State Of Kerala vs C. Kunhikkamma on 16 February, 2024

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Kerala High Court

State Of Kerala vs C. Kunhikkamma on 16 February, 2024

The Headmasters in Aided Complete Secondary Schools shall ordinarily be appointed according to the seniority from among the graduate teachers having necessary test qualifications (Rule 44A in Chapter XIV-A of the Kerala Education Rules, 1959 (KER). Subject to that, teachers put in 12 years of continuous service are eligible to be appointed as Headmasters (Rule 44A in Chapter XIV-A of the KER). Rule 3 of Chapter XXVI of KER provides that a Headmaster of an Aided Complete Secondary School shall be given departmental Headmaster's scale of pay only if he has put in minimum of 16 years of continuous service as graduate teacher. The Government issued G.O.(Ms) No.88/83/G.Edn. dated 30.05.1983 and G.O.(Ms) No.50/ 2001/G.Edn. dated 13.02.2001 entitling Headmasters of secondary schools a higher grade on their completing seven years of service. The question that arose before the Division Bench was whether 2 Writ Appeal No.2230 of 2019 service of seven years in the post of Headmaster is enough or whether service in the pay scale of the Headmaster is essential to get higher grade. It was noticed that a Division Bench of this Court in W.A.No.1886 of 1997 held as per the judgment dated 10.12.1999 that 7 year service in the scale of pay of Headmaster is the eligibility requirement for higher grade. Another Division Bench as per the judgment dated 05.07.2016 in W.A.Nos.1577 of 2010 and connected cases took the view that service of seven years in the post of Headmaster is enough to get the higher grade. Confronted with those conflicting decisions, the Division Bench as per the order dated 05.10.2020 referred to a larger Bench and thereby this matter is placed before us.

2. This Writ Appeal was filed against the judgment dated 26.09.2018 in W.P.(C) No.12564 of 2018. The challenge in the Writ Petition was against Exts.P2 and P3 orders. Ext.P2 was issued by the 2nd appellant directing the 3rd appellant asking to take curative action in regard to the order allowing higher grade to the respondent on completing seven years of service in the post of Headmaster. Ext.P3 is the order issued 3 Writ Appeal No.2230 of 2019 by the 3rd appellant refixing the pay of the respondent reckoning that she became eligible for the higher grade only on completion of seven years in the scale of pay of the Headmaster. Ext.P3 order also directed recovery of the excess amount paid.

3. The Writ Petition was allowed as per the impugned judgment by placing reliance on Ext.P7 judgment in W.A.No.1577 of 2010 and connected cases, wherein it was held that a graduate teacher who put in seven years of service in the post of Headmaster is eligible for higher grade in the scale of the Headmaster, notwithstanding the fact that he/she has not been granted the scale of Headmaster. In the Reference Order, it is pointed out that Ext.P7 judgment was in direct conflict with the judgment in W.A.No.1886 of 1997, which was disposed of along with W.A.No.826 of 1997 and a few other cases. The Division Bench made the reference observing as follows:

"12. Now the issue at hand appears to be very simple. It is apparent from the aforesaid factual situation which we have already narrated that the judgment in WA No. 1577/2010 had been decided without referring to the 4 Writ Appeal No.2230 of 2019 earlier judgment in WA No. 826/1997 and connected cases wherein it had been clearly held that teachers who had completed 7 years service in the Headmasters scale alone will be eligible for the next higher grade.

13. Rule 3 of Chapter XXVI of KER reads as under:

"3. The Headmaster of an Aided complete Secondary School/Training School shall be given the Departmental Headmaster's scale of pay only if he has put in a minimum of 16 years of continuous service as graduate teacher in schools recognised by the department. Those Headmasters with a minimum continuous qualifying service of 12 years as graduate teachers shall be given such allowance as may be fixed by Government:

Provided that the Head master appointed on a regular basis prior to the coming into force of these Rules shall be allowed to continue in their existing scale of pay."

As per Rule 44A of chapter XIV-A of KER the minimum service qualification for appointment as Headmaster of Aided complete Secondary schools/Training Schools, shall be 12 years of continuous graduate service and other qualifications. Graduate service is explained as a service of teacher as HS Assistant, Training School Assistant, Headmaster of an incomplete High school etc. There is no dispute about the fact that a person qualifies to become Headmaster if he has a minimum service of 12 years and Headmasters are appointed based on seniority. However, as per Rule 3 of Chapter XXVI, his 5 Writ Appeal No.2230 of 2019 eligibility to receive the scale of pay of Headmaster will only be on completion of 16 years of service as a teacher. In the case on hand, petitioner was appointed as HSA on 20/6/1991. He was given first time bound Higher Grade on 23/12/2000 as he had an earlier service of HSA from 1/10/1990 till 27/3/1991. Therefore, he was eligible to get the first time bound Higher Grade after completion of 10 years of service which was granted to him. He was appointed as Headmaster on 1/11/2003 but his pay scale remained the same as that of HSA ie 5000-8150. The second time bound higher grade was given to him on completion of 16 years of service on 23/12/2006 in the scale of pay 10790-18000 that of selection Grade of HSA (8th Pay revision). He completed 16 years of service as teacher and he was granted the pay scale of Headmaster w.e.f. 1/12/2007 as opted by him in the pay scale of 11070- 18450 on 1/12/2010. Contention urged by the appellant is that petitioner was granted higher grade by a mistake i.e., on completion of 7 years of service in the post of Headmaster. This mistake was noticed later and was sought to be corrected as per Ext.P2 order of the Deputy Director of Education and consequential order was issued by the DEO, Ottappalam as per Ext.P3. The submission of the learned Government Pleader is that the petitioner cannot claim higher grade in the post of Headmaster w.e.f. 1/11/2003. He could claim a higher grade only on reaching 7 years after getting the pay scale of Headmaster effective from 1/12/2007. 6 Writ Appeal No.2230 of 2019

14. The ambiguity in the case on hand had arisen on account of the fact that the Headmaster in an aided school has two scales of pay. HSAs are entitled to become Headmaster on completion of 12 years of service, but they remain in the same scale of pay of HSA and they reach the scale of pay of Headmaster only on completion of 16 years of service. Apparently in the pay revision order, the word used is "post" and it is in that manner that the Division Bench in WA No. 1577/2010 has decided the case. But the fact that the post of Headmaster itself was under two separate scales was not considered by the said Division Bench. This aspect of the matter had been considered in Division Bench judgment in WA No. 826/1997.

15. Having regard to the aforesaid conflict in the view taken by two Division Bench judgments, we are of the view that the matter requires a fresh consideration. It is only appropriate that the issue be decided by a larger Bench."

4. Heard the learned Senior Government Pleader and the learned counsel appearing for the respondent.

5. The Rules are that a graduate teacher who puts in 12 years of service and has test qualifications is eligible for appointment as Headmaster of an Aided Complete Secondary School and that on completing service for a period of 16 years alone he is entitled to get the scale of pay of the Headmaster. 7 Writ Appeal No.2230 of 2019 The insistence of the Government Orders referred to above that seven years of service is the criteria for a Headmaster to be eligible to get the higher grade is also not in dispute or under challenge. The question therefore is whether service of seven years in the post of Headmaster is enough or whether service in the pay scale of the Headmaster is essential to get the higher grade.

6. The learned Senior Government Pleader would submit that question before the Division Bench while considering W.A.No.1886 of 1997 was exactly the same inasmuch as the claim of the writ petitioners therein was also entitlement of the Headmasters of Aided High Schools to get higher grade. When the Division Bench, after referring to the history of the rules and also the circumstances in which the Government order allowing higher grades came into being held that in order for a Headmaster to be eligible for the higher grade, seven years of service in the Headmaster's scale of pay has to be fulfilled. It is submitted that the same should not have been overlooked by the subsequent Division Bench. In that view of the matter, it is 8 Writ Appeal No.2230 of 2019 argued that Ext. P7 judgment is per incuriam. It is also submitted that when Rule 3 of Chapter XXVI of the KER explicitly insists on 16 years of service in order to get the scale of pay of the Headmaster, the Government order cannot be interpreted to understand that service of seven years in the post of Headmaster is enough to become eligible for the higher grade.

7. The learned counsel for the respondent would submit that once a teacher is promoted and posted as Headmaster, he cannot be discriminated against on the basis of length of service. From the date of appointment as Headmaster, he discharges the duties of the Headmaster and therefore, the benefit of grade promotion shall be extended considering the length of service in the post. It is further submitted that G.O.(P) No.145/2006/Fin. dated 25.03.2006 recognizes the length of service in the post as the eligibility criteria and not the length of service in the scale of pay for grade promotion. Accordingly, it is contended that the law laid down by this Court in Ext.P7 is the correct proposition law. 9 Writ Appeal No.2230 of 2019

8. The provisions relevant for consideration are Rule 44A of Chapter XIV-A and Rule 3 of Chapter XXVI of the KER. Relevant parts of Rule 44A of Chapter XIV-A reads:

"44A. (1) Subject to the provisions contained in sub-rule (1) of rule 44, the minimum service qualification for appointment as Headmaster, Headmistress, Vice-Principal in Aided Complete High Schools/Training schools shall be twelve years of continuous graduate service with a pass in the test in Kerala Education Act and the Kerala Education Rules and a pass in Account Test (Lower) conducted by Kerala Public Service Commission:

xxxxxx Rule 3 of Chapter XXVI reads:

"3. The Headmaster/Headmistress/Vice-Principal as the case may be of an Aided complete Secondary School/ Training School shall be given the Departmental Headmaster's scale of pay only if he has put in a minimum of 16 years of continuous service as graduate teacher in schools recognised by the department. Those Headmasters/Headmistresses/Vice-Principals as the case may be with a minimum continuous qualifying service of 12 years as graduate teachers shall be given such allowance as may be fixed by Government:

Provided that the Head master appointed on a regular basis prior to the coming into force of these Rules shall be allowed to continue in their existing scale of pay."

10 Writ Appeal No.2230 of 2019

9. Higher grade to the Headmasters was allowed as per G.O.(Ms) N.88/1983/G.Edn. dated 30.05.1983 and G.O. (Ms) No.50/01/G.Edn. dated 13.02.2001 and the required service is seven years as Headmaster. In Ext. P7 cases the question was regarding entitlement criteria for higher grade to the employees and Headmasters in the Education Department. The said question was to be decided in terms of the scheme for time bound grade promotion as contained in the pay order issued as G.O(P) No.3000/98/Fin. dated 25.11.1998 for, the same was applicable to the employees and Headmasters in the Education Department as well. The scheme for the time bound grade promotion as per the aforesaid Government order and also the subsequent pay order, G.O.(P) No.145/2006/Fin. dated 25.03.2006 are similar. Only change was the refixation of the span of service for various grade promotions, which has no relevance to the present case. Clause-10(3) in Annexure 3 attached to the pay order explains that time bound higher grades to teachers would be as allowed by the existing orders issued by the General Education Department. However, the other conditions 11 Writ Appeal No.2230 of 2019 were stipulated to be as indicated in Annexure 3. Going by various clauses in the said Government Order, service in a post is counted for one to be eligible for higher grade. That view is apposite also for, the objective behind allowing grade promotions is to mitigate stagnation in a particular post.

10. Be noticed, there are hierarchical differences in a few departments. In such cases the aforesaid general rule is deviated from. Clause-6 in Annexure 3 envisages such special circumstances. It reads as follows:-

"6. If there is a regular promotion post in respect of the categories of posts coming under pay scales ranging from Rs.4400-6680 to Rs. 9590-16650 and if such scale of pay is higher than the corresponding time bound higher grade proposed in Tables A & B above, then the time bound higher grade for such incumbent will be the scale of pay of such regular promotion post, provided he is otherwise qualified for such promotion. Even in cases where a particular category of posts in the normal hierarchy of promotion posts is not available in a Department, the scale of pay of the normal promotion post only will be allowed as the higher grade. (Thus, for example, in a Department where there is no post of Head Clerk and UD Clerks get promoted as Junior Superintendents, the time bound higher grade for the Clerk grade, only qualified hands i.e. those possessing the qualification, including approval of 12 Writ Appeal No.2230 of 2019 the DPC (where necessary), prescribed for the promotion post will get the scales of pay of regular promotion posts. Unqualified hands will be allowed the next higher scale of pay above that of the scale of pay of the post held at that time, in the standard scales of pay at Annexure 1. The competent authority sanctioning the time bound higher grade should indicate in the order whether the official possesses qualification for promotion (including approval of DPC) and also specify the scale of pay admissible on time bound higher grade."

11. There are departments where certain posts may be absent in the normal hierarchy of promotion. How the grade promotion shall be given in such cases is illustrated with an example in Clause-6. In a general category, the promotion posts of a U.D.Clerk are Head Clerk and Junior Superintendent. The posts of Head Clerk are not available in some departments. Then an incumbent U.D.Clerk would be promoted as Junior Superintendent. In such a case, it is explained that the time bound higher grade for him shall be the scale of pay of the regular promotion post. He will not get the higher grade of the Junior Superintendent. That makes the position explicit that it is not the service in a particular post one holds is the eligibility criteria for grade promotion always. In cases where the 13 Writ Appeal No.2230 of 2019 hierarchical posts are different, in other words, the promotion ladder is not as in the general category, the criteria for higher grade has been differently enunciated.

12. As stated, Headmasters of an Aided Secondary School, subject to seniority, are appointed as per Rule 44A of Chapter XIV-A of the KER. Minimum service qualification is 12 years as Graduate Teacher. Despite appointment as Headmaster, one cannot draw the pay of the Headmaster till he puts in a minimum of 16 years of continuous service as Graduate teacher in view of Rule 3 of Chapter XXVI of the KER. Until such time he completes 16 years of service, he is entitled to draw the pay as a teacher alone. He shall also be given such allowance as may be fixed by the Government. It is therefore explicit that holding the post of Headmaster does not enable a teacher to draw the salary of a Headmaster. He continues to draw the salary he is eligible as a teacher till he completes 16 years of service.

13. Clause-6 in Annexure-3 Scheme for time bound higher grade promotion covers similar situations. As in the case of a U.D.Clerk getting promotion directly as a Junior 14 Writ Appeal No.2230 of 2019 Superintendent, a Headmaster, who gets an appointment by the application of the enabling provision in Rule 44A of Chapter XIV-A of the KER, can draw the pay of a teacher alone until he puts in 16 years of service. Drawing that analogy, a Headmaster of an Aided Secondary School, who gets the salary of teacher alone till he completes service of 16 years, cannot claim that service for higher grade in the post of Headmaster. He needs to put in 7 years of service in the pay scale of the Headmaster to be eligible for higher grade of the Headmaster.

14. In a Government Secondary School, a Graduate teacher having 16 years service alone is eligible to be appointed as a Headmaster. Needless to say, he has to put in 7 years of service after his appointment as a Headmaster to become eligible for the first grade promotion. That also is an indicator that the grade promotion to a Headmaster in an Aided Private School is allowed only after putting in 7 years of service in the pay scale of the Headmaster. A contrary interpretation results in discrimination against Headmasters of Departmental Schools.

Writ Appeal No.2230 of 2019

15. The Division Bench in Ext.P7 cases took the view that the Government intended while framing the scheme for grade promotions residency in the post alone and not residency in the scale of pay as the eligibility criteria. It was held that provisions of Rule 1 of Chapter XXVI of the KER have no relevance insofar as the grant of time bound higher grade promotions is concerned. Such a view was taken without considering the provisions of Rule 44A of Chapter XIV-A and Rule 3 of Chapter XXVI of the KER. Of Course, Rule 3 of Chapter XXVI governs the scale of pay of Headmaster/ Headmistress/ Vice Principals of Aided Complete Secondary Schools/Training Schools; whereas Rule 1 of Chapter XXVI governs the scale of pay including grade pay of teachers of all levels of Aided Schools and Headmasters of Aided Primary Schools. But when such a general proposition that the residency in the post alone is the eligibility criteria for grant of higher grade was laid down without considering the provisions of Rule 44A of Chapter XIV-A and Rule 3 of Chapter XXVI, the same becomes wrong.

Writ Appeal No.2230 of 2019

16. The Kerala Education Rules were framed by the Government in exercise of the powers conferred under Section 36 of the Kerala Education Act, 1958. It is the settled law that rules, when validly framed, become part of the statute. Rule 3 of Chapter XXVI of the KER, which insists on completion of 16 years of service as graduate teacher for a Headmaster of an Aided Secondary School to get the scale of the pay of Departmental Headmaster, implies that he becomes eligible for higher grade based on such a pay scale alone. Clause-6 of Annexure 3 scheme for time bound higher grade promotion makes that position further clear. It is trite that no executive order can prevail over statutory rules. Reiterating that view the Apex Court in Asok Ram Parshad and others v. State of Maharashtra and others [AIR SC 2023 1591] held that in service jurisprudence, Service Rules, which have a statutory effect, will prevail and government resolutions cannot be in conflict with the rules. There can be government resolutions only in consonance with or expounding the rules, but not in conflict with the same. That also is a reason supporting the view that completion of 7 years service in the 17 Writ Appeal No.2230 of 2019 pay scale of Headmaster is the requirement for getting the first grade pay for Headmasters of Aided Complete Secondary Schools.

17. In W.A. No.1886 of 1997, another Division Bench after reckoning the history of the legislation particularly, Rule 3 of Chapter XXVI of the KER and the circumstances in which Government Orders allowing grade promotions to the Headmasters were allowed, held that the mandate of Rule 3 of Chapter XXVI of the KER could not be bypassed by the Government Orders. The view taken therein is that Headmasters of Aided Complete Secondary Schools are eligible to get department Headmaster's scale of pay only if he puts in a minimum of 16 years continuous service as graduate teachers in schools recognised by the department and only if 7 years of service in the Headmaster's scale of pay is fulfilled, one is entitled to get the grade promotion, which in our view, is the correct preposition of law. As indicated above, the explanation contained in Clause-6 in Annexure 3 scheme for time bound higher grade promotions also establishes that position. Accordingly, we hold that view taken 18 Writ Appeal No.2230 of 2019 by the Division Bench in W.A. No.1886 of 1997 is the correct preposition of law.

18. A Full Bench of this court in Indira v State of Kerala [ILR 1998 (2) Ker.771] considered the contention that Rule 3 of Chapter XXVI was discriminatory as violative of Article 14 and 16 of the Constitution of India. The contention was that Headmasters of both aided and departmental schools are discharging the same duties and postponement of allowing a Headmaster's scale of pay till an incumbent completes 16 years of service despite his appointment as Headmaster after he puts in 12 years of service is discriminatory. The view taken by a Division Bench in W.A.No.519 of 1988 and connected cases was quoted with approval by the Full Bench, which is as follows:

"A higher scale of pay is granted only when the teacher completes 15 years of service. Thus, it becomes clear that lower emoluments are paid to a Headmaster who does not have 15 years of service as a teacher and that the Headmaster who has 15 years of service as a teacher is entitled to higher emoluments. Though the Headmaster with a lesser teaching experience and Headmaster with longer teaching experience discharge the same functions 19 Writ Appeal No.2230 of 2019 as Headmaster on his promotion to that cadre, there is difference in the quality of service between the two classes of Headmasters. The experience makes a person more efficient and competent. That is also a reason why higher emoluments are paid depending upon the number of years a person puts in a particular service. It cannot, therefore, be said that the length of service is not a relevant criteria in the matter of fixing different emoluments."

Observing so, the Division Bench repelled the challenge to the validity of Rule 3 of Chapter XXVI of the KER. The Full Bench affirmed the said view. A Division Bench of this Court in Shivadasan v. State of Kerala [2012 (2) KLT 121] followed the said proposition. Therefore, the plea of the learned counsel for the respondent that the denial of scale of Headmasters to those who does not complete service of 16 years and denial of higher grade unless completes 7 years of service in the scale of pay of the Headmaster is discriminatory and violative of Article 14 and 16 of the Constitution of India cannot be accepted.

19. We held above that Ext. P7 judgment was rendered without adverting to the provisions of Rule 3 of Chapter XXVI of the KER and clause-6 in Annexure 3 scheme for time bound higher grade promotion. Also, such a view was taken without 20 Writ Appeal No.2230 of 2019 considering the judgment rendered by an earlier Division Bench in W.A.No.1886 of 1997, which in our view laid down the correct preposition of law.

20. In Sandeep Kumar Bafna v. State of Maharashtra [(2014) 16 SCC 623] the Apex court held that a decision or a judgment would be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or a larger Bench. A Constitution Bench of the Hon'ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680] held that a later coordinate bench holding differently from the earlier one cannot be taken as a binding precedent. A Bench of coordinate strength is expected to follow the view taken by an earlier Bench. It was further held that a decision will be per incuriam when any provision in a statute, rule or regulation was not brought to the notice of the Court and also if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a coequal or larger Bench.

Writ Appeal No.2230 of 2019

21. Viewed so, Ext.P7 (judgment in W.A.No.1577 of 2010 and connected cases) is per incuriam and we declare so. We affirm the view taken by the Division Bench in W.A.No. 1886 of 1997 dated 10.12.1999 that completion of 7 years service in the pay scale of Headmaster is the requirement for getting the first grade pay for Headmasters of Aided Complete Secondary School. The reference is answered accordingly.

The Registry is directed to list the matter before the Division Bench concerned.

Sd/-

P.B. SURESH KUMAR, JUDGE Sd/-

P.G. AJITHKUMAR, JUDGE Sd/-

C.S.SUDHA, JUDGE dkr 16-02-2024 /True Copy/ Assistant Registrar

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