Page 1 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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Page 2 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 5

th

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

the 5

th

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 6

th

respondent came to be appointed on 01.06.2010

afresh. The 5

th

respondent challenged the appointment of the

6

th

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 5

th

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 5

th

respondent approached the 2

nd

respondent. The 2

nd

respondent by its order dated

31.03.2011 rejected her claim. The 5

th

respondent filed a

revision before the 1

st

respondent and the 1

st

respondent by

order dated 26.11.2011 directed the 4

th

respondent, the

District Education Officer to issue necessary formal orders

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Page 4 appointing the 5

th

respondent as high school assistant in the

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

the order of the 1

st

respondent by filing a writ petition in W.P.

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

contending that the 5

th

respondent would not come within

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

order of the 1

st

respondent cannot be sustained. The 5

th

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

implementing the order of the 1

st

respondent dated

26.11.2011. The writ petition of the appellant, the 5

th

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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Page 5 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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Page 6 introduced in the Rule as and from 27.04.2005, the claim of

the 5

th

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 5

th

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 5

th

respondent, the right of the 5

th

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Page 7 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 5

th

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 5

th

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 5

th

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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Page 8 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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Page 9 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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Page 10 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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Page 11 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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Page 12 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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Page 13 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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Page 14 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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Page 15 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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Page 16 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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Page 17 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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Page 18 (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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Page 19 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 xxxxxx

24.3 xxxxxx

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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Page 20 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 1

st

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 1

st

June of 2000 and

ended on 31

st

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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Page 21 the 5

th

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 1

st

respondent in its order

dated 26.11.2011.

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

the 5

th

respondent in the first instance, the 5

th

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 5

th

respondent between

10.01.1998 and 11.03.1998 was fully governed by the

unamended Rule 7A(3). Thus, the 5

th

respondent’s

engagement was a valid engagement. If the amended Rule

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Page 22 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

5

th

respondent had not applied when the vacancy arose in the

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

appointment of 6

th

respondent could not have been resorted

to by the appellant.

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Page 23 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 1

st

working day of June

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Page 24 unless otherwise notified by the Director. Therefore, the

academic year would commence on 1

st

June of the previous

year and end on 31

st

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 1

st

June of the relevant year till the end of

31

st

March of the subsequent year. It is not the case of the 5

th

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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Page 25 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 10

th

February, 1955.

The suit out of which the special leave petition arose was

instituted on 22

nd

April, 1949 in the subordinate court. The

Trial Court passed its judgment on 14

th

November, 1950

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

Court of Andhra Pradesh accepted the appeal by its

judgment dated 04

th

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

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Page 26 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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Page 27 (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 5

th

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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Page 28 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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Page 29 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 5

th

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 5

th

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 11

th

March, 1998, unfortunately for the 5

th

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 5

th

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

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Page 30 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 5

th

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 5

th

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

5

th

respondent that a vested right accrued to her as early as

on 11.03.1998 cannot be countenanced. Since, the very

foundation of the 5

th

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

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Page 31 by the learned counsel in Abdurahiman (supra) will also be

of no avail when once the claim of the 5

th

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 5

th

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 1

st

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 1

st

respondent dated 26.11.2011 is

also set aside. The appointment of the 6

th

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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