SUMANGALA DEVI K. Vs. BINU P. N.

JUDGEMENT

(1.) This appeal is before us pursuant to the reference order dtd. 12/11/2019 of a Division Bench of this Court that doubted the correctness of the view expressed by another Division Bench in Sandhya T.N v. Jalaja Kumari & Ors - [2008 (3) KLT 655] while deciding the inter se claim between holders of rights under Rule 43 and Rule 51A of Chapter XIV-A of the Kerala Education Rules [hereinafter referred to as the "KER" for brevity] in the matter of preferential appointment to vacancies arising in teaching posts in the school concerned. The doubt entertained by the referring Bench was essentially as regards the continued entitlement of a Rule 51A claimant to the right under the said provision, despite being accommodated to a vacancy in a teaching post in a different category, in effectuation of that right. The brief facts necessary for an appreciation of the issue that has been referred is as follows: The appellant, Smt. K.Sumangala Devi was the 4th respondent in W.P.(C).No.11177 of 2016. She had worked variously as HSA (Hindi) and Lower Grade Hindi Teacher during various spells in schools under the management of the Travancore Devaswom Board between 1994 and 2005. It was while she was working as Lower Grade Hindi Teacher (Part Time) in the school with effect from 2/6/2003 that she was retrenched from the post with effect from 15/7/2005. She thus obtained a right under Rule 51A of Chapter XIV-A KER for preferential appointment to future vacancies in the same, lower or higher categories of teaching posts in the school for which she was qualified.

(2.) The writ petitioner Smt.Binu P.N too had worked variously as HSA (Hindi) and Lower Grade Hindi Teacher during various spells in schools under the management of the Travancore Devaswom Board between 1992 and 2011. It was while she was working as an HSA with effect from 5/6/2002 that she was reverted as Lower Grade Hindi Teacher with effect from 15/7/2003 and continued in the said post till 31/5/2011. Her reversion to the post of LG Hindi teacher was in accordance with the 2nd proviso to Rule 43 of Chapter XIV-A KER and hence she was never retrenched from the school for the purposes of claiming any right under Rule 51A of Chapter XIV-A KER.

(3.) To a vacancy that arose in the post of HSA (Hindi) with effect from 1/6/2011, in a school under the educational agency, the manager promoted Smt.Binu P.N recognizing her claim under Rule 43. This was done ignoring the Rule 51A claim of Smt.Sumangala Devi which was the superior claim as per the statutory provisions then in vogue. In a Revision Petition filed by Smt.Sumangala Devi challenging the action of the manager, the Government found in her favour and directed her appointment to the post. This order of the Government was impugned by Smt.Binu P.N in a writ petition where she contended that she was both a Rule 43 claimant as well as a Rule 51A claimant. While the writ petition was disposed by directing the Government to look into the rival claims, the Government went on to find that Smt.Binu P.N was only a Rule 43 claimant and her claim had to yield to the superior right of Smt.Sumangala Devi under Rule 51A. It was this order of the Government that was impugned by Smt.Binu P.N in W.P. (C).No.11177/2013 where the learned Single Judge found that she continued to be a Rule 51A claimant notwithstanding her appointment as Lower Grade Hindi Teacher with effect from 15/7/2003 and hence, taking note of her seniority over Smt.Sumangala Devi, she was held entitled to the vacancy of HSA (Hindi) that arose with effect from 1/6/2011. While holding so, the learned Single Judge took note of the judgment of the Division Bench of this Court in Sandhya T.N (supra). As already noted, in the appeal preferred by Smt.Sumangala Devi against the judgment of the learned Single Judge, the referring Bench doubted the correctness of the view in Sandhya T.N (supra) to the extent it suggested that a Rule 51A claimant continued to hold the right under that provision notwithstanding the accommodation to a vacancy in a teaching post in a different category, in effectuation of that right.