Supreme Court of India
STATE OF KERALA AND OTHERSversusSNEHA CHERIYAN AND ANOTHER
- Citation
- 2013 INSC 125
- Decided
- 22 February 2013
- Disposal
- Appeal(s) allowed
- Bench
- K S RADHAKRISHNAN
Holding
Sub‑rule (3) of Rule 7A must be read in conjunction with the proviso to Rule 51A, and a teacher is eligible for preference under Rule 51A only if he/she has completed a minimum continuous service of one academic year at the date of relief.
Summary
The case concerned teachers in aided schools of Kerala who, after being relieved under Rules 49 or 53 of the Kerala Education Rules, sought preference for re‑appointment under Rule 51A. The State of Kerala issued government orders amending sub‑rule (3) of Rule 7A to bar filling vacancies of less than one academic year and to limit Rule 51A claims to teachers who had completed a minimum continuous service of one academic year. The principal issue was whether this minimum‑service requirement was a prerequisite for invoking Rule 51A and whether sub‑rule (3) could be read in isolation from the proviso to Rule 51A. The Supreme Court held that sub‑rule (3) must be read together with the proviso, adopting a purposive construction to curb the creation of short‑term vacancies and multiple claimants. Consequently, a teacher is entitled to preference under Rule 51A only if he/she has served continuously for at least one academic year at the time of relief, while managers may still appoint teachers to established vacancies on a daily‑wage basis for periods less than a year. The appeals were allowed and detailed directions were issued clarifying the application of the rules.
Issues considered
- Whether a minimum continuous service of one academic year is a prerequisite for a teacher to raise a claim for re‑appointment under Rule 51A of the Kerala Education Rules, 1959, in view of sub‑rule (3) of Rule 7A.
- Whether sub‑rule (3) of Rule 7A can be interpreted in isolation from the proviso to Rule 51A.
- Whether the Government orders amending Rule 7A and clarifying Rule 51A are ultra vires of the Kerala Education Rules.
Legislation cited
- Kerala Education Act, 1958s. 11, s. 36, s. 9
Subjects
service lawre‑appointmentteachersaided schoolsKerala Education RulesRule 51ARule 7Aminimum serviceacademic yearpurposive constructionvacancygovernment orderdaily wage appointment
Judgment
[2013] 4 S.C.R. 460
A STATE OF KERALA AND OTHERS
v.
SNEHA CHERIYAN AND ANOTHER
(Civil Appeal No. 1643 of 2013)
FEBRUARY 22, 2013
B
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
Service Law - Re-appointment - Of teachers - In aided
schools in the State of Kera/a - Minimum continuous service
C in an academic year - If a pre-requisite for raising claim for
re-appointment ulr. 51A in view of r. 7A(3) - Held: Sub rule (3)
of r. 7A cannot be read in isolation, it has to be read in light of
the proviso to r.51A - Requirement of preventing the aided
school managers in creating short-term vacancies and
D appointing several persons in those vacancies so as to make
them claimants ulr.51A - Looking to the mischief or evil
sought to be remedied, purposive construction required to be
adopted - A teacher relieved from service under rr. 49 and 53,
is entitled to get preference for appointment under r.51A only
E if the teacher has a minimum prescribed continuous service
in an academic year as on the date of relief - Kera/a
Education Rules, 1959 - Chapter XIV A - r.7A(3) rlw r.51A.
Words and Phrases - Duration of vacancy - Meaning of.
F In the State of Kerala, the power for appointment of
teachers in aided schools is conferred on Managers of
such schools under Section 11 of the Kerala Education
Act, 1958 while the salary and other. benefits are to be
borne by the State Government under Section 9 of the
G Act. Qualified teachers so appointed when relieved as per
Rule 49 or 52 of the Kerala Education Rules, 1959 (KER)
or on account of termination of vacancies have
preference for appointment to future vacancies as per
Rule 51A of Chapter XIV A of the KER.
H 460
STATE OF KERALA v. SNEHA CHERIYAN 461
The Government issued an order G.O.(P) No.169/ A
04.G.Edn. dated 15.06.2004 stating that the claim for re-
. appointment under Rule 51A of the KER would be limited
to those who had been appointed against regular/ leave
vacancies having a duration of not less than one
academic year. Further, it was also stated that vacancies B
having duration of less than one academic year would be
filled up on daily wage basis and in order to give effect
to that Government order, it was ordered that necessary
amendments would be made to sub-rule (3) of Rule 7A,
Chapter XIV A of the KER. The Government of Kerala in c
exercise of the powers conferred under Section 36 of the
Act amended the KER vide its notification dated G.O.(P)
No. 121/2005/G. Edn. Dated 16.04.2005.
In the instant appeals, the question which arose for
consideration was whether a minimum continuous D
service in an academic year is a pre-requisite for raising
a claim for re-appointment under Rule 51A of Chapter XIV
A of the Kerala Education Rules, 1959 (KER) in view of
sub-rule (3) of Rule 7A of the same chapter of the KER.
E
Allowing the appeals, the Court
HELD: 1. Rule 51A of the Chapter XIVA of the KER
states qualified teachers in aided schools who are
relieved on account of termination of vacancies shall
have preference for re-appointment in future vacancies F
in the aided schools. One cannot read sub rule (3) of Rule
7A in isolation, it has to be read in the light of the proviso
to Rule 51A, they have to be read as parts of an integral
whole and as being interdependent. Legislature has
recognized that interdependency since both sub rule (3) G
of Rule 7A and the proviso to Section 51A were inserted
by the same amendment in the year 2005. [Paras 17, 18]
[473-E, F-G]
2. The expression "vacancies" used in sub-rule (3)
to Rule 7 means 'posts which remain unoccupied". Rule H
462 SUPREME COURT REPORTS [2013] 4 S.C.R.
A does not say that the duration of vacancy is to be
determined from the time when the vacancy occurs to the
time when it expires. Duration means the time during
which something continues, i.e the continuance of the
incumbent. [Para 19] [473-H; 474-A-B]
B
3. The Notification dated 10.06.2008 only says if the
period of appointment does not cover one academic year
i.e. the re-opening of the school after summer vacation
to the closing day for summer vacation, the appointment
shall be made only on daily wage basis. So also if the
C period commences after the beginning of the re-opening
day, but extends either next academic year/years the
period upto the first vacation shall be approved on daily
wages only which does not take away the right of the
managers of the aided schools to appoint teachers in
D vacancies that may arise by way of promotion, death,
resignation etc. Restriction is only with respect to the
minimum tenure/period for a new appointee to become
a 51A claimant, that is the object and purpose of sub-rule
(3) to Rule 7A read with proviso to Rule 51A of Chapter
E XIV-A of the KER. [Para 20] [474-D-G]
4. The object and purpose of the Notification dated
16.04.2005 issued by the Government in exercise of the
powers conferred under Section 36 of the Kerala
F Education Act is to curb the unhealthy practices adopted
by certain managers of aided schools by creating short-
term vacancies or appointing several persons in a
relatively long leave vacancies itself thereby making
several 51A claimants against one and the same vacancy.
G The object and purpose of the above-mentioned
notification is also to end the practice of creation of
multiple claimants in anticipatory vacancies creating more
51A claimants imposing huge financial commitment to the
Government. [Para 21] [474-G-H; 475-A-B]
H 5. Sub-rule (3) to Rule 7A does not restrict the right
STATE OF KERALA v. SNEHA CHERIYAN 463
of the managers of various schools in making the regular A
appointments in the established vacancies, what it does
is to prevent the misuse of that provision and to prevent
the aided school managers in creating short-term
vacancies and appointing several persons in those
vacancies so as to make them claimants under Rule 51A. B
Looking to the mischief or evil sought to be remedied,
one has to adopt a purposive construction of sub-rule (3)
of Rule 7A read with proviso to Rule 51A of Chapter XIV-
A of the KER. [Para 22] [475-C-D]
6. The expression "vacancy" used in sub-rule (3) to C
Rule 7 A has to be read along with the expression
"academic year" so as to achieve the object and purpose
of the amended sub-rule (3) to Rule 7A so as to remedy
the mischief. Evil, which was sought to be remedied was
the one resulting from vide spread unethical and D
unhealthy practices followed by certain aided school
managers in creating short term vacancies during the
academic year. This Court is adopting such a course, not
because there is an ambiguity in the statutory provision
but to reaffirm the object and purpose of sub-rule (3) to E
Rule 7A read with proviso to Section 51A and the
Government Order dated 10.06.2008. [Para 23] [475-E-G]
7. The following directions are accordingly given:
(i) A teacher, who was relieved from service F
under Rules 49 and 53 of Chapter XIVA of the
KER, is entitled to get preference for
appointment under Rule 51 A only if the
teacher has a minimum prescribed continuous
service in an academic year as on the date of G
relief.
(ii) The Manager of an aided school can, however,
appoint teachers in vacancies occurred due to
death, retirement, promotion, resignation, long- H
464 SUPREME COURT REPORTS (2013) 4 S.C.R.
A term leave etc. provided they are established
vacancies and the approval can be granted
subject to the conditions under Rule 49 of
Chapter XIV A of the KER.
(iii) Approval can also be granted to appointments
B
made to the approved vacancies arising and
continuing beyond 31st March due to
sanctioning of additional divisions.
(iv) The Manager can make appointments in
c school even if the duration of which is less
than one academic year but on daily wages
basis and if the duration of vacancy exceeds
one academic year that can be filled up on
scale of pay basis.
D
(v) The Manager is free to appoint teachers on a
regular basis from the re-opening date itself
against regular established vacancies and
need not wait for the appointments till
completion of the staff fixation as per the KER.
E
(vi) Teachers who have been appointed in the
midst of the academic year and not completed
the requisite minimum continuous service
before vacation will not be entitled to get
F vacation salary. [Para 26] [476-E-H; 477-A-E]
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1643 of 2013.
From the Judgment & Order dated 06.04.2009 of the High
G Court of Kerala at Ernakulam in W.P.(C) No. 2563 of 2009.
C.A. Nos. 1644, 1645, 1646, 1647, 1648, 1649, 1650,
1651, 1652, 1653, 1654, 1655, 1656, 1657, 1658, 1659, 1660,
1661, 1662, 1663, 1664, 1665, 1666, 1667, 1668, 1669, 1670,
H 1671, 1672, 1673, 1674, 1675, 1676, 1677, 1678, 1679, 1680,
STATE OF KERALA v. SNEHA CHERIYAN 465
1681, 1682, 1683, 1684, 1685, 1686, 1687, 1688, 1689, 1690, A
1691,1692, 1693, 1694, 1695, 1696, 1697, 1698, 1699, 1700,
1701, 1702, 1703, 1704, 1705, 1706, 1707, 1708, 1709, 1710,
1711. 1712, 1713, 1714, 1715, 1716, 1717. 171~ 1719, 1720.
1721, 1722, 1723, 1724, 1725, 1726, 1727, 1728. 1729, 1730,
1731, 1732, 1733, 1734, 1735, 1736, 1737 of 2013, 5620, B
5621,5622,5623,5624,5625,5626,5627,5628, 5629,5630,
5631, 5632, 5633, 5634, 5635,5636,5637, 5638,5639, 5640
of 2010, 1104, 1106, 1107, 1105 of 2011, 1738, 1739 of 2013,
245, 248 of2011, 1740, 1741, 1742.1743, 1744.1745, 1746,
1747, 1748, 1749, 1750, 1751, 1752, 1753, 1754, 1755, 1756, c
1757, 1758, 1759, 1760, 1761, 1762, 1763, 1764, 1765, 1766,
1767, 1768,1769, 1770, 1771, 1772, 1773, 1774, 1775, 1776,
1777, 1778, 1779, 1780, 1781, 1782, 1783, 1784, 1785 of
2013.
V.Giri, Jogy Scaria, K.K. Sudheesh, Mohammed Sadique, D
P.V. Dinesh for the Appellants.
C.S. Rajan. A. Raghunath, Roy Abraham, Reena Roy,
Seema Jain, Vimlesh Kumar, Himinder Lal, Raghenth Basant,
Senthil Jagadeesan. P.A. Noor Muhamed, Giffara S., K. E
Rajeev, Lawyer's Knit & Co., S.C. Patel, T.T.K. Deepak & Co.,
Liz Mathew, P.S. Sudheer, K.L. Taneja, K.V. Mohan, C.N. Sree
Kumar, C.K. Sasi, Nishe Rajen Shonker, Radha Shyam Jena,
Giresh Kumar, Vijay Kumar, Meharia & Company, Ajay Kumar,
Abhisth Kumar for the Respondents. F
The Judgment of the Court was delivered by
K.S. RADHAKRISHNAN, J. Delay condoned.
1. Leave granted. G
2. We are in these cases called upon to decide whether
a minimum continuous service in an academic year is a pre-
requisite for raising a claim for re-appointment under Rule 51A
of Chapter XIV A of the Kerala Education Rules, 1959 (for short
H
466 SUPREME COURT REPORTS [2013] 4 S.C.R.
A ' the KER') in view of sub-rule (3) of Rule 7A of the same chapter
of the KER.
3. In the State of Kerala, the power for appointment of
teachers in aided schools is conferred on Managers of such
schools under Section 11 of the Kerala Education Act, 1958
8
(for short 'the Act') while the salary and other benefits are to
be borne by the State Government under Section 9 of the Act.
Qualified teachers who are so appointed when relieved as per
Rul.e 49 or 52 or on account of termination of vacancies shall
have preference for appointment to future vacancies as per Rule
C 51A of Chapter XIV A of the KER. Therefore, when vacancy
arises, the Manager is bound to comply with the procedure
under Rule 51A and cannot deny that statutory claim. When
once a valid appointment is given to the teachers and such
appointments are approved ipso facto they become entitled to
D the benefits under Rule 51A.
4. The Management and ihe teachers, it is generally
known, started misusing the above statutory provisions for
getting preference for future appointments by effecting
E appointments by creating vacancies during the academic year.
Such unethical and unhealthy practices led to creation of
anticipatory vacancies and multiple claimants under Rule 51A
causing drain on State exchequer since the State is paying the
salary. The Government in order to check such practices issued
F an order G.O.(P) No.169/04.G.Edn. dated 15.06.2004 stating
that the claim for re-appointment under Rule 51A of the KER
would be limited to those who had been appointed against
regular/ leave vacancies having a duration of not less than one
academic year. Further, it was also stated that vacancies
G having duration of less than one academic year would be filled
up on daily wage basis and in order to give effect to that
Government order, it was ordered that necessary amendments
would be made to sub-rule (3) of Rule 7A, Chapter XIV A of
the KER.
H 5. The Government of Kerala in exercise of the powers
STATE OF KERALA v. SNEHA CHERIYAN 467
[K.S. RADHAKRISHNAN, J.]
conferred under Section 36 of the Act amended the KER vide A
its notification dated G.0.(P) No. 121/2005/G. Edn. Dated
16.04.2005.
Unamended sub-rule (3) of Rule 7A reads as follows:
"Vacancies the duration of which is two months or less shall 8
not be filled up any appointment"
Amended sub-rule (3) of Rule 7A reads as follows:
"Vacancies the duration of which is less than one C
academic year shall not be filled up."
The explanatory note to the above-mentioned Rules reads
as follows:
"(This does not form part of the notification but is intended D
to indicate the general purpose).
Under the existing sub-rule (3) of Rule 7A Chapter XIV A,
General Education Rules vacancies the duration of which
is two months or less shall not be filled up by any E
appointment. Managements of aided schools are
appointing teachers in short leave vacancies the duration
of which is more than two months and it results in huge
financial commitment to Government. After detailed
examination of the matter Government inter alia issued
order as per G.O.(P) 169/2004/G. Edn dated 15.06.2004 F
to the effect that claim for appointment under rule 51A of
the Kerala Education Rule be limited to those who have
been appointed against regular/leave vacancies having a
duration of not less than one academic year. The
Government has now decided to give statutory validity to G
the above Government order.
The notification is intended to achieve the above object."
6. The Government issued another clarificatory order H
468 SUPREME COURT REPORTS [2013] 4 S.C.R.
A G.O.(P) No. 31/06GE dated 19.01.2006 dealing with the
appointment of teachers in short vacancies which is not of much
relevance, but for completeness, the operative portion of the
same is given below:
'In the above circumstances, Government are pleased to
B
clarify that the condition in Para 6 of G.O. (P) No. 169/
2004/GE dated 15.06.2004 shall not apply to the
appointments on promotions to the post of Head Master,
to the appointments given under Rule 43, Chapter XIV A
KERs and to the reappointments of those who had
c acquired the claim under Rule 51A, Chapter XIV A KERs,
if the reappointment is to a vacancy having the duration of
more than 2 months as existed prior to the amendment.
Necessary amendment to the rules shall be made to this
effect and the Director of Public Instruction shall furnish
D proposals for the same."
7. The Government of Kerala later issued a clarificatory
order vide G.O. (P) No. 104/2008/G Edn. Dated 10.06.2008
regarding the nature of appointment and admissibility of
E vacation salary as per Rule 49 of Chapter XIV A of the KER to
teachers appointed in leave I regular vacancies making it
applicable to appointments in both leave vacancies and regular
vacancies. The operative portion of clauses 5, 6 and 7 reads
as follows:
F "5. As per rule 7A (3) of Chapter XIV A KER, if the period
of appointment is less than one academic year, the
appointment cannot be approved on regular basis. This has
caused many doubts among various quarters, requiring
clarification regarding the nature of appointment and
G admissibility of vacation salary as per Rule 49 of Chapter
XIVA KER to teacher appointed in - leave I regular
vacancies. In view of the above, the following orders are
issued with immediate effect. These are applicable to
appointments in both leave vacancies and regular
H vacancies:-
STATE OF KERALA v. SNEHA CHERIYAN 469
[K.S. RADHAKRISHNAN, J.]
(i) If the period of appointments does not cover one A
academic year (i.e. from the re-opening day of the
school after summer vacation to the closing day for
summer vacation), the appointment shall be made
only on daily wages.
B
(ii) If the period of appointments commences after the
beginning of the re-opening day but extends over
the next academic year/years, the period up to the
first vacation shall be approved on daily wages only.
Re-appointment can be approved on regular basis,
only if the duration of the period of re-appointment C
completes one academic year. If the period of re-
appointment is also less than one academic year,
that re-appointment will also be considered only on
daily wages basis. In short, fractions of an academic
year will not be considered for approval on regular D
basis;
(iii) In the case of appointment of Rule 51A claimants,
promotion of Rule 43 claimants and appointment I
promotion of teachers as Headmasters, temporary E
Headmaster/teachers-in-charge, approval will be
granted on regular basis if the period of
appointment is more than 2 months;
(iv) The appointments made against training vacancies
F
shall also be filled up on daily wages only except
in the case of (iii) above;
(v) If a leave substitute, appointed on daily wages
continues in service without any break for one full
academic year consequent to extension of leave, G
the appointment shall be revised and approved as
on regular basis. However, if different leave
substitutes are appointed to the same post, this
benefit shall not be extended to them;
H
470 SUPREME COURT REPORTS (2013] 4 S.C.R.
A (vi) Appointments in leave vacancy and regular vacancy
shall be treated separately;
(vii) The admissibility of vacation salary as provided in
rule 49 Chapter XIV A KER will not be applicable
B to appointments on daily wage basis. Necessary
amendments to this effect in the KER shall be made
separately.
6. The claim under Rule 51A Chapter XIVA KER will not
be admissible to those teachers appointed on daily wage
C basis.
7. This order will take effect from the date of the order only.
The approval of appointments given prior to this order shall
not be reviewed."
D 8. The main challenge is with regard to the validity of
clause 5(i) and (ii) of the above mentioned that Government
order which according to the respondents go contrary to sub-
rule (3) of Rule 7A, Chapter XIV A of the KER and hence ultra
vires and unenforceable.
E
9. Shri, C.S. Rajan, learned senior counsel appearing for
some of the respondents submitted that sub-rule (3) of Rule 7A
speaks of "vacancies" the duration of which is less than one
"academic year" which means if the vacancy is having a
F duration of one academic year or more, appointment can be
made to fill up the same. Learned senior counsel pointed out
that the term of appointment need not be co-terminus with the
term of the vacancy. Further, it was pointed out that if in fact,
the vacancy is having a duration of one academic year or more,
G even if, there is some delay in making the appointment, such
appointment will have to be approved since Rule 7A speaks
of duration of vacancy and not duration of appointment.
10. Shri P.A. Noor Muhamed, learned counsel appearing
for some of the respondents while submitting written arguments
H pointed out that as per the scheme of the KER and conjoint
STATE OF KERALA v. SNEHA CHERIYAN 471
[K.S. RADHAKRISHNAN, J.]
reading of the provisions of Chapter XXlll and sub-rule (3) of A
Rule 7A and Rule 49 under Chapter XIV A of the KER it is clear
that "time of appointment" is immaterial and what is material
is the "duration of vacancies". Further, it was pointed out that
as per the scheme contemplated under the provisions in
Chapter XXlll of the KER, appointments in regular vacancies B
can be made only after the receipt of orders of departmental
authorities on staff fixation which is in turn based on the
students' strength as well, which can be ascertained only after
the beginning of the academic year. It was pointed out that
merely because appointment was not made in consonance of c
the first academic year, approval of appointments cannot be
denied ignoring the fact that the vacancy in which the
appointment made runs to more than one academic year. The
delay, if any, in making appointment is not due to the fault of
the teachers and hence they shall not be penalized.
D
11. Learned counsel appearing for the respondents
therefore submitted that the impugned G.O. dated 10.06.2008
is contrary to sub-rule (3) of Rule 7A of the KER and has rightly
been declared so by the High Court which calls for no
interference by this Court. E
12. Shri V. Giri, learned senior counsel appearing for the
State of Kerala submitted that the Government have issued the
notification dated 14.06.2005 amending Sub rule (3) of Rule
7A followed by the Government order dated 10.06.2008, so as
to avoid the unhealthy practices followed by certain aided F
school managers by appointing teachers in short spells thereby
creating more 51A claimants creating multiple claims. Learned
senior counsel submitted that the Government Order is only a
clarification to the statutory amendment made in sub-rule (3)
of Rule 7A of the Rules. Learned senior counsel also submitted G
that there is no restriction in the matter of appointment of
teachers in anticipated vacancies due to retirements,
promotions, resignations etc. provided it is an established
vacancy which could be anticipated well in advance. Learned
senior counsel submitted that the Managers of the aided H
472 SUPREME COURT REPORTS [2013] 4 S.C.R.
A schools are free to appoint teachers on regular basis from the
starting of the academic year against regular/established
vacancies and they need not wait for appointments till
completion of staff fixation as per the provisions under KER.
Learned senior counsel also submitted that the Managers can
B make appointments in anticipation of sanction of additional
posts by the educational authorities as per Rule 128 Chapter
XXlll of the KER and such posts shall be deemed to have been
created from the date of appointments.
13. Learned senior counsel also submitted that
C permanency/promotional vacancy which are in existence on the
beginning of the academic year though filled up during the
academic year is also not covered by the impugned notification
so also the vacancies which arise due to death are also not hit
by the impugned notification. Further, it is also pointed out that
D leave vacancies which are in existence on the beginning of the
academic year can also be filled up during the academic year
which also are not covered by the impugned notification.
14. We have heard learned counsel on either side at length.
E WP (C) No. 2563 of 2009 against which SLP (C) No. 22332
of 2009 arises was treated as the main case by the High Court,
hence we treat that case as the leading case for disposal of
these batches of appeals since questions of law arise for
consideration are the same.
F 15. Shri Shinoj T. Elias, High School Assistant (HSA)
(English) who was working in St. Mary's Higher Secondary
School, Morakkala, an aided school, applied for leave from
08.07.2008 to 07.07.2013 and the leave was granted by the
Manager of that school. The first respondent (herein) who was
G the writ petitioner before the High Court was appointed in that
vacancy on 06.10.2008 and the period of her appointment
would normally expire only on 07.07.2013. The Manager of the
school forwarded that appointment order for approval to the
District Educational Officer (DEO). But the DEO approved the
H appointment from 06.10.2008 to 31.03.2009 only on daily wage
STATE OF KERALA v. SNEHA CHERIYAN 473
[K.S. RADHAKRISHNAN, J.]
basis based on the Government order dated 10.06.2008. A
Based on the impugned G.O. dated 10.06.2008, it was pointed
out by the first respondent before the High Court that the
vacancy had duration of five years and therefore her
appointment should have been approved without any time limit
in the same scale of pay applicable to HSAs. Reliance was B
placed on sub-rule (3) of Rule 7A of the Rules which was found
favour by the Division Bench of the High Court.
16. We may before examining the scope of sub-rule (3)
of Rule 7A and the proviso to Section 51A read with the
Government Order dated 10.06.2008 examine the scheme of C
the Act and the KER and the object and purpose of sub rule 3
of Rule 7A as well as the impugned order dated 10.06.2008.
We have already indicated that as per the Kerala Education
. Act and the KER. the Manager of the aided School is free to
make appointment of teachers in their respective schools who D
are qualified according to the Rules and the entire salary and
other allowances have to be borne by the State Government.
17. Rule 51A of the Chapter XIVA of the KER states
qualified teachers in aided schools who are relieved on account E
of termination of vacancies shall have preference for re-
appointment in future vacancies in the aided schools. Rule 43,
Chapter XIV A of the KER states that the vacancies in any
higher grade of pay shall be filled up by promotion in the lower
grade according to the seniority. F
18. We cannot read sub rule (3) of Rule 7A in isolation, it
has to be read in the light of the proviso to Section 51A, they
have to be read as parts of an integral whole and as being
interdependent. Legislature has recognized that
interdependency since both sub rule (3) of Rule 7A and the G
proviso to Section 51A were inserted by the same amendment
in the year 2005.
19. The expression "vacancies" used in sub-rule (3) to Rule
7 means 'posts which remain unoccupied". Rule does not say H
474 SUPREME COURT REPORTS [2013] 4 S.C.R.
A that the duration of vacancy is to be determined from the time
when the vacancy occurs to the time when it expires. Duration
means the time during which something continues, i.e the
continuance of the incumbent. As stated in the Notification
dated 15.06.2004 the vacancies having a duration of less than
B one academic year can be filled up on daily wage basis. Sub-
rule (3) to Rule 7A uses the expression "academic year". Rule
2A of Chapter VII of the KER refers to the academic year, which
reads as follows:
"2A. Academic year shall be deemed to commence on the
c re-opening day and terminate on the last day before the
summer vacation."
20. Rule 1 of Chapter VII says "all schools shall be closed
for the summer vacation every year on the first working day on
D March and re-opened on the first working day of June unless
otherwise notified by the Director." The Notification dated
10.06.2008 only says if the period of appointment does not
cover one academic year i.e. the re-opening of the school after
summer vacation to the closing day for summer vacation, the
E appointment shall be made only on daily wage basis. So also
if the period commences after the beginning of the re-opening
day, but extends either next academic year/years the period
upto the first vacation shall be approved on daily wages only
which does not take away the right of the managers of the aided
F schools to appoint teachers in vacancies that may arise by way
of promotion, death, resignation etc. Restriction is only with
respect to the minimum tenure/period for a new appointee to
become a 51A claimant, that is the object and purpose of sub-
rule (3) to Rule 7A read with proviso to Rule 51A of Chapter
G XIV-A of the KER.
21. The object and purpose of the Notification dated
16.04.2005 issued by the Government in exercise of the
powers conferred under Section 36 of the Kera la Education Act
is to curb the unhealthy practices adopted by certain managers
H of aided schools by creating short-term vacancies or appointing
STATE OF KERALA v. SNEHA CHERIYAN 475
(K.S. RADHAKRISHNAN, J.]
several persons in a relatively long leave vacancies itself A
thereby making several 51A claimants against one and the
same vacancy. The object and purpose of the above-mentioned
notification is also to end the practice of creation of multiple
claimants in anticipatory vacancies creating more 51A
claimants imposing huge financial commitment to the B
Government.
22. Sub-rule (3) to Rule 7 does not restrict the right of the
managers of various schools in making the regular
appointments in the establjshed vacancies, what it does is to C
prevent the misuse of that provision and to prevent the aided
school managers in creating short-term vacancies and
appointing several persons in those vacancies so as to make
them claimants under Rule 51A. Looking to the mischief or evil
sought to be remedied, we have to adopt a purposive
construction of sub-rule (3) of Rule 7A read with proviso to Rule D
51A of Chapter XIV-A of the KER.
23. We are inclined to adopt such a construction since the
stand of the respondents is that Rule 7A speaks of "duration
of vacancies" and not "duration of appointment". The expression E
"vacancy" used in sub-rule (3) to Rule 7A has to be read along
with the expression "academic year" so as to achieve the object
and purpose of the amended sub-rule (3) to Rule 7A so as to
remedy the mischief. Evil, which was sought to be remedied
was the one resulting from vide spread unethical and unhealthy F
practices followed by certain aided school managers in creating
short term vacancies during the academic year. We are
adopting such a course, not because there is an ambiguity in
the statutory provision but to reaffirm the object and purpose
of sub-rule (3) to Rule 7A read with proviso to Section 51A and G
the Government Order dated 10.06.2008.
24. We notice later the Government passed yet another
GO(P) 56/11/Gen.Edn dated 26.02.2011 clarifying the earlier
GO dated 15.06.2004 and 10.06.2008. The operative portion
of the same reads as under: H
476 SUPREME COURT REPORTS [2013] 4 S. C.R.
A "1. Approval can be granted subject to the conditions under
Rule 49 Chapter XIV-A of the K.E.R. for the appointments
to the vacancies arising due to the existing teachers'
retirement, resignation, death long leave etc. and to the
approved vacancies arising and continuing beyond 31st
B March due to sanctioning of additional divisions.
2. Appointments for a duration of less than 8 months in an
academic year can be approved on daily wage basis and
appointments of a duration of more than that are to be
approved as regular (on pay scale)."
c
25. We have referred to the above GO, for the sake of
completeness, which has of course no bearing on the
interpretation which we have placed on sub-rule (3) to Rule 7A
read with the proviso to Rule 51A of Chapter XIV-A of the KER,
o but may have application on facts in certain cases which have
to be decided independently.
26. We are, therefore, inclined to allow these appeals and
set aside the judgment of the Division Bench with the following
E directions:
(i) A teacher, who was relieved from service under
Rules 49 and 53 of Chapter XIVA of the KER, is
entitled to get preference for appointment under
Rule 51 A only if the teacher has a minimum
F prescribed continuous se;vice in an academic year
as on the date of relief.
(ii) The Manager of an aided school can, however,
appoint teachers in vacancies occurred due to
G death, retirement, promotion, resignation, long-term
leave etc. provided they are established vacancies
and the approval can be granted subject to the
conditions under Rule 49 of Chapter XIV A of the
KER.
H
STATE OF KERALA v. SNEHA CHERIYAN 477
[K.S. RADHAKRISHNAN, J.]
(iii) Approval can also be granted to appointments A
made to the approved vacancies arising and
continuing beyond 31st March due to sanctioning
of additional divisions.
(iv) The Manager can make appointments in school 8
even if the duration of which is less than one
·academic year but on daily wages basis and if the
duration of vacancy exceeds one academic year
that can be filled up on scale of pay basis.
(v) The Manager is free to appoint teachers on a C
regular basis from the re-opening date itself agailist
regular established vacancies and need not wait for
the appointments till completion of the staff fixation
as per the KER.
D
(vi) Teachers who have been appointed in the midst of
the academic year and not completed the requisite
minimum continuous service before vacation will
not be entitled to get vacation salary.
27. Appeals are accordingly allowed and disposed of as E
above setting aside the judgment of the High Court but there
will be no order as to costs.
-
B.B.B. Appeals allowed.
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