescribed qualification can claim appointment as a teacher provided the two conditions referred to above are satisfied. We find no substance in the plea of appellant that while considering his case under Rule 43, provisions contained in Note (1) to sub-r. (1) of Rule 1 have to be kept aside; A claimant under Rule 51A is also a teacher. Therefore, in the background of Note (2) to Rule 51 A, a teacher contemplated under Sub-rule (1) of Rule 1 also covers a Rule 51A claimant.
9. Another plea urged by the appellant is that a teacher eligible for appointment should be one who is already in the services of the school. Such a plea has no substance as Note (1) nowhere provides that the eligibility for appointment shall be in respect of one who is already in the services of the school. A teacher who had worked for sometime and had to be relieved either under Rule 49 or Rule 52 does note case to be a teacher for the purpose of the Note. Such a person is encompassed by the expression “teacher” in Note (2) of Rule 51 A. We are therefore in agreement with the view expressed by learned Single Judge that in the matter of appointment to the post of a teacher, claimant under Rule 51A has to be preferred to a member of a non-teaching staff with prescribed qualifications.”
We are in perfect agreement with the above views as facts are identical.
Therefore, we see no ground to defer from the view taken by the Single Judge. Hence, both the Writ Appeals are dismissed.