Ashok Bhushan, Ag.C.J.
A Division Bench, by order dated 21.06.2012, in the aforesaid writ petitions noted an apparent conflict between the decisions rendered by two earlier Division Benches, i.e., Abdurahiman v. Government of Kerala [2009(2) KLT 105] and Maya v. State of Kerala [2010 (2) KLT 99]. Paragraph 5 of the reference order dated 21.06.2012 reads as follows:
“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. In the aforesaid situation, we refer these cases to the Full Bench.”
2. This Full Bench has been constituted to answer the above reference order. Before we proceed to consider the issues which have arisen before the Full Bench, it is sufficient to notice the element of facts giving rise to the writ petitions. It would be sufficient to note the facts in W.P.(C) No.24773 of 2009 to answer the reference.
3. The petitioner in W.P.(C) No.24773 of 2009 was appointed as Upper Primary School Assistant on 31.08.2006 on a vacancy caused due to the promotion of one Smt.Geetha as High School Assistant. The District Educational Officer has refused to grant approval to the said appointment by letter dated 16.12.2006 on the ground that there is a claimant under Rule 51A i.e., 6th respondent to the writ petition, Smt.Anitha Thankam.
The appeal preferred by the Manager was also rejected by the District Educational Officer by order dated 05.06.2007. Smt.Anitha Thankam filed W.P.(C) No.1911 of 2007 which was disposed of on 17.01.2007 directing the District Educational officer to consider the claim and take a decision. The District Educational Officer again passed an order dated 28.03.2007 directing the Manager to appoint Smt.Anitha Thankam as Upper Primary School Assistant. But that order was challenged in W.P.
(C) No.17269 of 2007 by the petitioner and in pursuance of the directions in the judgment the District Educational Officer passed an order dated 24.09.2007 rejecting the claim of the petitioner and upholding the claim of Smt.Anitha Thankam. The appeal filed against the order dated 24.09.2007 was rejected by the Deputy Director of Education by passing an order dated 10.01.2008. Thus Ext.P6 order was passed terminating the petitioner from service and appointing Smt.Anitha Thankam. An appeal was filed by the petitioner before the Director of Public Instruction. The Manager has issued an order dated 15.03.2008 appointing Smt.Anitha Thankam. A Revision Petition was filed by the petitioner before the Government, which was dismissed by the Government by order dated 13.08.2009(Ext.P13). The petitioner filed the writ petition praying for the following reliefs:
“a) call for the records relating to Exhibits P4, P5, P6, P8 and P13 orders and quash the originals of the same by the issue of a writ of certiorari or other appropriate writ or order.
b) issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents to approve the appointment of the petitioner with effect from 01.09.2006 onwards.”
4. The writ petition came up for consideration before the learned Single Judge, who after doubting the correctness of the Division Bench judgment in Maya v. State of Kerala referred above, made a reference for consideration of the issue by a Division Bench. The learned Single Judge observed that the earlier Division Bench had not considered certain aspects which need consideration. The matter was thereafter taken by a Division Bench of this Court on 21.06.2012 and the Division Bench found an apparent conflict in the views of the two aforesaid Division Bench judgments and referred for consideration of a Full Bench. Consequently a Full Bench has been constituted and the matters have come up for consideration.
5. W.P.(C) No. 32734 of 2011 has been filed by the Manager of the school challenging Ext.P3 Government Order by which the Government has passed an order setting aside the order of the Director of Public Instruction dated 31.03.2011 allowing the revision filed by 5th respondent, Smt.O.T.Indiramma who was claiming right under Rule 51A, to be appointed. The District Educational Officer was also directed to issue necessary formal orders approving the appointment of 5th respondent with effect from 01.06.2010. The learned Single Judge, vide order dated 11.04.2012, directed to post the writ petition along with W.P.(C) No.2808 of 2012 filed by 5th respondent as well as W.P.
(C) No. 24773 of 2009, i.e. the first case in these bunch of cases.
6. W.P.(C) No.2808 of 2012 has been filed by Smt.O.T.Indiramma seeking a direction to respondents 1 to 6 to implement Exts.P10 and P13 orders i.e. the order passed by the Director of Public Instruction dated 26.11.2011 and the consequential order passed by the District Educational Officer dated 08.12.2011 directing the Manager to appoint Smt.O.T.Indiramma with effect from 01.06.2010. The Writ Petition was filed for implementation of said order.
7. In view of the aforesaid, it is clear that W.P.(C) No.2808 of 2012 and W.P.(C) No.32734 of 2011 is on the same subject matter and both relates to the order of the State Government directing the Manager to give appointment to Rule 51A claimant of Chapter XIV.A K.E.R as noted above. W.P.(C) No.24773 of 2009 is also on the same subject matter. One more fact which is necessary to be noted in the above writ petitions is that the respondents, who are claiming right under Rule 51A, were the teachers who were appointed in short term vacancies and whose services were terminated due to termination of the vacancy before amendment dated 27.04.2005. Both the teachers are claiming right under Rule 51A when a vacancy after 27.04.2005 has arisen in the institution. In the above background the Writ Petitions were filed and the issue was referred for consideration of a Full Bench.
8. Before we enter into the submissions of the parties before the Court, it is necessary to note the relevant provisions of the Kerala Education Rules, 1959 especially regarding the Rules pertaining to the appointment of protected teachers and the amendments brought in the said rules from time to time. Rule 51A has been amended with effect from 27.04.2005. Rule 51A of Chapter XIVA K.E.R prior to the amendment reads as follows:
“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 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.”
The existing amended Rule 51A of Chapter XIVA K.E.R reads as follows:
“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 that they have not been appointed in permanent vacancies in schools under any other Educational Agency:
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:
Provided further that the first preference under this rule shall be given to protected teachers belonging to the same Educational Agency.”
9. The learned counsel, Sri.V.A. Muhammed, appearing for the petitioner in W.P.(C) No. 24773 of 2009 submits that in view of the amendment made in Rule 51A, 6th respondent(Smt.Anitha Thankam) had no right to seek protection under Rule 51A. He submits that Rule 51A shall apply prospectively and does not give any right to any earlier retrenched teacher to claim appointment in a higher/lower category of teaching posts. It is further contended that by virtue of first proviso to Rule 51A, a retrenched teacher, whose service has been terminated earlier, shall be entitled to claim preferential right only when she has worked for a minimum continuous one academic year as on the date of his/her relieving. He has placed reliance on the Division Bench judgment in Maya's case (supra).
10. Refuting the submissions of learned counsel for the petitioner, learned Senior Counsel Sri.P.Ravindran, appearing for the private respondent, submitted that the private respondent was fully entitled for protection under Rule 51A and Rule 51A in no manner debarred the consideration of those teachers whose services were terminated prior to amendment dated 27.04.2005 on termination of vacancy. He further submits that the first proviso shall not be applicable in the present case since the private respondent was not relieved under Rule 49 or Rule 52. He has placed reliance on a Division Bench judgment in Abdurahiman's case(supra). He further submits that subsequent to the aforesaid two Division Bench judgments, a Full Bench has considered the issue in Soman v. Manager, A.K.M.
High School [2013 (2) KLT 215] where the ratio of earlier Division Bench judgment in Abdurahiman's case(supra) has been approved. He submits that the Full Bench judgment fully cover the issue. He submits that the Division Bench judgment in Abdurahiman's case(supra) had been approved by the Full Bench in Soman's case (supra), the same covers the issue in these matters.
11. Learned counsel appearing for the petitioner in W.P.(C) No.2808 of 2012 has also submitted that the petitioner who was given appointment in leave vacancy prior to 27.04.2005 is a Rule 51 A claimant, but her services have been terminated on account of termination of vacancy. It is also submitted that the petitioner is entitled for appointment even in a higher post, even prior to the amendment. He submits that the Division Bench in Abdurahiman's case(supra) laid down the correct law. He has also placed reliance on Sandhya T.N. v. Jalaja Kumari
V.V. and others [2008 (3) KHC 280] and Reghu v. State of
Kerala [2000 KHC 315]. Learned counsel for the petitioner
(Manager of the school) in W.P.(C) No.32734 of 2011 in support of the writ petition contended that the amendment in Rule 51A is 'prospective in nature' and cannot come to the benefit of a teacher whose services were terminated prior to the amendment. He further submits that the first proviso also covers the issue of W.P.(C) No.2808 of 2012 as well as W.P.(C) No.32734 of 2011.
He submits that the proviso having covered the teachers relieved under Rule 49 or Rule 52, was a conscious decision of the Government and the teacher who claims the benefit under Rule 51A has to fulfill the condition of first proviso i.e., must have worked for one academic year on the date he/she relieved. He submits that the Government has misunderstood the scope and ambit of Rule 51A and has wrongly directed for appointment of the petitioner in W.P.(C) No.2808 of 2012.
12. Learned counsel appearing for 6th respondent in W.P.(C) No.2808 of 2012 has submitted that Rule 51A shall only protect the teachers who were relieved after the amendment of Rule 51A and the amended rule has no application with regard to the teachers who were relieved earlier. He submits that amendment is prospective and creates new rights which benefit cannot be extended to the teachers who were relieved prior to the amendment of the rules.
13. Learned Government Pleader appearing for the State has supported the decision taken by the State of Kerala and submits that the benefit of amended rule is also to be applicable to the teachers who were terminated prior to the amendment of the rules and he further submits that the order passed by the authorities in both the writ petitions are fully justified.
14. We have considered the submissions made by learned counsel for the parties and perused the record. As noted above, the reference has been made referring to the two Division Bench judgments of this Court, noticing an apparent conflict in the two Division Bench judgments, i.e. Abdurahiman's case (supra) and Maya's case(supra). Hence the facts and the ratio in the aforesaid two judgments needs to be noticed first. In Abdurahiman's case the petitioner was appointed in a leave vacancy. The leave vacancy arose on 10.07.2003 and on termination of the vacancy, the petitioner was relieved on 30.11.2003. The appointment having been approved, the petitioner claims to be a Rule 51A claimant for the future vacancy. In the institution, subsequently a vacancy arose on 01.07.2005 but the petitioner was not appointed. Another vacancy arose on 05.06.2006, again he was not appointed. Petitioner preferred representation including representation to the Government. When both the vacancies were filled up, he again submitted a representation to the Manager as well as the D.E.O. In both the vacancies 5th and 6th respondents were appointed. Consequently he filed the writ petition praying for quashing the appointment of 5th and 6th respondents with a direction to give appointment to him with effect from 01.07.2005. When the matter came up before the learned Single Judge, it was pointed out that there were conflicting decisions concerning the impact of newly introduced first proviso to Rule 51A, due to which the matter was referred for decision by a Division Bench. The Division Bench heard the parties and after noticing the unamended rules and amended rules held that the appointees, appointed on vacancies of periods of more than two months, were entitled to be considered for appointment and have preference under Rule 51A and they were not required to fulfill the condition of first proviso as inserted by the amendment made in Rule 51A. The Division Bench in paragraph 14 of the judgment held that the contrary view taken by the learned Single Judge in W.P.(C) No. 15291 of 2007 reported in Saleena v. State of
Kerala[2008(1) KLT 437] has been overruled.
15. Now we come to the other Division Bench judgment in Maya's case(supra). In the aforesaid case the petitioner was appointed as UPSA on 29.06.2005 and the appointment was approved by DEO on 13.01.2006. During the academic year 2006-07 one post of HSA was abolished and new post of Lower Grade Hindi Teacher was sanctioned. As a result of reduction of division fall one has became surplus and the said incumbent was appointed as U.P.S.A. The petitioner being the junior most U.P.S.A was retrenched. The petitioner claiming the vacancy of lower Grade Hindi Teacher submitted representation to the Management. But the Manager appointed the 5th respondent who had worked in the school as HSA(Hindi) from 03.11.2003 to 17.03.2004, who was a claimant under Rule 51A. The DEO cancelled the approval of appointment and directed the Manager to appoint the senior most protected teacher as Lower Grade Hindi Teacher before considering fresh appointees. The Manager again appointed the 5th respondent as Lower Grade Hindi Teacher. Petitioner filed W.P.(C) No.26872 of 2006 which was disposed of by directing the petitioner to invoke the revisional remedy. Government held that 5th respondent was the legitimate claimant to the post of Language Teacher(Hindi) which arose with effect from 15.07.2006, which Government Order was challenged in the writ petition. The Division Bench noticed the amendments made in Rule 51A. The Division Bench held that the amendment in Rule 51A operates prospectively and persons retrenched earlier after their working in short term vacancy cannot get the benefit of amended rule. It was held that in view of the amended Rule 51A the petitioner is entitled to claim the post of Lower Grade Hindi Teacher. The Division Bench has laid down in paragraphs 5, 6 and 7 as follows:
“5. Interpreting the said rule, a Division Bench of this Court held that a person retrenched from a particular post can claim re-appointment only in the same category of post, in Gopalakrishnan Nair v. District Educational Officer. The said decision was affirmed in Sreekumari Amma v. State of Kerala. The Rule 51A, after the amendment introduced on 25/06/2005, reads thus:
"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 in schools under the same Educational Agency or an Educational Agency to which the school may be subsequently transferred provided that they have not been appointed in permanent vacancies in schools under any other Educational Agency:
Provided that a teacher who was relieved under Rule 49 or 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 :
Provided further that the first preference under this rule shall be given to protected teachers.”
6. Corresponding amendments were introduced to Rule 7A of Chapter XIVA also, providing that appointment can be made only to vacancies having the duration of at least one academic year. So, a teacher appointed after the amendment to Rule 51A on 25/06/2005 is retrenched, after completing continuous service of one academic year, he is entitled to get reappointment in any category of teaching post arising in the school, provided he is qualified for the same.
7. The 5th respondent was a teacher retrenched on termination of vacancy before the amendment to Rule 51A. If the amendment was not introduced, she could have claimed a vacancy in the post of HSA (Hindi), provided there was no claimant for promotion in that school under Rule 43. But, a claimant under the amended Rule 51A can claim any vacant teaching post in the school whether it is in a higher or lower category, provided he is qualified for the post. In this case, we notice that there is no vacancy in the post of HAS (Hindi) and therefore, the claim of the 5th respondent under Rule 51A is unsustainable. The contention of learned counsel for the 5th respondent that the said respondent is entitled to get the benefit of the amended Rule 51A is plainly untenable. The Rule operates prospectively only. Persons retrenched earlier after working in short-term vacancies cannot get the benefit of the amended Rule. The interpretation sought to be placed by the learned counsel for the Manager that the petitioner cannot claim a vacancy in the post of Lower Grade Hindi Teacher is untenable. The said contention goes against the plain words of the Rule 51A “shall have preference for appointment to future vacancies in the same or higher or lower category of teaching posts, for which he is qualified”. In view of the amendment to the Rule, the petitioner who was retrenched from the post of UPSA is entitled to claim the post of Lower Grade Hindi Teacher. Therefore, the impugned orders are quashed. The Manager is directed to appoint the writ petitioner as Lower Grade Hindi Teacher with retrospective effect from 15/07/2006. The DEO shall approve the said appointment, provided she is qualified for the post of Lower Grade Hindi Teacher. The Manager shall appoint her within two weeks from the date of production/receipt of a copy of the judgment. She shall be entitled to get salary with effect from the date of this judgment. The payment, if any, made to the 5th respondent by way of salary need not be recovered.”
16. Thus the ratio of the aforesaid judgment is that the persons who were retrenched prior to the amendment of the rule can claim appointment only in vacancy in the same grade. However, the following observation was also made by the Division Bench in paragraph 7 as “but, a claimant under the amended Rule 51A can claim any vacant teaching post in the school whether it is in a higher or lower category, provided he is qualified for the post.” The ratio of the above judgment is that a person, who was retrenched prior to the amendment of the Rule, can claim right under Rule 51A only against a vacancy from which he/she was retrenched. The benefit of the amended Rule 51A has been denied; whereas by the amended Rule 51A, a claimant can claim any posts in the school whether it is in the higher or lower category, provided he is qualified. The observation as quoted above lays down correct law whereas the observation that, a teacher who was retrenched on account of termination of vacancy prior to the amendment of the Rule is not entitled to claim a higher or lower post, cannot be approved.
17. The Division Bench for taking the view that a retrenched teacher from a particular post can claim re-appointment only in the same category of post placed reliance on Division Bench judgments reported in Gopalakrishnan Nair
v. District Educational Officer [1988 (10) KLT 644] which was affirmed in Sreekumari Amma v. State of Kerala [1988 (2) KLT 359]. Both the aforesaid decisions were not relevant for deciding the issue. Both the above judgments were rendered on unamended Rule 51A hence were not an authority on the ambit and scope of amended Rule 51A. The amended rule has clearly
added the words “in the same or higher or lower category of teaching post”, whereas in the unamended rule there were only the words “future vacancies”. The amendments have consciously been made by adding the words “in the same or higher or lower category” which words have to be given its full meaning and effect.
18. In Maya's case(supra), the Division Bench has held in paragraph 7 that the rules operates prospectively. There cannot be any dispute to the proposition that amended Rule 51A as noted above, applies prospectively. However, when a vacancy arises after the amendment of Rule 51A, while filling the vacancy, the claim of a teacher according to Rule 51A has to be considered. The amended rule itself indicates that the benefit of Rule 51A as amended is also applicable to those teachers who were relieved prior to amendment of the rules and the rule is not confined only to teachers who were relieved after the amendment of the rules. The first proviso which has been added by the amended rule uses the words “provided that a teacher who was relieved ....” in which the word 'was' clearly indicates that the rule contemplates those teachers who were relieved prior to the amendment of the rules which proviso is applicable only with regard to the teachers who were relieved under Rule 49 and Rule 52. The issue as to whether the first proviso is applicable on teachers, who were relieved on termination of leave vacancy and were not relieved under Rules 49 or 52, and are to be given the benefit of amended Rule 51A has already been answered by a Full Bench of this Court in Soman's case(supra). It is useful to note one of the issues which has arisen before the Full Bench, i.e. issue No.2 quoted in paragraph 6 as to the following effect:
“2. Whether a claim for preference for appointment under R.51A of Chapter XIVA of the K.E.R accrued to a person based on his original appointment to a short term vacancy of beyond two months duration will be lost after the amendments of R.7A and 51A of Chapter XIV A of K.E.R which came into force with effect from 27.04.2005 for want of a minimum continuous service of one academic year?”
19. The Full Bench has noted Abdurahiman's case (supra) and has affirmed the said judgment. The Full Bench Soman's case(supra) has held in paragraphs 17, 21, 23 and 24 as follows:
“17. Rule 51A of Chapter XIV A of K.E.R. Has been amended by introducing two new provisos. Simultaneously, R.7A (3) was also amended. These amendments came into force on 27.4.2005. The first proviso to R.51A stipulates that a teacher who was relieved under R.49 or 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. After the amendment, Sub-rule (3) of R.7A stipulates that vacancies, the duration of which is less than one academic year, shall not be filled up. There were conflicting decisions rendered by the learned single Judges of this Court regarding the impact of newly introduced first proviso to R.51A. In view of the conflicting views on the point, W.P.(C) No.19776 of 2007 was referred for decision by a Division Bench of this Court. The Division Bench considered in detail the impact of the newly introduced first proviso to R.51A and sub-r.(3) of R.7A along with some other provisions. The decision of the Division Bench is reported in Abdurahiman v. Government of Kerala (2009 (2) KLT 105) in which it is held as follows :
"14. The points to be decided is whether the persons who were appointed before 25.6.2005 to short term vacancies extending beyond two months and whose appointments were approved and on termination who became 51A claimants, will be affected by this amendment introduced on 25.6.2005. We feel that an interpretation which will affect them is not possible, going by the plain meaning of the words of the Rule. Up to 25.6.2005, it was possible to appoint persons to vacancies having a duration not less than two months. Such appointees, on being relieved, were treated as 51 A claimants also. Even in the absence of any such rule, it is a well recognised principle in Industrial jurisprudence that a person retrenched from service should be preferred, when vacancy arises in future. Earlier it was thought that the said benefit flowing from Chap. V A of the Industrial Disputes Act in favour of the workmen was available only if retrenchment is made after working for 240 days. The said concept has been knocked down by the judgment of the Division Bench of this Court in Prabhakaran v. General Manager, K.S.R.T.C.(1981 KLT 164). So, in industries, persons appointed for one or two months, if retrenched, were entitled to get re-appointments when vacancies arise in future. In the case of Educational institutions, the minimum incumbency period was fixed as two months. That is because a valid appointment can be made only if the vacancy extends beyond that period. Now, it is provided that appointments can be made, if only the duration of the vacancy is one academic year and only such incumbents are to be given preference in future appointments. But, the said amendment can in no way affect the rights accrued to persons, on the strength of their appointment to short duration vacancies exceeding two months, made earlier to the amendment. The right of them to get re-appointment was always recognised by R.51 A. But, after 25.6.2005, one can be appointed if only the vacancy has a duration of one academic year. Therefore, naturally, such persons alone can get the right to re-appointment also. So the interpretation sought to be advanced by the respondents that the writ petitioner has no right for re-appointment under R.51A, in view of the introduction of the first proviso to the said rule, cannot be accepted. Therefore, we overrule the view taken by the learned Judge in W.P.(C) No.15291 of 2007 (2008 (1) KLT 437- Saleena v. State of Kerala) and uphold the view taken by the learned Judges in WP(C) Nos. 31924 of 2005 and 19155 of 2005, as legally correct. The reference is answered accordingly.”
xx xx xx 21. Rule 52 reads as follows :
"52.(1) Teachers who are relieved on account of any reduction in the number of posts under orders of the Department shall on re-appointment 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.
(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 of recognition of the school on re-appointment in another school.”
This Rule deals with teachers who are relieved on account of any reduction in the number of posts under orders of the Department and some other matters. This provision is also not applicable to the case on hand. R.51 A deals with teachers covered by Rr.49 and 52 as well as those teachers relieved on account of termination of vacancies like the petitioner herein. The first proviso to R.51A deals with only those teachers who are relieved under Rr.49 or 52 and not the teachers relieved on account of termination of vacancies. Therefore, teachers who are relieved on account of termination of vacancies like the petitioner herein are unaffected by the introduction of first proviso to R.51A. In other words, the teachers who are relieved on account of termination of vacancies like the petitioner need not have a minimum continuous service of one academic year as on the date of relief even after the introduction of first proviso to R.51A for claiming preference for appointment. They are still entitled to claim preference for appointment under R.51A.
xx xx xx
23. Whether the introduction of first proviso to R.51A and the amendment of Sub-r.(3) of R.7A can take away the right of preference for appointments under R.51A accrued to those persons based on their appointments to short term vacancies extending beyond two months prior to 27.4.2005 is the question to be decided. The amendments came into force on 27.4.2005. These amendments were not given any retrospective application. They have only prospective application. By the appointment to short term vacancies extending beyond two months under the unamended R.7A, a claim under 51A has been accrued to such appointees. Such right has become vested in them by operation of R.51A. Such a vested right cannot be taken away by introducing amendment enhancing the duration of minimum service to one academic year. Such amendment cannot have retrospective operation affecting such vested rights and hence, can only have prospective operation. We are in respectful agreement with the views expressed by the Division Benches of this Court in Abdurahiman's case (supra) and Sreelekha's case (supra)
24. In the case on hand, the petitioner was appointed as UPSA in a leave vacancy from 26.8.2002 to 7.1.2003 and that appointment had been approved by order dated 22.11.2006 of the 2nd respondent. By the appointment of the petitioner from 26.8.2002 to 7.1.2003, a right to claim preference for appointment under R.51 A has been accrued to and vested with him. Such a right cannot be taken away by the amendment introduced on 27.4.2005. The right to claim preference for appointment thus accrued to the petitioner under R.51A survives even after the amendments to Rr.7A and 51A with effect from 27.4.2005. Therefore, the petitioner is entitled to preference for appointment to the vacancy of UPSA that arose on 7.6.2005 in the school under R.51A unaffected by the amendments to Rr.7A and 51A introduced with effect from 27.4.2005.”
The Full Bench have already approved the judgment in Abdurahiman's case(supra) and the issue is no longer res integra.
20. It is further relevant to note that the issue as to whether a teacher, who was relieved prior to the amendment of the rules due to termination of vacancy, can claim appointment only to same category of posts from which he was relieved or can claim any higher or lower category of posts was not before the Full Bench. The Government, by amendment of Rule 51A, has consciously and deliberately amended the main rule providing preferential claim for appointment in future vacancies in the same or higher or lower category of teaching posts. As observed above, the amendment is a conscious amendment and it has to be given full effect. After the amendment of the Rule, the future vacancies have to be filled up in accordance with the rule. In case the submission of petitioner in W.P.(C) No.24773 of 2009 is accepted, then the claim of teachers, who were relieved prior to the amendment, has to be confined only to the category of posts from which they were relieved. The said interpretation shall apply both to teachers who were relieved after working in short term vacancy and the teachers who were relieved under Rule 49 or Rule 52 and the result would be to create two classes of teachers after amendment of rule 51A i.e., one category who cannot claim appointment in the higher or lower category of posts and another category of teachers who can claim higher or lower category of posts who were relieved after the amendment of the rule. The rule does not indicate any such dichotomy nor a beneficial provision can be read to benefit only one category of teachers when there is no indication in the said rule. The benefit of amendment of Rule 51A by confining to category of teachers in a vacancy which arose after the amendment of the rules and denying the said benefit to the other category of teachers shall itself be discriminatory and violative of Article 14 of the Constitution of India. Thus, the interpretation sought to be placed by the learned counsel for the petitioner in W.P.(C) No.24773 of 2009 cannot be accepted.
21. We, thus, are of the considered opinion that after the amendment of Rule 51A of Chapter XIV A K.E.R, those teachers who were relieved prior to the amendment of the rules can also claim appointment to the posts of a higher or lower category, which is the clear intention of amended Rule 51A. The ratio of Division Bench judgment in Maya's case(supra), holding that teachers relieved prior to the amendment of the rule cannot claim higher or lower category posts, cannot be approved and to that extent the Division Bench judgment is disapproved.
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 of 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.
Ashok Bhushan, Acting Chief Justice.
A.M. Shaffique, Judge.
A.K. Jayasankaran Nambiar, Judge.
ttb/10/10