MANAGER, A. U. P. SCHOOL v. STATE OF KERALA — 1988 DIGILAW 67 (KER)

Judgment :- 1. This appeal is by the Manager and his son who are aggrieved by the judgment rendered by the learned single judge in O.P.No.4599 of 1987 after the attempts of the father have failed in securing induction of the son, the 2nd appellant, as the Headmaster of the school in preference to the senior most teachers in the school, respondents 2 and 3. The 2nd appellant was a graduate teacher working in a school under another educational agency. He had put in 18 years of service there. He had five years of experience after graduation. He sought transfer to the school in question namely, A.U.P. School, Vellayur, of which the first appellant is the Manager, under R.11 of Chapter XIVA of the Kerala Education Rules, hereinafter referred to as the Rules. The said rule enables transfer of a teacher serving in a school under an Educational Agency to a school under another educational agency with the previous approval of the District Educational Officer and the agreement between the two educational agencies and the teacher concerned in writing. Two days after the appellant was transferred under R.11 of Chapter XIV-A of the Rules to the A.U.P. School, the vacancy of a Headmaster arose. The second appellant was appointed by his father, the first appellant, as the Headmaster which was not approved by the Assistant Educational Officer and the order of the Assistant Educational Officer was confirmed by the District Educational Officer. On further revision, the Director of Public Instruction set aside the orders of the lower authorities and the appointment of the 2nd appellant as Headmaster was approved. On further revision by respondents 2 and 3 to the State Government under R.92 of Chapter XIV-A of the Rules, the State Government set aside the orders of the Director of Public Instruction and restored the orders of the Asst. Educational Officer and the District Educational Officer. It is in this background that the appellants came to this Court in O.P.Na.4599 of 1987. The learned single judge having dismissed the said original petition, they have come up with this appeal. 2. The second appellant actually came to the A.U.P. School as a result of transfer under R.11 of Chapter XIV-A of the Rules on 29-6-1984 and he came to be appointed as Headmaster by his father, the 1st appellant, with effect from 1-7-1984. The learned single judge having dismissed the said original petition, they have come up with this appeal. 2. The second appellant actually came to the A.U.P. School as a result of transfer under R.11 of Chapter XIV-A of the Rules on 29-6-1984 and he came to be appointed as Headmaster by his father, the 1st appellant, with effect from 1-7-1984. It is not disputed that on the relevant date on which the vacancy occurred and also on the date on which the post was filled up there was no graduate teacher available in the school other than the appellant who bad come on transfer. It is also not disputed that respondents 2 and 3 are both under-graduate teachers and that respondent No. 2 is the senior-most among them and that bath of them were eligible for being appointed as Headmaster if there was no eligible graduate teacher available in the school for appointment as Headmaster. The learned single judge has taken the view that one of the important conditions specified in R.45 of Chapter XIV-A of the Rules is not satisfied by the 2nd appellant to earn him appointment to the post of Headmaster in preference to the 2nd respondent. R.45 of Chapter XIV-A of the Rules reads as follows: "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 he 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 same Educational Agency, the senior most Primary School Teacher with S.S.L.C. or equivalent and T.T.C. qualification may be appointed." As already stated, it is not disputed that the 2nd appellant is a graduate teacher with B.Ed. qualifications who had got at least five years' experience in teaching after graduation. qualifications who had got at least five years' experience in teaching after graduation. But that is not enough as a further condition has to be satisfied, namely, of his having service equal to half of the period of service of the senior-most undergraduate teacher in the school. The senior most under-graduate teacher is this case is the second respondent. The period of service of the 2nd respondent is 30 years as undergraduate teacher in the school. He had the other qualifications of S.S.L.C. and T.T.C. qualification, thus rendering him eligible for being appointed to the post of Headmaster. The second appellant bad put in only two days' service in the school in question whereas the 2nd respondent had put in nearly 30 years of service in the school. The case of the appellant is that the service rendered by him in the school under a different educational agency before his transfer which is about 18 years if taken into consideration he would have the requisite qualification in this behalf also as the said period of 18 years is more than half the service of the 2nd respondent as under-graduate teacher in the school. The learned single judge has taken the view that the service rendered by the 2nd appellant in the school of the other educational agency before his transfer cannot be taken into consideration for the purpose of considering eligibility for appointment as Headmaster under R.45 of Chapter XIV-A of the Rules. 3. The principal contention of the learned counsel for the appellant is that the length of service contemplated by R.45 of Chapter XIV-A of the Rules of the graduate teacher is not necessarily the service rendered in the school in which the vacancy arose but service as such rendered by the teacher irrespective of the question as to whether the school was under the same educational agency or other educational agency. We find it difficult to accede to this contention particularly for the reason that there is a specific prevision dealing with the effect of transfer, under R.13 of Chapter XIV-A of the Rules. We find it difficult to accede to this contention particularly for the reason that there is a specific prevision dealing with the effect of transfer, under R.13 of Chapter XIV-A of the Rules. R.13 of Chapter XIV-A reads as follows: "Teachers who are transferred as per these Rules will continue to receive in the latter school the pay and the scale of pay they were receiving in the former school provided they are transferred to a post carrying the same scale of pay and their rank in the new school will be fixed next below the junior most teacher in that particular grade in that school, except in the case of transfers under R.10 in which case the existing seniority will continue." Thus it is clear that this rule makes a distinction between transfers made under R.10 and the transfers made under R.11 of the Rules. If the transfer is made under R.10, which transfer is from one school to another school under the same educational agency, the transferee teacher will not lose the benefit of prior service and he will maintain his seniority in the transferred school. But if the transfer is made under R.11 it is expressly provided that the rank of the transferred teacher shall be fixed next below the rank of the junior most teacher in that particular grade in that school. The clear effect of this provision under R.13 is to ignore the previous service rendered by the teacher prior to his transfer to that school under R.11. 4. The object of R.45 in insisting on the graduate teacher having service equal to half the period of service of the senior most under-graduate teacher is to reduce the heartburning that may be caused to the senior-most undergraduate teacher in the matter of appointment to the post of Headmaster. He would be waiting for his chance for appointment as Headmaster as and when a vacancy arises. The object of the rule would be defeated if a teacher is brought by transfer under R.11 and gets appointed as Headmaster by rendering service only for two days in the transferred school. This will become more clear if we examine a case where there is also a graduate teacher otherwise qualified for appointment as Headmaster in the transferred school who has put in 15 years of service in his credit. This will become more clear if we examine a case where there is also a graduate teacher otherwise qualified for appointment as Headmaster in the transferred school who has put in 15 years of service in his credit. If a graduate teacher is transferred under R.11 who had 18 years of service to his credit, on his transfer he has to be placed below the graduate teacher with 15 years' experience in the transferred school though the transferee had a larger experience of 18 years in the school from which he came on transfer. Thus, if a vacancy of Headmaster arose after such transfer, the transferred teacher cannot on the basis of the longer length of service from the school from which he bad been transferred, contend that he should be preferred is the matter of appointment to the post of Headmaster to the graduate teacher of that very school. This is so because R.13 in express terms provides that title transferred teacher has to rack below the junior most teacher in the transferred school. If that is what happens, when there exists a graduate teacher in the transferred school who is otherwise qualified, we cannot apply a different principle if there is only is only a senior most under-graduate teacher otherwise eligible and qualified for being appointed as Headmaster. We have, therefore, no hesitation in taking the view that a teacher on transfer under R.11 of Chapter XIV-A of the Rules cannot count service rendered by him before his transfer, for the purpose of earning eligibility for being appointed as Headmaster under R.45 in the transferred school. We, therefore, agree with the view taken by the learned single judge in this behalf. 5. As that is the clear effect of R.13, the service rendered by the 2nd appellant, in the previous school under another educational agency before transfer cannot be taken into consideration for the purpose of R.45 of Chapter XIV-A of the Rules. It it only the service rendered by him in the transferred school that has to be taken into consideration. The service rendered by the appellant in the transferred school is only two days, whereas the service rendered by the 2nd respondent as undergraduate teacher is nearly 30 years. It it only the service rendered by him in the transferred school that has to be taken into consideration. The service rendered by the appellant in the transferred school is only two days, whereas the service rendered by the 2nd respondent as undergraduate teacher is nearly 30 years. As the service of the appellant is less than half the service rendered by the 2nd respondent, who is the senior-most undergraduate teacher qualified for appointment, the appellant cannot be appointed ignoring the superior claims of the second respondent. 6. It was lastly contended by the learned counsel for the appellant that a second revision was not competent to the State Government under R.92 of Chapter XIV-A of the Rules. The Director of Public Instruction no doubt exercised his power of revision under R.8A of Chapter XIV-A and rendered a decision in favour of the appellant. That has been reversed by the State Government in exercise of the power of revision under R.92. The power of revision conferred by R.92 on the State Government is a superior power of revision entitling the State Government to call for the records of the case and to revise any order passed by the subordinate authority notwithstanding anything contained in the rules in regard to matters contained in the said Chapter, which is made or appealable under the rules. The State Government can certainly exercise its superior revisional power under R.92 of the Rules and revise a revisional order made by the Director of Public Instruction under R.8A of Chapter XIV-A of the Rules. We have laid down the same principle in the decision rendered by us in Writ Appeal No. 21 of 1958 on 2-2-1988 in a matter arising under the Kerala Rationing Order, under similar circumstances. We have therefore no hesitation in taking the view that the exercise of revisional power by the State Government was perfectly within its jurisdiction. For the reasons stated above, this appeal fails and is dismissed. Dismissed.