REGHU Vs. STATE OF KERALA

JUDGEMENT

(1.) WHETHER a claimant under R. 51 A of Chapter XIV A of the kerala Education Rules would come within the term 'teacher' mentioned in Note (1) under sub-rule 1 of Rule 1 of the same chapter is the question to be decided in this original petition. The undisputed facts are as follows: -

(2.) THE petitioner was appointed as a Peon in the school under the management of the 4th respondent on 19-7-1978. He acquired graduation in the year 1986 and B. Ed, degree in May 1989. During the relevant time, the 5th respondent, a trained graduate was working in the school in the leave vacancy of an Upper Primary School Assistant which arose in 1988 and which was to expire on 1-6-1993. On 25-7-1989 there arose another leave vacancy of a primary teacher for a period of 72 days. THE petitioner made Ext. P1 representation to the manager requesting for appointment to the above post of teacher as provided under the Note (1) to sub-rule 1 of Rule 1 of Chapter XIV A of K. E. R. But the manager did not fill up the vacancy. THEreafter two permanent vacanceis arose on 4-6-90 in the post of UP5a. THE petitioner again put forward a claim for one of the above two posts. But the manager shifted the 5th respondent from the leave vacancy to one of the permanent vacancies and appointed 6th respondent who is having a claim under R. 51a of Chapter xivak. E. R. in the second vacancy. At the time of staff fixation, one division was reduced, therefore, there was only one permanent vacancy available. THE manager therefore accommodated the 6th respondent in the leave vacancy in which the 5th respondent was originally working. Petitioner made complaint before the a. E. O. who gave direction to the manager to appoint the petitioner with effect from 4-6-90 against the regular vacancy.

(3.) THE learned counsel appearing on behalf of the 6th respondent put forward a further contention that the petitioner cannot claim promotion to the post of a teacher even if by virtue of the provisions contained under R. 7 of Chap. XXIV B, the rules regarding appointment, promotion etc. contained in Chapter X1va are made applicable to non-teaching staff in the aided school mutatis mutandis. R. 43 provides that vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority. THE contention is that when the above provision is applied to the members of the non-teaching staff, the promotion contemplated is to the posts in the non-teaching category and not to teaching category. Higher grade referred therein do not mean posts in higher grade in a different category. THErefore according to the 6th respondent the petitioner cannot claim promotion to the post of teacher relying on the provisions contained under r. 43. THE argument is attractive and to some extent supported by judgment of this court in THE Manager, Corporate Educational Agency, Kothamangalain v. D. E. O. Muvailupiizliq & others (1973 KLT 603 ). But a reading of all the provisions under R. 43 together can have a different meaning also. Note (1)under R. 43 provides that the teacher in a lower grade of pay in one category of post is eligible for promotion in a higher grade of pay in another category of post, provided he has the prescribed qualification and there is no teacher with the prescribed qualification in the lower grade of pay of the category of post to which promotions are to be made. THE above would show that a promotion to a post with higher grade in a different category is also contemplated under R. 43. Even if the 6th respondent's contention that it is not the R. 43 as such is made applicable to the non-teaching staff, but only the spirit of the rule, it can be that the members of the non-teaching staff is also entitled to promotion to a post having higher grade of pay in another category i. e. teaching category. In the light of the amendment to sub-rule 1 of R. I of Chapter X1v-A adding the 'note', the question whether a member of a non-teaching staff can claim promotion as a teacher under R. 43 has become of no consequence. THErefore it is not necessary to consider in this case whether the judgment of this court referred above requires reconsideration.