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Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.  518-519 OF  2016 [arising out of SLP(C) Nos.31794-31795 of 2014]

The Manager, VKNM Vocational Higher         …Appellant Secondary School

VERSUS

The State of Kerala and others etc.                  …Respondents  

With

CIVIL APPEAL NO. 520 OF  2016 [arising out of SLP(C) No.33104 of 2014]

J   U  D  G   M   E   N   T

Fakkir Mohamed Ibrahim Kalifulla, J.

Leave granted.

1. By this judgment, we dispose of Civil Appeal arising out  

of Special Leave Petition(C) No.33104 of 2014 also as both  

the appeals arise out of the common Full Bench Judgment of  

the Kerala High Court. The appellant in Civil Appeal arising  

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out of Special Leave Petition No.33104 of 2014 is aggrieved  

by the Full Bench Judgment of the Kerala High Court which  

was  dismissed  and  consequently  her  appointment  dated  

01.06.2010 in the school  of  the appellant  in Civil  Appeals  

arising out of Special Leave Petition Nos.31794-95 of 2014  

came  to  be  set  aside  at  the  instance  of  O.T.  

Indiramma/private respondent.  For the sake of convenience,  

we refer to the parties as arrayed in Civil Appeal arising out  

of SLP (C) No.31794 of 2014.

2. The management of private aided school is the appellant  

before us in Civil Appeal arising out of Special Leave Petition  

Nos.31794-95 of  2014. The challenge is  to the Full  Bench  

judgment of the Kerala High Court dated 08.10.2014 while  

answering a Reference made to it by the Division Bench in  

view  of  two  conflicting  decisions  of  two  other  Division  

Benches and thereby dismissing the appellant’s Writ Petition  

while  allowing  the  5th respondent’s  Writ  Petition.  The  

appellant  was  directed  to  issue  appointment  order  to  the  

respondent as a teacher in its school.   

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3. The brief facts which are required to be noted are that  

the  5th respondent  worked  in  the  appellant’s  school  in  3  

different  spells  between  01.10.1997  and  11.03.1998  for  a  

total period of two months and 19 days.  Subsequently, when  

the post of High School Assistant in social science fell vacant  

in the year 2010 consequent to the retirement of a teacher,  

the  6th respondent  came  to  be  appointed  on  01.06.2010  

afresh.  The 5th respondent challenged the appointment of the  

6th respondent  by  relying  upon  a  rule  which  provided  for  

preferential  appointment  to  some  categories  of  qualified  

teachers who had the fortune of working earlier in the school.  

The  appellant  rejected  the  claim of  the  5th respondent  by  

relying upon a Division Bench decision of the Kerala High  

Court.  Aggrieved  by  the  order  of  the  appellant  dated  

18.09.2010,  the  5th respondent  approached  the  2nd  

respondent.  The  2nd respondent  by  its  order  dated  

31.03.2011 rejected her claim.   The 5th respondent filed a  

revision before the 1st respondent and the 1st respondent by  

order  dated  26.11.2011  directed  the  4th respondent,  the  

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appointing the 5th respondent as high school assistant in the  

appellant school w.e.f. 01.06.2010. The appellant challenged  

the order of the 1st respondent by filing a writ petition in W.P.

(C)  No.32734/2011  before  the  High  Court  of  Kerala  

contending that the 5th respondent would not  come within  

the preferential Rule, namely, Rule 51A and consequently the  

order  of  the  1st respondent  cannot  be  sustained.   The  5th  

respondent filed a writ petition in W.P. (C) No.2808/2012 for  

implementing  the  order  of  the  1st respondent  dated  

26.11.2011.   The  writ  petition  of  the  appellant,  the  5th  

respondent  and  another  writ  petition  in  Writ  Petition  

No.24773/2009 filed by another claimant also relying upon  

Rule 51A were tagged together for hearing.

4. Be that as it may, it is stated that with reference to the  

implication of Rule 51A in which an amendment came to be  

made w.e.f. 27.04.2005 read along with amended Rule 7A(3)  

as  there  were  two  conflicting  Division  Bench  decisions,  

namely,  Abdurahiman v.  Government of Kerala – 2009 (2)  

KLT 105 and Maya v. Govt. of Kerala - 2010 (2) KLT 99, the  

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Division Bench of the High Court before whom the above writ  

petitions were posted, referred the matter to a Full Bench.  

That is how the impugned judgment came to be passed by  

the Full Bench of the Kerala High Court on 08.10.2014.  

5. Assailing the judgment, Mr. Rana Mukherjee, Learned  

Senior  Counsel  for  the appellant  contended that  the issue  

was  directly  covered  by  a  recent  decision  of  this  Court  

reported as State of Kerala and others v. Sneha Cheriyan  

and another –  (2013)  5 SCC 160 and,  therefore,  the Full  

Bench decision impugned in this appeal is liable to be set  

aside. The learned Senior Counsel also took us through the  

relevant Rules, namely, Rule 7A,  Rule 49, Rule 52 and Rule  

51A along  with  its  proviso  and  submitted  that  this  Court  

analyzed the above Rules with particular reference to Rule  

7A(3) and the proviso to Rule 51A and held that in order for a  

teacher  who  was  employed  and  subsequently  relieved  on  

account  of  termination  of  vacancies  the  services  of  such  

teacher should have been engaged for one full academic year  

as per Rule 7A(3) and that the said stipulation having been  

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introduced in the Rule as and from 27.04.2005, the claim of  

the  5th respondent  by  relying  upon  the  unamended  Rule  

7A(3) could not have been countenanced. The learned Senior  

Counsel  also  submitted  that  though  the  decision  of  the  

Division  Bench  of  the  Kerala  High  Court  in  the  case  of  

Abdurahiman (supra) was  affirmed  by  this  Court  which  

related to the appointment of a cook, the said judgment not  

having specifically examined the implication of the amended  

Rule 7A (3) and Rule 51A, the present decision in the case of  

Sneha Cheriyan  (supra)  of this Court alone would prevail  

and on that basis the law laid down by the Division Bench of  

the Kerala High Court should  be set aside.  

6. As  against  the  above  submissions,  Mr.  C.S.  Rajan  

learned Senior Counsel appearing for the 5th respondent at  

the  outset  submitted  that  since  the  issue  was  squarely  

covered by the judgment in Abdurahiman (supra) which was  

followed by the Full Bench in the impugned judgment, the  

same does  not  call  for  interference.   According  to  learned  

Senior  Counsel  for  the  5th respondent,  the  right  of  the 5th  

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respondent to claim preferential appointment got crystallized  

under the unamended Rules and thereby a vested right to  

claim such appointment  was  preserved  in  favor  of  the  5th  

respondent and consequently the amendment to Rule 7A(3)  

as  well  as  the  proviso  to  Rule  51A  cannot  have  any  

implication  to  prejudice  such  a  vested  right  already  

crystallized  in  favour  of  the  5th respondent.   The  learned  

senior  counsel  also  submitted  that  if  for  any  reason  this  

court  were  to  hold  that  the  decision  in  Sneha  Cheriyan  

(supra) would apply, in the light of the two conflicting views  

expressed  in  Abdurahiman  (supra)  and  Sneha  Cheriyan  

(supra) the issue should go to a Larger Bench.

7. The  learned  counsel  for  the  State,  Mr.  M.T.  George  

would also support the stand as was submitted on behalf of  

the 5th respondent and contended that the claim of the 5th  

respondent can alone be considered in the light of the law  

that was prevailing prior to the amendment of Rule 7A(3) and  

51A.   

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8. Mr. Rana, Learned Senior Counsel in his submissions  

apart  from  referring  to  the  decision  in  Sneha  Cheriyan  

(supra)  also  relied  upon  The  State  of  Maharashtra  v.  

Vishnu Ramchandra - 1961 (2) SCR 26  and Commissioner  

of Income Tax (Central)-I, New Delhi  v.  Vatika Township  

Private Limited - 2015 (1) SCC 1.   

9. To  appreciate  the  respective  contentions,  it  will  be  

necessary to note the reference order of the Division Bench  

dated 21.06.2012 which reads as under:

“5. In  paragraph  14  of  Abdurahiman  v.  Government of Kerala, 2009 (2) KLT 105, the  Division Bench specifically dealt with the impact  of the amendments and held that rights already  accrued could not be deprived.  Later, in Maya  v.  State  of  Kerala,  2010  (2)  KLT  99,  the  Division  Bench  appears  to  have  taken  a  contrary view.  This is evident from paragraph 2  of  Maya’s case.   The apparent conflict  among  those Bench decisions is not reconcilable by the  Division Bench interpreting the  Rules,  though  prima facie,  we see substance in the rights of  teachers who had enjoyed approved service for  shorter  than  one  year  before  the  amendment.  We also see that the right to such appointment  against one category would have got enlarged to  be available as against the different categories of  teachers as a result of the amendment.  These  matters  also  need  a  deeper  look.   But,  the  

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conflict  between  the  judgments  noted  above  prompts  us  to  refer  these  cases  to  the  Full  Bench”.”

10. The Full  Bench,  after  a detailed  discussion answered  

the  question  as  under  in  paragraph  22  which  is  to  the  

following effect:

“22.  In  view  of  the  foregoing  discussions  we  answer  the  above  reference  in  the  following  manner:

1. The law laid down by the Division Bench in  Abdurahiman’s case  (supra) is the correct law  as has already been approved by the Full Bench  in Soman’s case (supra).

2. The  judgment  of  the  Division  Bench  in  Maya’s case (supra) in so far as it followed the  earlier  Division  Bench  judgment  in  Abdurahiman’s  case  (supra)  is  approved.  However, the ratio as laid down in paragraph 7  of the judgment that persons retrenched earlier,  after  working  in  short  term vacancies,  cannot  get the benefit of amended rule i.e., they are not  entitled  to  be considered for  any posts  in the  higher  or  lower  category  of  teaching  posts  is  disapproved  and  to  the  above  extent  the  judgment in Maya’s case (supra) is over ruled.

3. We also hold that the first proviso to Rule  51A shall  not  be  applicable  to  those  teachers  who were relieved on account of termination of  

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vacancy and even if those teachers had services  to less than one academic year they are entitled  to benefit of Rule 51A.

4. Those teachers who were relieved prior to  the amendment of Rule 51A, are also entitled to  claim  appointment  in  any  posts  including  higher or lower category posts.  

In view of the  foregoing discussions and  our answer as noted above, W.P.(C) No. 24773  of 2009 as well as W.P.(C) No. 32734 of 2011  are  dismissed.   W.P.(C)  No.  2808  of  2012  is  allowed  and  a  direction  is  issued  to  the  respondent  management  to issue appointment  order  to the petitioner  in W.P.(C)  No.  2808 of  2012, if  not already issued, within thirty days  from  today.  The  parties  shall  bear  their  own  costs.”  

11. It is also necessary to note the relevant Rules namely,  

Rule 7A both amended as well as unamended, Rule 49 and  

relevant part of Rule 51A both prior to its amendment and  

after its amendment and Rule 52 which are as under:

“Provision (Pre-amendment):-

Rule 7A:

(1) No  appointment  shall  be  made  in  anticipation of sanction of posts except in  the case of new school opened or existing  

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schools  upgraded  (or  higher  standards  opened with permission in those schools);

Provided  in  the  case  of  additional  posts  sanctioned  as  per  staff  fixation  order,  appointments may be made from the date  of effect of the fixation order.

(2) Posts that may fall vacant on the closing  date  shall  not  be  filled  up  till  the  reopening date.

(3) Vacancies,  the duration of  which is  two  months or less shall not be filled up by  any appointment.

Rule 51A:

Qualified teachers who are relieved as per Rule  49  or  52  or  on  account  of  termination  of  vacancies shall have preference for appointment  to future vacancies in schools under the same  Educational  Agency or  an Educational  Agency  to  which  the  school  may  be  subsequently  transferred  provided  they  have  not  been  appointed  in  permanent  vacancies  in  schools  under any other Educational Agency.  

Provision (Post-amendment):-

Rule 7A:

(1)   Omitted vide G.O. dated 28.10.1978.

(2) Posts that may fall vacant on the closing  date  shall  not  be  filled  up  till  the  reopening date except in the case of posts  of non-vacation staff.

(3) Vacancies, the duration of which is less  than  one  academic  year,  shall  not  be  filled up.

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Rule 49:

Qualified  teachers  except  Headmasters  appointed  in  vacancies  which  are  not  permanent  which  extend  over  the  summer  vacation and who continue  in  such vacancies  till  the  closing  date  shall  be  retained  in  the  vacancies  during  the  vacation,  if  their  continuous service as on the closing date is not  less  than  eight  months.   The  teachers  so  retained shall be entitled to the vacation salary.  These teachers shall be relieved on the closing  day if their continuous service as on that day is  less than the aforesaid period.  This rule shall  not  apply  to  teacher  appointed  in  training  vacancies.

Explanation:-  For  the  purpose  of  this  rule,  ‘Headmaster’ includes Teacher-in-charge also.

Rule 51A:

Qualified teachers who are relieved as per Rule  49 or 52 on account of termination of vacancies  shall have preference for appointment to future  vacancies  in  the  same  or  higher  or  lower  category of teaching posts, for which he is   qualified  that  may  arise  if  there  is  no  claimant under Rule 43 in the lower category in  schools under the same Educational Agency or  an Educational Agency to which the school may  be subsequently transferred provided they have  not been appointed in permanent vacancies in  schools  under  any  other  educational  agency.  (Inserted vide amendment dated 25.06.2005)

Provided that a teacher who was relieved under  Rule  49  or  Rule  52  shall  not  be  entitled  to  preference  for  appointment  under  this  rule  unless such teacher has a minimum continuous  

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service of one academic year as on the date of  relief:  

(Inserted vide amendment dated 27.04.2005)

Provided further that the first preference under  this  rule  shall  be  given  to  protected  teachers  belonging to the same Educational Agency.

Note  1. If  there  are  more  than  one  claimant  under this rule the order of preference shall be  according to the date of  first  appointment.   If  the date of first appointments is the same then  preference  shall  be  decided  with  reference  to  age, the older being given first preference.  In  making such appointments, due regard should  be given to the requirement of subjects and to  the  instructions  issued  by  the  Director  under  sub-rule (4) of rule 1 as far as High Schools are  concerned.

Note 1A: Fresh  appointments  to  vacancies  arising in the same or higher or lower category  of teaching posts under the Educational Agency  shall  be  made  only  after  providing  re- appointment to such teachers thrown out from  service and protected teachers available under  the Educational Agency.

Explanation:-  For the purpose of this clause,  “Protected Teacher”  means a teacher  who has  been  retrenched  for  want  of  vacancy  after  putting such length of regular service that may  be  specified  by  the  Government  or  who  is  eligible for such Protection as per GO (Ms) No.  104/69/Edn. dated 06.03.1969 or GO (Ms) No.  231/84/Edn.  dated  27.10.1984  or  any  other  orders issued by Government from time to time.

Note  2:   Manager  should  issue  an  order  of  appointment to the teacher by Registered post  

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acknowledgment  due  and  give  a  period  of  14  (fourteen) clear days to the teacher to join duty.  If  the  teacher  does  not  join  duty  in  time  the  Manager  should  give  a  further  notice  to  the  teacher  stating  that  another  person  would  be  appointed instead and that the preferential right  under  this  rule  would  be  forfeited  if  not  exercised within another 7 (seven) clear days.  If  nothing  is  heard  during  that  time  also,  the  preferential right under the rule will be regarded  as forfeited.

Rule 52:

(1) Teachers who are relieved on account of  any  reduction in the number of posts under orders  of the department shall on reappointment in the  same  school  or  in  another  school  under  the  same management  or  a  different  management  start on the same pay as they were getting at  the time of relief, whether the new appointment  is permanent or not.

(2) Teachers thrown out from service due to the  withdrawal  of  recognition  of  schools  by  the  Department  shall  also  be  eligible  to  draw the  pay  which  they  were  getting  at  the  time  of  withdrawal  of  recognition of  the school  on re- appointment in another school.”  

12. Since this very Rule 7A(3) as well  as Rule 51A along  

with Rules 49 and 52 were subject matter of consideration in  

details  in  the  decision  of  this  Court  in  Sneha  Cheriyan  

(supra) before entering into any further discussion, we feel it  

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appropriate to note the relevant conclusions drawn by this  

Court on a reading of the abovesaid Rules.  

13. The relevant paragraphs of the said judgment are 18,  

19, 20, 21, 22, 23, 24, 24.1 and 24.4 which are as under:

“18. We  may  before  examining  the  scope  of  sub-rule  (3)  of  Rule  7-A  and  the  proviso  to  Section 51-A read with the Government Order  dated 10-6-2008, examine the scheme of the  Act and the KER and the object and purpose of  sub-rule  (3)  of  Rule  7-A  as  well  as  the  impugned  order  dated  10-6-2008.  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.

19. Rule  51-A of  Chapter  XIV-A of  the  KER  states that qualified teachers in aided schools  who are relieved on account of termination of  vacancies  shall  have  preference  for  reappointment 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.  We  cannot  read  sub-rule  (3)  of  Rule  7-A  in  isolation, it has to be read in the light of the  proviso to Rule 51-A: they have to be read as  parts  of  an  integral  whole  and  as  being  interdependent. The legislature has recognised  

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that interdependency since both sub-rule (3) of  Rule 7-A and the proviso to Section 51-A were  inserted by the same amendment in the year  2005. The expression “vacancies” used in sub- rule (3) of Rule 7 means “posts which remain  unoccupied”.  The Rule does not say that the  duration of vacancy is to be determined from  the time when 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  15-6-2004  the  vacancies  having a duration of less than one academic  year can be filled up on daily-wage basis. Sub- rule  (3)  of  Rule  7-A  uses  the  expression  “academic year”. Rule 2-A of Chapter VII of the  KER refers to the academic year, which reads  as follows:

“2-A. Academic  year  shall  be  deemed  to  commence on the reopening day and terminate  on the last day before the summer vacation.” Rule 1 of Chapter VII says “1. All schools shall be closed for the summer  vacation every year on the last working day on  March and reopened on the first working day  of  June  unless  otherwise  notified  by  the  Director.” The  Notification  dated  10-6-2008  only  says  that  if  the  period  of  appointment  does  not  cover one academic year i.e. the reopening 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  reopening  day,  but  extends  either  next  academic  year/years  the  period  up  to  the  first  vacation  shall  be  approved on daily wages only which does not  

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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  Rule  51-A  claimant,  that  is  the  object  and  purpose  of  sub-rule (3) of Rule 7-A read with the proviso  to Rule 51-A of Chapter XIV-A of the KER.

20. The object and purpose of the Notification  dated 16-4-2005 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 relatively long leave vacancies itself thereby  making  several  Rule  51-A  claimants  against  one  and  the  same  vacancy.  The  object  and  purpose of the abovementioned notification is  also to end the practice of creation of multiple  claimants  in  anticipatory  vacancies  creating  more  Rule  51-A  claimants  imposing  huge  financial commitment to the Government.

21. Sub-rule (3) of Rule 7 does not restrict the  right  of  the  managers  of  various  schools  in  making  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  51-A.  Looking  to  the  mischief or evil sought to be remedied, we have  to adopt a purposive construction of sub-rule  

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

22. We  are  inclined  to  adopt  such  a  construction  since  the  stand  of  the  respondents  is  that  Rule  7-A  speaks  of  “duration  of  vacancies”  and not  “duration  of  appointment”.  The expression “vacancy” used  in sub-rule (3) of Rule 7-A has to be read along  with the expression “academic year” so as to  achieve the object and purpose of the amended  sub-rule (3) of Rule 7-A so as to remedy the  mischief.  The  evil,  which  was  sought  to  be  remedied  was  the  one  resulting  from  widespread unethical and unhealthy practices  followed by certain aided school managers in  creating  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) of Rule 7-A read  with  the  proviso  to  Section  51-A  and  the  Government Order dated 10-6-2008.

23. We  notice  later  that  the  Government  passed yet  another  G.O. (P)  56/11/Gen.Edn.  dated  26-2-2011  clarifying  the  earlier  G.Os.  dated 15-6-2004 and 10-6-2008. 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  KER  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 the sanctioning of  additional divisions.

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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).” We  have  referred  to  the  above  G.O.,  for  the  sake of completeness, which has of course no  bearing  on the  interpretation which we have  placed on sub-rule (3) to Rule 7-A read with  the proviso to Rule 51-A of Chapter XIV-A of  the KER, but may have application on facts in  certain  cases  which  have  to  be  decided  independently.

24. We are, therefore, inclined to allow these  appeals  and  set  aside  the  judgment  of  the  Division Bench with the following directions:

24.1. A teacher, who was relieved from service  under Rules 49 and 53 of Chapter XIV-A of the  KER,  is  entitled  to  get  preference  for  appointment  under  Rule  51-A  only  if  the  teacher has a minimum prescribed continuous  service in an academic year as on the date of  relief.

24.2 xxx xxx

24.3 xxx xxx

24.4. The Manager can make appointments in  school  even  if  the  duration  of  which  is  less  than  one  academic  year  but  on  daily-wage  basis and if  the duration of vacancy exceeds  one  academic  year  that  can  be  filled  up  on  scale of pay basis.”

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14. In the above paragraphs this Court has clearly found  

that  after  the  amendment  of  Rule  7A(3),  in  order  for  a  

qualified teacher to claim preferential appointment under the  

category  “on  account  of  termination  of  vacancies”  as  

mentioned  in  Rule  51A,  earlier  appointment  in  such  

vacancies  should  have  been  for  a  duration  of  one  full  

academic year namely, from 1st June of the previous year till  

the last day of March of the subsequent year.  For instance if  

the academic year is 2000-2001 the appointment in any such  

vacancy should have commenced on 1st June of 2000 and  

ended on 31st March of 2001. If the appointment in any such  

vacancy  fell  short  of  the  period  as  mentioned  above  then  

such teacher cannot be held to have come under the category  

“on account of  termination of  vacancies” and consequently  

cannot  claim  preferential  appointment  in  any  future  

vacancies.

15. Once we steer clear of the said position having regard to  

the law laid down by this Court in Sneha Cheriyan (supra),  

we have to consider the submissions of learned counsel for  

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the 5th respondent Mr. C.S. Rajan who was supported by the  

standing counsel appearing for the State, who both wanted to  

support  the  conclusion  of  the  1st respondent  in  its  order  

dated 26.11.2011.

16. According to Mr. C.S. Rajan, learned Senior Counsel for  

the 5th respondent in the first instance, the 5th respondent  

had  already  acquired  a  vested  right  having  regard  to  the  

unamended Rule  7A(3)  which prevailed  at  the  time of  her  

engagement in the leave vacancies between 01.10.1997 and  

11.03.1998. As was noted by us earlier she had put in two  

months and nineteen days in the said period i.e.,  between  

11.01.1998 and 11.03.1998. Under unamended Rule 7A the  

stipulation was that vacancies, the duration of which is two  

months or less should not be filled up by any appointment.  

Since at the relevant point of time the said unamended Rule  

was in force, the engagement of the 5th respondent between  

10.01.1998  and  11.03.1998  was  fully  governed  by  the  

unamended  Rule  7A(3).  Thus,  the  5th respondent’s  

engagement was a valid engagement.  If  the amended Rule  

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7A(3)  is  to  be  ignored  certainly  she  would  fall  within  the  

category  “on  account  of  termination  of  vacancies  as  is  

stipulated in Rule 51A”. In support of the above submission,  

the learned Senior Counsel also drew our attention to Note 2  

prescribed under Rule 51A and submitted that in the event of  

the  fulfillment  of  the  said  requirement  by  the  qualified  

teacher concerned it was mandatorily cast on the Manager to  

issue  an  order  of  appointment  by  registered  post  

acknowledgment due by giving 14 clear days notice to the  

teacher to join duty and in the event of the said teacher is  

not joining duty, to give one more opportunity with 7 clear  

days and even thereafter only if the teacher failed to join duty  

the  forfeiture  of  the  preferential  right  would  operate.  The  

learned Senior Counsel, therefore, contended that even if the  

5th respondent had not applied when the vacancy arose in the  

year  2010  without  compliance  of  Note  2  of  Rule  51A  the  

appointment of 6th respondent could not have been resorted  

to by the appellant.  

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17. Though, in the first blush, the argument appears to be  

very sound and appealing, we are not able to appreciate the  

said submission, inasmuch as, we are not in a position to  

accede to the submission of the learned counsel that the 5 th  

respondent acquired a vested right even after the amendment  

was brought into the rules in particular to Rule 7A(3). At the  

risk of repetition it must be stated that after the amendment  

to  Rule  7A(3)  which  was  introduced  by  notification  GO(P)  

No.121/2005/G.Edn.  dated  16.04.2005,  the  position  was  

that a qualified teacher cannot be said to have been engaged  

in a vacancy which stood terminated unless the duration of  

which was one full academic year. In order to find out what  

would constitute a full academic year this Court in  Sneha  

Cheriyan (supra) referred to Rule 2A of Chapter VII of Kerala  

Education Rules which specifically defines an ‘academic year’  

to deem to commence on the reopening day and terminate on  

the  last  day  before  summer  vacation.  Under  Rule  1  of  

Chapter VII it is specifically stipulated that all schools should  

be closed for summer vacation every year on the last working  

day  of  March and reopen on the  1st working  day  of  June  C.A. NOS……OF 2016 @ SLP(C) NO.31794-95 OF 2014                                      Page 23 of 32 & C.A. NO….OF 2016 @ SLP(C) NO.33104 OF 2014

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unless  otherwise  notified  by  the  Director.  Therefore,  the  

academic year would commence on 1st June of the previous  

year  and  end  on  31st March  of  the  subsequent  year.  

Therefore,  if  one  were  to  claim  any  preferential  right  of  

appointment  under  Rule  51A  under  the  category  falling  

under  “on  account  of  termination  of  vacancies”,  having  

regard  to  the  stipulations  contained  in  the  amended Rule  

7A(3) such qualified teacher should have been engaged in a  

vacancy which lasted or existed for one clear academic year,  

namely, between 1st June of the relevant year till the end of  

31st March of the subsequent year. It is not the case of the 5th  

respondent  that  she satisfied the said requirement as  has  

now  been  stipulated  under  the  Rule,  namely,  7A(3)  read  

along with Rule 51A.  

18. Having noted the said position, we feel it appropriate to  

cull out the principles of interpretation arising under such  

contingencies.  It  will  be  worthwhile  to  refer  to  certain  

principles  on  the  question  of  existence  or  otherwise  of  a  

vested  right  in  a  person  by  making  reference  to  a  

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Constitution  Bench  decision  of  this  Court  reported  as  

Garikapati Veeraya v. N. Subbiah Choudhry – AIR 1957 SC  

540. It will be profitable to briefly recapitulate the facts noted  

in  the  said  decision  by  the  renowned  Judge  Hon’ble  Mr.  

Justice S.R. Das, Chief Justice. The petitioner in that case  

filed a Special Leave Petition from the judgment passed by  

the High Court of Andhra Pradesh on 10th February, 1955.  

The suit  out  of  which the special  leave petition arose was  

instituted on 22nd April, 1949 in the subordinate court. The  

Trial  Court  passed  its  judgment  on  14th November,  1950  

dismissing the suit. The plaintiff filed the appeal. The High  

Court  of  Andhra  Pradesh  accepted  the  appeal  by  its  

judgment dated 04th March, 1955 and reversed the decree of  

the Trial Court and decreed the suit. Aggrieved against the  

same, the Special Leave Petition in that case moved the High  

Court for  leave to appeal  to this  Court  and the same was  

dismissed  inter  alia  on  the  ground  that  the  value  of  the  

property was only Rs.11,400/- and did not come up to the  

level of Rs.20,000/-. In the Special Leave Petition petitioner  

contended before this Court that the judgment being one of  C.A. NOS……OF 2016 @ SLP(C) NO.31794-95 OF 2014                                      Page 25 of 32 & C.A. NO….OF 2016 @ SLP(C) NO.33104 OF 2014

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reversal  and  the  value  was  above  Rs.10,000/-,  he  was  

entitled,  as a matter  of  right to come up to this Court on  

appeal  and since the said right  was denied to him by the  

High Court, by invoking Article 136 of the Constitution, he  

moved  the  Special  Leave  Petition.  The  contention  of  the  

Special Leave Petition petitioner was that as from the date of  

the institution of the suit he acquired a vested right to appeal  

to this  Court and in support  of  his  submissions he relied  

upon various decisions. The Constitution Bench after making  

a  detailed  analysis  of  the  issue  raised  has  laid  down the  

following principles, which are as under:

“From the decisions cited above the following  principles clearly emerge:

(i) That  the  legal  pursuit  of  a  remedy,  suit,  appeal  and  second  appeal  are  really  but  steps  in  a  series  of  proceedings  all  connected by an intrinsic unity and are to  be regarded as one legal proceeding.

(ii) The right of appeal is not a mere matter of  procedure but it a substantive right.

(iii) The institution of the suit carries with it the  implication that all rights of appeal then in  force are preserved to the parties thereto till  the rest of the career of the suit.

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(iv) The  right  of  appeal  is  a  vested  right  and  such  a  right  to  enter  the  superior  court  accrues to the litigant and exists as on and  from  the  date  the  lis  commences  and  although it may be actually exercised is to  be  governed  by  the  law  prevailing  at  the  date  of  the  institution  of  the  suit  or  proceeding and not by the law that prevails  at the date of its decision or at the date of  the filing of the appeal.  

(v) This  vested  right  of  appeal  can  be  taken  away only by a subsequent enactment, if it  so  provides  expressly  or  by  necessary  intendment and not otherwise.”

19.   In our considered view the above principles laid down  

by  the  Constitution  Bench  of  this  Court  will  have  full  

application while considering the argument of learned Senior  

Counsel  for  the  5th respondent  claiming  a  vested  right  by  

relying upon unamended Rule 7A(3).  Principles (i),  (iii),  (iv)  

and  (v)  of  the  said  judgment  are  apposite  to  the  case  on  

hand. When we make a comprehensive reference to the above  

principles,  it  can  be  said  that  for  the  legal  pursuit  of  a  

remedy it  must be shown that  the various stages of  such  

remedy  are  formed  into  a  chain  or  rather  as  series  of  it,  

which  are  connected  by  an  intrinsic  unity  which  can  be  

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called as one proceeding, that such vested right if any should  

have its origin in a proceeding which was instituted on such  

right having been crystallized at the time of its origin itself, in  

which event all  future claims on that  basis to be pursued  

would  get  preserved  till  the  said  right  is  to  be  ultimately  

examined.  In  the  event  of  such preservation  of  the  future  

remedy having come into existence and got crystallized, that  

would  date  back  to  the  date  of  origin  when  the  so-called  

vested right commenced, that then and then only it can be  

held that the said right became a vested right and it is not  

defeated by the law that prevail at the date of its decision or  

at  the  date  of  subsequent  filing  of  the  claim.  One  other  

fundamental  principle  laid  down  which  is  to  be  borne  in  

mind is that even such a vested right can also be taken away  

by a subsequent enactment if  such subsequent enactment  

specifically  provides  by  express  words  or  by  necessary  

intendment. In other words, in the event of the extinction of  

any  such  right  by  express  provision  in  the  subsequent  

enactment, the same would lose its value.  

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20. Having thus noted such well laid down principles on a  

claim of vested right, when we test the argument made on  

behalf  of  the 5th respondent,  at the very outset it  must be  

stated that though prior to the amendment of Rule 7A(3) by  

the  notification  dated  16.04.2005  the  5th respondent  did  

satisfy the unamended Rule 7A(3) by having been engaged in  

a vacancy as a qualified teacher for a period of two months,  

as early as on 11th March,  1998, unfortunately  for  the 5th  

respondent there was no occasion to raise a claim for any  

preferential appointment on the basis of fulfillment of such a  

requirement as it existed then and as provided under Rule  

51A. In fact, between 1998 and 2010 i.e. for nearly 12 years  

there was no scope for the 5th respondent to raise a claim on  

that  basis.  Therefore,  the  very  fundamental  principle  of  

pursuit of a remedy at the very inception did not take place  

in order to consider whether any further proceedings could  

be pursued based on such initiation of claim. Since at the  

very inception a claim though even on the basis of the then  

existing Rule 7A(3) could not be initiated to be pursued, it is  

very difficult to hold that there could have been preservation  C.A. NOS……OF 2016 @ SLP(C) NO.31794-95 OF 2014                                      Page 29 of 32 & C.A. NO….OF 2016 @ SLP(C) NO.33104 OF 2014

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of any such right as it existed under the unamended Rule  

7A(3).  Having  regard  to  the  said  situation  in  the  case  on  

hand, it cannot be held that the law that prevailed, namely,  

the  right  which  was  available  under  the  unamended  Rule  

7A(3) alone would remain and not the law that prevailed at  

the  time  when  the  5th respondent  staked  her  claim  for  

preferential appointment i.e. when the vacancy arose in the  

year  2010.  By  that  time  i.e.  after  12  years  when  the  5th  

respondent sought to enforce her right under Rule 51A as a  

sea change came into effect by way of an amendment to Rule  

7A(3), which expressly disentitled a qualified teacher to claim  

to  be  categorized  under  “on  account  of  termination  of  a  

vacancy” as such express prohibition came to be introduced  

by virtue of the amendment to Rule 7A(3), it will have to be  

held that the submission of learned Senior Counsel for the  

5th respondent that a vested right accrued to her as early as  

on  11.03.1998  cannot  be  countenanced.  Since,  the  very  

foundation of the 5th respondent’s claim rested on the said  

submission, we do not find any scope to apply Note 2 of Rule  

51A to come for her rescue. Equally the reliance placed upon  C.A. NOS……OF 2016 @ SLP(C) NO.31794-95 OF 2014                                      Page 30 of 32 & C.A. NO….OF 2016 @ SLP(C) NO.33104 OF 2014

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by the learned counsel in Abdurahiman (supra)  will also be  

of no avail when once the claim of the 5th respondent fall to  

the  ground  by  virtue  of  the  principles  laid  down  by  the  

Constitution  Bench  decision  of  this  Court  in  Garikapati  

Veeraya  (supra).  Consequently,  the  faint  attempt  of  the  

learned Senior Counsel for the appellant to refer this case to  

a Larger Bench cannot also be acceded to.  

21. Therefore, going by the interpretation of amended Rule  

7A(3) read along with Rule 51A, if  one were to be brought  

under the category of qualified teacher relieved on account of  

termination of vacancies, the amended Rule 7A(3) required to  

be  satisfied,  namely,  such engagement  was  lasted  for  one  

clear academic year as stipulated under Rule 1 and 2A of  

Chapter  VII  of  the  Kerala  Education  Rules.  The  5th  

respondent not having satisfied the said requirement there  

was no scope to allow her to press her claim under Rule 51A  

for  a  preferential  appointment.  Having  regard  to  the  said  

legal consequence, the relief granted by the 1st respondent in  

order  dated  26.11.2011  cannot  be  sustained  and  

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Page 32

consequently the directions issued by the High Court in the  

impugned judgment cannot also be sustained. The answers  

to the questions made by the Full Bench are also liable to be  

set  aside  and  in  its  place,  it  must  be  held  that  the  

interpretation made by this Court in Sneha Cheriyan (supra)  

would alone prevail.  

22. The appeals stand allowed. The impugned judgment is  

set aside. The order of the 1st respondent dated 26.11.2011 is  

also set aside. The appointment of the 6th respondent stands  

restored and there will be no order as to cost.     

….………………………………………...J. [Fakkir Mohamed Ibrahim Kalifulla]

….………………………………………...J. [S.A. Bobde]

New Delhi; January 27, 2016

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