MANAGER Vs. SUMA A V
LAWS(KER)-2003-2-13
HIGH COURT OF KERALA
Decided on February 10,2003

MANAGER Appellant
VERSUS
SUMA.A.V. Respondents

JUDGEMENT

- (1.) What is the true ambit and scope of R.51A of the Kerala Education Rules, 1959 Does the Rule entitle a teacher, whose tenure has not been extended at the expiry of the original period of appointment, to claim that he is entitled to continue in service Two Division Benches have taken different views. In Secretary, Payyannur Municipality, Payyannur v. Jayavani K.V. and others (W.A. 1919/2000 decided on January 22, 2001), a Division Bench of this Court (K.K. Usha, C.J. and Kurian Joseph, J.) took the view that even if regular appointment is through Kerala Public Service Commission, the claim of candidates under R.51A is well protected. Less than two months later, another Division Bench (Sankarasubban and Kum. A. Lekshmikutty, JJ.) in Sasikala v. Vrinda ( 2001 (2) KLT 278 ) held that R.51A has been enacted for the purpose of providing preference for teachers who were appointed in the vacancies which were not permanent or which stood abolished or which ceased to exist. R.51A does not depict a situation where a person was appointed to a permanent vacancy temporarily. Noticing the conflict of opinion, a Division Bench, of which one of us (K.S. Radhakrishnan, J.) was a Member, has referred the matter to a Full Bench. The counsel have referred to the facts as emerging from the record of W.A. No. 32 of 2001. The relevant facts may be noticed.
(2.) The respondent Nos. 1 and 2 were appointed as Upper Primary High School Assistants (a designation for teachers) in the Trikkur Panchayat Sarvodaya High School, vide orders dated November 21 and 20, 1997 respectively. The first respondent was appointed as a temporary teacher for the period from November 21, 1997 to March 31, 1998. Her appointment was against a vacancy, which had become available on the retirement of the original incumbent. The second respondent was appointed as a temporary teacher for the period from November 20, 1997 to March 31, 1998. This appointment was made against a vacancy created under the orders dated August 30, 1997 passed by the District Educational Officer, Thrissur. The District Educational Officer had duly approved both the appointments. Copies of the orders of appointment have been produced as Exts.P2 and P3 respectively. The School is managed by the Panchayat.
(3.) On October 6, 1995, the State Government circulated a decision that appointments in the schools managed by the Panchayats shall be made through the Kerala Public Service Commission. Various other conditions were also laid down. A copy of this circular is on record as Ext. P4. It was specifically directed that the vacancies in schools should be filled up, in urgent cases, by making temporary appointments only. In pursuance to the order dated October 6, 1995, the Manager terminated their services with effect from March 31, 1998. The two respondents claimed that they were entitled to the protection of R.51A. The action was contrary to the provisions of the Rules. Thus, they approached the Court through a petition under Art.226 of the Constitution. They prayed that a writ in the nature of mandamus directing the authorities to allow them to continue in service as regular staff be issued.;


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