Kerala High Court
Radha vs Dy. Director Education on 18 August, 2004
Equivalent citations: 2004(3)KLT206
Author: Kurian Joseph
Bench: Kurian Joseph
JUDGMENT Kurian Joseph, J.
1. The question to be decided in these two cases is whether a teacher temporarily promoted as Headmaster in the absence of a qualified teacher under Rule 45C of Chap.XIV-A KER is entitled to the scale of pay attached to the post of Headmaster.
2. In order to understand the legal position it is necessary to appreciate the factual background. Therefore, reference is made to the facts of the former case,
3. The petitioner Smt. Radha entered service as LPSA on 8.6.1966. There arose a vacancy of Headmistress in the school under the third respondent on 22.11.1996. There were no qualified hands available for promotion. Petitioner was the seniormost teacher. To quote from the counter affidavit at paragraph 4, "since no qualified teachers for the Headmaster post were available in the school the appointment of Smt. A.G. Radha, the seniormost teacher was approved as Headmistress temporarily with effect from 22.11.96 under Rule 45C..... Smt. A.G. Radha has more than 30 years of qualifying service as LPSA at the time of appointment as Headmistress, her pay was fixed at Rs.2,600/- in the Headmaster's scale of Rs. 1640-2900 with effect from 22.11.1996. Headmaster's Higher Grade was also sanctioned to the teacher with effect from 22.11.1996 at Rs.2750/- in the scale of Rs.2000-3200/-......" It was this fixation that was objectionable in the audit. According to them the teacher acquired the required qualification by way of exemption only on attaining the age of 50, in the instant case on 28.5.1998 and therefore she is entitled to the pay scale attached to the post of Headmistress only from that date.
4. Rule 45C of Chapter XIV-A KER provides for temporary promotion to the post of Headmaster. To the extent relevant it reads as follows:-
"45C.Temporary Promotion:--(1) Where in any aided school, a qualified teacher is not available to be promoted as Headmaster in accordance with the provisions contained in Rule 44, 44A, 45, 45 A and 45B the appointing authority shall promote, the seniormost teacher on the staff of the school or the schools under the Educational Agency as Headmaster, temporarily. Provided that in the case of High Schools and Training Schools the teachers so promoted shall be the seniormost graduate teacher on the staff of the school or the schools under the Educational Agency who has put in atleast 12 years of continuous graduate service as provided Sub-rule (1) of Rule 44A of this Chapter and in the case of primary schools it shall be the seniormost teacher possessing qualifications prescribed in Rule 45 or, as the case may be, Rule 45A;
xxx xxx xxx (5) The pay of the promotee shall be fixed as provided in Rule 43A.
Provided that in the case of Headmaster of Aided Primary school the promotee is entitled to draw the scale of pay applicable to the Headmaster of Government School only on completion of the period of service as specified in Sub-rule (1) of Rule 1, Chapter XXVI, and in the case of Headmaster of Aided High Schools and training schools, the promotee as entitled to draw the departmental Headmaster's scale of pay only on completion of the period of service as specified in Rule 3, Chapter XXVI. Those who have not completed the prescribed service qualification for drawing the respective departmental Headmaster's scale of pay will be paid their grade pay and supervision allowance only".
Rule 43A of Chapter XIV-A KER reads as follows:--
"43A. A teacher promoted from a Lower Scale of pay to a Higher Scale of pay shall have his initial pay in the higher scale of pay fixed applying Rules 28A and 37 of Part I Kerala Service Rules. A fixation of pay will be allowed whenever there is change of pay in the lower time scale.
Note 1. The Government may in individual cases fix by special order the pay of an officiating teacher at an amount less than that admissible under these rules.
Note 2. If the teacher promoted to officiate in the higher post is reappointed to the lower post in the service rendered in the higher post will count for increment in the lower time-scale to which he is reappointed.
Note 3. The above rule shall apply to all cases of appointments made from the non-teaching staff also".
5. Rule 44A Chapter XIV-A KER reads as follows:-
"44A. (1) Subject to the provisions contained in Sub-rule (1) of Rule 44, the minimum service qualification for appointment as Headmaster 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.
Provided that Headmaster of High and Training Schools, who were actually holding the said post on the eleventh day of June, 1974 shall stand exempted from passing the Account Test (Lower).
Provided further that teachers who have attained the age of 50 years shall stand exempted permanently from acquiring the test qualification specified in Sub-rule (1).
6. Rule 45B, Chapter XIV-A KER reads as follows:--
"45B. (1) Notwithstanding anything contained in Rules 45 and 45A, Account Test (Lower) conducted by the Kerala Public Service Commission shall be an obligatory qualification to the teachers for promotion as Headmasters of Lower Primary and Upper Primary Schools.
(2) Every person who is holding the post of Headmaster in a lower primary school or an upper primary school on the date of these rules shall stand exempted from acquiring the qualifications specified in Sub-rule (1).
(3) In the case of teachers awaiting promotion as Headmasters under Rule 45 and 45 A as the case may be there shall be temporary exemption to them from acquiring the qualification specified in Sub-rule (1)till 31st day of March 1988.
(4) Teachers who have attained the age of 50 years shall stand exempted permanently from acquiring the qualification specified in Sub-rule (1).
(5) During the period of exemption allowed under Sub-rule (3) promotions to the posts of Headmasters shall be made without insisting on the qualification specified in Sub-rule ( 1) and those who fail to acquire the said qualification within the said period of exemption shall be reverted".
7. Chapter XXVI Rule 1(1) and 3 read as follows:--
"1(1) Teachers of Aided Lower Primary, Upper Primary, High and Training Schools shall be paid the scale of pay applicable to teachers of Government Lower Primary, Upper Primary, High and Training Schools. The Headmaster of an Aided Lower Primary School, or the Headmaster of an Aided Upper Primary School shall be given the scale of pay applicable to the Headmaster of Government School only if he has put in a minimum of 15 years continuous service as teacher in schools recognised by the Department. Those Headmasters who have not put in this minimum service shall be given their grade pay and supervision allowance as may be fixed by Government until they complete the prescribed minimum service".
"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 Headmaster 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".
8. Rule 28A of Part I KSR reads as follows:--
"28A. Notwithstanding anything contained in these rules, where an officer holding a post in a substantive, temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity to another post carrying a higher time-scale of pay, his initial pay in the higher time-scale of pay shall be fixed at the stage next above the pay notionally arrived at in the lower time-scale of pay by increasing the actual pay drawn by him in the lower time-scale by one increment. A refixation of pay will be allowed whenever there is a change of pay in the lower time-scale.
Provided that the provisions of this rule shall not apply to promotions from posts carrying a scale of pay, the minimum pay of which exceeds Rs. 12,600".
9. Rule 37 to the extent relevant reads as follows:--
"37. (a) Subject to the provisions of Rule 33(c) and Rule 39, an officer holding a permanent or officiating post, if appointed to officiate on a higher timescale of pay, will draw as initial pay the stage next above his pay in the lower timescale irrespective of whether the pay in the lower timescale is a stage in the higher time scale or not, A refixation will be allowed whenever there is a change of pay in the lower timescale, ie., when his pay therein becomes equal to or greater than the pay which he draws in the higher timescale.
(b) In the case of officiating appointments other than those contemplated in the above rule, the officer's officiating pay in the new appointment shall be fixed at his officiating pay in the previous appointment if it is a stage in the new scale or at the next lower stage, if it is not a stage in the new scale, the difference being treated as personal pay to be absorbed in future increases".
10. These legal provisions would give a clear idea as to the fixation of pay of a teacher temporarily promoted to the post of Headmaster, in the absence of qualified hands. It is clear from Rule 45C(1) read with proviso to Sub-rule (5) and Chapter XXVI Rules 1 and 3 that the only requirement for Headmaster's scale as far as the temporary Headmaster of Aided Primary School is concerned is that he should have a minimum of 15 years of continuous service as teacher and that he should possess the academic qualification prescribed under Rule 45 or Rule 45A and for High Schools, 16 years of continuous graduate service. It has to be noted that Rule 45C(1) has specifically excluded the test qualification required under Rules 44A or 45B as the case may be. And, the non obstante clause in Rule 45B has expressly excluded the promotees under Rule 45C. Once the teacher concerned possesses such prescribed service and academic qualification, on promotion as temporary Headmaster the fixation is to be made under Rule 43A of Chapter XIV-A KER which says that the fixation shall be under Rule 28A and 37 of Part I KSR by stepping up the scale. In fact Rules 28A and 37 also clearly provide for fixation while occupying a post in a temporary or officiating capacity. The question of acquisition of test qualification or exemption from acquisition of qualification on attainment of 50 years is irrelevant and the same is to be ignored. The only relevant factors are the requisite length of service, 15 years continuous service as teacher in the case of temporary Headmaster of aided Lower Primary and Upper Primary Schools and the academic qualification and 16 years graduate service for High Schools. Such temporary promotees are entitled to the scale attached to the post of Headmaster and their pay shall be fixed in that scale by applying Rule 28A and 37 of Part I KSR.
11. In the above circumstances the impugned orders are quashed and it is declared that the petitioners, since having the required length of service and academic qualification are entitled to have their scale of pay fixed in the post of Headmaster on their temporary promotion by applying Rules 28A and 37 Part I KSR, ignoring the requirement of test qualification. The required consequential orders will be passed within three months.
The Writ Petitions are disposed of as above.