Kerala Education Rules | Teachers Working On Leave Vacancy Do Not Have Preferential Right Of Appointment To Permanent Vacancy: High Court
Court observed that benefit under Rule 51A of the Rules is available only for teachers who had been 'relieved' on termination of vacancy.
The Kerala High Court on Friday held that regularization of appointments made in leave vacancies, in preference to their juniors, could be only be availed by teachers who had been 'relieved' as per Rule 49 or Rule 52 or on account of termination of vacancies and later accommodated in leave vacancies, in terms of Rule 52 of the Kerala Education Rules. The Division Bench comprised of Justice...
The Kerala High Court on Friday held that regularization of appointments made in leave vacancies, in preference to their juniors, could be only be availed by teachers who had been 'relieved' as per Rule 49 or Rule 52 or on account of termination of vacancies and later accommodated in leave vacancies, in terms of Rule 52 of the Kerala Education Rules.
The Division Bench comprised of Justice P.B. Suresh Kumar and Justice C.S. Sudha while observing so, further went on to hold that when a person, who had been appointed on there having arisen a leave vacancy, and thereafter was permitted to continue without break during the extended period of leave, there would not have arisen any occasion for such a person to be 'relieved'. In such a scenario, he/she could not be said to be a 'claimant' in terms of Rule 51A of Chapter XIVA of the Rules, and thus would not have any preferential right of appointment, either.
"...the provision is not intended to confer a claim for preferential appointment to persons who are already working, but intended only to confer a claim for preferential appointment to those teachers who were relieved in the contingencies mentioned in the provision and remaining unemployed", it was observed.
In the instant case, there were two writ petitions filed before the Court, which involved similar questions.
As per the factual background of the case, the petitioner had been appointed as Lower Primary School Assistant (LPSA) in A.M.Upper Primary School, Punnathala, in a leave vacancy that had arisen on June 1st 2009, which continued for a period upto October 10th, 2010, although the appointment was not initially approved by the Education Officer. This was later extended to October 10th, 2015, when the leave of the erstwhile employee was also extended. This extension of appointment by the issuance of another order was also not initially approved by the Education Officer. This was then taken up in appeal before the District Educational Officer, who also rejected the same, by the Manager. Subsequently, the decision of the District Educational Officer was challenged by the Manager and the petitioner before the Director of Public Instruction in separate appeals, which directed the Education Officer to approve the same if the same was in order. Pursuant to this, the appointment of the petitioner was approved by the Educational Officer for the relevant period.
At this juncture, when a permanent vacancy arose to the said post, the Manager appointed the fifth respondent herein, who was a Peon in the School since 10.7.2006, in the said vacancy, as according to the Manager, she was entitled to be considered for appointment against the said permanent vacancy in terms of the provisions contained in the Kerala Education Rules. This was challenged by the petitioner in revision, and the Government also directed the Education Officer to appoint the petitioner instead of the fifth respondent.
The Court in this case, asked the Government to ascertain whether the petitioner is a Rule 51A claimant, and the latter, not having found so, cancelled the order and issued another directing the Educational Officer to approve the appointment of the fifth respondent in the vacancy which arose on 24.11.2010. It is this latter Order which has come up before the Court in challenge in the two writ petitions - one filed by the petitioner aggrieved by the said order, and the other by the fifth respondent seeking the Educational Officer to implement the order in a time bound manner.
It was averred by the counsel for the petitioner, Advocate K.T. Shyamkumar, that the petitioner was entitled to be considered for appointment against the permanent vacancy which arose in the School on 24th November 2010 as he was a claimant in terms of Rule 51A of Chapter XIVA of the Rules. The petitioner contended that there were two vacancies which arose, one from 01.06.2009 to 10.10.2010, and the other from 11.10.2010 to 10.10.2015. Since the first vacancy was for a period exceeding one academic year, on termination of the said vacancy, the petitioner acquired a right to get reappointment in terms of Rule 51A of Chapter XIVA, and merely for the reason that he was appointed against another vacancy subsequently, he will not lose that right. It was contended that the vacancy in which he was appointed in terms of Ext.P1 order terminated on 10.10.2010 and that therefore on termination of the vacancy, he became a claimant under Rule 51A of Chapter XIVA on the said date.
The Court in this case delved into the question as to whether the petitioner can be said to be a claimant in terms of Rule 51A of Chapter XIVA of the Rules for appointment against the permanent vacancy of LPSA arose in the School on 24.11.2010. It was found that only qualified teachers who are relieved as per Rule 49 or Rule 52 or on account of termination of vacancies, shall have preference for appointment to future vacancies.
The Court found in the instant case that the appointment made from 01.06.2009 to 10.10.2010, and from 11.10.2010 to 10.10.2015 were not appointments against two separate vacancies, but a single appointment without any break, and thus, there could not be any doubt to the fact that the petitioner would not become a claimant under Rule 51A of Chapter XIVA in respect of the vacancy which arose on 24.11.2010. Further, it was found that the benefit under Rule 51A is conferred only to those teachers who are relieved on termination of vacancy. Since the petitioner was not relieved on the expiry of the period of the initial appointment, but was permitted to continue without break during the extended period of leave of the previous employee, there was thus, no occasion for the Manager of the School to relieve the petitioner on the expiry of the term of appointment in the first appointment order. In this sense, the Court found that the petitioner could not be treated as a 'claimant' in terms of the Rule.
The respondents in the instant petition were represented by Advocates Dr. George Abraham, V. A Muhammed, M. Sajjad, and Senior Government Pleader A.J. Varghese.
Case Title: Sreejith T. v. The Manager, A.M. Upper Primary School & Ors, and Asha P. Vasudevan v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 474