MOOKAMBIKA AMMA Vs. STATE OF KERALA

JUDGEMENT

(1.) THE sixth respondent was holding the post of a part -time Hindi teacher during the years 1964 -65 and 1965 -66 in an aided school under the management of the fifth respond­ent.In the year 1966 -67,she was deputed for training.During that year the post of the part -time Hindi teacher was upgraded as that of a full -time Hindi teacher;and the petitioner was appointed in that post.During the following academic year,the petitioner went for training;and the sixth respondent,who had then returned after her training,was appointed in that place,and directed to join duty with effect from 1st June 1967.She,however,did not join duty and in that place the seventh respondent was appointed.According to the sixth respondent,she was at the time of getting the order of appointment laid up in a Government Hos­pital,and she applied to the fifth respondent for granting her leave for six months after the expiry of which she was expected to be fit to join duty.She complained to the District Educational Officer,Kaiijirappally,and also applied to him along with a medical certificate from the doctor in charge of the hospital who was treating her for granting her leave.The application was rejected by the District Educational Officer.She made representations against that order before the State Government,the Director of Public Instruction and the Regional Deputy Director of Public Instruction,who are respondents 1,2 and 3 respectively.The matter was considered by the third respondent,who,by his order Ext.P -2 dated 7th August 1968 directed the fifth respondent that the sixth respondent may be reinstated in the post in which the seventh respond­ent was appointed.The manager filed an appeal from the above order before the Director of Public Instruction who by his order Ext.P -4 dated 18th December 1968,dismissed the appeal holding that the appeal was not maintainable,and also that the order of the Regional Deputy Director Ext.P -2 was correct.Pursuant to Exts.P -2 and P -4 the fifth respondent,by his order Ext.P -1 dated 9th January 1969 appointed the sixth respondent in the place of the petitioner and relieved her from office.It is now necessary to state the events which led to the appointment of the peti­tioner in the school after her return from training.As already stated the seventh respondent was appointed as full -time Hindi teacher only for the year 1967 -68.When the petitioner returned after training she was appointed in that place for the year 1968 -69.During that year an additional place of a lower grade Hindi teacher was also sanctioned for the school.But the seventh respondent went for training;and so another person was appointed in the post of the lower grade Hindi teacher.When the seventh respondent returned after training,she was appointed as lower grade Hindi teacher for the year 1969 -70.Thus the position is that by virtue of Ext.P -l,the sixth respondent is now a higher grade Hindi teacher,while the petitioner has been relieved from that post,and the seventh respondent is conti­nuing in the post of the lower grade Hindi teacher.This writ petition has been filed to quash Exts.P -2,P -4 and P -1 and to issue a writ of mandamus or other appropriate writ or direction to the concerned respondents to appoint the petitioner as a full -time higher grade Hindi teacher with effect from 10th January 1969 and in the alternative to issue a similar writ or direction to the said respondents to appoint the petitioner as part -time teacher in the said school.

(2.) THE main question for consideration is whether the sixth respondent has got a right of preferential appointment over the petitioner.If she has got that right,the sixth respondent was entitled to be appointed in the place in which the petitioner was appointed.The question is governed by rule 5 in chapter XIV -A of the Kerala Education Rules,1959.It reads: "5.Unqualified teachers appointed under rule 2 who acquire the,prescribed qualifications subsequently shall have perference for appoint­ments to future vacancies in schools under the same educational agency. Note."If more than one person acquire the prescribed qualifications subsequently,preference as among them shall be given to the person who acquired the qualifications earliest.If more than one person acquire the prescribed qualifications on the same date,the person with the earliest date of first appointment as an unqualified hand,shall be preferred." The petitioner was last appointed in the school in a vacancy which arose in June 1968,when both the petitioner and the sixth respondent had passed their training examination.Both of them were unqualified teachers who had been pre­viously appointed in the school,and who had acquired the qualification subsequently.Under the Note to rule 5,the person with the earliest date of first appointment has got perference;and that person is admittedly the sixth respond­ent.The sixth respondent was,therefore,entitled for appointment in preference to the petitioner in the aforesaid vacancy.

(3.) A contention was advanced on behalf of the fifth and seventh respondents,and that was also partly supported by counsel for the petitioner,that it is obligatory on the part of the sixth respondent to apply for leave when she was appointed during the year 1967 -68 through the manage­ment and in so far as she did not either apply for leave or join duty she lost her preferential right for future appoint­ment under rule 5.It was also argued on behalf of respond­ents 5 and 7 that,in so far as the sixth respondent did not join duty pursuant to her appointment,whatever may be the reason for doing so,there was no question of granting any leave to her;and she forfeited her right to preferen­tial appointment.I am unable to accept any of these contentions.The right of a person for preferential appoint­ment who satisfies the conditions of rule 5,is a statutory right;and that right can be lost only by a process by which a legal right can be lost.Counsel has not been able to tell me what is the process by which the petitioner lost her right.The right for preferential appointment can be exer­cised only when a vacancy arises.Apart from the question whether leave should have been granted to the sixth respond­ent in respect of the appointment for 1967 -68,the question arose between the sixth respondent and the petitioner,who is entitled to appointment,in the vacancy which arose for the year 1968 -69.As already held by me,the sixth res­pondent is entitled to be appointed by virtue of rule 5.The contentions raised by the counsel for the fifth and seventh respondents do not,therefore,arise for consideration.