Krishnan, N. vs Muraleedharan, K. and Others

K.K. Usha, J.—Who is a teacher having preferential claim over members of non-teaching staff, referred in Note (1) under Sub-rule (1) of Rule 1 of Chapter XIV-A of the Kerala Education Rules? The learned Single Judge held that a member of non-teaching staff qualified to hold the post of teacher and had approved service as teacher in short term vacancies and has thus acquired claim under Rule 51 A of Chapter XIV-A of K.E.R. would be a ''teacher'' for the purpose of ''Note (1)''. The above decision is under challenge in this appeal.

The dispute is between two enterprising members of non-teaching staff of a private Aided School. A full-time menial, Petitioner in the original petition, in the service of the school managed by the 5th Respondent acquired all the necessary qualifications for being appointed as a lower grade Hindi Teacher on 16th December, 1991. When a regular vacancy of a lower grade Hindi Teacher arose in the school with effect from 1st June 1991, he staked his claim for being promoted to the post. His claim-was ultimately repelled by Ext. P-1 order passed by the Director of Public Instructions in favour of teacher having claim under Rule 51 A of chapter XIV-A. Thereafter a short term vacancy arose from 27th June 1995 to 31st August 1995. The Petitioner who was fully qualified was appointed in the said vacancy. His appointment was approved by order dated 18th December 1995. Thereafter, another vacancy arose in the very same post from 15th July 1996 to 16th September 1996. By the time 6th Respondent in the original petition who was working as a Peon in the school had also acquired necessary qualification. Since the Petitioner had by that time a claim under Rule 51-A, he was appointed in the above vacancy and his appointment was approved by the 4th Respondent.

Later, a regular vacancy arose in the school in the post of lower grade Hindi Teacher on 2nd June 1997. When the Petitioner was appointed in the above post, 6th Respondent filed an appeal contending that he is a claimant under Rule 43 of Chapter XIV-A and therefore he has to be preferred to the Petitioner. The 4th Respondent thereupon allowed the appeal under Ext. P-2 order. Against Ext. P-2 order the Petitioner filed an appeal before the 3rd Respondent. Since Ext. P-2 was being implemented by the Manager, he filed O.P. No. 22770/97 before this Court. This Court disposed of the Original Petition on 19th December 1998 directing the 3rd Respondent to consider Petitioner''s appeal and the Petitioner''s reversion was also stayed until orders are passed in the appeal. Even though from Ext. P-3 judgment 6th Respondent filed W.A. 108/98, it was subsequently dismissed as by that time the 3rd Respondent had already passed Ext. P-4 order on the appeal filed by the Petitioner accepting his claim. The revision filed by the 6th Respondent before the D.P. 1. was dismissed. The matter was then taken up before the Government in a revision petition by the 6th Respondent. Government dismissed the revision petition under Ext. P-7 order. The 6th Respondent had, in the meanwhile, filed an Original Petition before this Court which was disposed of under Ext. P-8 with a direction to the Government to pass orders on the revision petition. Even though petition before Ext. P-8 judgment was brought to the notice of the Government, the revision was again taken up for hearing and by Ext. P-9 order allowed the revision petition filed by the 6th Respondent setting aside the order passed by the D.P.I. Ext. P-9 was challenged by the Petitioner in the Original Petition.

The Government took the view that by applying Note (2) under Rule 1(1) of Chapter XI V-A 6th Respondent who is a Peon has to be preferred to the Petitioner who was a menial. Note (2) under Rule 1(I) reads as follows:

Note.- (2) If there are more than one claimant for appointment as teacher under these categories, preference shall be given in the order of Clerks, Peons, Sweepers and other staff. If there are more than one claimant under a particular category the order of preference shall be according to the date of their first appointment. If their date of first appointment be the same, then preference shall be given with reference to age, the older being given first preference.

The learned Single Judge accepted the contention raised by the Petitioner that in the light of his appointment as lower Hindi teacher on two occasions, he has to be treated as a ''teacher'' having a claim under Rule 51 A of Chapter XIV-A. If that be so, he is entitled to preference over the 6th Respondent in view of the provisions contained under Note (1) under Rule 1(1) of Chapter XIV-A, which reads as follows:

Note.- (1) A member of the non-teaching staff under the category of Clerks, Peons, Sweepers and other staff shall also be 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.

We are in full agreement with the reasoning of the learned Single Judge. Since the Petitioner had already officiated as teacher in the short term vacancy, he gets a claim under Rule 51A of Chapter XIV-A of the K.E.R. This Court has taken the view in Reghu v. State of Kerala 1993 (2) KLT 82 and Reghu v. State of Kerala 2000 (2) KLT 29, that Note (1) does not require that the teacher eligible for appointment shall be one who was already in the service of the school. A teacher who had worked in the school for some time and had to be relieved under Rule 49 or under Rule 52 does not cease to be a teacher for the purpose of the Note. Such a person is referred as a teacher in Note (2) under Rule 51 A. This Court observed that there is no indication in Note (1) under Sub-rule (1) of Rule 1 that the term teacher has to be given a different meaning. It was held that an applicant under Rule 51 A is also a teacher.

A qualified member of a non-teaching staff when appointed in a short term vacancy of a teacher acquires a claim under Rule 51A of Chapter XIV-A of the K.E.R. for further appointment in the next arising vacancy of a teacher. When appointment to such vacancy is taken up, his claim is as that of a teacher and not as a member of non-teaching staff. It is Note (1) that has to be applied and Note (2) has no application under such circumstances.

In view of the above interpretation that has to be given to the provisions in Note (1) under Rule 1(1) of Chapter XIV-A of the K.E.R., the Petitioner has preferential claim ever the 6th Respondent namely, the Appellant in this appeal for being appointed to the regular vacancy of lower grade Hindi Teacher, which arose in the school under the management of the 5th Respondent. A contra view taken by the Government in Ext. P-9 is unsustainable. The learned Single Judge was fully justified in quashing the same.

We find no merit in this appeal. The appeal stands dismissed.