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REPORTBLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1643               OF 2013 (Arising out of SLP(C) No.22332 of 2009

State of Kerala and others          …… Appellants

Versus

Sneha Cheriyan and another                 …..Respondents WITH  

C. A. NO. 1644 OF 2013 @ SLP(C) No.22260 of 2009 C. A. NO. 1645 OF 2013 @ SLP(C) No.22326 of 2009 C. A. NO.1646  OF 2013 @ SLP(C) No.22558 of 2009 C. A. NO.1647  OF 2013 @ SLP(C) No.22674 of 2009 C. A. NO.1648  OF 2013 @ SLP(C) No.22742 of 2009 C. A. NO.1649  OF 2013 @ SLP(C) No.22843 of 2009 C. A. NO.165O  OF 2013 @ SLP(C) No.22404 of 2009 C. A. NO.1651  OF 2013 @ SLP(C) No.22416 of 2009 C. A. NO.1652  OF 2013 @ SLP(C) No.22422 of 2009 C. A. NO.1653  OF 2013 @ SLP(C) No.22423 of 2009 C. A. NO.1654  OF 2013 @ SLP(C) No.22393 of 2009 C. A. NO.1655  OF 2013 @ SLP(C) No.22352 of 2009 C. A. NO.1656  OF 2013 @ SLP(C) No.22493 of 2009 C. A. NO.1657  OF 2013 @ SLP(C) No.23037 of 2009 C. A. NO.1658  OF 2013 @ SLP(C) No.23689 of 2009 C. A. NO.1659  OF 2013 @ SLP(C) No.25745 of 2009 C. A. NO.1660  OF 2013 @ SLP(C) No.29317 of 2009 C. A. NO.1661  OF 2013  @ SLP(C) No.29310 of 2009 C. A. NO.1662  OF 2013 @ SLP(C) No.26998 of 2009  C. A. NO.1663  OF 2013 @ SLP(C) No.29318 of 2009 C. A. NO.1664  OF 2013 @ SLP(C) No.27014 of 2009 C. A. NO.1665  OF 2013 @ SLP(C) No.29320 of 2009

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C. A. NO.1666  OF 2013 @ SLP(C) No.27016 of 2009 C. A. NO.1667  OF 2013 @ SLP(C) No.27022 of 2009 C. A. NO.1668  OF 2013 @ SLP(C) No.27086 of 2009 C. A. NO.1669  OF 2013 @ SLP(C) No.27156 of 2009 C. A. NO.1670  OF 2013 @ SLP(C) No.27165 of 2009 C. A. NO.1671  OF 2013 @ SLP(C) No.27359 of 2009 C. A. NO.1672  OF 2013 @ SLP(C) No.29308 of 2009 C. A. NO.1673  OF 2013 @ SLP(C) No.29321 of 2009 C. A. NO.1674  OF 2013 @ SLP(C) No.27659 of 2009 C. A. NO.1675  OF 2013 @ SLP(C) No.27761 of 2009 C. A. NO.1676  OF 2013 @ SLP(C) No.29311 of 2009 C. A. NO.1677  OF 2013 @ SLP(C) No.27857 of 2009 C. A. NO.1678  OF 2013 @ SLP(C) No.27959 of 2009 C. A. NO.1679  OF 2013 @ SLP(C) No.28106 of 2009 C. A. NO.1680  OF 2013 @ SLP(C) No.29322 of 2009 C. A. NO.1681  OF 2013 @ SLP(C) No.1099 of 2010 C. A. NO.1682  OF 2013 @ SLP(C) No.1100 of 2010 C. A. NO.1683  OF 2013 @ SLP(C) No.17087 of 2009 C. A. NO.1684  OF 2013 @ SLP(C) No.23817 of 2009 C. A. NO.1685  OF 2013 @ SLP(C) No.23820 of 2009 C. A. NO.1686  OF 2013 @ SLP(C) No.24136 of 2009 C. A. NO.1687  OF 2013 @ SLP(C) No.24862 of 2009 C. A. NO.1688  OF 2013 @ SLP(C) No.1662 of 2010 C. A. NO.1689  OF 2013 @ SLP(C) No.1014 of 2010 C. A. NO.1690  OF 2013 @ SLP(C) No.1020 of 2010 C. A. NO.1691  OF 2013 @ SLP(C) No.1017 of 2010 C. A. NO.1692  OF 2013 @ SLP(C) No.1021 of 2010 C. A. NO.1693  OF 2013 @ SLP(C) No.1022 of 2010 C. A. NO.1694  OF 2013 @ SLP(C) No.1015 of 2010 C. A. NO.1695  OF 2013 @ SLP(C) No.2502 of 2010 C. A. NO.1696  OF 2013 @ SLP(C) No.791 of 2010 C. A. NO.1697  OF 2013 @ SLP(C) No.2503 of 2010 C. A. NO.1698  OF 2013 @ SLP(C) No.2504 of 2010 C. A. NO.1699  OF 2013 @ SLP(C) No.2505 of 2010 C. A. NO.1700  OF 2013 @ SLP(C) No.2507 of 2010 C. A. NO.1701  OF 2013 @ SLP(C) No.2508 of 2010 C. A. NO.1702  OF 2013 @ SLP(C) No.2509 of 2010 C. A. NO.1703  OF 2013 @ SLP(C) No.2510 of 2010

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C. A. NO.1704  OF 2013 @ SLP(C) No.2511 of 2010

C. A. NO.1705  OF 2013 @ SLP(C) No.2512 of 2010 C. A. NO.1706  OF 2013 @ SLP(C) No.2513 of 2010 C. A. NO.1707  OF 2013 @ SLP(C) No.2514 of 2010 C. A. NO.1708  OF 2013 @ SLP(C) No.2516 of 2010 C. A. NO.1709  OF 2013 @ SLP(C) No.2517 of 2010 C. A. NO.1710  OF 2013 @ SLP(C) No.2518 of 2010 C. A. NO.1711  OF 2013 @ SLP(C) No.2521 of 2010 C. A. NO.1712  OF 2013 @ SLP(C) No.5768 of 2010 C. A. NO.1713  OF 2013 @ SLP(C) No.7768 of 2010 C. A. NO.1714  OF 2013 @ SLP(C) No.5881 of 2010 C. A. NO.1715  OF 2013 @ SLP(C) No.7767 of 2010 C. A. NO.1716  OF 2013 @ SLP(C) No.11036 of 2010 C. A. NO.1717  OF 2013 @ SLP(C) No.10786 of 2010 C. A. NO.1718  OF 2013 @ SLP(C) No.11730 of 2010 C. A. NO.1719  OF 2013 @ SLP(C) No.10787 of 2010 C. A. NO.1720  OF 2013 @ SLP(C) No.29677 of 2009 C. A. NO.1721  OF 2013 @ SLP(C) No.32905 of 2009 C. A. NO.1722  OF 2013 @ SLP(C) No.32903 of 2009 C. A. NO.1723  OF 2013 @ SLP(C) No.29823 of 2009 C. A. NO.1724  OF 2013 @ SLP(C) No.32907 of 2009 C. A. NO.1725  OF 2013 @ SLP(C) No.32908 of 2009 C. A. NO.1726  OF 2013 @ SLP(C) No.12190 of 2010 C. A. NO.1727  OF 2013 @ SLP(C) No.4963 of 2010 C. A. NO.1728  OF 2013 @ SLP(C) No.19574 of 2010 C. A. NO.1729  OF 2013 @ SLP(C) No.19787 of 2010 C. A. NO.1730  OF 2013 @ SLP(C) No.32653 of 2009 C. A. NO.1731  OF 2013 @ SLP(C) No.19585 of 2010 C. A. NO.1732  OF 2013 @ SLP(C) No.19576 of 2010 C. A. NO.1733  OF 2013 @ SLP(C) No.26647 of 2010 C. A. NO.1734  OF 2013 @ SLP(C) No.13246 of 2010 C. A. NO.1735  OF 2013 @ SLP(C) No.25151 of 2010 C. A. NO.1736  OF 2013 @ SLP(C) No.21164 of 2009 C. A. NO.1737  OF 2013 @ SLP(C) No.30941 of 2009  

AND C.A. No.5620/2010,  C.A. No.5621/2010,  C.A. No.5622/2010, C.A. No.5623/2010,  C.A. No.5624/2010,  C.A. No.5625/2010, C.A. No.5626/2010   C.A. No.5627/2010,  C.A. No.5628/2010,  

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C.A. No.5629/2010,  C.A. No.5630/2010,  C.A. No.5631/2010,   C.A. No.5632/2010,  C.A. No.5633/2010,  C.A. No.5634/2010,   C.A. No.5635/2010,  C.A. No.5636/2010,  C.A. No.5637/2010,  C.A.  No.5638/2010,  C.A. No.5639/2010,  C.A. No.5640/2010,  C.A.  No.1104/2011,  C.A. No.1106/2011,  C.A. No.1107/2011,  C.A.  No.1105/2011,     C. A. NO.1738  OF 2013 @ SLP(C) No.18259 of 2010 C. A. NO.1739  OF 2013 @ SLP(C) No.18260 of 2010,  C.A. No.245 of 2011,  C.A. No.247 of 2011,    C.A. No.248 of 2011,  C.A. No.2846 of 2011,   C. A. NO.1740  OF 2013 @ SLP(C) No.5624 of 2010 C. A. NO.1741  OF 2013 @ SLP(C) No.4465 of 2010 C. A. NO.1742  OF 2013 @ SLP(C) No.5625 of 2010 C. A. NO.1743  OF 2013 @ SLP(C) No.3760 of 2010 C. A. NO.1744  OF 2013 @ SLP(C) No.3786 of 2010 C. A. NO.1745  OF 2013 @ SLP(C) No.3788 of 2010 C. A. NO.1746  OF 2013 @ SLP(C) No.3787 of 2010 C. A. NO.1747  OF 2013 @ SLP(C) No.3789 of 2010 C. A. NO.1748  OF 2013 @ SLP(C) No.3790 of 2010 C. A. NO.1749  OF 2013 @ SLP(C) No.3792 of 2010 C. A. NO.1750  OF 2013 @ SLP(C) No.3793 of 2010 C. A. NO.1751  OF 2013 @ SLP(C) No.3794 of 2010 C. A. NO.1752  OF 2013 @ SLP(C) No.3796 of 2010 C. A. NO.1753  OF 2013 @ SLP(C) No.3797 of 2010 C. A. NO.1754  OF 2013 @ SLP(C) No.3798 of 2010 C. A. NO.1755  OF 2013 @ SLP(C) No.3801 of 2010 C. A. NO.1756  OF 2013 @ SLP(C) No.3802 of 2010 C. A. NO.1757  OF 2013 @ SLP(C) No.3803 of 2010 C. A. NO.1758  OF 2013 @ SLP(C) No.3804 of 2010 C. A. NO.1759  OF 2013 @ SLP(C) No.3805 of 2010 C. A. NO.1760  OF 2013 @ SLP(C) No.3807 of 2010 C. A. NO.1761  OF 2013 @ SLP(C) No.3808 of 2010 C. A. NO.1762  OF 2013 @ SLP(C) No.3812 of 2010 C. A. NO.1763  OF 2013 @ SLP(C) No.3761 of 2010 C. A. NO.1764  OF 2013 @ SLP(C) No.3762 of 2010 C. A. NO.1765  OF 2013 @ SLP(C) No.3763 of 2010 C. A. NO.1766  OF 2013 @ SLP(C) No.3764 of 2010 C. A. NO.1767  OF 2013 @ SLP(C) No.3765 of 2010 C. A. NO.1768  OF 2013 @ SLP(C) No.3766 of 2010

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C. A. NO.1769  OF 2013 @ SLP(C) No.3767 of 2010 C. A. NO.1770  OF 2013 @ SLP(C) No.3768 of 2010

C. A. NO.1771  OF 2013 @ SLP(C) No.3769 of 2010 C. A. NO.1772  OF 2013 @ SLP(C) No.3770 of 2010 C. A. NO.1773  OF 2013 @ SLP(C) No.3771 of 2010 C. A. NO.1774  OF 2013 @ SLP(C) No.3772 of 2010 C. A. NO.1775  OF 2013 @ SLP(C) No.3773 of 2010 C. A. NO.1776  OF 2013 @ SLP(C) No.3774 of 2010 C. A. NO.1777  OF 2013 @ SLP(C) No.3775 of 2010 C. A. NO.1778  OF 2013 @ SLP(C) No.3776 of 2010 C. A. NO.1779  OF 2013 @ SLP(C) No.3777 of 2010 C. A. NO.1780  OF 2013 @ SLP(C) No.3780 of 2010 C. A. NO.1781  OF 2013 @ SLP(C) No.3783 of 2010 C. A. NO.1782  OF 2013 @ SLP(C) No.3781 of 2010 C. A. NO.1783  OF 2013 @ SLP(C) No.3782 of 2010 C. A. NO.1784  OF 2013 @ SLP(C) No.3779 of 2010 C. A. NO.1785  OF 2013 @ SLP(C) No.3785 of 2010

J U D G M E N T

K.S. Radhakrishnan, J

Delay condoned.

1. Leave granted.

2. We  are  in  these  cases  called  upon  to  decide  whether  a  

minimum  continuous  service  in  an  academic  year  is  a  pre-

requisite for raising a claim for re-appointment under Rule 51A of  

Chapter XIV A of the Kerala Education Rules, 1959 (for short ‘ the

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KER’) in view of sub-rule (3) of Rule 7A of the same chapter of the  

KER.

3. In the State of Kerala, the power for appointment of teachers  

in aided schools is conferred on Managers of such schools under  

Section 11 of the Kerala Education Act, 1958 (for short ‘the Act’)  

while the salary and other benefits are to be borne by the State  

Government under Section 9 of the Act.  Qualified teachers who  

are  so  appointed  when  relieved  as  per  Rule  49  or  52  or  on  

account  of  termination  of  vacancies  shall  have  preference  for  

appointment to future vacancies as per Rule 51A of Chapter XIV A  

of  the  KER.   Therefore,  when  vacancy  arises,  the  Manager  is  

bound to comply with the procedure under Rule 51A and cannot  

deny that statutory claim.   When once a valid appointment is  

given to the teachers and such appointments are approved ipso  

facto they become entitled to the benefits under Rule 51A.

4. The Management and the teachers,  it  is  generally  known,  

started  misusing  the  above  statutory  provisions  for  getting  

preference for future appointments by effecting appointments by

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creating vacancies during the academic year.  Such unethical and  

unhealthy practices led to creation of anticipatory vacancies and  

multiple  claimants  under  Rule  51A  causing  drain  on  State  

exchequer since the State is paying the salary.  The Government  

in  order  to  check  such  practices  issued  an  order  G.O.(P)  

No.169/04.G.Edn. dated 15.06.2004 stating that the claim for re-

appointment under Rule 51A of the KER would be limited to those  

who had been appointed against regular/ leave vacancies having  

a duration of not less than one academic year.  Further, it was  

also  stated  that  vacancies  having  duration  of  less  than  one  

academic year would be filled up on daily wage basis and in order  

to  give  effect  to  that  Government  order,  it  was  ordered  that  

necessary amendments would be made to sub-rule (3) of Rule 7A,  

Chapter XIV A of the KER.   

5. The  Government  of  Kerala  in  exercise  of  the  powers  

conferred under Section 36 of the Act amended the KER vide its  

notification  dated  G.O.(P)  No.  121/2005/G.  Edn.  Dated  

16.04.2005.  

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Unamended sub-rule (3) of Rule 7A  reads as follows:  

“Vacancies the duration of which is two months or less  shall not be filled up any appointment”

Amended sub-rule (3) of Rule 7A reads as follows:

“Vacancies  the  duration  of  which  is  less  than  one  academic year shall not be filled up.”

The explanatory note to the above-mentioned Rules reads as  

follows:

“(This  does  not  form  part  of  the  notification  but  is  intended to indicate the general purpose). Under the existing sub-rule (3) of Rule 7A Chapter XIV A,  General Education Rules vacancies the duration of which  is  two  months  or  less  shall  not  be  filled  up  by  any  appointment.   Managements  of  aided  schools  are  appointing  teachers  in  short  leave  vacancies  the  duration of which is more than two months and it results  in  huge  financial  commitment  to  Government.   After  detailed examination of the matter Government inter alia  issued  order  as  per  G.O.(P)  169/2004/G.  Edn  dated  15.06.2004  to  the  effect  that  claim  for  appointment  under rule 51A of the Kerala Education Rule be limited to  those  who  have  been  appointed  against  regular/leave  vacancies  having  a  duration  of  not  less  than  one  academic  year.   The Government  has  now decided to  give statutory validity to the above Government order. The notification is intended to achieve the above object.”

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6. The Government  issued another  clarificatory  order  G.O.(P)  

No. 31/06GE dated 19.01.2006 dealing with the appointment of  

teachers in short vacancies which is not of much relevance, but  

for  completeness,  the  operative  portion  of  the  same  is  given  

below:   

“In the above circumstances, Government are pleased  to clarify that the condition in Para 6 of G.O.  (P)  No.  169/2004/GE dated 15.06.2004 shall  not apply to the  appointments  on  promotions  to  the  post  of  Head  Master,  to  the  appointments  given  under  Rule  43,  Chapter XIV A KERs and to the reappointments of those  who had acquired the claim under Rule 51A, Chapter  XIV A KERs, if the reappointment is to a vacancy having  the duration of more than 2 months as existed prior to  the amendment.   Necessary amendment to the rules  shall be made to this effect and the Director of Public  Instruction shall furnish proposals for the same.”

7. The Government of Kerala later issued a clarificatory order  

vide G.O. (P)  No. 104/2008/G Edn.  Dated 10.06.2008 regarding  

the nature of appointment and admissibility of vacation salary as  

per Rule 49 of Chapter XIV A of the KER to teachers appointed in  

leave / regular vacancies making it applicable to appointments in  

both  leave  vacancies  and  regular  vacancies.   The  operative  

portion of clauses 5, 6 and 7 reads as follows:

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“5.   As  per  rule  7A (3)  of  Chapter  XIV A KER,  if  the  period of appointment is less than one academic year,  the appointment cannot be approved on regular basis.  This has caused many doubts among various quarters,  requiring  clarification  regarding  the  nature  of  appointment and admissibility of vacation salary as per  Rule 49 of Chapter XIVA KER to teacher appointed in -

leave /  regular vacancies.   In view of the above,  the  following  orders  are  issued  with  immediate  effect.  These  are  applicable  to  appointments  in  both  leave  vacancies and regular vacancies:-

(i) If the period of appointments does not cover  one academic year (i.e.  from the re-opening  day of  the  school  after  summer vacation to  the  closing  day  for  summer  vacation),  the  appointment  shall  be  made  only  on  daily  wages.

(ii) If  the  period  of  appointments  commences  after the beginning of the re-opening day but  extends  over  the  next  academic  year/years,  the  period  up  to  the  first  vacation  shall  be  approved  on  daily  wages  only.   Re- appointment  can  be  approved  on  regular  basis, only if the duration of the period of re- appointment completes one academic year.  If  the period of re-appointment is also less than  one academic year,  that re-appointment will  also be considered only on daily wages basis.  In short, fractions of an academic year will not  be considered for approval on regular basis;

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(iii) In  the  case  of  appointment  of  Rule  51A  claimants, promotion of Rule 43 claimants and  appointment  /  promotion  of  teachers  as  Headmasters,  temporary  Headmaster/teachers-in-charge,  approval  will  be granted on regular  basis if  the period of  appointment is more than 2 months;

(iv) The  appointments  made  against  training  vacancies  shall  also  be  filled  up  on  daily  wages only except in the case of (iii) above;

(v) If a leave substitute, appointed on daily wages  continues in service without any break for one  full academic year consequent to extension of  leave,  the appointment shall  be revised and  approved  as  on  regular  basis.   However,  if  different  leave  substitutes  are  appointed  to  the  same  post,  this  benefit  shall  not  be  extended to them;

(vi) Appointments  in  leave  vacancy  and  regular  vacancy shall be treated separately;

(vii) The  admissibility  of  vacation  salary  as  provided in rule 49 Chapter XIV A KER will not  be applicable to appointments on daily wage  basis. Necessary amendments to this effect in  the KER shall be made separately.

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6. The claim under Rule 51A Chapter XIVA KER will  not be admissible to those teachers appointed on daily  wage basis.

7. This  order  will  take  effect  from the  date  of  the  order only.  The approval of appointments given prior to  this order shall not be reviewed.”

8. The main challenge is with regard to the validity of clause  

5(i) and (ii) of the above mentioned that Government order which  

according to the respondents go contrary to sub-rule (3) of Rule  

7A,  Chapter  XIV  A  of  the  KER  and  hence  ultra  vires and  

unenforceable.  

9. Shri, C.S. Rajan, learned senior counsel appearing for some  

of the respondents submitted that sub-rule (3) of Rule 7A speaks  

of “vacancies” the duration of which is less than one “academic  

year”  which means if  the vacancy is  having a duration of one  

academic year or more, appointment can be made to fill up the  

same.   Learned  senior  counsel  pointed  out  that  the  term  of  

appointment  need  not  be  co-terminus  with  the  term  of  the  

vacancy.  Further, it was pointed out that if in fact, the vacancy is

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having a duration of one academic year or more, even if, there is  

some delay in  making the appointment,  such appointment  will  

have to be approved since Rule 7A speaks of duration of vacancy  

and not duration of appointment.

10. Shri P.A. Noor Muhamed, learned counsel appearing for some  

of  the respondents while submitting written arguments pointed  

out that as per the scheme of the KER and conjoint reading of the  

provisions of Chapter XXIII and sub-rule (3) of Rule 7A and Rule 49  

under  Chapter  XIV  A  of  the  KER  it  is  clear  that  “time  of  

appointment” is immaterial and what is material is the “duration  

of vacancies”.  Further, it was pointed out that as per the scheme  

contemplated under the provisions in Chapter XXIII  of the KER,  

appointments in regular  vacancies can be made only after  the  

receipt  of  orders  of  departmental  authorities  on  staff  fixation  

which is in turn based on the students’ strength as well, which can  

be ascertained only after the beginning of the academic year.  It  

was pointed out that merely because appointment was not made  

in  consonance  of  the  first  academic  year,  approval  of  

appointments cannot be denied ignoring the fact that the vacancy

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in which the appointment made runs to more than one academic  

year.  The delay, if any, in making appointment is not due to the  

fault of the teachers and hence they shall not be penalized.  

11. Learned  counsel  appearing  for  the  respondents  therefore  

submitted that the impugned G.O. dated 10.06.2008 is contrary  

to sub-rule (3) of Rule 7A of the KER and has rightly been declared  

so by the High Court which calls for no interference by this Court.

12. Shri V. Giri, learned senior counsel appearing for the State of  

Kerala  submitted  that  the  Government  have  issued  the  

notification dated 14.06.2005 amending Sub rule (3) of Rule 7A  

followed by  the Government  order  dated 10.06.2008,  so  as  to  

avoid  the unhealthy practices  followed by certain aided school  

managers by appointing teachers in short spells thereby creating  

more  51A  claimants  creating  multiple  claims.   Learned  senior  

counsel  submitted  that  the  Government  Order  is  only  a  

clarification to the statutory amendment made in sub-rule (3) of  

Rule 7A of the Rules.  Learned senior counsel also submitted that  

there is no restriction in the matter of appointment of teachers in

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anticipated  vacancies  due  to  retirements,  promotions,  

resignations  etc.  provided  it  is  an  established  vacancy  which  

could  be  anticipated  well  in  advance.   Learned senior  counsel  

submitted  that  the  Managers  of  the  aided  schools  are  free  to  

appoint  teachers  on  regular  basis  from  the  starting  of  the  

academic  year  against  regular/established  vacancies  and  they  

need not wait for appointments till completion of staff fixation as  

per  the  provisions  under  KER.   Learned  senior  counsel  also  

submitted  that  the  Managers  can  make  appointments  in  

anticipation  of  sanction  of  additional  posts  by  the  educational  

authorities as per Rule 12B Chapter XXIII  of  the KER and such  

posts shall  be deemed to have been created from the date of  

appointments.

13. Learned  senior  counsel  also  submitted  that  

permanency/promotional vacancy which are in existence on the  

beginning  of  the  academic  year  though  filled  up  during  the  

academic year is also not covered by the impugned notification so  

also the vacancies which arise due to death are also not hit by the  

impugned notification.  Further, it is also pointed out that leave

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vacancies  which  are  in  existence  on  the  beginning  of  the  

academic year  can also be filled up during the academic  year  

which also are not covered by the impugned notification.

14. We have heard learned counsel on either side at length.  WP  

(C) No. 2563 of 2009 against which SLP (C) No. 22332 of 2009  

arises was treated as the main case by the High Court, hence we  

treat that case as the leading case for disposal of these batches  

of appeals since questions of law arise for consideration are the  

same.

15. Shri Shinoj T. Elias, High School Assistant (HSA) (English) who  

was working in St. Mary’s Higher Secondary School, Morakkala, an  

aided school,  applied for  leave from 08.07.2008 to  07.07.2013  

and the leave was granted by the Manager of that school.  The  

first respondent (herein) who was the writ petitioner before the  

High Court was appointed in that vacancy on 06.10.2008 and the  

period  of  her  appointment  would  normally  expire  only  on  

07.07.2013.   The  Manager  of  the  school  forwarded  that  

appointment order for approval to the District Educational Officer

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(DEO).  But the DEO approved the appointment from 06.10.2008  

to 31.03.2009 only on daily wage basis based on the Government  

order  dated  10.06.2008.   Based  on  the  impugned  G.O.  dated  

10.06.2008, it was pointed out by the first respondent before the  

High  Court  that  the  vacancy  had  duration  of  five  years  and  

therefore her  appointment should  have been approved without  

any  time  limit  in  the  same  scale  of  pay  applicable  to  HSAs.  

Reliance was placed on sub-rule (3) of Rule 7A of the Rules which  

was found favour by the Division Bench of the High Court.

16. We may before examining the scope of sub-rule (3) of Rule  

7A  and the  proviso  to  Section  51A  read with  the  Government  

Order dated 10.06.2008 examine the scheme of the Act and the  

KER and the object and purpose of sub rule 3 of Rule 7A as well as  

the  impugned  order  dated  10.06.2008.   We  have  already  

indicated that as per the Kerala Education Act and the KER, the  

Manager  of  the  aided  School  is  free  to  make  appointment  of  

teachers in their respective schools who are qualified according to  

the Rules and the entire salary and other allowances have to be  

borne by the State Government.

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17. Rule  51A of  the  Chapter  XIVA of  the  KER states  qualified  

teachers  in  aided  schools  who  are  relieved  on  account  of  

termination of vacancies shall have preference for re-appointment  

in future vacancies in the aided schools.  Rule 43, Chapter XIV A  

of the KER states that the vacancies in any higher grade of pay  

shall be filled up by promotion in the lower grade according to the  

seniority.   

18. We cannot read sub rule (3) of Rule 7A in isolation, it has to  

be read in the light of the proviso to Section 51A, they have to be  

read as parts of an integral whole and as being interdependent.  

Legislature has recognized that interdependency since both sub  

rule (3) of Rule 7A and the proviso to Section 51A were inserted  

by the same amendment in the year 2005.

19. The expression “vacancies” used in sub-rule (3)  to  Rule 7  

means ‘posts which remain unoccupied”.  Rule does not say that  

the duration of vacancy is to be determined from the time when

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the vacancy occurs to the time when it expires.  Duration means  

the time during which something continues, i.e the continuance of  

the incumbent.  As stated in the Notification dated 15.06.2004 the  

vacancies having a duration of less than one academic year can  

be filled up on daily wage basis.  Sub-rule (3) to Rule 7A uses the  

expression “academic year”.  Rule 2A of Chapter VII of the KER  

refers to the academic year, which reads as follows:

“2A.  Academic year shall be deemed to commence on  the  re-opening  day  and  terminate  on  the  last  day  before the summer vacation.”

20. Rule 1 of Chapter VII says “all schools shall be closed for the  

summer vacation every year on the first working day on March  

and re-opened on the first working day of June unless otherwise  

notified by the Director.”  The Notification dated 10.06.2008 only  

says if the period of appointment does not cover one academic  

year i.e. the re-opening of the school after summer vacation to  

the closing day for summer vacation, the appointment shall  be  

made only on daily wage basis.  So also if the period commences  

after the beginning of the re-opening day, but extends either next

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academic year/years the period upto the first vacation shall  be  

approved on daily wages only which does not take away the right  

of  the  managers  of  the  aided  schools  to  appoint  teachers  in  

vacancies that may arise by way of promotion, death, resignation  

etc.  Restriction is only with respect to the minimum tenure/period  

for a new appointee to become a 51A claimant, that is the object  

and purpose of sub-rule (3) to Rule 7A read with proviso to Rule  

51A of Chapter XIV-A of the KER.   

21. The object and purpose of the Notification dated 16.04.2005  

issued by the Government in  exercise of  the powers conferred  

under  Section  36  of  the  Kerala  Education  Act  is  to  curb  the  

unhealthy  practices  adopted  by  certain  managers  of  aided  

schools  by  creating short-term vacancies  or  appointing  several  

persons in a relatively long leave vacancies itself thereby making  

several 51A claimants against one and the same vacancy.  The  

object and purpose of the above-mentioned notification is also to  

end the practice of creation of multiple claimants in anticipatory  

vacancies creating more 51A claimants imposing huge financial  

commitment to the Government.

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22. Sub-rule  (3)  to  Rule  7  does  not  restrict  the  right  of  the  

managers of various schools in making the regular appointments  

in  the  established  vacancies,  what  it  does  is  to  prevent  the  

misuse  of  that  provision  and  to  prevent  the  aided  school  

managers in creating short-term vacancies and appointing several  

persons in those vacancies so as to make them claimants under  

Rule 51A.  Looking to the mischief or evil sought to be remedied,  

we have to adopt a purposive construction of  sub-rule (3) of Rule  

7A read with proviso to Rule 51A of Chapter XIV-A of the KER.

23. We are inclined to adopt such a construction since the stand  

of  the  respondents  is  that  Rule  7A  speaks  of  “duration  of  

vacancies” and not “duration of appointment”.   The expression  

“vacancy” used in sub-rule (3) to Rule 7A has to be read along  

with the expression “academic year” so as to achieve the object  

and purpose of  the amended sub-rule  (3)  to  Rule  7A so as  to  

remedy the mischief.  Evil, which was sought to be remedied was  

the  one  resulting  from  vide  spread  unethical  and  unhealthy  

practices followed by certain aided school managers in creating

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short term vacancies during the academic year.  We are adopting  

such a course, not because there is an ambiguity in the statutory  

provision but to reaffirm the object and purpose of sub-rule (3) to  

Rule 7A read with proviso to Section 51A and the Government  

Order dated 10.06.2008.   

24. We notice later the Government passed yet another GO(P)  

56/11/Gen.Edn dated 26.02.2011 clarifying the earlier GO dated  

15.06.2004 and 10.06.2008.  The operative portion of the same  

reads as under:

“1. Approval can be granted subject to the conditions  under  Rule  49  Chapter  XIV-A  of  the  K.E.R.  for  the  appointments  to  the  vacancies  arising  due  to  the  existing  teachers’  retirement,  resignation,  death  long  leave etc. and to the approved vacancies arising and  continuing  beyond  31st March  due  to  sanctioning  of  additional divisions.   2. Appointments for a duration of less than 8 months  in an academic year can be  approved on daily wage  basis and appointments of a duration of more than that  are to be approved as regular (on pay scale).”

25. We  have  referred  to  the  above  GO,  for  the  sake  of  

completeness,  which  has  of  course  no  bearing  on  the

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interpretation which we have placed on sub-rule (3) to Rule 7A  

read with the proviso to Rule 51A of Chapter XIV-A of the KER, but  

may have application on facts in certain cases which have to be  

decided independently.

26. We are, therefore, inclined to allow these appeals and set  

aside  the  judgment  of  the  Division  Bench  with  the  following  

directions:

(i) A teacher, who was relieved from service under Rules  

49 and 53 of Chapter XIVA of the KER, is entitled to  

get preference for appointment under Rule 51A only  

if the teacher has a minimum prescribed continuous  

service in an academic year as on the date of relief.

(ii) The  Manager  of  an  aided  school  can,  however,  

appoint teachers in vacancies occurred due to death,  

retirement,  promotion,  resignation,  long-term leave  

etc. provided they are established vacancies and the  

approval  can  be  granted  subject  to  the  conditions  

under Rule 49 of Chapter XIV A of the KER.

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(iii) Approval can also be granted to appointments made  

to  the  approved  vacancies  arising  and  continuing  

beyond 31st March due to sanctioning of additional  

divisions.

(iv) The Manager can make appointments in school even  

if  the duration of which is  less than one academic  

year but on daily wages basis and if the duration of  

vacancy  exceeds  one  academic  year  that  can  be  

filled up on scale of pay basis.

(v) The Manager is free to appoint teachers on a regular  

basis from the re-opening date itself against regular  

established  vacancies  and  need  not  wait  for  the  

appointments till  completion of the staff fixation as  

per the KER.

(vi) Teachers who have been appointed in the midst of  

the academic year and not completed the requisite  

minimum continuous service before vacation will not  

be entitled to get vacation salary.

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27. Appeals  are  accordingly  allowed  and  disposed  of  as  

above setting aside the judgment of the High Court but there  

will be no order as to costs.

………………………….J. (K.S. Radhakrishnan)

…………………………J.                (Dipak Misra)

New Delhi, February 22, 2013