K. P. MATHIRI v. STATE OF KERALA — 1972 DIGILAW 262 (KER)

Judgment :- 1. Interpretation of R.37 and 39 of the Kerala Education Rules (Rules for short) arises in this case. The quest ion is whether the 5th respondent in this appeal is entitled to court her service from the time of her appointment on 2 61945 till the date on which she obtained training qualification in 1951 as forming part of her "qualified service", within the meaning of that expression, in R.37 of Chapter XIV-(A) of the Rules. If the answer to this question is in favour of the 5th respondent, this appeal is to be dismissed because we do not think we should interfere with the judgment of Isaac J., dismissing the Original Petition on the ground that there was no formal appeal before the District Educational Officer, the 2nd respondent or on the ground that there has been violation of the principles of natural justice in passing the order Ext. P-3 by the 2nd respondent. We say so because the Assistant Educational Officer passed Ex P-2 order on 141972 and this was objected to by the petitioner in a proper manner and in accordance with the direction given by the Assistant Educational Officer, the 3rd respondent by sending a representation through the manager. This was on the 11th of April, 1972 and Ex. P-4 is that representation. The Assistant Educational Officer thought that be should consult the District Educational Officer as to what should be done on that representation, and accordingly forwarded it to the District Educational Officer. It is thus that Ex. P-3 order came to be passed. We do not think that this is a case of lack of jurisdiction on the part of the 2nd respondent. We conceive that administrative directions can be given by the District Educational Officer, particularly in regard to matters on which the Assistant Educational Officer failed to act. Even otherwise we feel that the form of the representation before the District Educational Officer and the route by which it reached the District Educational Officer are not substantial in considering his jurisdiction. The representation of the 5th respondent can be treated as an appeal under R.3 (2) in Chapter XIV-(A) of the Rules from the order Ex. P-2 of the Assistant Educational Officer and the order Ex. P-3 an appellate order. The representation of the 5th respondent can be treated as an appeal under R.3 (2) in Chapter XIV-(A) of the Rules from the order Ex. P-2 of the Assistant Educational Officer and the order Ex. P-3 an appellate order. In both cases it is valid and we do not think we should inter-fete with that order in proceedings under Art.226 of the Constitution. We quite see that it would have been more proper if the District Educational Officer had heard the petitioner before passing Ex. P3 order. It is not as though the relevant questions had not been considered by the Assistant Educational Officer and the District Educational Officer and there has been, we think, no miscarriage of justice. The learned judge has also come to the conclusion that the view taken by the District Educational Officer is the correct view. In these circumstances and the further circumstances mentioned in the judgment under appeal, we do not think we should interfere with the judgment refusing to exercise discretion under Art.226 of the Constitution. 2. Coming to the main question which we indicated in the beginning we will have to read R.37 and 39 in Chapter XIV-(A) of the Rules. Those rules are as follows: "37. (1) Seniority of a teacher in any grade in any nnit shall be decided with reference to the length of continuous service in that grade in that unit provided he is duly qualified for the post. (2) In the case of teachers in the same grade in the same unit, whose data of first appointment is the same, seniority shall be decided with reference to the age. the older being senior. xx x 39. The Staff List shall be prepared with reference to the position existing on the date of commencement of the school as an aided school under the Act unless there is a Staff List already approved by the Department which conforms to those Rules and shall thereafter be maintained upto date." We must also refer to R.52 of the Cochin Education Code, 1921: "No person shall be permitted to teach in any school in the State unless he possesses the qualifications herein prescribed and holds a licence granted by the Director in Form No. VII. Exception 1. Exception 1. Teachers that have been employed in schools managed or aided by the Cochin, Travancore or British Government, for 15 years and upwards, prior to 1st Chingarn 1087, are exempted. Exception 2: Teachers of the primary classes who were licenced on or before 24th Edavam 1096, i.e. the date of issue of the new Code; are exempted from the general qualifications herein below prescribed and will be permitted to teach as per their licences but the licences shall lapse if they fail to qualify professionally within the time allowed by the Old Code. Exception 3: Persons possessing the requisite general qualifications, but not the professional qualifications, may be permitted to teach in schools on their obtaining a temporary permit from the Director. Such temporary permits will be valid only for one year after completion of the train ing course in the case of graduate teachers and for three years after completion of the training course in the case of non-graduate teachers and will become automatically void on the expiry of the period, before which the holders should get themselves professionally qualified." In view of the provision in R.37 which we have extracted it has not been disputed before us that the continuous service that can be counted for reckoning seniority mast be "qualified service". We understand this to mean that it must be service after the acquisition by the teacher of the prescribed qualifications for the particular post in the grade in any unit. The further question that arises is whether service which was qualified according to the rules that were in force before the Kerala Education Rules came into force ceased to be "qualified service" by reason of the introduction of the Kerala Education Rules. We do not think that this is intended by the rules, particularly so in view of the provision in R.39 which says that the staff list shall be prepared with reference to the position obtaining on the date on which the school became an aided school under the Kerala Education Act, 1958. It is not again disputed before us that having regard to the provision in R.3? "qualified service" for a period before the Rules came into force will have to be determined with reference to the rules that were in existence before the Rules came into force. It is not again disputed before us that having regard to the provision in R.3? "qualified service" for a period before the Rules came into force will have to be determined with reference to the rules that were in existence before the Rules came into force. This means we will have to decide whether the 5th respondent had "qualified service" with reference to the Cochin Education Code. The relevant provision is admitted to be that in R.52 of the Cochin Education Code, 1921 which we have read. The substance of the question is the effect of exception 3 to R.52. One view is and this has been pressed for acceptance very strongly, that the exception is not an exception from the qualifications prescribed by the rules but an exception from Para.1 of R.52 which says: "No person shall be permitted to teach in any school in the State unless he possesses the qualifications herein prescribed and holds a licence granted by the Director in Form No. VII," 4. Isaac J., has understood exception 3 as exempting the qualifications prescribed provided the other conditions mentioned in exception 3 are satisfied, namely, that the teacher had been permitted a temporary permit by the Director to teach and that the teacher possesses the general qualifications. In other words, the view is that for persons who have obtained such permits as are referred to in exception only general qualifications are insisted upon and not the professional qualifications for a certain period, 3 years after the finishing of the course. On this view the writ application has been dismissed. We are not prepared to say that the view taken by Isaac J., is not a possible view on the interpretation of R.52 of the Cochin Education Code, 1921. Isaac J., expressed himself in this manner: "But the professional qualification, namely, passing the training is not a requirement under the rule for a period of 3 years for a person having the general qualification, provided he has a permit from the Director of Public Instruction under Exception 3." 5. f the rule is capable of the interpretation placed on it by Isaac J. and we think it is the dismissal of the writ application is justified. This appeal is therefore, not maintainable and has to be dismissed. f the rule is capable of the interpretation placed on it by Isaac J. and we think it is the dismissal of the writ application is justified. This appeal is therefore, not maintainable and has to be dismissed. Before doing so, we have to set aside the directions contained in Para.5 of the judgment under appeal excepting the direction for dismissal of the Original Petition contained therein. Para.5 is in these terms: "For the reasons stated above I dismiss this writ petition and direct the fourth respondent to appoint the fifth respondent as headmistress, and the third respondent to accord sanction for her appointment. It is declared that the petitioner's appointment as headmistress was in violation of the rules, and that she would not be entitled to continue in that post. This writ petition is disposed of in the manner stated above. There will be no order as to costs." 6. These directions do not arise in a complaint by the petitioner, the appellant against Ex. P-3 order. The only direction that can be given is that the Writ Petition, if it is not maintainable be dismissed. We, therefore, set aside all the other directions contained in this paragraph. 7. We dismiss this Writ Appeal but direct the parties to bear their respective costs.