Holding

The amendment to Rule 7A(3) requires a teacher to have served for a full academic year to claim preferential appointment under Rule 51‑A, and the 5th respondent did not satisfy this, so no vested right existed and the High Court order is set aside.

Summary

The Manager of VKNM Vocational Higher Secondary School (appellant) challenged a Kerala High Court order that directed it to appoint a teacher (the 5th respondent) under Rule 51‑A, claiming a preferential right based on her earlier short‑term service in the school in 1997‑98. The school argued that the amendment to Rule 7A(3) (effective 27‑04‑2005) requires a teacher to have served for a full academic year to fall within the "termination of vacancy" category, and that the 5th respondent’s two‑month stint did not satisfy this. The Supreme Court examined whether a vested right arose under the unamended rule and whether the later amendment could extinguish such a right. It held that the amendment imposes the one‑year requirement, the 5th respondent did not meet it, and therefore no vested right existed; the High Court order was set aside and the appointment of the 6th respondent restored.

Issues considered

Whether the 5th respondent acquired a vested right to preferential appointment under Rule 51‑A based on her earlier engagement governed by the unamended Rule 7A(3).
Whether the amendment to Rule 7A(3) (requiring service of one full academic year) extinguishes any such vested right.
How Rule 7A(3) and Rule 51‑A must be interpreted together for teachers relieved on account of termination of vacancies.
Whether the High Court’s direction to appoint the 5th respondent is legally sustainable.

Legislation cited

Kerala Education Acts. 36

Subjects

preferential appointmentvested rightKerala Education RulesRule 7ARule 51-Aacademic yearteacher recruitmentprivate aided school

Judgment

[2016] I S.C.R. 343

THE MANAGER, VKNM VOCATIONAL HIGHER ' A
SECONDARY SCHOOL
v.

THE STATE OF KERALA AND OTHERS ETC.
(Civil Appeal Nos.518-519 of2016) B
JANUARY 27, 2016
(FAKKIR MOHAMED IBRAHIM KALIFULLA AND
S.A. BOBDE, JJ.i
Service lcnv:
c
Kere/a Education Rules - r. 51A. r. 7A(3j(amended) -
Preferential appointment - 5'" respondent \l'orked in the appellant :1·
school in 3 different spells betll'een 1997 and 1998 for a total period
of two months and 19 days - Vacancy in the post of High School
Assistant in social science in the year 2010. consequent to the
D
retirement of a teacher - Suhsequently, appointment of 6th respondent
- Challenge to, by the 5th resprmdent relying upon a rule H'hich
provided for preferential appointment to some categories of qualified
teachers 11·ho had the f<Jrtune of working earlier in the school -
High Court all011'ed the 1t'rit petition - Direction to appel/ant-
Management of private aided school to issue appointment order to E
5'1' respondent as a teacher in its school - On appeal, held: A.lier
amendment to 1: 7A(3J by Notification dated 16.0./.2005, a qualified
teacher cannot be saicl to have been engugecl in a vacancy· 11 hich1

stood terminated unless the duration of1l'hich ll'US one fi1/I academic
vear - 7/wugh prior to the amendment 0/1: 7A(3), the 5"' respondent
F
did satfafy the 1111wne11ded 1: 7A(3) by havi11g been engaged in a
vacancy as a qual(fied teacher for a period of two months, but
there \VllS 110 occasion lo raise a clai111 jf.>r anJ' JJref'erent_ial
appoi11t111ent - It ca1111ot be said that the right ll'hich l\'as available
under the unamended 1: 7Ai3J alone 11•1Jll/d remain and 110/ the /all'
that prevailed al the time ll'hm the 5'" respo11de11/ staked her claim G
fiir prefi!re11tial appoi11/111e11/ in the year 2010 - ,4/ier 12 years when
the 5'" respondelll sought to en/iJrce her right u/1: 51 A. a111e11dmenl
to 1: 7A(3J expressly disentitled a qualified teacher to claim to be
categorized under "on account of termination of a vacancy" -
Vested right did not accrue to the 5'" respondent as early as in year
H
343
344 SUPREME COURT RFPORTS [2016] I S.C.R.

A /998 - In terms o/umended I'. 7A(3J r!w I'. 51A. if one ll'ffe to he
brouf!.hl 101ller 1/11.! categln~F <~f· qual~/ie£1 teacher re/iel'ell 011 accuu111
qf. ler111i11afiun ql raconcies, the lllllell<led r. 7/1(3) that . . uch
engage111e11t /as/ell Ji>r one clear acalle111ic .veo1: 1ras to he satisjie<I
- 5 1i re.\jJ<JIU!enl llhl 1101 soli.~fi· !he sail/ requiren1e111. thus, her cluiln
1

11/1: 51.4 fi>r u pre/erellliul appointme/I/ cw11w1 he allowed Relief"
B
granle£1 lo 5th resjJ01u/e11/ nor s11stainable anti is set ashle.
Allowing the appeals, the Court
HELD: 1.1 The submission that the 5'" respondent acquired
a vested right even after the amendment was hrought into the
c rules in particular to Ruic 7A(J) cannot be accepted. After the
amendment to Ruic 7A(J) which was introduced by notification
GO(P) No.121/20051G.Edn. dated 16.04.200S, the position was
that a <Jualified teacher cannot he said to have hecn engaged in a
vacancy which stood terminated unless the duration of which was
one full academic year. Rule 2A of Chapter VII of Kcnrla Education
D Rules s11ecifically defines an 'aeademk year' to deem to commence
on the reopening day and terminate on the last day before summer
vacation. Under Rule I of Chapter VII it is specifically stipulated
that all schools should be closed for summer vacation every year
on the last working day of March and reopen on the I" working
E day of June unless otherwise notified by the Director. Therefore,
the academic year would commence on I" .June of the previous
year and end on 31" March of the subsequent year. Therefore, if
one were to claim any preferential right of appointment under
Rnle SIA under the category falling under "on account of
termination of vacancies", having regard to the stipulations
F contained in the amended Rule 7A(J) snch qualified teacher
should have been engaged in a vacancy which lasted or existed
for one clear academic yea1: It is not the case of the S'" respondent
that she satisfied the said requirement as stipulated under Rule
7A(3) read along with Ruic SIA. [Para 17J J359-C-G]
G 1.2 On making a comprehensive reference to the principles
of interpretation in *G11rik11p11ti Veer11y11 case on the 11uestion of
existence or otherwise of a vested right in a person, it can he
said that for the legal pursuit of a remedy it must he shown that
the various stages of such remedy are formed into a chain or
rather as series of it, which are connected by an intrinsic unity
H
MANAGER. VKNM VOCATIONAL HIGHER SECONDARY 345
SCHOOL v. THE STATE or KERALA

which can be called as one proceeding, that such vested right if A
any should have its origin in a proceeding which was instituted
on such right having been crystallized at the time of its origin
itself, in which event all future claims on that basis to be pursued
would get preserved till the said right is to be ultimately examined.
In the event of such preservation of the future remedy having
B
come into existence amt got crystallized, that would date back to
the date of origin when the so-called vested right commenced,
that then and then only it can be held that the said right became
a vested right and it is not defeated by the law that prevail at the
date of its decision or at the date of subsequent filing of the claim.
One other fundamental principle laid down which is to be borne c
in mind is that even such a vested right can also be taken away
by a subsequent enactment if such subsequent enactment
specifically provides by express words or by necessary
intendment. ln other words, in the event of the extinction of any
such right by express provision in the subsequent enactment,
D
the same would lose its value. (Para 191 1361-D-GI
1.3 Though prior to the amendment of Rule 7 A(3) by the
notification dated 16.0-1.2005 the 5"' respondent did satisfy the
unamended Rule 7 A(3) by having been engaged in a vacancy as a
qualified teacher for a period of two months, as early as on 11 ''
March, 1998, unforlu1rntely for the 5"' res1JOndenl there was no E
occasion lo raise a claim for any preferential appointment on the
basis of fullillment of such a requirement as it existed then and
as provided ullller Ruic 51A. ln fact, between 1998 and 2010, for
nearly 12 years there was no scope for the 5'" respondent to raise
a cla;m on that basis. Therefore, the very fundamental principle F
of pursuit of a remedy at the very inception did not take place in
order to consider whether any further proceedings could be
pursued based on such initiation of claim. Since at the very
inception a claim though even on the basis of the then existing
Ruic 7 A(3) could not be initiated to be pursued, it is very difficult
to hold that there could have been preservntion of any such right G
as it existed under the unamended Rule 7A(3). Having regard to
the said situation, it cannot be held that the law that prevailed,
namely, the right which v. as available under the unamended Rule
7A(3) alone would remain and not the law that prevailed at the
time when the 5" respondent staked her claim for preferential H
346 SUPREME COURT REPORTS [2016J 1 S.C.R.

A appointment i.e. when the vacancy arose in the year 2010. After
12 years \Vhen the 5 1" respondent sought to enforce her right
under Ruic SIA as a sea change came into effect by way of an
amendment to Ruic 7 A(3), which expressly disentitled a qm1Iified
teacher to clain1 to be cntcgorizcd under ""on account of
tern1ination of a vacancy" as such express (lrohihition carne to
8
be introduced by virtue of the amendment to Rule 7 A(3), the
submission that a vested right accrued to the S1h respondent as
early as on 11.03.1998 cannot he accepted. !Pam 201 (361-Hl
[362-A-G[
1.4 Going by the interpretation of amended Rule 7 A(3) read
C along with Rule SIA, if one were to be brought under the category
of qualified teacher relieved on account of termination of
vacancies, the amended Rule 7 A(3) required to be satisfied,
namely, such engagement was lasted for one clear academic year
as stipulated under Rule I and 2A of Chapter VII of the Kcrala
D Education Rules. The S" respondent not having satisfied the said
requirement there was no scope to allow her to press her claim
under Rule SIA for a preferential appointment. Having regard to
the said legal consequence, the relief granted by the I" respondent
cannot be sustained and consequently the directions issued by
the High Court in the impugned judgment cannot also be
E sustained. The answers to the questions made by the Full llench
are set aside and the interpretation made hy this Court in **S11elw
Cheriy1111 case would alone prevail. The impugned judgment is
set aside. The order of the I" respondent is also set aside. (Pants
21, 22) (362-H] (363-A-DJ
F *Garikapati Veeraya i: N. Subhiah Cho11d/11)' AIR 1957
SC S40 - followed.
**State of Kel"liia and others v. Sneha Cheriyan and
anather (2013) 5 SCC 160: 2013 (4) SCR 460 - relied
01).
Ahdurahiman v. Government af Kera/a 2009 (2) KLT
G 105; Maya v. Govt. of Keruht 2010 (2) KLT 99; The
Stale of Maharashtra v. Vishnu Ramclumdra 1961 (2)
SCR 26; Commissioner of Income Tax (Ce11traf)-I, New
Delhi v. Vatika Township Private Limited 2015 (I) SCC
1 ~ referred to.
H
MANAGER. VKNM VOCATIONAL HIGI IER SECONDARY 347
SCHOOL v. Tl-IE STATE OF KERALA

Case Law Reference A
2009 (2) KLT 105 referred to. Para 4
2010 (2) KLI" 99 referred to. Para4
1961 (2) SCR 26 referred to. t>ara 8
2015 (1) SCC 1 referred to. Para 8
B
AIR 195'.' SC 540 followed. Para 19
2013 (4) SCR 460 relied on. Para 21
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 518-
519 of2016
From the Judgment and Order dated 08.10.2014 of the High Court
of Kera la at Ernakulam in W.P. (C) No. 32734 of 2011 and W. P. (C)
c
2808 of2012
WITH
C.A. NO. 520 OF 2016
Rana Mukherjee, Harshad Y. Hamced, Ashly Harshad. Dileep
Poolakkat. Neeraj Shekhar for the Appellant. D
C. S. Rajan, P. V. Dinesh. Sindhu T. P.. P. 1-Iaridas, M. T. George
for tl:e Respondents.
The Judgment of the Cou11 was delivered by
FAKKJR MOHAMED IIlRAHIM KALIFULLA J. Leave
granted. E
I. By this judgment. we dispose of Civil Appeal arising out of
Special Leave Petition(C) No.33 I 04 of 2014 also as both the appeals
arise out of the common Full Bench Judgment of the Kera la High Court.
The appellant in Civil Appeal arising out of Special Leave Petition
No.33104of2014 is aggrieved by the Full Bench Judgment of the Kerala
High Court which was dismissed and consequently her appointment dated F
01.06.20 I0 in the school of the appellant in Civil Appeals arising out of
Special Leave Petition Nos.31794-95 of 2014 came to be set aside at
the instance of O.T. lndiramma/private respondent. For the sake of
convenience, we refer to the parties as arrayed in Civil Appeal arising
out of SLP (C) No.31794 of2014. G
2. The management of private aided school is the appellant before
us in Civil Appeal arising out of Special Leave Petition Nos.31794-95 of
2014. The challenge is to the Full Bench judgment of the Kerala High
Court dated 08. I 0.2014 while answering a Reference made to it by the
Division Bench in view of two conflicting decisions of two other Division
H
348 SUPREME COURT REPORTS [2016] I S.C.R.

A Benches and thereby dismissing the appellant"s Writ Petition while
allowing the 5"' respondent\ Writ Petition. The appellant was directed
to issue appointn1ent order to the respondent as a teacher in its school.
3. The brief facts which are required to be noted arc that the 5"'
respondent worked in the appellant's school in 3 dif!Crcnt spells between
B 0 I. IO. J 997 and 11.03.1998 l(ir a total period of two months and J 9 days.
Subsequently, when the post of High School Assistant in social science
fell vacant in the year 20 I0 consequent to the retirement of a teacher,
the 6'" respondent came to be appointed on 01.06.20 I0 afresh. The 5'"
respondent challenged the appointment of the 6'1' respondent by relying
upon a rule which provided for preferential appointment to some categories
c ofqualitied teachers who had the fortune of working earlier in the school.
The appellant rejected the claim of the 5"' respondent by relying upon a
Division Bench decision of the Kera la High Court. Aggrieved by the
order of the appellant dated 18.09.20 I 0, the 5'" respondent approached
the 2"' respondent. The 2"" respondent by its order dated 31.03.2011
D rejected her claim. The 5'" respondent tiled a reYision before the I"
respondent and the I" respondent by order dated 26.11.2011 directed
the 4'" respondent. the District Education Officer to issue necessary
formal orders appointing the 5'" respondent as high school assistant in
the appellant school w.e.f. 01.06.20 I0. The appellant challenged the order
of the I" respondent by tiling a writ petition in \V.l'.(C) Nn.32734/2011
E before the High Court ofKerala contend in~ that the :i"· rcstlllndcnt would
not come within the preforential Ru le. 11a111cl). Ru le 5 I A and ecrnsequcntly
the order of the I" respondent cann(l! be s11stai11cd. lhe 5"' respondent
tiled a writ petition in \V.P. (C) No.:'808i2tl I:i i(>r 1rnpknw11tine the (lrJcr
of the I" respondent dated 26.11.2011. I he" rit pctitiun of the appellant,
F the 5'" respondent and another writ petition in Writ Petition No.24 773/
2009 filed by another claimant also relying upon Rule 51 A were tagged
together for hearing.
4. Be that as it may, it is stated that with reference to the implication
of Rule 51 A in which an amendment came to be made w.e.f. 27.04.2005
read along with amended Ruic 7A(3) as there were two conflicting
G
Division Bench decisions, namely, Abdurahiman v. Government of
Kcnlla - 2009 (2) KLT I 05 and Maya v. Govt. or Kerala - 20 I 0 (2)
KLT99, the Division Bench of the High Court before whom the above
writ petitions were posted, referred the matter to a Full Bench. That is
how the impugned judgment came to be passed by the Full Bench of the
H Kera la 11 igh Court on 08.10.2014.
MANAGER. VKNM VOCATIONAL HIGHER SECONDARY SCHOOL v. 349
STATE OF KERA LA [FAKKIR MOHAMED IBRAHIM KALIFULLA. J.]

5. Assailing the judgment, Mr. Rana Mukhe1:jee. Learned Senior A
Counsel for the appel Iant contended that the issue was directly covered
by a recent decision of this Court reported as State of Kerala and
others , . Stll'ha Chcriyan and another - (2013) 5 SCC 160 and,
therefore. lh•: i ,i11 Bench decision impugned in this appeal is liable to be
set aside. The learned Senior Counsel also took us through the relevant
B
Ru·les. namely, Rule 7 A. Rule 49, Rule 52 and Rule 51 A along with its
proviso and submitted that this Court analyzed the above Rules with
particular reference to Rule 7 A(3) and the proviso to Rule 51 A and held
that in order for a teacher who was employed and subsequently relieved
on account of termination of vacancies the services of such teacher
should have been engaged for one full academic year as per Rule 7 A(3) c
and that the said stipulation having been introduced in the Rule as and
from 27.04.2005. the claim of the 5'" respondent by relying upon the
unamended Rule 7 A(3) could not have been countenanced. The learned
Senior Counsel also submitted that though the decision of the DiYision
Benc:1 of the Kerala High Com1 in the case of Abdurahiman (supra)
D
was affirrned by this Cou1t which related to the appointment ofa cook,
the said judgment not having specifically examined the imp Iication of the
amended Rule 7 A (3) and Rule 51 A, the present decision in the case of
Sncha Cheriyan (supra) of this Court alone would prevail and on that
basis the law laid down by the Division Bench of the Kera la High Court
should be set aside. E
6. As against the above submissions. Mr. C.S. Rajan learned Senior
Counsel appearing for the 5'h respondent at the outset submitted that
since the issue was squarely covered by the judgrnent in Abclurahiman
(supra) which was followed by the Full Bench in the irnpugnedjudgment,
the same does not call for interference. According to learned Senior F
Counsel for tl1e 5'" respondent, the right of the 5'" respondent to claim
preferential appointment got crystallized under the unamended Rules
and thereby a vested right to claim such appointment was preserved in
favor of the 5'" respondent and consequently the amendment to Rule
7 A(3) as well as the proviso to Rule 51 A cannot have any implication to
prejudice such a vested right already crystiillized in favour of the 5'" G
respondent. The learned senior counsel also submitted that if for any
reason this com1 were to hold that the decision in Sneha Chcriyan
(supra) would apply, in the light of the two conflicting views expressed
in Abdurahiman (supra) and Sneha Cheriyan(supra) the isst1e should
go to a Larger Bench. H
350 SUPREME COURT REPORTS [2016] 1 S.C.R.

A 7. The learned counsel for the State. Mr. M.T. George would also
support the stand as was submitted on behalf of the 5'" respondent and
contended that the claim of the 5th respondent can alone be considered
in the light of the law that was prevailing prior to the amendment of Rule
7A(3) and 51A.
B 8. Mr. Rana, Learned Senior Counsel in his submissions apart
from referring to the decision in Snclrn Cheriyan (supra) also relied
upon The State or Maharashtra v. Vishnu Ramclrnndra - I 96 I (2)
SCR 26 and Commissioner or Income Tax (Central)-1, New Delhi
v. Vatika Township Private Limited - 20 I 5 (I) SCC 1.
c 9.To appreciate the respective contentions, it will be necessary to
note the reference order of the Division Bench dated 21.06.2012 which
reads as under:
"5. In paragraph I 4 ofAhdurahiman v. Government or Kerala,
2009 (2) KLT 105, the Division Bench specifically dealt with the
D impact of the amendments and held that rights already accrued
could not be deprived. Later. in Maya v. State of Kcrala, 2010
(2) KLT 99, the Division Bench appears to have taken a contrary
view. This is evident from paragraph 2 of Maya's case. The
apparent conflict among those Bench decisions is not reconcilable
by the Division Bench interpreting the Rules, though prima facie,
E w•: see substance in the rights of teachers who had enjoyed
approved service for shorter than one year before the amendment.
We also see that the right to such appointment against one category
would have got enlarged to be available as against the different
categories of teachers as a result of the amendment. These
F matters also need a deeper look. But. the conflict between the
judgments noted above prompts us to refer these cases to the Full
BAnch"."
10. The Full Bench. after a detailed discussion answered the
question as under in paragraph 22 which is to the following effect:
G "22. In view of the foregoing discussions 1w answer the above
reference in the 1()1 lowing manner:
1. The Jaw laid down by the Division Bench in Ahdurahiman's
case (supra) is the correct law as has already been approved by
the Full Bench in Soman's case (supra).
H
MANAGER. VKNM VOCATIONAL HIGHER SECONDARY SCHOOL v. 35 I
STATE OF KERALA [FAKKIR MOHAMED IBRAHIM KALIFIJLLA. J.]

. 2. The judgment of the Division Bench in Maya•s case (supra) in A
so far as it followed the earlier Division Bench judgment in
Abdurahiman's case (supra) is approved. However. the ratio as
laid down in paragraph 7 of the judgment that persons retrenched
earlier, after \Vorking in short tenn vacancies, cannot get the benefit
of amended rule i.e., they are not entitled to be considered for any
B
posts in the higher or lower category of teaching posts is
disapproved and to the above extent the judgment in Maya's case
(supra} is over ruled.
3. We also hold that the first proviso to Rule SI A shall not be
applicable to those teachers who were relieved on account of
termination of vacancy and even if those teachers had services to
c
Jess than one academic year they arc entitled to benefit of Ruic
SIA.
4. Those teachers who were relieved prior to the amendment of
Rule SI A are also entitled to claim appointment in any posts
including higher or lower category posts. D

In view of the foregoing discussions and our answer as noted
above, W.J>.(C) No. 24773 of2009 as well as W.P.(C) No. 32734
of2011 are dismissed. W.P.(C) No. 2808 of2012 is allowed and
a direction is issued to the respondent management to issue
appointment order to the petitioner in W.P.(C) No. 2808of2012, E
if not already issued, within thirty days from today. The parties
shall bear their own costs."
11. It is also necessary to note the relevant Rules namely, Rule
7 A both amended as well as unamended, Rule 49 and relevant part of
Rule SI A both prior to its amendment and after its amendment and Rule F
52 which are as under:
"Provision (Pre-amendmcnt):-
Hulc 7A:
(1) No appointment shall be made in anticipation of sanction of
posts except in the case of new school opened or existing schools G
upgraded (or higher standards opened with permission in those
schools);
Provided in the case of additional posts sanctioned as per staff
fixation order, appointments may be made from the date ofeffect
of the fixation order. .
"
352 SUPREME COURT REPORTS j2016] I S.C.R.

A (2) Posts that may fall vacant on the closing date shall not be
tilled up till the reopening date.
(3) Vacancies, the duration of which is two months or less shall
not be filled up by any appointment.
Ruic SIA:
B
Qualified teachers who are relieved as per Ruic 49 or 52 or rn1
account of tcnnination of vacancies shall ha\'c preference for
appointn1ent to future vacancies in schools under the san1e
Educational Agency or an Educational Agency to which the school
may be subsequently transferred provided they have not been
c appointed in permanent vacancies in schools under any other
Educational Agency.
Provision (Post-amendmcn t):-
Rule 7A:
D· (I) Omitted vide G.O. dated 28.10.1978.
(2) Posts that may fall vacant on the closing date shall not be
filled up till the reopening date except in the case of posts of non-
vacation staff.
(3) Vacancies, the duration of which is Jess than 1111e academic
E
ye'lr. shall not be filled up.
Rule 49:
Qualified teachers except Headmasters appointed in vacancies
which are not permanent which extend over the summer vacation
F and who continue in such vacancies till the closing date shall be
retained in the vacancies during the vacation, if their continuous
service as on the closing date is not less than eight months. The
teachers so retained shall be entitled to the vacation salary. These
teachers shall be relieved on the closing day if their continuous
servicle as on that day is less than the aforesaid period. This rule
G shall not apply to teacher appointed in training vacai1c.ie-s.
Explanation:- For the purpose of this rule. 'Headmaster' includes
Teacher-in-charge also.
Rule SIA:
H Qualified teachers who are relieved as per Rule 49 or 52 on
MANAGER. VKNM VOCATIONAL HIGHER SECONDARY SCHOOL v. 353
STArE OF KERALA [FAKKIR MOHAMED IBRAHIM KALIFULLA. J]

account of termination of vacancies shall have preference for A
appoint1nent to future vacancies in tlte sante or higher or lo•ver
categorv 11(/e11d1i11g po.,ts. {iJr wlticlt lte is qualified tltat 11w1•
arise if there is no clai111ant under llule 43 in the lo'vver category
in schools under the same Educational Agency or an Educational
Agency to which the school may be subsequently transferred
B
provided they have not been appointed in permanent vacancies in
schools under any other educational agency. (Inserted vide
amendment dated 25.06.2005)
Provided that a teacher who was relieved under Ruic 49 or Rule
52 shall not be entitled to preference for appointment under this
rule unless such teacher has a 111ini111u1n continuous service of
c
one academic year as on the date of relief:
(Inserted vide amendment dated 27.04.2005)
Provided further that the first preference under this rule shall be
given to protected teachers belonging to the same Educational D
Agency.
Note 1. If there are more than one claimant under this rule the
order of preference shall be according to the date of first
appointment. If the date or first appointments is the same then
preference shall be decided with reference to age, the older being E
given first preference. In making such appointments, due regard
should be given to the requirement of subjects and to the
instructions issued by the Director under sub-rule (4) ofrule I as
far as High Schools are concerned.
Note IA: Fresh appointments to vacancies arising in the same or F
higher or lower category of teaching posts under the Educational
Agency shall be made only after providing re-appointment to such
teachers thrown out from service and protected teachers available
rn1dcr the Educational Agency.
Explanation:- For the purpose of this clause, ''Protected Teacher"
G
111eans a teacher \Vho has been retrenched for \Vant of vacancy
after putting such length of regular service that may be specified
by the Government or who is eligible for such Protection as per
GO (Ms) No. 104/69/Edn. dated 06.03.1969 or GO (Ms) No.
231 /84/Edn. dated 27.10.1984 or any other orders issued by
Government from time to time. H
354 SUPREME COURf REPORTS [2016J I S.C.R.

A Note 2: Manager should issue an order of appointn1ent to the
teacher by Registered post acknowledgment due and give a period
of 14 (fourteen) clear days to the teacher to join duty. If the
teacher does not join duty in time the Manager should give a further
notice to the teacher stating that another person would be appointed
instead and that the preferential right under this rule would be
B
forfeited if not exercised within another 7 (seven) clear days. If
nothing is heard during that time also. the preferential right under
the rule will be regarded as forfeited.
Ruic 52:

c (I) Teachers who are relieved on account of any reduction in the
number of posts under orders of the department shall on
reappointment in the same school or in another school under the
sa1ne 111anage111ent or a different 1nanagcn1ent start on the sa1ne
pay as they were getting at the time of relief, whether the new
appoint111ent is pennanent or not.
D
(2) Teachers thrown out from service due to the withdrawal of
recognition of schools by the Department shall also be eligible to
draw the pay which they were getting at the time of withdrawal
ofrecognition of the school on re-appointment in another school."
12. Since this very Ruic 7A(3) as well as Ruic SIA along with
E
Rules 49 and 52 were subject mailer of consideration in details in the
decision ofthis Court in Sucha Chcriyau (supra) before entering into
any further discussion, we feel it appropriate lo note the rekvant
conclusions drawn by this Court on a reading of the abovcsaid Rules.
13.Thc relevant paragraphs of the said judgment are 18. 19, 20,
F
21, 22, 23, 24, 24.1 and 24.4 which arc as under:
"18. We may before examining the scope of sub-rule (3) of Rule
7-A and the proviso to Section 51-A read with the Government
Order dated I 0-6-2008. examine the scheme of the Act and the
KER and the object and purpose of sub-rule (3) of Ruic 7-A as
G
well as the impugned order dated 10-6-2008. We have already
indicated that as per the Kenda Education Act and the KER, the
manager of the aided school is free to make appointment of
teachers in their respective schools who are qualified according
to the Rules and the entire salary and other allowances have to be
1-1 borne by the State Government.
MANAGER, VKNM VOCATIONAL HIGHER SECONDARY SCHOOL v. 355
STATE OF KERALA [FAKKIR MOHAMED IBRAHIM KALIFULLA. J.]

19. Rule 51-A of Chapter XIV-A of the KER states that qualified A
teachers in aided schools who are relieved on account of
termination of vacancies shall have preference for reappointment
in future vacancies in the aided schools. Rule43, Chapter XIV-A
of the KER states that the vacancies in any higher grade of pay
shail be filled up by promotion in the lower grade according to the
B
seniority. We cannot read sub-rule (3) of Rule 7-A in isolation, it
has to be read in the light of the proviso to Rule 51-A: they have
to be read as parts of an integral whole and as being
interdependent. The legislature has recognised that
interdependency since both sub-rule (3) of Rule 7-A and the
proviso to Section 51-A were inserted by the same amendment in c
the year 2005. The expression "vacancies" used in sub-rule (3)
of Ruic 7 means "posts which remain unoccupied". The Rule
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.
D
the continuance of the incumbent. As stated in the Notification
dated 15-6-2004 the vacancies having a duration of less than one
academic year can be filled up on daily-wage basis. Sub-rule (3)
of Rule 7-A uses the expression "academic year". Rule 2-A of
Chapter Vil of the KER refers to the academic year, which reads
as follows: E
"2-A. Academic year shall be deemed to commence on the
reopening day and terminate on the last day before the summer
vacation."
· Rule I of Chapter Vil says
F
"l. All schools shall be closed for the summer vacation every
year on the last working day on March and reopened on the first
working day of Jnne unless otherwise notified by the Director."
The Notification dated I0-6-2008 only says that if the period of
appointment does not cover one academic year i.e. the reopening G
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 period commences after the beginning of the
reopening day. but extends either next academic year/years the
period up to the first vacation shall be approved on daily wages
only which docs not take away the right of the managers of the H
356 SUPREME COURT REPORTS [2016] I S.C.R.

A aided 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 Rule SI-A claimant, that is the object and purpose of
sub-rule (3) of Rule 7-A read with the proviso to Rule SI-A of
Chapter XIV-A of the KER.
B
20. The object and purpose of the Notification dated 16-4-2005
issued by the Government in exercise of the powers conferred
under Section 36 of the Kerala 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
c relatively long leave vacancies itself thereby making several Rule
SI -A claimants against one and the same vacancy. The object
and purpose of the abovementioned notification is also to end the
practice of creation of multiple claimants in anticipatory vacancies
creating more Rule SI-A claimants imposing huge financial
D commitment to the Government.
21. Sub-rule (3) of Rule 7 does not restrict the right of the managers
of various schools in making regular 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
E vacancies and appointing several persons in those vacancies so
as to make them claimants under Rule SI-A. Looking to the
mischiefor evil sought to be remedied, we have to adopt a purposive
construction of sub-rule (3) of Rule 7-A read with the proviso to
Rule S 1-A of Chapter XIV-A of the KER.

F 22. We are inclined to adopt such a construction since the stand
of the respondents is that Rule 7-A speaks of ''duration of
vacancies" and not "duration of appointment". The expression
"vacancy" used in sub-rule (3) of 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) of Rule 7-A so as to
G remedy the mischief. The evil, which was sought to be remedied
was the one resulting from widespread unethical and unhealthy
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) of
H
MANAGER, VKNM VOCATIONAL HIGHER SECONDARY SCHOOL v. 357
STATE OF KERALA [FAKKIR MOHAMED IBRAHIM KALI FULL'\. J.]

Rule 7-A read with the proviso to Section 51-A and the Government A
Order dated I 0-6-2008.
23. We notice later that the Government passed yet another G.O.
(P) 56/1 l/Gen.Edn. dated 26-2-2011 clarifying the earlier G.Os.
dated 15-6-2004 and I 0-6-2008. The operative portion of the same
reads as under: B
"I. Approval can be granted subject to the conditions under Rule
49 Chapter XIV-A of the KER 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 bey0t1d 3 I st March due to the sanctioning C
ofadditional divisions.
2. Appointments for a duration ofless 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)." o
We have referred to the above G.O., for the sake of completeness,
which has of course no bearing on the interpretation which we
have placed on sub-rule (3) to Rule 7-A read with the proviso to
Rule 51-AofChapter XIV-A of the KER, but may have application
on facts in ce11ain cases which have to be decided independently. E
24. We are, therefore, inclined to allow these appeals and set
aside the judgment of the Division Bench with the following
directions:
24.1. A teacher, who was relieved from service under Rules 49
and 53 of Chapter XIV-A of the KER, is entitled to get preference F
for appointment under Rule 5 J-A only if the teacher has a minimum
prescribed continuous service in an academic year as on the date
ofrelief.
24.2
24.3 G

24.4. The Manager can make appointments in school even ifthe
duration of which is less than one academic year but on daily-
wage basis and if the duration of vacancy exceeds one academic
year that can be filled up on scale of pay basis."
H
358 SUPREME COURT REPORTS [2016] 1 S.C.R.

A 14. In the above paragraphs this Coc1rt has clearly found that
after the amendment of Rule 7A(3), in order for a qualified teacher to
claim preferential appointment under the category .. on account of
termination of vacancies" as mentioned in Rule 51 A, earlier appointment
in such vacancies should have been for a duration of one full academic
year namely, from I" June of the previous yeartill the last day of March
B
of the subsequent year. For instance if the academic year is 2000-200 I
the appointment in any such vacancy should have commenced on I"
June of 2000 a1id ended on 31 '' March of 200 I. If the appointment in
any such vacancy fell short of the period as mentioned above then such
teacher cannot be held to have come under the category "on account of
c termination of vacancies" and consequently cannot claim preferential
appointment in any future vacancies.
15.0nce we steer clear of the said position having regard to the
law laid down by th is Court in Sneha Chcriyan (su1>ra), we have to
consider the submissions of learned counsel for the 5"' respondent Mr.
D C.S. Rajan who was supported by the standing counsel appearing for
the State, who both wanted to support the conclusion of the I" respondent
in its order dated 26.11.2011.
16. According to Mr. C.S. Rajan. learned Senior Counsel for the
5'" respondent in the first instance, the 5'" respondent had already acquired
E a vested right having regard to the unamended Rule 7 A(3) which prevailed
at the time of her engagement in the leave vacancies between 0 I .10.1997
and 11.03.1998 .. As was noted by us earlier she had put in two months
and nineteen days in the said period i.e., between 11.01.1998 and
11.03.1998. Under unamended Rule 7A the stipulation was that
vacancies, the duration of which is two months or less should not be
F filled up by any appointment. Since at the relevant point of time the said
unamended Rule was in force, the engagement of the 5'" respondent
between I 0.0 I. 1998 and I 1.03 .1998 was fu 1ly governed by the
unamended Rule 7 A(3 ). Thus, the 5'" respondent's engagement was a
valid engagement. If the amended Rule 7 A(3) is to be ignored certainly
G she would fall within the category ''on account of termination of vacancies
as is stipulated in Rule SIA". In support of the above submission, the
learned Senior Counsel also drew our attention to ~otc 2 prescribed
under Rule 51 A and submitted that in the event of the fulfillment of the
said requirement by the qualified teacher concerned it was mandatorily
cast on the Manager to issue an order ofappointmcnt by registered post
H
MANAGER, VKNM VOCAf!ONAL HIGHER SECONDARY SCHOOL v. 359
STATE OF KERALA [FAKKIR MOHAMED IBRAHIM KALIFULLA. J.]

acknowledgment due by giving 14 clear days notice to the teacher to A
join duty and in the event of the said teacher is not joining duty, to give
one more opportunity with 7 clear days and even thereafter only ifthe
teacher failed to join duty the forfeiture of the preferential right would
operate. The learned Senior Counsel, therefore, contended that even if
the 5'" respondent had not applied when the vacancy arose in the year
B
2010 without compliance of Note 2 of Rule 51 A the appointment of 6'"
respondent could not have been resorted to by the appellant.
17. Though, in the first blush, the argument appears to be very
sound and appealing, we are not able to appreciate the said submission,
inasmuch as, we are not in a position to accede to the submission of the
learned counsel that the 5'" respondent acquired a vested right even
c
after the amendment was brought into the rules in particular to Rule
1A(3). At the risk ofrepetition it must be stated that after the amendment
to Rule 7A(3) which was introduced by notification GO(P) No.121/2005/
GEdn. dated 16.04.2005, the position was that a qualified teacher cannot
be said to have been engaged in a vacancy which stood terminated D
unless the duration of which was one full academic year. In order to·find
out what would constitute a full academic year this Court in Sneha
Ch.eriyan {supra) referred to Rule 2A of Chapter VII of Kerala
Education Rules which specifically defines an 'academic year' to deem
to commence on the reopening day and terminate on the last day before
summer vacation. Under Rule I of Chapter VII it is specifically stipLilated E
that all schools should be closed for summer vacation every year on the
last working day of March and reopen on the I" working day of June
unless otherwise notified by the Director. Therefore, the academic year
would commence on 1" June of the previous year and end on 31" March
of the subsequent year. Tl\erefore, if one were to claim any preferential F
right of appointment under Rule 51 A under the category falling under
"on account oftennination of vacancies'', having regard to the stipulations
contained in the amended Rule 7A(3) such qua Iified teacher should have
been engaged in a vacancy which lasted or existed for one clear academic
year, namely, between l" June of the relevant year ti 11 the end of 3 I"
March of the subsequent year. It is not the case of the 5'" respondent G
that she satisfied the said requirement as has now been stipulated under
the Rule, namely, 7A(3) read along with Rule 51 A.
18. Having noted the said position, we feel it appropriate to cull
out the principles of interpretation arising under such contingencies. It
H
360 SUPREME COURT REPORTS [2016] 1 S.C.R.

A will be worthwhile to refer to ce1tain principles on the question of existence
or otherwise of a vested right in a person by making reference to a
Constitution Bench decision of this Court reported as Garikapati
Veeraya v. N. Subbiah Choudhry - AIR 1957 SC 540. It will be
profitable to briefly recapitulate the facts noted in the said decision by
the renowned Judge Hon'ble Mr. Justice S.R. Das, Chief Justice. The
B
petitioner in that case filed a Special Leave Petition from the judgment
passed by the High Comt of Andhra Pradesh on I 0'" February, 1955.
The suit out of which the special leave petition arose was instituted on
22"' April, 1949 in the subordinate court. The Trial Court passed its
judgment on 14'" November, 1950 dismissing the suit. The plaintiff filed
c the appeal. The High Court of Andhra Pradesh accepted the appeal by
its judgment dated 04'" March, 1955 and reversed the decree of the Trial
Court and decreed the suit. Aggrieved against the same, the Special
Leave Petition in that case moved the High Court for leave to appeal to
this Court and the same was dismissed inter alia on the ground that the
value of the property was only Rs.11,400/- and did not come up to the
D
level of Rs.20,000/-. In the Special Leave Petition petitioner contended
before this Court that the judgment being one of reversal and the value
was above Rs. I 0,000/-, he was entitled, as a matter of right to come up
to this Comt on appeal and since the said right was denied to him by the
High Court, by invoking Article 136 of the Constitution, he moved the
E Special Leave Petition. The contention of the Special Leave Petition
petitioner was that as from the date of the institution of the suit he acquired
a vested right to appeal to this Comt and in support of his submissions he
relied upon various decisions. The Constitution Bench after making a
detailed analysis of the issue raised has laid down the following principles,
which are as under:
F
"From the decisions cited above the following principles clearly
emerge:
(i) That the legal pursuit of a remedy, suit, appeal and second
appeal are really but steps in a series of proceedings all connected by an
G intrinsic unity and are to be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure but it a
substantive right.
(iii) The institution of the suit carries with itthe implication that all
rights of appeal then in force are preserved to the parties thereto ti II the
H rest of the career of the suit.
MANAGER, VKNM VOCATIONAL HIGHER SECONDARY SCHOOL v_ 361
STATE OF KERALA [FAKKIR MOHAMED IBRAHIM KALIFULLA J.]

(iv) The right of appeal is a vested right and such a right to enter A
the superior court accrues to the litigant and exists as on and from the
date the !is commences and although it may be actually exercised is to
be governed by the law prevailing at the date of the institution of the suit
or proceeding and not by the law that prevails at the date of its decision
or at the date of the filing of the appeal.
B
(v) This vested right of appeal can be taken away only by a
subsequent enactment, if it so provides expressly or by necessary
intendment and not otherwise."
19. In our considered view the above principles laid down by the
Constitution Bench of this Court will have full application while c
considering the argument oflearned Senior Counsel for the 5"' respondent
claiming a vested right by relying upon unamended Rule 7A(3). Principles
(i), (iii), (iv) and (v) of the said judgment are apposite to the case on
hand. When we make a comprehensive reference to the above principles,
it can be said that for the legal pursuit of a remedy it must be shown that
the various stages of such remedy are formed into a chain or rather as D
series of it, which are connected by an intrinsic unity which can be
called as one proceeding, that such vested right if any should have its
origin in a proceeding which was i1istituted on such right having been
crystallized at the time of its origin itself, in which event all future claims
on that basis to be pursued would get preserved till the said right is to be E
ultimately examined. In the event of such preservation of the future
remedy having come into existence and got crystallized, that would date
back to tlie date of origin when the so-called vested right commenced,
that then and then only it can be held that the said right became a vested
right and it is not defeated by the law that prevail at the date of its
decision or at the date of subsequent filing of the claim. One other F
fundamental principle laid down which is to be borne in mind is that even
such a vested right can also be taken away by a subsequent enactment
if such subsequent enactment specifically provides by express words or
by necessary intendment. In other words, in the event of the extinction
of any such right by express provision in the subsequent enactment, the G
same would lose its value.
20. Having thus noted such well laid down principles on a claim of
vested right, when we test the argument made on behalf of the 5'"
respondent, at the very outset it must be stated that though prior to the
amendment of Rule 7A(3) by the notification dated 16.04.2005 the 5'"
H
362 SUPREME COURT REPORTS [2016] I S.C.R.

A respondent did satisfy the unamended Rule 7 A(3) by having been
engaged in a vacancy as a qualified teacher for a period of two months,
as early as on 11 '" March, 1998, unfortunately for the 5'" respondent
there was no occasion to raise a claim for any preferential appointment
on the basis of fulfillment of such a requirement as it existed then and as
provided under Rule 51 A. In fact, between 1998 and 20 I 0 i.e. for nearly
B
I 2 years there was no scope for the 5'" respondent to raise a claim on
that basis. Therefore, the very fundamental principle of pursuit of a
remedy at the very inception did not take place in order to consider
whether any further proceedings could be pursued based on such initiation
of claim. Since at the very inception a claim though even on the basis of
c the then existing Rule 7A(3) could not be initiated to be pursued, it is
very difficult to hold that there could have been preservation of any such
right as it existed under the unamended Rule 7A(3). Having regard to
the said situation in the case on hand, it cannot be held that the law that
prevailed, namely, the right which was available under the unamended
Rule 7A(3) alone would remain and not the law that prevailed at the
D
time when the 5'" respondent staked her claim for preferential
appointment i.e. when the vacancy arose in the year 2010. By thattime
i.e. after 12 years when the 5'" respondent sought to enforce her right
under Rule 51 A as a sea change came into effect by way of an
amendment to Rule 7A(3), which expressly disentitled a qualified teacher
E to claim to be categorized under"on account of termination of a vacancy"
as suc:l1 express prohibition came to be introduced by virtue of the
amendment to Rule 7A(3), it will have to be held that the submission of
learned Senior Counsel for the 5'" respondent that a vested right accrued
to her a; early as on I I .03. I 998 cannot be countenanced. Since, the
very foundation ofthe 5'" respondent's claim rested on the said submission,
F
we do not find any scope to apply Note 2 of Rule 5 I A to come for her
rescue. Equally the reliance placed upon by the learned counsel in
Abdurahiman (supra) will also be of no avail when once the claim of
the 5'" respondent fall to the ground by virtue of the principles laid down
by the Constitution Bench decision of this Court in Garikapati Veeraya
G (supra). Consequently, the faint attempt of the learned Senior Counsel
for the appellant to refer this case to a Larger Bench cannot also be
acceded to.
21. Therefore, going by the interpretation ofamended Rule 7A(3)
read along with Rule 51 A, if one were to be brought under the category
H of qualified teacher relieved on account oftennination of vacancies, the
MANAGER, VKNM VOCATIONAL HIGHER SECONDARY SCHOOL v. 363
STATE OF KERALA [FAKKIR MOHAMED IBRAHIM KALIFULLA. J.]

amended Rule 7 A(3) required to be satisfied, namely, such engagement A
was lasted for one clear academic year as stipulated under Rule I and
2A of Chapter Vil of the Kerala Education Rules. The 5'" respondent
not having satisfied the said requirement there was no scope to allow
her to press her clai1n under Rule 5 IA for a preferential appointment.
Having regard to the said legal consequence, the relief granted by the I"
B
resp0ndent in order dated 26.11.2011 cannot be sustained and
consequently the directions issued by the High Court in the impugned
judgment cannot also be sustained. The answers to the questions made
by the Full Bench are also liable to be set aside and in its place, it must
be held that the interpretation made by this Court in Sneha Cheriyan
(supra) would alone prevail. c
22. The appeals stand allowed. The impugned judgment is set
aside. The order of the I" respondent dated 26.11.2011 is also set aside.
The appointment of the 6'" respondent stands restored and there will be
no order as to cost.
D
Nidhi Jain Appeals al lo\ved.