THE MANAGER VKNM VOCATIONAL HIGHER SECONDARY SCHOOL Vs. THE STATE OF KERALA & ORS. ETC.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 518-519 of 2016, Judgment Date: Jan 27, 2016
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 518-519 OF 2016
[arising out of SLP(C) Nos.31794-31795 of 2014]
The Manager, VKNM Vocational Higher …Appellant
Secondary School
VERSUS
The State of Kerala and others etc. …Respondents
With
CIVIL APPEAL NO. 520 OF 2016
[arising out of SLP(C) No.33104 of 2014]
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
Leave granted.
By this judgment, we dispose of Civil Appeal arising out of Special Leave
Petition(C) No.33104 of 2014 also as both the appeals arise out of the
common Full Bench Judgment of the Kerala High Court. The appellant in Civil
Appeal arising out of Special Leave Petition No.33104 of 2014 is aggrieved
by the Full Bench Judgment of the Kerala High Court which was dismissed and
consequently her appointment dated 01.06.2010 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. Indiramma/private
respondent. For the sake of convenience, we refer to the parties as
arrayed in Civil Appeal arising out of SLP (C) No.31794 of 2014.
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
08.10.2014 while answering a Reference made to it by the Division Bench in
view of two conflicting decisions of two other Division Benches and thereby
dismissing the appellant’s Writ Petition while allowing the 5th
respondent’s Writ Petition. The appellant was directed to issue appointment
order to the respondent as a teacher in its school.
The brief facts which are required to be noted are that the 5th respondent
worked in the appellant’s school in 3 different spells between 01.10.1997
and 11.03.1998 for a total period of two months and 19 days. Subsequently,
when the post of High School Assistant in social science fell vacant in the
year 2010 consequent to the retirement of a teacher, the 6th respondent
came to be appointed on 01.06.2010 afresh. The 5th respondent challenged
the appointment of the 6th respondent by relying upon a rule which provided
for preferential appointment to some categories of qualified teachers who
had the fortune of working earlier in the school. The appellant rejected
the claim of the 5th respondent by relying upon a Division Bench decision
of the Kerala High Court. Aggrieved by the order of the appellant dated
18.09.2010, the 5th respondent approached the 2nd respondent. The 2nd
respondent by its order dated 31.03.2011 rejected her claim. The 5th
respondent filed a revision before the 1st respondent and the 1st
respondent by order dated 26.11.2011 directed the 4th respondent, the
District Education Officer to issue necessary formal orders appointing the
5th respondent as high school assistant in the appellant school w.e.f.
01.06.2010. The appellant challenged the order of the 1st respondent by
filing a writ petition in W.P.(C) No.32734/2011 before the High Court of
Kerala contending that the 5th respondent would not come within the
preferential Rule, namely, Rule 51A and consequently the order of the 1st
respondent cannot be sustained. The 5th respondent filed a writ petition
in W.P. (C) No.2808/2012 for implementing the order of the 1st respondent
dated 26.11.2011. The writ petition of the appellant, the 5th respondent
and another writ petition in Writ Petition No.24773/2009 filed by another
claimant also relying upon Rule 51A were tagged together for hearing.
Be that as it may, it is stated that with reference to the implication of
Rule 51A in which an amendment came to be made w.e.f. 27.04.2005 read along
with amended Rule 7A(3) as there were two conflicting Division Bench
decisions, namely, Abdurahiman v. Government of Kerala – 2009 (2) KLT 105
and Maya v. Govt. of Kerala - 2010 (2) KLT 99, 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 Kerala High Court on 08.10.2014.
Assailing the judgment, Mr. Rana Mukherjee, Learned Senior Counsel for the
appellant contended that the issue was directly covered by a recent
decision of this Court reported as State of Kerala and others v. Sneha
Cheriyan and another – (2013) 5 SCC 160 and, therefore, the Full Bench
decision impugned in this appeal is liable to be set aside. The learned
Senior Counsel also took us through the relevant Rules, namely, Rule 7A,
Rule 49, Rule 52 and Rule 51A along with its proviso and submitted that
this Court analyzed the above Rules with particular reference to Rule 7A(3)
and the proviso to Rule 51A 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 7A(3) and that the said stipulation having been introduced
in the Rule as and from 27.04.2005, the claim of the 5th respondent by
relying upon the unamended Rule 7A(3) could not have been countenanced. The
learned Senior Counsel also submitted that though the decision of the
Division Bench of the Kerala High Court in the case of Abdurahiman (supra)
was affirmed by this Court which related to the appointment of a cook, the
said judgment not having specifically examined the implication of the
amended Rule 7A (3) and Rule 51A, the present decision in the case of Sneha
Cheriyan (supra) of this Court alone would prevail and on that basis the
law laid down by the Division Bench of the Kerala High Court should be set
aside.
As against the above submissions, Mr. C.S. Rajan learned Senior Counsel
appearing for the 5th respondent at the outset submitted that since the
issue was squarely covered by the judgment in Abdurahiman (supra) which was
followed by the Full Bench in the impugned judgment, the same does not call
for interference. According to learned Senior Counsel for the 5th
respondent, the right of the 5th 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 5th
respondent and consequently the amendment to Rule 7A(3) as well as the
proviso to Rule 51A cannot have any implication to prejudice such a vested
right already crystallized in favour of the 5th respondent. The learned
senior counsel also submitted that if for any reason this court were to
hold that the decision in Sneha Cheriyan (supra) would apply, in the light
of the two conflicting views expressed in Abdurahiman (supra) and Sneha
Cheriyan (supra) the issue should go to a Larger Bench.
The learned counsel for the State, Mr. M.T. George would also support the
stand as was submitted on behalf of the 5th 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.
Mr. Rana, Learned Senior Counsel in his submissions apart from referring to
the decision in Sneha Cheriyan (supra) also relied upon The State of
Maharashtra v. Vishnu Ramchandra - 1961 (2) SCR 26 and Commissioner of
Income Tax (Central)-I, New Delhi v. Vatika Township Private Limited - 2015
(1) SCC 1.
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 14 of Abdurahiman v. Government of Kerala, 2009
(2) KLT 105, the Division Bench specifically dealt with the impact of the
amendments and held that rights already accrued could not be deprived.
Later, in Maya v. State of Kerala, 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, we 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 matters also need a deeper look. But, the
conflict between the judgments noted above prompts us to refer these cases
to the Full Bench”.”
The Full Bench, after a detailed discussion answered the question as under
in paragraph 22 which is to the following effect:
“22. In view of the foregoing discussions we answer the above reference in
the following manner:
1. The law laid down by the Division Bench in Abdurahiman’s case (supra)
is the correct law as has already been approved by the Full Bench in
Soman’s case (supra).
2. The judgment of the Division Bench in Maya’s case (supra) in 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 working in short term
vacancies, cannot get the benefit of amended rule i.e., they are not
entitled to be considered for any 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 51A shall not be
applicable to those teachers who were relieved on account of termination of
vacancy and even if those teachers had services to less than one academic
year they are entitled to benefit of Rule 51A.
4. Those teachers who were relieved prior to the amendment of Rule 51A,
are also entitled to claim appointment in any posts including higher or
lower category posts.
In view of the foregoing discussions and our answer as noted above,
W.P.(C) No. 24773 of 2009 as well as W.P.(C) No. 32734 of 2011 are
dismissed. W.P.(C) No. 2808 of 2012 is allowed and a direction is issued
to the respondent management to issue appointment order to the petitioner
in W.P.(C) No. 2808 of 2012, if not already issued, within thirty days from
today. The parties shall bear their own costs.”
It is also necessary to note the relevant Rules namely, Rule 7A both
amended as well as unamended, Rule 49 and relevant part of Rule 51A both
prior to its amendment and after its amendment and Rule 52 which are as
under:
“Provision (Pre-amendment):-
Rule 7A:
No appointment shall be made in anticipation of sanction of posts except in
the case of new school opened or existing schools 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 of effect of the fixation
order.
Posts that may fall vacant on the closing date shall not be filled up till
the reopening date.
Vacancies, the duration of which is two months or less shall not be filled
up by any appointment.
Rule 51A:
Qualified teachers who are relieved as per Rule 49 or 52 or on account of
termination of vacancies shall have preference for appointment to future
vacancies in schools under the same Educational Agency or an Educational
Agency to which the school may be subsequently transferred provided they
have not been appointed in permanent vacancies in schools under any other
Educational Agency.
Provision (Post-amendment):-
Rule 7A:
Omitted vide G.O. dated 28.10.1978.
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.
Vacancies, the duration of which is less than one academic year, shall not
be filled up.
Rule 49:
Qualified teachers except Headmasters appointed in vacancies which are not
permanent which extend over the summer vacation 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 service as on that day is less than the aforesaid period.
This rule shall not apply to teacher appointed in training vacancies.
Explanation:- For the purpose of this rule, ‘Headmaster’ includes Teacher-
in-charge also.
Rule 51A:
Qualified teachers who are relieved as per Rule 49 or 52 on account of
termination of vacancies shall have preference for appointment to future
vacancies in the same or higher or lower category of teaching posts, for
which he is qualified that may arise if there is no claimant under Rule 43
in the lower category in schools under the same Educational Agency or an
Educational Agency to which the school may be subsequently transferred
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 Rule 49 or Rule 52 shall not
be entitled to preference for appointment under this rule unless such
teacher has a minimum continuous service of 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 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 of first appointments is the same then preference shall be decided
with reference to age, the older being 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)
of rule 1 as far as High Schools are concerned.
Note 1A: Fresh appointments to vacancies arising in the same or 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 under the Educational Agency.
Explanation:- For the purpose of this clause, “Protected Teacher” means a
teacher who has been retrenched for want 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.
Note 2: Manager should issue an order of appointment 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 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.
Rule 52:
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 same management or a different
management start on the same pay as they were getting at the time of
relief, whether the new appointment is permanent or not.
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 of recognition of the school on re-
appointment in another school.”
Since this very Rule 7A(3) as well as Rule 51A along with Rules 49 and 52
were subject matter of consideration in details in the decision of this
Court in Sneha Cheriyan (supra) before entering into any further
discussion, we feel it appropriate to note the relevant conclusions drawn
by this Court on a reading of the abovesaid Rules.
The relevant paragraphs of the said judgment are 18, 19, 20, 21, 22, 23,
24, 24.1 and 24.4 which are 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 10-6-2008,
examine the scheme of the Act and the KER and the object and purpose of sub-
rule (3) of Rule 7-A as well as the impugned order dated 10-6-2008. 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 are qualified according to the Rules and the
entire salary and other allowances have to be borne by the State
Government.
19. Rule 51-A of Chapter XIV-A of the KER states that qualified 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.
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. 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 the year 2005. The expression “vacancies” used in sub-rule (3)
of Rule 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. 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 VII of
the KER refers to the academic year, which reads as follows:
“2-A. Academic year shall be deemed to commence on the reopening day and
terminate on the last day before the summer vacation.”
Rule 1 of Chapter VII says
“1. 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 June
unless otherwise notified by the Director.”
The Notification dated 10-6-2008 only says that if the period of
appointment does not cover one academic year i.e. the reopening 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 does not take away the right of the managers of
the 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 51-A claimant,
that is the object and purpose of sub-rule (3) of Rule 7-A read with the
proviso to Rule 51-A of Chapter XIV-A of the KER.
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 relatively long leave vacancies itself thereby making
several Rule 51-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 51-A claimants imposing huge financial 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 vacancies and
appointing several persons in those vacancies so as to make them claimants
under Rule 51-A. Looking to the mischief or 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 51-A of Chapter XIV-A of the KER.
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 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 Rule 7-A read with the proviso to Section 51-A
and the Government Order dated 10-6-2008.
23. We notice later that the Government passed yet another G.O. (P)
56/11/Gen.Edn. dated 26-2-2011 clarifying the earlier G.Os. dated 15-6-2004
and 10-6-2008. The operative portion of the same reads as under:
“1. 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 beyond 31st March due to the
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).”
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-A of Chapter XIV-A of the
KER, but may have application on facts in certain cases which have to be
decided independently.
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 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 relief.
24.2 xxx xxx
24.3 xxx xxx
24.4. The Manager can make appointments in school even if the 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.”
In the above paragraphs this Court 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 51A, earlier appointment in such vacancies
should have been for a duration of one full academic year namely, from 1st
June of the previous year till the last day of March of the subsequent
year. For instance if the academic year is 2000-2001 the appointment in
any such vacancy should have commenced on 1st June of 2000 and ended on
31st March of 2001. 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 termination of vacancies” and
consequently cannot claim preferential appointment in any future vacancies.
Once we steer clear of the said position having regard to the law laid down
by this Court in Sneha Cheriyan (supra), we have to consider the
submissions of learned counsel for the 5th respondent Mr. C.S. Rajan who
was supported by the standing counsel appearing for the State, who both
wanted to support the conclusion of the 1st respondent in its order dated
26.11.2011.
According to Mr. C.S. Rajan, learned Senior Counsel for the 5th respondent
in the first instance, the 5th respondent had already acquired a vested
right having regard to the unamended Rule 7A(3) which prevailed at the time
of her engagement in the leave vacancies between 01.10.1997 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 filled up by any appointment. Since at the
relevant point of time the said unamended Rule was in force, the engagement
of the 5th respondent between 10.01.1998 and 11.03.1998 was fully governed
by the unamended Rule 7A(3). Thus, the 5th respondent’s engagement was a
valid engagement. If the amended Rule 7A(3) is to be ignored certainly she
would fall within the category “on account of termination of vacancies as
is stipulated in Rule 51A”. In support of the above submission, the learned
Senior Counsel also drew our attention to Note 2 prescribed under Rule 51A
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 of appointment by registered post acknowledgment due by
giving 14 clear days notice to the teacher to 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 if the teacher failed to join duty the
forfeiture of the preferential right would operate. The learned Senior
Counsel, therefore, contended that even if the 5th respondent had not
applied when the vacancy arose in the year 2010 without compliance of Note
2 of Rule 51A the appointment of 6th respondent could not have been
resorted to by the appellant.
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 5th respondent acquired a vested right even after the amendment
was brought into the rules in particular to Rule 7A(3). At the risk of
repetition it must be stated that after the amendment to Rule 7A(3) which
was introduced by notification GO(P) No.121/2005/G.Edn. dated 16.04.2005,
the position was that a qualified teacher cannot be said to have been
engaged in a vacancy which stood terminated 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 Cheriyan (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 1 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 1st
working day of June unless otherwise notified by the Director. Therefore,
the academic year would commence on 1st June of the previous year and end
on 31st March of the subsequent year. Therefore, if one were to claim any
preferential right of appointment under Rule 51A under the category falling
under “on account of termination of vacancies”, having regard to the
stipulations contained in the amended Rule 7A(3) such qualified teacher
should have been engaged in a vacancy which lasted or existed for one clear
academic year, namely, between 1st June of the relevant year till the end
of 31st March of the subsequent year. It is not the case of the 5th
respondent that she satisfied the said requirement as has now been
stipulated under the Rule, namely, 7A(3) read along with Rule 51A.
Having noted the said position, we feel it appropriate to cull out the
principles of interpretation arising under such contingencies. It will be
worthwhile to refer to certain 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 petitioner in that case
filed a Special Leave Petition from the judgment passed by the High Court
of Andhra Pradesh on 10th February, 1955. The suit out of which the special
leave petition arose was instituted on 22nd April, 1949 in the subordinate
court. The Trial Court passed its judgment on 14th November, 1950
dismissing the suit. The plaintiff filed the appeal. The High Court of
Andhra Pradesh accepted the appeal by its judgment dated 04th 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 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.10,000/-, he was entitled, as a matter
of right to come up to this Court 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 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 Court
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:
“From the decisions cited above the following principles clearly emerge:
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 intrinsic
unity and are to be regarded as one legal proceeding.
The right of appeal is not a mere matter of procedure but it a substantive
right.
The institution of the suit carries with it the implication that all rights
of appeal then in force are preserved to the parties thereto till the rest
of the career of the suit.
The right of appeal is a vested right and such a right to enter the
superior court accrues to the litigant and exists as on and from the date
the lis 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.
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.”
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 518-519 OF 2016
[arising out of SLP(C) Nos.31794-31795 of 2014]
The Manager, VKNM Vocational Higher …Appellant
Secondary School
VERSUS
The State of Kerala and others etc. …Respondents
With
CIVIL APPEAL NO. 520 OF 2016
[arising out of SLP(C) No.33104 of 2014]
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
Leave granted.
By this judgment, we dispose of Civil Appeal arising out of Special Leave
Petition(C) No.33104 of 2014 also as both the appeals arise out of the
common Full Bench Judgment of the Kerala High Court. The appellant in Civil
Appeal arising out of Special Leave Petition No.33104 of 2014 is aggrieved
by the Full Bench Judgment of the Kerala High Court which was dismissed and
consequently her appointment dated 01.06.2010 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. Indiramma/private
respondent. For the sake of convenience, we refer to the parties as
arrayed in Civil Appeal arising out of SLP (C) No.31794 of 2014.
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
08.10.2014 while answering a Reference made to it by the Division Bench in
view of two conflicting decisions of two other Division Benches and thereby
dismissing the appellant’s Writ Petition while allowing the 5th
respondent’s Writ Petition. The appellant was directed to issue appointment
order to the respondent as a teacher in its school.
The brief facts which are required to be noted are that the 5th respondent
worked in the appellant’s school in 3 different spells between 01.10.1997
and 11.03.1998 for a total period of two months and 19 days. Subsequently,
when the post of High School Assistant in social science fell vacant in the
year 2010 consequent to the retirement of a teacher, the 6th respondent
came to be appointed on 01.06.2010 afresh. The 5th respondent challenged
the appointment of the 6th respondent by relying upon a rule which provided
for preferential appointment to some categories of qualified teachers who
had the fortune of working earlier in the school. The appellant rejected
the claim of the 5th respondent by relying upon a Division Bench decision
of the Kerala High Court. Aggrieved by the order of the appellant dated
18.09.2010, the 5th respondent approached the 2nd respondent. The 2nd
respondent by its order dated 31.03.2011 rejected her claim. The 5th
respondent filed a revision before the 1st respondent and the 1st
respondent by order dated 26.11.2011 directed the 4th respondent, the
District Education Officer to issue necessary formal orders appointing the
5th respondent as high school assistant in the appellant school w.e.f.
01.06.2010. The appellant challenged the order of the 1st respondent by
filing a writ petition in W.P.(C) No.32734/2011 before the High Court of
Kerala contending that the 5th respondent would not come within the
preferential Rule, namely, Rule 51A and consequently the order of the 1st
respondent cannot be sustained. The 5th respondent filed a writ petition
in W.P. (C) No.2808/2012 for implementing the order of the 1st respondent
dated 26.11.2011. The writ petition of the appellant, the 5th respondent
and another writ petition in Writ Petition No.24773/2009 filed by another
claimant also relying upon Rule 51A were tagged together for hearing.
Be that as it may, it is stated that with reference to the implication of
Rule 51A in which an amendment came to be made w.e.f. 27.04.2005 read along
with amended Rule 7A(3) as there were two conflicting Division Bench
decisions, namely, Abdurahiman v. Government of Kerala – 2009 (2) KLT 105
and Maya v. Govt. of Kerala - 2010 (2) KLT 99, 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 Kerala High Court on 08.10.2014.
Assailing the judgment, Mr. Rana Mukherjee, Learned Senior Counsel for the
appellant contended that the issue was directly covered by a recent
decision of this Court reported as State of Kerala and others v. Sneha
Cheriyan and another – (2013) 5 SCC 160 and, therefore, the Full Bench
decision impugned in this appeal is liable to be set aside. The learned
Senior Counsel also took us through the relevant Rules, namely, Rule 7A,
Rule 49, Rule 52 and Rule 51A along with its proviso and submitted that
this Court analyzed the above Rules with particular reference to Rule 7A(3)
and the proviso to Rule 51A 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 7A(3) and that the said stipulation having been introduced
in the Rule as and from 27.04.2005, the claim of the 5th respondent by
relying upon the unamended Rule 7A(3) could not have been countenanced. The
learned Senior Counsel also submitted that though the decision of the
Division Bench of the Kerala High Court in the case of Abdurahiman (supra)
was affirmed by this Court which related to the appointment of a cook, the
said judgment not having specifically examined the implication of the
amended Rule 7A (3) and Rule 51A, the present decision in the case of Sneha
Cheriyan (supra) of this Court alone would prevail and on that basis the
law laid down by the Division Bench of the Kerala High Court should be set
aside.
As against the above submissions, Mr. C.S. Rajan learned Senior Counsel
appearing for the 5th respondent at the outset submitted that since the
issue was squarely covered by the judgment in Abdurahiman (supra) which was
followed by the Full Bench in the impugned judgment, the same does not call
for interference. According to learned Senior Counsel for the 5th
respondent, the right of the 5th 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 5th
respondent and consequently the amendment to Rule 7A(3) as well as the
proviso to Rule 51A cannot have any implication to prejudice such a vested
right already crystallized in favour of the 5th respondent. The learned
senior counsel also submitted that if for any reason this court were to
hold that the decision in Sneha Cheriyan (supra) would apply, in the light
of the two conflicting views expressed in Abdurahiman (supra) and Sneha
Cheriyan (supra) the issue should go to a Larger Bench.
The learned counsel for the State, Mr. M.T. George would also support the
stand as was submitted on behalf of the 5th 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.
Mr. Rana, Learned Senior Counsel in his submissions apart from referring to
the decision in Sneha Cheriyan (supra) also relied upon The State of
Maharashtra v. Vishnu Ramchandra - 1961 (2) SCR 26 and Commissioner of
Income Tax (Central)-I, New Delhi v. Vatika Township Private Limited - 2015
(1) SCC 1.
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 14 of Abdurahiman v. Government of Kerala, 2009
(2) KLT 105, the Division Bench specifically dealt with the impact of the
amendments and held that rights already accrued could not be deprived.
Later, in Maya v. State of Kerala, 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, we 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 matters also need a deeper look. But, the
conflict between the judgments noted above prompts us to refer these cases
to the Full Bench”.”
The Full Bench, after a detailed discussion answered the question as under
in paragraph 22 which is to the following effect:
“22. In view of the foregoing discussions we answer the above reference in
the following manner:
1. The law laid down by the Division Bench in Abdurahiman’s case (supra)
is the correct law as has already been approved by the Full Bench in
Soman’s case (supra).
2. The judgment of the Division Bench in Maya’s case (supra) in 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 working in short term
vacancies, cannot get the benefit of amended rule i.e., they are not
entitled to be considered for any 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 51A shall not be
applicable to those teachers who were relieved on account of termination of
vacancy and even if those teachers had services to less than one academic
year they are entitled to benefit of Rule 51A.
4. Those teachers who were relieved prior to the amendment of Rule 51A,
are also entitled to claim appointment in any posts including higher or
lower category posts.
In view of the foregoing discussions and our answer as noted above,
W.P.(C) No. 24773 of 2009 as well as W.P.(C) No. 32734 of 2011 are
dismissed. W.P.(C) No. 2808 of 2012 is allowed and a direction is issued
to the respondent management to issue appointment order to the petitioner
in W.P.(C) No. 2808 of 2012, if not already issued, within thirty days from
today. The parties shall bear their own costs.”
It is also necessary to note the relevant Rules namely, Rule 7A both
amended as well as unamended, Rule 49 and relevant part of Rule 51A both
prior to its amendment and after its amendment and Rule 52 which are as
under:
“Provision (Pre-amendment):-
Rule 7A:
No appointment shall be made in anticipation of sanction of posts except in
the case of new school opened or existing schools 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 of effect of the fixation
order.
Posts that may fall vacant on the closing date shall not be filled up till
the reopening date.
Vacancies, the duration of which is two months or less shall not be filled
up by any appointment.
Rule 51A:
Qualified teachers who are relieved as per Rule 49 or 52 or on account of
termination of vacancies shall have preference for appointment to future
vacancies in schools under the same Educational Agency or an Educational
Agency to which the school may be subsequently transferred provided they
have not been appointed in permanent vacancies in schools under any other
Educational Agency.
Provision (Post-amendment):-
Rule 7A:
Omitted vide G.O. dated 28.10.1978.
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.
Vacancies, the duration of which is less than one academic year, shall not
be filled up.
Rule 49:
Qualified teachers except Headmasters appointed in vacancies which are not
permanent which extend over the summer vacation 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 service as on that day is less than the aforesaid period.
This rule shall not apply to teacher appointed in training vacancies.
Explanation:- For the purpose of this rule, ‘Headmaster’ includes Teacher-
in-charge also.
Rule 51A:
Qualified teachers who are relieved as per Rule 49 or 52 on account of
termination of vacancies shall have preference for appointment to future
vacancies in the same or higher or lower category of teaching posts, for
which he is qualified that may arise if there is no claimant under Rule 43
in the lower category in schools under the same Educational Agency or an
Educational Agency to which the school may be subsequently transferred
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 Rule 49 or Rule 52 shall not
be entitled to preference for appointment under this rule unless such
teacher has a minimum continuous service of 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 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 of first appointments is the same then preference shall be decided
with reference to age, the older being 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)
of rule 1 as far as High Schools are concerned.
Note 1A: Fresh appointments to vacancies arising in the same or 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 under the Educational Agency.
Explanation:- For the purpose of this clause, “Protected Teacher” means a
teacher who has been retrenched for want 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.
Note 2: Manager should issue an order of appointment 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 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.
Rule 52:
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 same management or a different
management start on the same pay as they were getting at the time of
relief, whether the new appointment is permanent or not.
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 of recognition of the school on re-
appointment in another school.”
Since this very Rule 7A(3) as well as Rule 51A along with Rules 49 and 52
were subject matter of consideration in details in the decision of this
Court in Sneha Cheriyan (supra) before entering into any further
discussion, we feel it appropriate to note the relevant conclusions drawn
by this Court on a reading of the abovesaid Rules.
The relevant paragraphs of the said judgment are 18, 19, 20, 21, 22, 23,
24, 24.1 and 24.4 which are 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 10-6-2008,
examine the scheme of the Act and the KER and the object and purpose of sub-
rule (3) of Rule 7-A as well as the impugned order dated 10-6-2008. 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 are qualified according to the Rules and the
entire salary and other allowances have to be borne by the State
Government.
19. Rule 51-A of Chapter XIV-A of the KER states that qualified 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.
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. 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 the year 2005. The expression “vacancies” used in sub-rule (3)
of Rule 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. 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 VII of
the KER refers to the academic year, which reads as follows:
“2-A. Academic year shall be deemed to commence on the reopening day and
terminate on the last day before the summer vacation.”
Rule 1 of Chapter VII says
“1. 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 June
unless otherwise notified by the Director.”
The Notification dated 10-6-2008 only says that if the period of
appointment does not cover one academic year i.e. the reopening 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 does not take away the right of the managers of
the 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 51-A claimant,
that is the object and purpose of sub-rule (3) of Rule 7-A read with the
proviso to Rule 51-A of Chapter XIV-A of the KER.
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 relatively long leave vacancies itself thereby making
several Rule 51-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 51-A claimants imposing huge financial 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 vacancies and
appointing several persons in those vacancies so as to make them claimants
under Rule 51-A. Looking to the mischief or 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 51-A of Chapter XIV-A of the KER.
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 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 Rule 7-A read with the proviso to Section 51-A
and the Government Order dated 10-6-2008.
23. We notice later that the Government passed yet another G.O. (P)
56/11/Gen.Edn. dated 26-2-2011 clarifying the earlier G.Os. dated 15-6-2004
and 10-6-2008. The operative portion of the same reads as under:
“1. 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 beyond 31st March due to the
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).”
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-A of Chapter XIV-A of the
KER, but may have application on facts in certain cases which have to be
decided independently.
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 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 relief.
24.2 xxx xxx
24.3 xxx xxx
24.4. The Manager can make appointments in school even if the 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.”
In the above paragraphs this Court 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 51A, earlier appointment in such vacancies
should have been for a duration of one full academic year namely, from 1st
June of the previous year till the last day of March of the subsequent
year. For instance if the academic year is 2000-2001 the appointment in
any such vacancy should have commenced on 1st June of 2000 and ended on
31st March of 2001. 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 termination of vacancies” and
consequently cannot claim preferential appointment in any future vacancies.
Once we steer clear of the said position having regard to the law laid down
by this Court in Sneha Cheriyan (supra), we have to consider the
submissions of learned counsel for the 5th respondent Mr. C.S. Rajan who
was supported by the standing counsel appearing for the State, who both
wanted to support the conclusion of the 1st respondent in its order dated
26.11.2011.
According to Mr. C.S. Rajan, learned Senior Counsel for the 5th respondent
in the first instance, the 5th respondent had already acquired a vested
right having regard to the unamended Rule 7A(3) which prevailed at the time
of her engagement in the leave vacancies between 01.10.1997 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 filled up by any appointment. Since at the
relevant point of time the said unamended Rule was in force, the engagement
of the 5th respondent between 10.01.1998 and 11.03.1998 was fully governed
by the unamended Rule 7A(3). Thus, the 5th respondent’s engagement was a
valid engagement. If the amended Rule 7A(3) is to be ignored certainly she
would fall within the category “on account of termination of vacancies as
is stipulated in Rule 51A”. In support of the above submission, the learned
Senior Counsel also drew our attention to Note 2 prescribed under Rule 51A
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 of appointment by registered post acknowledgment due by
giving 14 clear days notice to the teacher to 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 if the teacher failed to join duty the
forfeiture of the preferential right would operate. The learned Senior
Counsel, therefore, contended that even if the 5th respondent had not
applied when the vacancy arose in the year 2010 without compliance of Note
2 of Rule 51A the appointment of 6th respondent could not have been
resorted to by the appellant.
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 5th respondent acquired a vested right even after the amendment
was brought into the rules in particular to Rule 7A(3). At the risk of
repetition it must be stated that after the amendment to Rule 7A(3) which
was introduced by notification GO(P) No.121/2005/G.Edn. dated 16.04.2005,
the position was that a qualified teacher cannot be said to have been
engaged in a vacancy which stood terminated 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 Cheriyan (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 1 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 1st
working day of June unless otherwise notified by the Director. Therefore,
the academic year would commence on 1st June of the previous year and end
on 31st March of the subsequent year. Therefore, if one were to claim any
preferential right of appointment under Rule 51A under the category falling
under “on account of termination of vacancies”, having regard to the
stipulations contained in the amended Rule 7A(3) such qualified teacher
should have been engaged in a vacancy which lasted or existed for one clear
academic year, namely, between 1st June of the relevant year till the end
of 31st March of the subsequent year. It is not the case of the 5th
respondent that she satisfied the said requirement as has now been
stipulated under the Rule, namely, 7A(3) read along with Rule 51A.
Having noted the said position, we feel it appropriate to cull out the
principles of interpretation arising under such contingencies. It will be
worthwhile to refer to certain 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 petitioner in that case
filed a Special Leave Petition from the judgment passed by the High Court
of Andhra Pradesh on 10th February, 1955. The suit out of which the special
leave petition arose was instituted on 22nd April, 1949 in the subordinate
court. The Trial Court passed its judgment on 14th November, 1950
dismissing the suit. The plaintiff filed the appeal. The High Court of
Andhra Pradesh accepted the appeal by its judgment dated 04th 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 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.10,000/-, he was entitled, as a matter
of right to come up to this Court 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 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 Court
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:
“From the decisions cited above the following principles clearly emerge:
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 intrinsic
unity and are to be regarded as one legal proceeding.
The right of appeal is not a mere matter of procedure but it a substantive
right.
The institution of the suit carries with it the implication that all rights
of appeal then in force are preserved to the parties thereto till the rest
of the career of the suit.
The right of appeal is a vested right and such a right to enter the
superior court accrues to the litigant and exists as on and from the date
the lis 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.
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.”
In our considered view the above principles laid down by the Constitution
Bench of this Court will have full application while considering the
argument of learned Senior Counsel for the 5th 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 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
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 come into existence
and 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 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 same would lose its value.
Having thus noted such well laid down principles on a claim of vested
right, when we test the argument made on behalf of the 5th 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 5th respondent did
satisfy the unamended Rule 7A(3) by having been engaged in a vacancy as a
qualified teacher for a period of two months, as early as on 11th March,
1998, unfortunately for the 5th 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 51A. In fact,
between 1998 and 2010 i.e. for nearly 12 years there was no scope for the
5th 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 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 time when the 5th respondent staked her claim for
preferential appointment i.e. when the vacancy arose in the year 2010. By
that time i.e. after 12 years when the 5th respondent sought to enforce her
right under Rule 51A as a sea change came into effect by way of an
amendment to Rule 7A(3), which expressly disentitled a qualified teacher to
claim to be categorized under “on account of termination of a vacancy” as
such 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 5th respondent that a vested right accrued to her as
early as on 11.03.1998 cannot be countenanced. Since, the very foundation
of the 5th respondent’s claim rested on the said submission, we do not find
any scope to apply Note 2 of Rule 51A 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 5th respondent fall to the
ground by virtue of the principles laid down by the Constitution Bench
decision of this Court in Garikapati Veeraya (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.
Therefore, going by the interpretation of amended Rule 7A(3) read along
with Rule 51A, if one were to be brought under the category of qualified
teacher relieved on account of termination of vacancies, the amended Rule
7A(3) required to be satisfied, namely, such engagement was lasted for one
clear academic year as stipulated under Rule 1 and 2A of Chapter VII of the
Kerala Education Rules. The 5th respondent not having satisfied the said
requirement there was no scope to allow her to press her claim under Rule
51A for a preferential appointment. Having regard to the said legal
consequence, the relief granted by the 1st respondent 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.
The appeals stand allowed. The impugned judgment is set aside. The order of
the 1st respondent dated 26.11.2011 is also set aside. The appointment of
the 6th respondent stands restored and there will be no order as to cost.
….………………………………………...J.
[Fakkir Mohamed Ibrahim Kalifulla]
….………………………………………...J.
[S.A. Bobde]
New Delhi;
January 27, 2016
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