SREELEKHA Vs. MANOJ

JUDGEMENT

(1.) The question raised in the connected appeals is one and the same. Therefore we heard both the cases together and proceed to dispose the same by this common judgment. Parties arrayed and documents referred to are those in W.A No. 978/2012. The 1st respondent in the writ appeal was appointed by the 6th respondent in their school in an additional division vacancy on regular basis on 12-07-2004. Even though appointment was on regular basis on monthly pay the educational authorities declined to approve the appointment for the reason that Ext.R6(b) Government order dated 15-06-2004 prohibits appointment of teachers for less than one academic year on a regular basis and the Government order permits such appointment on daily wage basis only. After the 1st respondent's appointment was approved by the Government on daily wage basis, a vacancy W.A arose on 02-06-2008 which was filled up by the Manager. This was questioned by the 1st respondent in this court contending that he is entitled to priority in appointment based on Rule 51A Chapter XIV A of Kerala Education Rules which was accepted by the learned single Judge declaring that the 1st respondent was entitled to be appointed to the regular vacancy which arose on 02-06-2008 by virtue of his claim under Rule 51A. As a consequence of this finding, the learned single Judge found that appellant's appointment was irregular and so much so, the same cannot be approved. It is against the judgment of the learned single Judge both the aggrieved teacher namely appellant in WA No. 978/2012 and the Management have filed separate writ appeals. Before us counsel for the appellant and the counsel for the Management heavily relied on Ext.R6(b) Government order which states that for Rule 51A claim the teacher appointed on temporary basis should have a service of minimum one academic year, which 1st respondent did not have. However, the 1st respondent's counsel submitted that Clause 6 of Ext.R6 (b) was only a policy decision of the Government notified in advance but its implementation was subject to amendment of Rule 51A, which was done by the Government only with effect from 27-04-2005 and not retrospectively. After hearing counsel appearing for both sides and also Government Pleader, we do not think the entitlement of the 1st respondent for appointment under Rule 51A depends on whether the temporary appointment given to him is on a daily wage or on monthly wages because what is required to be considered is the scope of Rule 51A prior to and after the amendment and the impact of Ext.R6(b) Government order on the application of Rule 51A. Since the appellants in both the writ appeals one the aggrieved teacher and the other the Manager rely on clause 6 of Ext.R6 (b), we have to necessarily refer to it along with clause 7 heavily relied on by the appellants. Clauses 6 & 7 of Ext.R6 (b) are extracted hereunder.

(2.) From clause 6 what is clear is that the Government wanted to limit the scope of 51A by disallowing the benefit to teachers employed for less than one academic year. In other words 51A claim as contemplated by the Government vide Ext.R6 (b) is only for teachers who have a continuous period of service of not less than one academic year. The question therefore is whether Ext.R6 (b) can be implemented or whether the said Government decision contained in Ext.R6 (b) will be effective only through amendment in Rule 51A. The legal position even as understood by the Government is very clear from clause 7, which makes it clear that the Government decision can be implemented only through amendment of Rule 7A (3) and Rule 51A of chapter XIV A of K.E.R. In our view the understanding of the scope of the Rule by the Government in their order is perfectly correct because statutory Rule cannot be modified through Government orders and a proper amendment is required to be made for implementation of the Government decision. In fact Government brought an amendment to Rule 7A (3) and Rule 51A later which was notified on 27-04-2005. If the Government wanted clause 6 to be operative with effect from the date of the Government order, then they could have specifically stated in Ext.R6 (b) that the provisions will be operative forthwith and the amendment to the Rule would be made retrospectively with effect from the date of Government order. Since this was not done, while issuing Ext.R6 (b) Government did not introduce the Rule with retrospective effect.

(3.) Strangely after Ext.R6 (b) decision, the Government did not give any retrospective effect to the amendment carried out to the Rules. So much so the amended Rule has only prospective effect and for appointments made prior to the amendment, the unamended Rule applies. Therefore, the 1st respondent who was appointed on temporary basis on 12-07-2004 and who served upto 31-03-2003 as temporary teacher in the school is entitled to Rule 51A claim for the next arising vacancy which happened on 02-06-2008. In this case, even though regular vacancy arose after the amendment to Rule 51A, 1st respondent acquired eligibility for appointment based on Rule 51A prior to the same and so much so the single Judge rightly found him eligible to be appointed to the post that fell vacant on 02-06 2008. We therefore uphold the judgment of the learned Single Judge declaring 1st respondent's eligibility for appointment to the post that arose on 02-06-2008. The situation arising in the school as of now is that the appointment of the appellant in writ appeal No. 978/2012 from 02-06-2008 remains unapproved, though she is continuing without wages as on today. Though the 1st respondent was entitled to be appointed in the place of the appellant he was not appointed by virtue of the confusion created by the Government through the Government order and the subsequent amendment without retrospective effect. We therefore feel the appellant's appointment should be treated as a temporary appointment on daily wage basis and for the period she worked as teacher she should be paid daily wages as contemplated under Ext.R6 (b) until now. Since the 1st respondent was not appointed and he has not worked, he is not entitled to arrears of wages, though for all other purposes and for pension his service should be reckoned from 02-06-2008. His appointment therefore should be approved notionally with effect from 02-06-2008. Writ appeals are disposed of with the following directions: