Kerala High Court
P.P. Raghavan vs State Of Kerala And Ors. on 6 November, 1987
Equivalent citations: AIR1988KER73, AIR 1988 KERALA 73, (1988) ILR(KER) 1 KER 339, (1987) 2 KER LT 942, (1988) 21 REPORTS 655, ILR (1988) 1 KER 339
JUDGMENT Balakrishna Menon, J.
1. The point for determination in this writ appeal relates to the interpretation of Rule 45 of Chap. XIV-A Kerala Education Rules. The contest is between the appellant and respondent 6 relating to their respective claims for appointment as the Headmaster of a complete Upper Primary School.
2. The requisite qualification for appointment as an Upper Primary School Assistant as provided for in Rule 3 of Chap. XXXI of the K.E.R. is a pass in S.S.L.C. Examination or its equivalent and T.T.C. Examination conducted by the Commissioner for Government Examinations, Kerala or the other alternative qualifications mentioned therein. Both the appellant and respondent 6 were appointed as U. P. School Assistants in the Ramaguru U. P. School, Puzhathi represented by its Manager, respondent 5 in the appeal. Both the teachers had the S.S.L.C. and T.T.C. qualification at the time of their appointment as Assistants in the School. The appellant was appointed on 4-9-1958 as U. P. School Assistant. He passed the B.A. Degree Examination held in April, 1974 and also passed the B.Edi Examination in June, 1978. Respondent 6 was appointed in the school as U. P. School Assistant on 7-7-1959. He passed the B.A. Degree Examination in April, 1969 and also passed the B.Ed. Examination in June, 1973.
3. The post of Headmaster of the School fell vacant on 1-4-1979. The Manager apparently.on the basis of seniority appointed the appellant as Headmaster on 2-4-1979. The appointment was approved by the Assistant Educational Officer overruling the objections of respondent 6 as per his proceedings Ext. P 1 dt. 16-6-1979. In appeal by respondent 6, the District Educational Officer by his proceedings Ext. P-2 dt. 28-11-1979 cancelled the approval of appointment of the appellant and directed the Manager to appoint respondent 6 as Headmaster of the School. In further revision by the appellant to the Director of Public Instruction, Kerala under Rule 8A of Chap. XlV-A of the K.E.R. Ext. P-2 decision of the D.E.O. was set aside and the A.E.O. was directed to approve the appointment of the appellant as Headmaster with effect from 2-4-1979. Ext. P-3 dt. 16-5-1980 is a copy of the order of the Director. Respondent 6 thereupon filed O.P. No. 1942 of 1980 before this Court and a learned single Judge following the decision of a Division Bench of, this Court in Akkarishetty v. Manager, S.R.A. U. P. School, ILR (1978) 2 Ker 14 allowed the original petition and restored Ext. P-2 order of the D.E.O. setting aside Ext. P-3 order of the Director. It is against this decision of the learned Single Judge that the appellant has filed this writ appeal.
4. As per Rule 44 of Chap. XIV-A of the K.E.R. appointment of Headmasters shall ordinarily be according to seniority and the appointment is to be made by the Manager subject to the rules made in that behalf. Rule 45 relating to the appointment of Headmasters in complete U. P. Schools reads :
"Subject to Rule 44, when the post of Headmaster of complete U. P. School is vacant or when an incomplete U. P. School becomes a complete U. P. School, the post shall be filled up from among the qualified teachers on the staff of the School or Schools under the Educational Agency. If there is a Graduate teacher with B.Ed. or other equivalent qualification and who has got at least five year's experience in teaching after graduation, he may be appointed as Headmaster provided he has got a service equal to half of the period of service of the seniormost undergraduate teacher. If graduate teachers with the aforesaid qualification and service are not available in the School or Schools under the same Educational Agency, the seniormost Primary School Teacher with S.S.L.C. or equivalent and T.T.C. qualification may be appointed."
5. The appellant is admittedly senior to respondent 6 in the cadre of U. P. School Assistants. He became a graduate only in June, 1974 when he passed the B.A. Degree Examination held in April, 1974. He had therefore less than five years of graduate service on 1-4-1979 when the post of the Headmaster of the School fell vacant. Respondent 6 had become a graduate in 1969 and had about ten years of graduate service on the date on which the post of Headmaster fell vacant. Both the teachers have service equal to half of the period of service of the seniormost undergraduate teacher in the school. It is also brought to our notice that the S.S.L.C., T.T.C. qualified teachers of the school are all juniors to the appellant and respondent 6. According to the appellant the rule of preference provided for in Rule 45 is only when the contest is between a graduate teacher with B.Ed. or other equivalent qualification and a primary school teacher with S.S.L.C. or equivalent and T.T.C. qualification, and in a case like this where the contest is between two graduate teachers with B.Ed. qualification, appointment to the post of Headmaster should be based on seniority as provided for in Rule 44. We find it difficult to accept this contention. Rule 45 provides for a rule of preference weighed in favour of a graduate teacher with B.Ed. or other equivalent qualification provided he has five years' experience in teaching after graduation and has also service equal to half the period of service of the seniormost undergraduate teacher. The five years' experience after graduation need not be after the acquisition of the B.Ed. or equivalent qualification. The experience in teaching after graduation and before the acquisition of the B.Ed. qualification will also be taken into account in considering whether the teacher has five years' experience in teaching after graduation. The appellant in the present case did not have five years' experience in teaching after graduation on the date on which the post of the Headmaster fell vacant. He is not, therefore, entitled to preference under the rule. On the other hand, respondent 6 had the requisite experience after graduation and had also the B.Ed. qualification. He is therefore entitled to preference under the rule for appointment as Headmaster of the School. We see no substance in the argument that the rule of preference becomes operative only when a graduate teacher is pitted against an undergraduate teacher and not when the contest is between two graduate teachers. The appointment will be on the basis of seniority if both the graduate teachers are qualified for preference to the post. Seniority will have no relevance if the graduate teacher concerned does not possess the preferential qualification mentioned in Rule 45. Analysing Rule 45 Gopalan Nambiyar C.J. on behalf of the Division Bench in Akkarishetly's case (ILR (1978) 2 Ker 14) (supra) stated at page 16 :
"Rule 44 sanctions the principle that the appointment of Headmasters shall ordinarily be according to seniority. It is subject to this general principle that Rule 45 provides for the mode or manner of appointment of a Headmaster of a complete Upper Primary School. Rule 45 can be analysed into three sections or parts. The first part provides for the filling up of the post from among the qualified teachers on the staff of the school or schools under the Educational Agency. The second part is what we are intimately concerned with and it is on the construction and scope of that part of the rule that the decision of the case must be rested. That part enacts that if there is a graduate teacher with B.Ed. or other equivalent qualification, and who has got the minimum experience of five years in teaching after graduation, he may be appointed if his service is at least one half of the service of the seniormost undergraduate teacher. The third part of the rule provides that if graduate teachers with the aforesaid qualification and service are not available in the school or schools under the same Educational Agency, the seniormost Primary School Teacher with S.S.L.C. or equivalent and T.T.C. qualification may be appointed."
Considering the rule Govindan Nair C.J, on behalf of a Division Bench in the decision in W.A. Nos. 399 and 444 of 1974 (reported in ILR (1976) 2 Ker 458 at P. 463) stated :
".....As it is, it is clear that if there is a graduate teacher with B.Ed., who has had at least five years' experience in teaching after graduation no teacher with S.S.L.C. or equivalent and T.T.C. could be appointed as Headmaster, for, the rule says "If graduate teachers with the aforesaid qualification and service are not available in the School or Schools under the same Educational Agency, the seniormost Primary School Teacher with S.S.L.C. or equivalent and T.T.C. qualification . may be appointed." An appointment of a S.S.L.C. with T.T.C. is therefore possible only in the absence of a graduate teacher. This certainly imposes a compulsion, a compulsion in favour of the graduate teacher, in other words, giving a preferential right to the graduate teacher. This is provided by the rule which has to be obeyed by the Manager, for, the power under Rule 44 to appoint conferred on the Manager is only subject to and in accordance with the rules."
6. It is true, if there are several graduate teachers entitled to preference under the rule, appointment to the post of Headmaster should be based on seniority among them. But if a graduate teacher is not qualified for preference, he will have to give place to the graduate teacher qualified for preference under the rule in the matter of appointment as Headmaster of School. Since the appellant did not have five years' teaching experience after graduation, he is not entitled to preference under the rule. We respectfully agree with the view expressed in the two Division Bench decisions of this Court referred to above on the construction of Rule 45 of Chap. XIV-A of the K.E.R. and the learned Single Judge was perfectly right in directing the appointment of respondent 6 as the Headmaster of the School.
The Writ Appeal fails and is dismissed, in the circumstances without any order as to costs.