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1987 DIGILAW 560 (KER)

RAGHAVAN v. STATE OF KERALA

1987-11-06

BALAKRISHNA MENON, BHASKARAN NAMBIAR, MALIMATH

body1987
Judgment :- 1. The point for determination in this writ appeal relates to the interpretation of R.45 of Chap.14-A of the Kerala Education Rules. The contest is between the appellant and the 6th respondent 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 R.3 of Chap.31 of the KER is a pass in SSLC Examination or its equivalent and TTC Examination conducted by the Commissioner for Government Examinations, Kerala or the other alternative qualifications mentioned therein. Both the appellant and the 6th respondent were appointed as U. P. School Assistants in the Ramaguru U.P. School, Puzhathi represented by its Manager, the 5th respondent in the appeal. Both the teachers had the SSLC and TTC 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. Ed. Examination in June, 1978. The 6th respondent 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 the 6th respondent as par his proceedings Ext. P1 dated 16-6-1979. In appeal by the 6th respondent the District Educational Officer by his proceedings Ext. P2 dated 28-11-1979 excelled the approval of appointment of the appellant and directed the Manager to appoint the 6th respondent as Headmaster of the school. In further revision by the appellant to the Director of Public Instruction, Kerala under R.8A of Chap.14-A of the KER Ext. P2 decision of the DEO was set aside and the AEO was directed to approve the appointment of the appellant as Headmaster with effect from 2-4-1979. Ext. P3 dated 16-5-1980 is a copy of the order of the Director. In further revision by the appellant to the Director of Public Instruction, Kerala under R.8A of Chap.14-A of the KER Ext. P2 decision of the DEO was set aside and the AEO was directed to approve the appointment of the appellant as Headmaster with effect from 2-4-1979. Ext. P3 dated 16-5-1980 is a copy of the order of the Director. The 6th respondent thereupon filed OP No. 1942 of 1980 before this Court and a learned single judge following the decision of a Division Bench of this Court in Akkarishetly v. Manager, S.R.A. U.P. School (ILR 1978 (2) Ker.14) allowed the original petition and restored Ext.P2 order of the DEO setting aside Ext.P3 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 R.44 of Chap.14-A of the KER 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. R.45 relating to the appointment of Headmasters in complete U. P. Schools reads: "Subject to R.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 years experience in teaching after graduation, he may be appointed as Headmaster provided be has got a service equal to half of the period of service of the senior most undergraduate teacher. If graduate teachers with the aforesaid qualification and service are not available In the School or Schools under the fame Educational Agency, the senior most Primary School Teacher with SSLC or equivalent and TTC qualification may be appointed." 5. The appellant is admittedly senior to the 6th respondent 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 past of the Headmaster of the school fell vacant. The appellant is admittedly senior to the 6th respondent 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 past of the Headmaster of the school fell vacant. The 6th respondent 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 senior most undergraduate teacher in the school. It is also brought to our notice that the SSLC, TTC qualified teachers of the school are all juniors to the appellant and the 6th respondent. According to the appellant the rule of preference provided for in R.45 is only when the contest is between a graduate teacher with B.B1. or other equivalent qualification and a primary school teacher with SSLC or equivalent and TTC 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 R.44. We find it difficult to accept this contention. R.45 provides for a rule of preference weighted 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 senior most 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, the 6th respondent 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. He is not, therefore, entitled to preference under the rule. On the other hand, the 6th respondent 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 posses the preferential qualification mentioned in R.45. Analysing R.45, Gopalan Nambiyar, C.J. on behalf of the Division Bench in Akkarishetty's case (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 R.45 provides for the mode or manner of appointment of a Headmaster of a complete Upper Primary School. R.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 senior mot 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 senior most Primary School Teacher with SSLC or equivalent and TTC qualification may be appointed." Considering the rule Govindan Nair, C. J. on behalf of a Division Bench in the decision in WA Nos. 399 and 444 of 1974 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 SSLC or equivalent and TTC 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 senior most Primary School Teacher with SSLC or equivalent and TTC qualification may be appointed." An appointment of a SSLC with TTC 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 R.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 the 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 R.45 of Chap.14-A of the KER and the learned Single Judge was perfectly right in directing the appointment of the 6th respondent as the Headmaster of the School. The Writ Appeal fails and is dismissed, in the circumstances without any order as to costs.