KAVITHA K. N. Vs. STATE OF KERALA

JUDGEMENT

(1.) I have gone through the well articulated judgment authored by my learned brother Sri.Raja Vijayaraghavan, J. on behalf of himself and learned brother Sri.C.P. Mohammed Nias, J. While I agree with that part of the judgment that encapsulates the sequence of events leading to the amendment of Rule 51A of Chapter XIV-A of the Kerala Education Rules [hereinafter referred to as the "KER" for brevity], I find myself unable to accept the answer it provides to the question referred to us for our opinion and the reasoning leading to it.

(2.) As per the scheme of Chapter XIV-A of the KER, the appointment of teachers to private aided schools can be only of candidates possessing prescribed qualifications. An exception was carved out in earlier years for appointment of unqualified teachers on temporary basis, probably on account of the then perceived dearth of qualified candidates, and in such cases the unqualified candidate was given a preferential right to permanent appointment to the post, as and when he/she acquired the necessary qualification. In later years, however, through an amendment brought about in Rule I of Chapter XIV-A with effect from 18/7/1972 (G.O.(P) 94/72/G.Edn. dtd. 4/7/1972), the provision for appointment of unqualified candidates was dispensed with. While the provision was in force, the nature of the right held by an unqualified appointee for preferential appointment to future vacancies in the post, and the object of the provision that conferred the said right was clarified by this Court in Poulose K.V. v. Assistant Educational Officer - [1967 KHC 316] in paragraph 4, which reads as follows:

(3.) Although the decision in Poulose (supra) was disapproved by a later Division Bench in Rev. Fr. Xavier v. State of Kerala - [1971 KHC 208], on another point, the above observations with regard to the object sought to be achieved through the provision still hold good. As already noted, post 1972, the practice of appointing unqualified candidates was discontinued and, in the meanwhile, by G.O.(P) 287/66/Edn. dtd. 20/6/1966, Rule 51A was introduced into Chapter XIV-A to confer a preferential right of appointment to future vacancies in the respective posts in the School to qualified teachers who had to be relieved from the post on account of the circumstances envisaged in Rule 49 (having less than 8 months service in a temporary vacancy), Rule 52 (reduction in number of posts) or on account of termination of vacancies. The Rule, as it stood prior to its amendment in 2005, read as follows: