K.S. Radhakrishnan, J.@mdashThis Writ Appeal is filed against the judgment in O.P. No.30102 of 2000. Writ Petition was preferred by the Manager of a Lower Primary School. He is aggrieved by the direction given by the educational authorities for appointing respondents 4 and 5 in the school since they are R.51A claimants.
2. According to the appellant, amendments effected to Rr.3(1) and 4(1) of Chapter XXXI of the Kerala Education Rules, vide G.O.(P) No. 188/2000/G.Edn. dated 8.6.2000, would take away the right of Rs.51A claimants, respondents 4 and 5, since they are not having TTC qualification on the date of occurrence of vacancies. Learned Single Judge did not accept the contention of the appellant and dismissed the Writ Petition. Aggrieved by the same this Writ Appeal has been filed.
3. Shorts facts which are necessary for disposal of the appeal are as follow: Respondents 4 and 5 are admittedly R.51A claimants. They possess B.Ed. degree qualification. A vacancy of Lower Primary School Assistant arose in the School on 5.6.2000. In that vacancy, sixth respondent, a fresh hand having TTC qualification, was appointed. Another vacancy of Lower Primary School Assistant arose in the school on 1.8.2000. In that vacancy, seventh respondent was appointed. He was also a fresh hand having TTC qualification. Respondent 3 and 4 came to know about the appointments of respondents 6 and 7. Appointments of respondents 6 and 7 were not approved by the Assistant Educational Officer stating that rights of R.51A claimants were overruled.
4. Respondents 4 and 5 filed Writ Petition, O.P. No. 23811 of 2000, which was disposed of by directing the Deputy Director of Education to pass appropriate orders. The Deputy Director of Education placed reliance on Government letter No. 26327/J3/2000/G.Edn. dated 26.6.2000 and held that appointment of respondent 6 and 7 were irregular and gave direction to the Manager to appoint respondents 4 and 5 who are R.51A claimants.
5. Counsel for appellant submitted that on the date of occurrence of vacancies, respondents 4 and 5 were not qualified since they did not possess T.T.C. qualification on those dates. Counsel submitted that as per Kerala Eduction (Amendment) Rules, 2000.Rr. 3(1) and 4(1) of Chapter XXXI were amended. Consequently only persons with TTC qualification can be considered for appointment to the post of Lower Primary School Assistant. Counsel submitted that since respondents 4 and 5 were not having TTC qualification but only B.Ed. qualification are not qualified to be appointed to the said post. Counsel further submitted that only those R.51A claimants who possess TTC qualification can be appointed to the post of Lower Primary School Assistant. It is also his contention that the right of R.51A claimant is only a preferential right for appointment provided he possesses the requisite qualification on the date of occurrence of vacancies. His further contention is that R.51A of Chapter XIV-A does not give any absolute or vested right for future appointments.
6. Counsel appearing for contesting respondents 4 and 5, on the other hand, submitted that respondents 4 and 5 have vested right under R.51A to be appointed in future vacancies. It is also his contention that amendment has not taken away that vested right and consequently appellant is bound to appoint respondents 4 and 5 in the vacancies arose on 5.6.2000 and 1.8.2000.
7. We may indicate that two vacancies of Lower Primary School Assistant arose in the School; one on 5.6.2000 and the other on 1.8.2000. Ext P1 notification came into force on 8.6.2000. Since one of the vacancies arose prior to the amendment, i.e. on 5.6.2000 there cannot be any doubt that the Manager is bound to appoint fourth respondent in that vacancy. The next vacancy arose on 1.8.2000,that is, after the amendment which was effected on 8.6.2000. The question to be considered is whether the amendment has taken away the right of R.51A claimants. In this connection we may extract R.51A of Chapter XIV-A for easy reference.
"51A. Qualified teachers who are relieved as per R.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.
Note I. 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-r.(4) of R.(1) as far as High Schools are concerned.
Note 2. Manager should issue an order of appointment to the teacher by registered post 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."
The above-mentioned provision states that qualified teachers who are relieved as per R.49 or 52 or an account of termination of vacancies shall have preference in appointment in future vacancies. The question is whether on the date of occurrence of vacancy if a fresh qualification is stipulated, those qualified teachers who are relieved as per R.49 or 52 should acquire that qualification as laid down by the Government, vide notification dated 8.6.2000 amending Rr. 3(1) and 4(1) of Chapter XIV-A of the KER which stipulates that only persons with TTC qualification could be considered for appointment to the post of L.P.S.A. and B.Ed. qualification can be considered for the post of U.P.S.A. This question was posed before the Government and the Government issued the following clarification on 26.6.2000.
"I am to invite your attention to the reference cited and to inform you that Government have amended the Rr.3(1) and 4(1) of Chapter XXXI KER in such a way that only T.T.C. holders are eligible to get appointment as LPSAs and B.Ed. holders can be considered along with T.T.C. holders for appointment to the post of UPSAs. Hence B.Ed. holders are not eligible to be appointed as L.P. School Assistants.
However the new amendment will not affect the claims under R.51A, Chapter XIV AKER secured before 8.6.2000, the date of notification."
We have gone through the amendment effected to Rr. 3(1) and 4(1) of Chapter XXXI. There is nothing to indicate that the right conferred under R.51A of Chapter XIV-A has been taken away. Mere fact that a new qualification has been introduced does not mean that it has taken away the statutory right already conferred on R.51A claimants which is in the nature of a vested right to those qualified teachers who are relieved as per R.49 or R.52 on the ground of termination of vacancies. Right is said to be vested when the right of enjoyment, present or prospective, has become the property of some particular person or persons as a present interest, independent of contingency. This is a right which cannot be taken away without the consent of the owner. Vested right can arise from contracts, from statutes and from operation of law. A right of action preferred by a particular statutes is said to be a vested right.
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9. In this connection we may refer to the decision of this Court in Thania v. D.E.O. ILR 1975 Ker 609 There the question arose was whether rights of R.51A claimant would be affected with the introduction of the proviso to R.1 of Chapter XXXI of the KER. Court held that though under Chapter XXXI of R.51A claimant was not qualified, in view of the proviso to R.1 of Chapter XXXI, the new rules cannot affect the right of appointment. Learned Judge of this Court took the view that qualified teacher who had been relieved as per R.49 or R.52 on account of termination of vacancy will have performance for appointment to future vacancies under the same educational agency. This vested right cannot be displayed by a new rule. In this connection we may also refer to the Bench decision of this Court in Anilkumar v. Been 2000 (1) KLT 286 While dealing with the preferential right the Bench held as follows:
"The object and purpose of the rule is to restore to those qualified persons relieved of the appointment, the post they lost for want of vacancies. Rule was enacted to restore to him the same type of post which he would have occupied but for the termination of vacancy. Qualification obtained by a teacher to teach a particular subject and the consequent experience gathered by him by holding the post and the approval obtained from the department would give rise to those persons a preference for holding identical posts in the school on a future occasion. A teacher who obtained such a preference for appointment under R.51A cannot go on acquiring various other qualifications subsequent to his relief form the school and stake claim for a post which he never held in the school on previous occasions. If the contention of the petitioner is accepted, that would lead to an anomalous situation and would defeat the claims of various qualified persons relieved form other posts. Note 1 to R.51A amply make it clear that if there are more than one qualified persons preference shall be according to the date of first appointment. Rule never emphasises that preference will be given to those persons who have acquired subsequent qualification. Preferential claim of various thrown out teachers must be in tune with their qualification on the basis of which they held the post earlier."
We are of the view of the aforementioned facts would positively show that R.51A claimants have got a vested right. They have to be considered for appointment in future vacancies unless and until their rights are taken away from the statute itself. We are of the view that Kerala Education (Amendment) Rules, 2000 has not taken away the right conferred on them under R.51A. In such circumstances we find no infirmity in the stand taken by the Department. Accordingly we dismiss this appeal.
