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Kerala Education Rules | Teachers Working On Leave Vacancy Do Not Have Preferential Right Of Appointment To Permanent Vacancy: High Court

Kerala Supreme Court ruled on Friday that regularization of appointments to leave vacancies, in lieu of their juniors, could only be done by teachers who had been ‘unburdened’ under Article 49 or Article 52 or due to termination of vacancies and later accommodated in leave vacancies, in terms of rule 52 of the Kerala Education Rules.

The Division Bank consisting of: Justice P. B. Suresh Kumar and Justice C. S. Sudha noting this, further noted that if a person, who had been appointed after a vacant vacancy had arisen, was allowed to continue without interruption during the extended period of leave, there would have been no cause for such leave for a person to ‘ to be relieved. In such a scenario, he/she would not qualify as a ‘claimant’ within the meaning of Rule 51A of Chapter XIVA of the Rules, and thus would not have a pre-emptive right to appointment.

“…the provision is not intended to grant preferential appointment entitlement to persons already in employment, but only to grant preferential appointment entitlement to those teachers who have been relieved and remain unemployed in the unforeseen circumstances mentioned in the provision ” , It had been observed.

In the present case, there were two subpoenas filed with the Court concerning similar questions.

Given the factual background of the case, the petitioner was appointed as Lower Primary School Assistant (LPSA) in AMUpper Primary School, Punnathala, in a leave vacancy created on June 1, 2009, which ran until October 10, 2010, although the appointment in was not initially approved by the Education Officer. This was later extended until October 10, 2015, when the ex-employee’s leave was also extended. This extension of the appointment by issuing another order was also initially not approved by the education officer. This was subsequently appealed by the Manager to the District Educational Officer, who also dismissed it. Subsequently, the decision of the District Educational Officer was challenged by the Manager and Petitioner to the Director of Public Education in separate appeals, who instructed the Education Officer to approve the same if the same was in order. Based on this, the applicant’s appointment has been approved by the education officer for the period in question.

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At this point, when a permanent vacancy for the said position arose, the Manager appointed the fifth respondent herein, who had been Peon in the School since 10.7.2006, to fill the said vacancy, as according to the Manager she was entitled to be considered for appointment against the said permanent vacancy in terms of the provisions in the Kerala Education Rules. This was challenged by the petitioner under review and the government also instructed the education officer to appoint the petitioner in lieu of the fifth defendant.

In this case, the Court asked the government to determine whether the Petitioner is a Plaintiff under Rule 51A, and the latter, failing to do so, annulled the order and gave another order to the Education Officer to suspend the appointment of the fifth Defendant in to approve the vacancy that arose on 24.11.2010. It is this latter injunction that has been challenged in court in the two subpoenas – one filed by the petitioner who has been aggrieved by the said injunction, and the other by the fifth defendant requesting the education officer to execute the warrant within a time-limited manner .

Counsel for the applicant stated that Lawyer KT Shyamkumar, that the petitioner was entitled to be considered for appointment against the permanent vacancy that arose in the school on 24 November 2010, as he was a claimant within the meaning of Rule 51A of Chapter XIVA of the Rules. The petitioner argued that two vacancies had arisen, one from 01.06.2009 to 10.10.2010 and the other from 11.10.2010 to 10.10.2015. Since the first vacancy was for a period of more than one academic year, upon termination of the said vacancy the applicant acquired the right of reappointment within the meaning of Article 51A of Chapter XIVA, and solely because he was subsequently appointed to fill another vacancy . , he will not lose that right. It was argued that the vacancy to which he was appointed in terms of Ext.P1 injunction ended on 10/10/2010 and that therefore upon termination of the vacancy he became a claimant under Rule 51A of Chapter XIVA on said date.

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In this case, the court has considered whether the petitioner qualifies as a claimant within the meaning of Rule 51A of Chapter XIVA of the Rules of Appointment against the permanent vacancy of LPSA which arose in the School on 24.11.2010. It has been found that only qualified teachers who have been made redundant under Article 49 or Article 52 or because of the termination of vacancies have preference for appointment to future vacancies.

The Court ruled in the present case that the appointments from 01.06.2009 to 10.10.2010 and from 11.10.2010 to 10.10.2015 were not appointments against two separate vacancies, but a single appointment without interruption, and thus there can be no doubt that the petitioner would not become a claimant under Rule 51A of Chapter XIVA in respect of the vacancy that arose on 24.11.2010. It was further determined that the benefit under Rule 51A is only awarded to teachers who are dismissed upon termination of the vacancy. Since the applicant was not released after the period of the first appointment, but was allowed to continue without interruption during the extended leave period of the previous employee, there was therefore no reason for the school principal to relieve the school principal. applicant upon expiry of the term of appointment in the first appointment decision. In that sense, the Court held that the petitioner could not be treated as a ‘plaintiff’ within the meaning of the Rule.

The respondents in the present petition were represented by: Attorneys Dr. George Abraham, V. A Muhammed, M. Sajjad, and Senior Head of Government AJ Varghese.

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Case title: Sreejith T. v. The Manager, AM Upper Primary School & Ors, and Asha P. Vasudevan v. State of Kerala & Ors.

Quote: 2022 LiveLaw (Ker) 474

Click here to read/download the verdict


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