O.N. Gopalakrishnan Nair vs District Educational Officer and Others

V.S. Malimath, C.J.—This case has come before the Division Bench on a reference made by Justice Thomas on the ground that important questions of law have arisen for consideration in this case which merit being decided by the Division Bench. The relevant facts necessary for the purpose of disposal of this case may be stated as follows:

The Petitioner was appointed as a Clerk by Ext. P-1, dated 7th July 1976 by the 3rd Respondent-Manager of B.H. School, Kalady, a school which receives aid from the Government under the Kerala Education Act and Kerala Education Rules. The appointment was for the period from 7th July 1976 to 2nd November 1976, which was duly approved by the District Educational Officer. Thereafter another vacancy to the post of Clerk arose in the year 1981 in which the Petitioner was appointed as per Ext. P-2, dated 21st October 1981 for the period from 21st October 1981 to 2nd January 1982. That appointment was also approved by the District Educational Officer. Subsequently in the same school there occurred a vacancy of peon in June 1984. The 3rd Respondent appointed the Petitioner as a Peon in that vacancy by Ext. P-3, dated 25th June 1984. The District Educational Officer refused to approve the said appointment by his order Ext. P-4, dated 14th August 1984. The reason assigned for not approving the appointment of the Petitioner is that the 4th Respondent who had become a full-time menial in the school with effect from 1st April 1981 was entitled to be considered for promotion to the cadre of Peons. Instead of recognising the rights of the 4th Respondent for promotion, the action of the Manager in appointing the Petitioner as Peon was held to be not in accordance with law. The said order was taken up in appeal before the Deputy Director of Public Instruction and the said authority dismissed the appeal by Ext. P-5, dated 9th November 1984. It is in this background that the Petitioner approached this Court challenging Exts. P-4 and P-5 and seeking a direction to the authorities to approve the appointment of the Petitioner as Peon.

The Petitioner''s contention is that he is entitled to the protection of Rule 51A in Chapter XIV-A of the Kerala Education Rules. Though the said provision deals with teachers, it was pointed out that the said provisions applies mutatis mutandis to non-teaching staff as per Rule 7 of Chapter XIV-B of the Kerala Education Rules. It is not disputed that the benefit of Rule 51-A is available to the Petitioner.

The first question for examination is as to whether the right which the Petitioner claims under Rule 51-A of Chapter XIV-A can be pressed into service in this case for securing appointment as Peon in the school, on the basis of his previous service as Clerk. The fact that the Petitioner served as a Clerk in the school on two previous occasions as per Exts. P-1 and P-2 and that the same was also approved by the District Educational Officer is not disputed. It is also not disputed that the Petitioner has acquired a preferential right for appointment in a future vacancy of clerk. What we have to examine is as to whether the Petitioner has acquired a preferential right to appointment to the future vacancy of a peon also on the basis of this prior service as a clerk in the same school. Rule 51-A of Chapter XIV-A gives a preferential right for appointment in future vacancies in the schools under the same educational agency. The intention of the rule is to restore to the person the appointment which he lost for want of vacancy etc. In other words an attempt is made to put him back in the same position which he would have occupied but for termination for want of vacancy etc. If a person is once appointed in a particular vacancy for a particular post and his services got terminated on account of want of vacancy or for other similar causes, the rule enables him to lay a preferential claim for appointment when a vacancy in respect of a similar post arises on a future occasion. In other words, there must be identity in regard to the nature of the post. The preferential right conferred by Rule 51-A of Chapter XIV-A thus stands restricted to the nature of the post held earlier by the person concerned. Therefore, if a person held the post of a Clerk on an earlier occasion and if he was relieved on termination of that vacancy, he becomes entitled to preference in the matter of appointment in future vacancies only of the post of Clerk. He would not be entitled to a preferential right in respect of a superior or inferior post. We have therefore No. hesitation in taking the view that a person having rendered service on an earlier occasion as a clerk can claim preferential right for appointment in future vacancies only in the post of clerks and not for any other category of posts.

The Petitioner who had prior service to his credit as Clerk has acquired a preferential right for future appointment under Rule 51-A of Chapter XIV-A only to the post of Clerk. But we are concerned in this case with filling up the post of Peon. The Petitioner has not acquired by prior service as peon any preferential right under Rule 51-A in regard to appointment to the post of peon. The appointment of the Petitioner by the 3rd Respondent as a peon made on the wrong interpretation of Rule 51-A is not legal or proper. Hence refusal by the authorities to approve the said appointment is legal and proper.

So far as the 4th Respondent is concerned, the authorities; have pointed out that he was a full-time menial having been appointed on 1st April 1981 and that the promotional avenue available for him is to the cadre of peons. Hence the authorities were justified in taking the views that the claim of Respondent No. 4 has been illegally denied to him by the wrongful appointment of the Petitioner.

For the reasons stated above this Original Petition fails and is dismissed. No costs.