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1990 DIGILAW 377 (KER)

Bhaskaran Unnithan v. Sarasamma

1990-09-19

MALIMATH, VISWANATHA.IYER

body1990
Judgment :- Malimath, CJ. This appeal is by Bhaskaran Unnithan challenging the judgment of the learned single judge in O.P. no. 4759 of 1987 presented by Smt. Sarasamma. The relevant facts necessary for the disposal of this appeal may now be noted. Under the same educational agency there is an Upper Primary School at Vellimonas also a High School. The High School which was unaided was converted as an aided High School in the year 1976-77. On that date, the first respondent, Sarasamma, was the Headmistress of the Upper Primary School. The post of Headmaster of the High School was required to be filled up. On Sri Balappan Pillai was appointed as the Headmaster of the High School on the 9th of August 1976. That appointment was duly approved by the educational authorities. After serving as a Headmaster for nearly ten years, he retired from service on 31-3-1986. Hence once again the post of Headmaster became vacant and steps were required to be taken for filling up the same. The appellant was immediately appointed as Teacher-in-charge of the Headmaster on 1-4-1986. The District Educational Officer however directed that the post of Headmaster of the High School should be filled up on a regular basis. The Manager then appointed the appellant as Headmaster on a regular basis on the 2nd of June 1986. When approval of the said action was sought, the District Educational Officer by order dated 22-8-1986 declined approval on the ground that respondent No.1 had a preferential claim for appointment. A further appeal to the Deputy Director of Education was dismissed by Ext.P3 dated 11th December 1986. The matter was then taken up in revision to the State Government. The State Government by its order Ext.PS dated 3rd June 1987 allowed the appeal and directed the approval of the appointment of the appellant. It is the said decision of the State Government that was challenged by Sarasamma in O.P. No. 4759 of 1987. The learned single judge has allowed the said writ petition and quashed the order of the State Government. The learned single judge has held that the State Government has committed an obvious error in holding that respondent No.1 had permanently relinquished her claim to the post of Headmaster and that therefore she had no right to compete for the said post. The learned single judge has held that the State Government has committed an obvious error in holding that respondent No.1 had permanently relinquished her claim to the post of Headmaster and that therefore she had no right to compete for the said post. It is the said decision of the learned single judge that is challenged in this appeal. 2. An attempt was made before us to persuade us to take the view that the first respondent had relinquished permanently her right to the post of Headmaster; relying on her statement Ext.P4 dated 5-8-1976. We find it difficult to accede to that contention. Ext.P4 is the letter addressed by the first respondent to the District Educational Officer wherein she has stated that she has put in 13 years of graduate service and has acquired test qualifications. She has further stated that she has made an application on 31-7-1976 to the Manager requesting for her being posted as High School Assistant in the High School, Vellimon. She has further stated that the Manager has not yet considered her request. It is in this background that she requested for necessary directions being issued to the Manager to appoint her as High School Assistant (Senior) in the newly sanctioned Vellimon High School. There is not even a remote suggestion about any relinquishment of her right to claim the post of Headmaster. 3. Note to Rule 44(1) of Chapter XIVA of the Kerala Education Rules, herein after referred to K.E.R. says that "whenever the Manager intends to appoint a person as Headmaster other than the senior claimant, the Manager shall obtain a written consent from such senior claimant, renouncing his claim permanently". It further says that "such consent shall have the approval of the Educational Officer concerned". In this case, there is no written consent given by the first respondent renouncing her claim permanently for the post of Headmaster. It is also nobody's case that any such offer or consent renouncing her claim by the first respondent had the approval of the educational officer concerned. We have therefore no hesitation in repelling the contention that the first respondent has renounced her right in accordance with the Note to rule 44 (1) of Chapter XIV-A of the K.E.R. relinquishing her claim permanently to the post of Headmaster in the High School. 4. We have therefore no hesitation in repelling the contention that the first respondent has renounced her right in accordance with the Note to rule 44 (1) of Chapter XIV-A of the K.E.R. relinquishing her claim permanently to the post of Headmaster in the High School. 4. What we are really concerned in this case is as to whether the manager was justified in appointing the appellant as the Headmaster and as to whether the authorities were justified in not approving the said appointment. 5. Shri Achutha Kurup, appearing for the first respondent, contended that the appellant not being the senior most among the qualified persons he was not entitled to be appointed as the Headmaster. It is his further contention that the first respondent being the seniormost among the qualified persons, she has a preferential claim for appointment to the post of Headmaster, which become vacant on 31-3-1986. This takes us to the examination of the relevant statutory provisions bearing on the question. 6. Rule 44 (1) of Chapter XIV of K.E.R. provides for appointment of Headmasters. It says that "the appointment of Headmasters shall ordinarily be according to seniority from the seniority list prepared and maintained under clauses (a) and (b) as the case may be of Rule 34. The Manager will appoint the Headmaster subject to the Rules laid down in the matter. A teacher if he is aggrieved by such appointment will have the right of appeal to the Department". Rule 44A (1), which prescribes the qualifications for the post of Headmaster of the High Schools and Training Schools, reads as follows: "44A(1) Subject to the provisions contained in sub-rule (1) of Rule 44, the minimum service 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 the Kerala Education Act and the Kerala Education Rules and pass in Account Test (Lower) conducted by Kerala Public Service Commission." The Explanation to this rule, which is relevant, may also be extracted as follows: "Explanation: -For the purpose of this rule, "Graduate service" means all service of a teacher as High School Assistant, Training School Assistant, Headmaster of an incomplete High School, Headmaster of a complete Upper Primary school/middle School or Headmaster of a Training School after acquisition of Collegiate Training such as B.T.L.T. or B.Ed. But in the case of such teachers appointed prior to 15-10-1957 their untrained service after graduation shall also be reckoned as "Graduate Service", provided that their appointments were not in accordance with the Madras Educational Rules." As Rule 44 requires the appointment of Headmasters being made ordinarily according to the seniority list prepared under clauses (a) and (b) of Rule 34, it is necessary to advert to rule 34 in this connection. The same reads as follows: "34. Every Management shall prepare and maintain in Form 11A, a staff list otherwise called seniority list of teachers as specified below a) In the case of High Schools, a combined seniority list of teachers specified in clauses (ii) and (ii A) of Rule 3, Chapter XXIII shall be prepared. b) in the case of upper primary school and lower primary school, a Combined Seniority list of teachers, if any, specified in clauses (iii), (iv), and (v) of rule 3, Chapter XXIII shall be prepared." c) (2) Thus it is clear from this provision that two seniority lists have to be prepared and maintained, one under clauses (ii) and (ii A) of Rule 3 and the other under clauses (iii), (iv) and (v) of Rule 3, of Chapter XXIII of K.E.R. the first one in respect of teachers of High Schools and the second one in respect of teachers of Upper Primary School. Clauses (ii) and (ii A) of Rule 3 of Chapter XXXII relate to High School Assistants and High School Assistants (Languages). Thus a seniority list contemplated by Rule 34(a) is that of High School Assistants and High School Assistants (Language). The other seniority list contemplated by Rule 34(b) is to consist of teachers specified in clauses (iii) (iv) and (v) of Rule 3 of Chap.XXIII. The seniority list under these clauses relate to Upper Primary and Lower Primary Teachers. 7. What emerges from the scheme of these rules is that so far as the post of Headmaster in High Schools is concerned; the same is required to be filled up ordinarily According to seniority from the list prepared and maintained under clause (a) of Rule 34 of Chapter XIVA of K.E.R. So far as the post of the Headmasters of Upper Primary Schools and Lower Primary Schools are concerned; the same are required to be filled up Ordinarily according to seniority from the list prepared under Rule 34 cl. (b) of Chapter XIV-A of K.E.R. It is only if suitable candidates are not available in the seniority list Prepared under rule 34 clause (a) that the said post can be filled from other sources. Feeder category for the post of Headmasters in the High School consists of High School Assistants and High School Assistants (Languages) who alone are entitled to be included In the seniority list contemplated by Rule 34 (a). Teachers and Headmasters of Upper and Lower Primary Schools are not entitled to be included in such a list. They are entitled To be included in the seniority list required to be prepared and maintained under rule 34 (b) Consisting of the specified categories of teachers in the Upper & Lower Primary Schools. Thus it becomes clear that the Headmasters of Upper and Lower Primary Schools are not in the eligible category for promotion to the post of Headmasters of High Schools. But it was maintained by Sri Kurup, the learned counsel appearing for the first Respondent, that the Explanation to Rule 44A clearly demonstrates that the Headmasters Of Aided Upper Primary Schools would also be eligible to be included in the category for Promotion as Headmaster of High Schools, provided they have the requisite period of 12 Years of continuous graduate service. Much reliance was placed on the Explanation to Rule 44A which for the purpose of the said rule, defines' graduate service', to mean "all Service of a teacher as High School Assistant, Training School Assistant, Headmaster of an incomplete High School Headmaster of a complete Upper Primary school/ middle School or Headmaster of a Training School after acquisition of Collegiate training such As B.T., L.T., or B.Ed." It is no doubt true that the Explanation requires the service rendered by the Headmaster of a complete Upper Primary School after acquisition of Collegiate training such as B.T., L.T., or B.Ed, also to count as graduate service. rule 44a (1) Provides that a person to become eligible for appointment as Headmaster in Aided Complete High School should have 12 years' continuous graduate service, with a pass in the test in the Kerala Education Act and the Kerala Education Rules and pass in Account Test (Lower) conducted by the Kerala Public Service Commission. rule 44a (1) Provides that a person to become eligible for appointment as Headmaster in Aided Complete High School should have 12 years' continuous graduate service, with a pass in the test in the Kerala Education Act and the Kerala Education Rules and pass in Account Test (Lower) conducted by the Kerala Public Service Commission. Having regard to the Explanation aforesaid, it is reasonable to draw the inference that the service rendered by an aided Upper Primary School Assistant as Headmaster after acquisition of the collegiate training such as B.T., L.T, or B.Ed, has to be taken into account for the purpose of determining as to whether he has the required period of 12 years' continuous graduate service. The feeder category stands determined by Rule 44(1) read with Rule 34 of Chapter XIV-A of the K.E.R. We have already held that these provisions make it clear that the only persons who could be in the feeder category for the purpose of appointment as Headmaster in High Schools are the High School Assistants and High School Assistants (Languages), in respect of whom separate seniority list has to be prepared and maintained under R.34(a). It is not enough that the persons named are included in the seniority list of High School Assistants and High School Assistants (Languages) as specified in rule 34(a). The further conditions have to be satisfied for promotion as provided in R.44A(1), that is, they should have 12 years' continuous graduate service. Hence it follows that A person in order to become eligible for consideration for the post of Headmaster in High Schools should be a High School Assistant or High School Assistant (Languages) in the first instance, whose name is entitled to be included in the seniority list prepared under cl. (a) of Rule 34 and he should further have 12 years' continuous graduate service, the other qualification prescribed under rule 44A(1). If the teacher is not eligible for being included in the seniority list contemplated by Rule 34 (a) he would not be eligible for promotion to the post of High School Assistant even if he is the U.P. School Headmaster who has got 12years' continuous graduate service as defined in Explanation to Rule 44A (1) of the K.E.R. 8. The principal question for consideration therefore is whether the first respondent has the necessary qualifications for consideration for promotion to the post of Headmaster. The principal question for consideration therefore is whether the first respondent has the necessary qualifications for consideration for promotion to the post of Headmaster. His name is not included in any seniority list prepared under R.34(a). Sri Kurup, the learned counsel for the first respondent, invited our attention to Ext.P1 and pointed out that the first respondent's name is placed as serial No.2, while the name of the person placed at serial No.l being that of the Headmaster who has retired on 31-3-1986. From the said list it was pointed out that even according to the management, she is the seniormost teacher in the institution. But it has to be pointed out that the list Ext.P1 is not a seniority list contemplated by Rule 34 of Chapter XIV A of K.E.R. The title of Ext.P1 reads thus "Name of School: Vellimon high school & U.P.S. "As against the name of the first respondent, it is shown that she is "Headmistress, Vellimon U.P.S.", and not as' High School Assistant, or High School Assistant (Languages)'. Hence no reliance can be placed on Ext.P1 as it is not a seniority list of High School Assistants and High School Assistants (Languages), as contemplated by Rule 34(a) of Chapter XIV-A of K.E.R. What is of essence is not mere entry in the seniority list but whether the person is entitled to be included in the seniority list under Rule 34(a) for promotion as Head Master of High School. As the first respondent was holding the post of Headmaster of Upper Primary School, and not as High School Assistant or High School Assistant (Languages), she was not entitled to be prepared and maintained under Rule 34(a). It is not the case of the first respondent that she became High School Assistant at Vellimon High School at any point of time. Ext.P4 dated 5th August 1976 shows that immediately after the aided High School came into existence she made a request for being appointed as High School Assistant. It is not the case of the first respondent that her request was acceded to and that she was appointed as High School Assistant. She has not asserted that she is a High School Assistant nor has she produced any other material in that behalf. It is not the case of the first respondent that her request was acceded to and that she was appointed as High School Assistant. She has not asserted that she is a High School Assistant nor has she produced any other material in that behalf. There cannot be any doubt therefore that the first respondent never became a High School Assistant as on the date on which the vacancy of a Headmaster of the High School arose. Thus, she lacks the basic qualification for being considered for promotion to the post of Headmaster, she not being a High School Assistant, under Rule 44A(1) of Chapter XIVA of K.E.R. So far as the appellant is concerned, there is no dispute that he was holding the post of High School Assistant duly appointed to the said post. The Manager in recognition of his seniority has appointed him as Headmaster of the High School. The said appointment was not approved by the authorities on an erroneous assumption that the first respondent has a preferential claim to the post than the appellant. We have already held that so far as the first respondent is concerned she not being a High School Assistant was not entitled to be promoted as Headmaster. The order of the State Government directing the District Educational Officer to consider the question of according approval to the appointment in accordance with the rules therefore does not call for interference. For the reasons stated above, this appeal is allowed, the judgment of the learned single judge is set aside and the O.P. is dismissed. No costs.