N.K. Sodhi, C.J.

1. This order will dispose of two Writ Appeal Nos. 1416 and 1459 of 2003 both of which are directed against the order passed by a learned Single Judge allowing O.P. No. 36534 of 2002 filed by the first Respondent. Since arguments were addressed in W.A. No. 1459 of 2003, the facts are being taken from this case. Counsel for the parties are agreed that the decision in this case shall govern the other case as well. The facts giving rise to the appeal may first be noticed.

2. The Appellant before us was the 6th Respondent in the Writ Petition filed by the first Respondent. The writ Petitioner had been appointed as a temporary Sewing Teacher in St. Louis High School, Mundamvely against the leave vacancy of one Smt. Prestina John. She joined as a temporary teacher on 9-9-1980 and worked up to 5-12-1980. This service was approved by the District Educational Officer. St. Louis High School was then under an individual educational agency. The management of the school was then brought under a corporate educational agency, Diocese of Cochin, Catholic Center, Kochi with effect from 1-4-1981. It is common ground between the parties that the management of the school was transferred from an individual educational agency to the corporate educational agency with effect from this date. The Appellant was also appointed as a Sewing Teacher on temporary basis against a short term vacancy in St. Peters High School, Kumbalangi. She was appointed on 9-8-1982 and worked up to 30-10-1982. This school (St. Peters High School) is managed by the 6th Respondent. Her service was approved by the District Educational Officer. After this appointment was over, she was given a temporary appointment against a short term vacancy as a teacher on 10-1-1983 and she worked up to 30-3-1983 in St. Louis High School, Mundamveli. This service was also approved by the competent authority. As already observed, this school had, by now, come under the corporate management of the 6th Respondent In other words, the Appellant had to her credit two stints of temporary service in two different schools under the same corporate management. Thereafter, she was again given a temporary appointment on 23-1-1990 and she worked up to 30th March, 1990 in St. Augustines High School, Aroor. This service was also approved and the school is run by the same corporate management, namely, the 6th Respondent. Thereafter, she was appointed on 4-6-1990 as a Needle Work Teacher in St. Augustines High School, Aroor against a permanent vacancy on the retirement of a regular teacher and it is not in dispute that she is continuing on that post till date. The service has been approved by the competent authority. This regular appointment was given to the Appellant as a claimant under Rule 51A of Chapter XIV A of the Kerala Education Rules, 1959 (for short the Rules) as she had to her credit three stints of approved temporary service under three different schools run by the same management.

3. It was on 22-3-1999 that the first Respondent (writ Petitioner) staked her claim to the regular post which was given to the Appellant on 4-6-1990 on the ground that she was a senior 51A claimant under the Rules and that she was entitled to be appointed on the regular post prior to the Appellant. A complaint was filed before the District Educational Officer who rejected the same as per his communication dated 22-4-2000 on the ground that his office was not in a position to take any decision at that distance of time. The first Respondent felt aggrieved by the rejection of her claim and filed a petition before the Director of Public Instructions on 13-5-2000 which was allowed on 13-12-2001 holding that the first Respondent was a senior 51A claimant and was entitled to be appointed in preference to the Appellant. The Director of Public Instructions gave a direction to the Manager of the corporate educational agency (the 6th Respondent herein) to review the appointment of the Appellant which, according to him, was irregular. The Manager of the corporate educational agency and the Appellant both filed revision petitions before the State Government taking a plea that the first Respondent was not a 51A claimant because the approved service which she had to her credit was not under the same educational agency and, therefore, not covered by the provisions of Rule 51A of the Rules. It was also pleaded that the first Respondent had not challenged the appointment of the Appellant till March 1999 and, therefore, the Director of Public Instructions was not justified in interfering with the appointment at that distance of time. Both the petitions were allowed and the Appellant and the first Respondent both held to be 51A claimants. Since the challenge to the appointment of the Appellant had been made after a long delay, the Government directed the Manager of the corporate educational agency to appoint the first Respondent against the next arising vacancy under the corporate management. The Appellant was permitted to continue on the present post on which she was appointed on 4-6-1990. It was now the turn of the first Respondent to challenge the order of the State Government. She filed O.P. No. 36534 of 2002 in this Court alleging that she was a senior 51A claimant and entitled to appointment in preference to the Appellant. The matter was considered by the learned Single Judge who proceeded on the assumption that the Appellant and the first Respondent were both 51A claimants and had to their credit approved temporary service under the same management and since temporary service of the first Respondent was prior in time to that of the Appellant, she was entitled to be appointed in preference to her (the Appellant). The learned Single Judge posed a question as to whether the right under Rule 51A would be lost to the first Respondent if she failed to object in time to the list of 51A claimants published by the Manager in which her seniority was wrongly shown. This question was answered in the negative and the Writ Petition was allowed. It may be mentioned that the Manager of the 6th Respondent had issued a provisional seniority list of 51A claimants in which the Appellant was shown senior to the first Respondent. The learned Single Judge relied on Notes 1 and 2 to Rule 51A of the Rules and found that both the Appellant and the first Respondent were the claimants under that Rule but preference had to be given to the first Respondent as she had temporary service to her credit earlier in point of time. It was also found that the first Respondent by not objecting to the appointment of the Appellant in the year 1990 had not forfeited her claim under Rule 51A and, therefore, she was entitled to preference in the matter of appointment. It is against this order of the learned Single Judge that the present appeals have been filed.

4. Since the dispute between the Appellant and the first Respondent hinges on the interpretation of Rule 51A of the Rules, it is necessary to make a reference to it. It reads as under:

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.

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 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 words in the bracket "or an educational agency to which the school may be subsequently transferred" were not in the Rule as it was originally framed. Rule 51A was amended by S.R.O. 626/1998 with effect from 1-1-1985. A reading of the Rule as it stood prior to its amendment in the year 1998 would make it clear that qualified teachers who were relieved on account of the termination of vacancies had preference in the matter of appointment to future vacancies in schools under the same educational agency. It appears that some hardship was being caused to persons who had to their credit temporary service in schools which were subsequently taken over by another management. In that event, a claimant under Rule 51A lost his right to appointment because the management of the school had changed. With a view to protect such persons, the amendment was brought about in the year 1998 and the words as they now find mention in the bracket as reproduced above, were introduced. The Explanatory Note to the notification amending the Rule makes the intention very clear. The Explanatory Note is reproduced here under for facility of reference.

At present, in the event of transfer of management of a school, there is no provision in the Kerala Education Rules to direct the transferee Manager to absorb the protected teachers and claimants under Rule 51A of Chapter XIV A of any school belonging to the transferror Manager.

Similarly, at present, in the event of transfer of management of a school, there is no provision in the Kerala Education Rules to treat any member who is eligible for protection or a claimant under Rule 51A of Chapter XIV A belonging to the teaching and non-teaching staff of any school of the transferror manager as such a claimant in the vacancies arising in transferred school under the transferee manager. Government have decided to incorporate provisions for the above purposes in the rules. This notification is intended to achieve the above objects.

It will be seen that the object of the amendment was to make a provision to protect the 51A claimants even when there was transfer of management of a school. Even though the amendment was brought about in the year 1998, it was made retrospective with effect from 1-1-1985.

5. It is not in dispute that the Appellant was appointed against a regular vacancy as a 51A claimant on 4-6-1990. Let us first examine whether her appointment on that day was valid because by that time the Rule had not been amended. She had to her credit three stints of approved temporary service in three different schools which were admittedly run by the same management, i.e. the 6th Respondent herein. She was squarely covered by the provisions of Rule 51A as they stood prior to its amendment in the year 1998. Her appointment was sought to be challenged by the first Respondent on the ground that she had a preferential claim to the appointment being a senior Rule 51A claimant. We will now examine whether the first Respondent was a 51A claimant and if so from when

6. The first Respondent had to her credit temporary approved service from 9-9-1980 to 5-12-1980 in St. Louis High School, Mundamveli. At that time, the school was managed by an individual educational agency and the management of the school was subsequently taken over by the corporate management -- The 6th Respondent with effect from 1-4-1981. Could she be said to be a 51A claimant According to the Rule as it stood prior to its amendment, the first Respondent, in our opinion, could not be termed as a 51A claimant because the temporary approved service which she had to her credit was not under the "same educational agency." The Rule was then amended in 1998 to protect teachers like the first Respondent. The amendment, as already noticed, was made retrospective with effect from 1-1-1985. By virtue of this amendment, qualified teachers would have preference for appointment to future vacancies in schools even when the school was subsequently transferred to a new educational agency. It was on the amendment of this Rule that the first Respondent became a 51A claimant. This was in 1998. But since the amendment was with retrospective effect, she would be deemed to have become such a claimant with effect from 1-1-1985. The question that now arises is that having become a 51A claimant in 1998 with retrospective effect from 1-1-1985, could she displace the Appellant who was validly appointed on 4-6-1990 as a 51A claimant In our opinion, the answer to this question has to be in the negative. The Rule cannot be interpreted to mean that all valid appointments made prior to 1998 had become invalid. If such an interpretation were to be placed on the amendment to Rule 51A then the same would be hit by the dictum laid down by Their Lordships of the Supreme Court in T.R. Kapoor v. State of Haryana and Ors. : A.I.R. 1987 S.C. 415, wherein an amendment made to the Rule retrospectively taking away the eligibility of members of Class II service for the purposes of promotion to the posts of Executive Engineers in Class I service from a back date was declared constitutionally invalid. Their Lordships held that validly appointed officers could not be made ineligible by an amendment of the Rules retrospectively. This view was upheld in Chairman, Railway Board and Ors. v. C.R. Rangadhamaiah and Ors. : (1997) 6 S.C.C. 623. We would, therefore, like to place an interpretation on Rule 51A which would not make it invalid. We, therefore, hold that the effect of the amendment in Rule 51A with retrospective effect did not intend to invalidate the valid appointments made prior thereto. As is clear from the Explanatory Note to the notification reproduced above, the object of the amendment was only to protect the persons who had to their credit temporary approved service in schools which were later transferred to other educational agencies. In view of this amendment, the first Respondent also became a 51A claimant and could lay her claim to any future vacancy arising after the amendment. In this view of the matter, the State Government was right in setting aside the order passed by the Director of Public Instructions and directing the Manager to consider the first Respondent against the next arising vacancy. The learned Single Judge while allowing the Writ Petition proceeded on the assumption that both the Appellant and the first Respondent were 51A claimants from the beginning which is not so.

7. There is yet another aspect of the matter. The Appellant was given a regular appointment on 4-6-1990 as a 51A claimant and even if one were to assume that the first Respondent became a 51A claimant with effect from 1-1-1985, she did not challenge the appointment of the Appellant till March, 1999. As already observed, it was only on 22-3-1999 that she filed a complaint before the District Educational Officer which gave rise to the present litigation. The Appellant continued on the post for almost nine long years. We are clearly of the view that on account of the delay itself, the first Respondent should have been non-suited. The learned Single Judge brushed aside the plea of delay on the ground that the first Respondent cannot be said to have relinquished her rights under Rule 51A because the procedure prescribed for such relinquishment had not been followed. That may be so. But delay defeats equity and the first Respondent could not be allowed to challenge an appointment even if it was irregular after a lapse of nine years. On this ground as well, we are of the view that the claim of the first Respondent must fail.

8. No other point was raised.

For the reasons recorded above, we allow both the writ appeals and set aside the order of the learned Single Judge and restore that of the State Government (Ext.P-12 in the writ petition) and direct the Manager to implement the same. There is no order as to costs.