Mary Leema v. J. VS The Manager C L P School — 1993 DIGILAW 15 (KER)

JUDGMENT K. K. Usha, J. 1. Petitioner, a Lower Primary School Assistant in an aided primary school has come up under Art.226 of the Constitution for establishing her claim for promotion as Headmistress of the school in preference to the 4th respondent, According to her, when she acquired all the necessary qualifications for promotion as Headmistress of the school, all her seniors including the 4th respondent, the senior most teacher of the school, were unqualified. She therefore contends that the 4th respondent should be reverted from the post of Headmistress to which she was temporarily promoted and the petitioner should be granted promotion as Headmistress in view of the provisions contained under R.45C Chapter XIV A of the Kerala Education Rules. 2. The petitioner was appointed as Lower Primary School Assistant in C. L. P. School, Vellanchira, an aided school under the management of the 1st respondent and she as qualified continuous service from 15.7.87. The 4th respondent is the senior most teacher in the School. A vacancy in the post of Headmaster arose in the school on 1-6-90. As on the date of occurrence of vacancy, no teacher in the school was qualified to be promoted as Headmasters due to lack of test qualification prescribed under R.458 of Chap.14A of K.E.R. Therefore the 4th respondent, the seniormost teacher in the school was granted temporary promotion as provided under R.45C of Chapter XIV A of K.E.R. R.45C Chapter XIV A K.E.R. Reads as follows: - "45 C. Temporary Promotion, - (1) Where, in any sided school, a qualified teacher is not available to be promoted as Headmaster in accordance with the provisions contained in R.44, 44A, 45, 45A and 45B the appointing authority shall promote, the senior most 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 teacher so promoted shall be the senior most 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 to sub-r.(1) of R.44A of this Chapter. (2) A teacher temporarily promoted under sub-r.(1) shall be replaced as soon as possible by the member of the service who becomes entitled to the promotion under the rules. (2) A teacher temporarily promoted under sub-r.(1) shall be replaced as soon as possible by the member of the service who becomes entitled to the promotion under the rules. (3) A teacher temporarily promoted under sub-r.(1) shall not a be regarded as a probationer in the higher category or be entitled by reason only of such promotion to any preferential claim to future promotion to such higher category. (4) If such person is subsequently promoted to the higher category in accordance with the rules, he shall commence his probation if any, in such category from the date of such subsequent promotion or from such earlier date as the appointing authority may determine without prejudice to the seniority of others, (5) the pay of the promote shall be fixed as provided in R.43A. (6) If no teacher with the prescribed service qualification is available on the staff of the school or the school under the Educational Agency for temporary promotion as Headmaster under sub-r.(1) and the proviso there under, the senior most teacher on the staff of the school or the schools under the Educational Agency shall be appointed as Teacher in charge, provided that, in the case of a High School, the Teacher in charge should be the senior most Graduate teacher on the staff of the school or the Unit, and he shall be replaced as soon as a fully qualified teacher as provided in the rules becomes available. (7) The Teacher in charge so appointed under sub-r.(6) shall be eligible for his grade pay plus charge allowance fixed by Government. He shall be counted against the post of the Headmaster end the consequential vacancy shall also be filled up." 3. The petitioner acquired the test qualification by passing the test conducted in June, 1991, Ext. P1 is copy of the certificate dated 7-10-91 issued, to the above effect. The petitioner therefore became entitled to promotion as Headmistress of the school by reverting the 4th respondent in the light of the provisions under sub-r.(2) of R.45C of Chap.14A of K.E.R. It is alleged that the petitioner's request for entering her test qualification in the service book was declined by the 4th respondent who was at that time holding the post of Headmistress on temporary promotion. The request made to the Manager, 1st respondent also did not have any effect. The request made to the Manager, 1st respondent also did not have any effect. Therefore the petitioner sent Ext P2 representation to the 2nd respondent, Asst. Educational Officer along with the original of Ext. P1 certificate requesting him to record the acquisition of test qualification in her service book, Copies of Ext. P1 representation were submitted to the Manager and Headmistress with separate covering letter. She submitted Ext. P3 representation before the Manager claiming appointment as Headmistress with copies to the Asst. Educational Officer and the 4th respondent Headmistress. 4. The Asst. Educational Officer returned Ext. P1 representation directing the petitioner to submit the same through proper channel along with hall tickets. The petitioner thereupon filed a further representation dated 21-11-91 before the 2nd respondent informing Mm that the certificate could be obtained only on production of the hall ticket and therefore it is not possible to forward the hall ticket as directed by him It was alto pointed out that the petitioner was compelled to send the original of the representation directly to the Asst. Educational Officer with copies to the Manager and Headmistress since the Headmistress had refused to enter the qualification in the service book on the representation of the petitioner. When no reply was received from the Asst. Educational Officer, the matter was taken up by Kerala State Private Primary Headmasters Association before the Deputy Director of Education, Thrissur, the 7th respondent who issued Ext P4 communication to the 2nd respondent directing him to take immediate necessary action after obtaining the details regarding the disqualification of the petitioner. Since no action was taken by the Assistant Educational Officer even pursuant to Ext. P4, the petitioner made a representation before the 3rd respondent, District Educational Officer on 3-1-92 and thereafter moved this court by filing O. P. 5038/92 This court disposed of the original petition directing the 3rd respondent to consider petitioner's representation and pass orders thereon within one month. 5. P4, the petitioner made a representation before the 3rd respondent, District Educational Officer on 3-1-92 and thereafter moved this court by filing O. P. 5038/92 This court disposed of the original petition directing the 3rd respondent to consider petitioner's representation and pass orders thereon within one month. 5. The 4th respondent, In the mean time, submitted a petition before the Government through her husband for exemption from the test qualification, Coming to know about the above action of the 4th respondent, the petitioner also submitted a representation before the Government objecting to the grant of exemption to the 4th respondent and claiming promotion to the post of Headmistress on the ground that she was the only teacher fully qualified to hold the post of Headmistress. The 6th respondent, the State considered the representations of both the petitioner's as well as the 4th respondent and issued Ext. P5 direction dated 19-5-92 to the Deputy Director of Education, Thrissur. The 6th respondent found that the petitioner had acquired all the necessary qualification for holding the post of Headmistress. It was held that she should be treated as qualified for promotion at Headmaster with effect from the last date of the whole examination conducted by the Public Service Commission in which she acquired the test qualification. It was noted that the 4th respondent had not acquired the test qualification and she would be completing 50 years of age, to be eligible for exemption from test qualification only on 30-1-92. It was therefore held that the petitioner having acquired all the necessary qualification much before the 4th respondent could claim the benefit of exemption from test qualification on her completing 50 years of age on 30-1-92, was the rightful claimant of the post of Headmistress. The Dy. Director of Education, Thrissur was directed to give suitable instructions to the Manager to promote the petitioner who is the rightful claimant to the post of Headmistress without any delay. 6. Pursuant to the direction given by this court in the judgment O. P. 5038/92, the 3rd respondent heard the petitioner, 1st respondent and the 4th respondent and issued order dated 8-6-92 rejecting the claim put forward by the petitioner. Ext. P6 is copy of the above proceeding of the 3rd respondent. 6. Pursuant to the direction given by this court in the judgment O. P. 5038/92, the 3rd respondent heard the petitioner, 1st respondent and the 4th respondent and issued order dated 8-6-92 rejecting the claim put forward by the petitioner. Ext. P6 is copy of the above proceeding of the 3rd respondent. The reasons given for rejecting petitioner's claim were that the 4th respondent was the senior most teacher in the school with 20 years of continuous service, that her appointment as Headmistress by the manager was approved by the Controlling Officer, that at the time of her appointment there was nobody in the school fully qualified for the post, that in an aided school the manager is the authority to appoint the teacher as Headmistress as per R.44 of Chap.14A of K.E.R. and Educational Officer has no right to direct the manager to appoint a particular person, that the appellant has only 4 years of service and therefore not fully qualified since she had no minimum service qualification of 16 years of continuous service, that the petitioner had not routed her representation in time to her controlling Officer and that she had forwarded her request directly to the Assistant Educational Officer which was an action of insubordination. 7. Ext. P6 order is challenged by the petitioner on different grounds. It is submitted that the view taken by the 3rd respondent that the petitioner was not qualified for being promoted as Headmistress and that the 4th respondent is entitled to continue on the basis of her temporary promotion is totally against the provisions of law. There is no requirement under the Kerala Education Rules that a teacher should have a minimum of 16 years service for being promoted as L P. School Headmaster. Therefore the disqualification attributed against the petitioner is untenable in law. Admittedly the 4th respondent was promoted as Headmistress on a (temporary basis under the provisions of R.45C(1) of Chap.14A of KER, as, when the vacancy arose in the post of Headmaster on 1-6-90, there was no qualified teacher in the school who could be promoted as Headmaster. But sub-r.(2) of R.45C specifically provides that a teacher temporarily promoted under sub-r.(1) shall be replaced as soon as possible by the member of the service who becomes entitled to the promotion under the rules. But sub-r.(2) of R.45C specifically provides that a teacher temporarily promoted under sub-r.(1) shall be replaced as soon as possible by the member of the service who becomes entitled to the promotion under the rules. Sub-r.(3) further provides that a teacher thus temporarily promoted under sub-r.(1) shall not be entitled to any preferential claim for future promotion by reason of the temporary promotion: What was approved by the Controlling Officer was the temporary promotion of the 4th respondent under sub-r.(1) of R.45C. Admittedly she could have been promoted on a regular basis due to lack of necessary test qualification. Under these circumstances, it is contended on behalf of the petitioner that as soon as she acquired the test qualification in the examination conducted in June, 1991, the 4th respondent should have been reverted and she petitioner "promoted as Headmistress of the school. Even if it is the Manager who has to make appointment of Headmaster as per R.44 of Chap.14A of K.E.R. such appointment can be made only in accordance with the rules. The rules itself provides that the Manager will appoint the Headmaster subject to the rules laid down in the matter and a teacher who is aggrieved by such appointment has a right of appeal to the department. 8. The main contention taken by the 4th respondent is that she became qualified for promotion at Headmistress on 31-1-1991 much before the acquisition of qualifications by the petitioner. According to her, her date of birth being 30-1-1942, is should be taken that she had attained the age of 50 on 31-1-91, thus becoming eligible for exemption as per the providence contained under sub-r.4 of R.45B of Chap.14A. Sub-r.1 of R.45B provides that Account Test (Lower) conducted by the Kerala Public Service Commission shall be an obligatory qualification to the teachers for promotion to the post of Headmasters for Lower Primary and Upper Primary Schools. Sub-r.4 reads as follows: - "4. Teachers who have attained the age of 50 years shall stand exempted permanently from acquiring the qualification specified in sub-r.1." The 4th respondent contends that the word used in sub R.4 is 'attained' and not 'completed' therefore, it is not necessary for her to wait till 31-1-1992 to claim exemption. Sub-r.4 reads as follows: - "4. Teachers who have attained the age of 50 years shall stand exempted permanently from acquiring the qualification specified in sub-r.1." The 4th respondent contends that the word used in sub R.4 is 'attained' and not 'completed' therefore, it is not necessary for her to wait till 31-1-1992 to claim exemption. According to her, the word 'attain' means 'reach' and therefore has a different meaning than 'complete' and that she attained the age of 50 years on 31-1-1991, her date of birth being 30-1-1942. She points out that in R.45B where permanent exemption from acquiring the test qualification was granted to those Headmasters in the Lower Primary School or in the Upper Primary Schools as on 10th December, 1988 and who had completed 50 years of ago and 25 years of service on that date, toe word used was 'completed'. legislature has deliberately used the two different words to have entirely different effect. In support of the above contention reliance was placed on a decision of the Bombay High Court in K. U. Kulkarni, receiver and another v. Ganpant Hiraji Teli applicant and another (AIR 1942 Bombay 191). In the above case the question arose whether in Clause.2 of S.60(h) Civil Procedure Code, the term salary was used as including wages of the labourers. Clause.2 reads as follows:' "The wages of labourers and domestic servants, whether payable in money or in kind; and salary, to the extent of the first hundred rupees and one half of the remainder of such salary." 9. The contention was that the term 'salary' included the 'wages of labourers, and that consequently the latter are subject to exemption to the extent stated in the latter part of Clause (h) of S.60. The above contention was not accepted. It was held that if the legislature had used two different expressions though analogous in nature in different parts of the same clause, it must be assumed that they were intended to be used in different sense. The above decision has no application in the present case, since sub Clause.4 of R.45B does not use the words 'attained' and "completed simultaneously. The above decision has no application in the present case, since sub Clause.4 of R.45B does not use the words 'attained' and "completed simultaneously. It is true that before the amendment in the year 1982 when 25 years of service was also a requirement for eligibility for exemption, the sub-rule was, ''teachers who have attained the age of 50 years and who have completed 25 years of service shall stand exempted permanently from acquiring qualification specified in Clause.1". In the unamended clause the word 'completed' was used is connection with the requirement of service and which is the normal usage. It was under these circumstances the word 'completed' had beer, used in connection with 25 years of service, while the word 'attained' was used in connection with the age of 50 years. I therefore find that the decision of the Bombay High Court would not support the contention taken by the 4th respondent in the present case. 10. Yet another decision relied on by the 4th respondent in Emperor v. Phuchai (FB) (AIR 1929 Allahabad 33), The word 'conceal his presence etc. in Clause (a) and the expression give so account of himself in Clause (b) of S.109 of Criminal Procedure Code, 1898 came up for consideration. It was held that when two distinct words are used in the same section, the ordinary rule of construction is that they do not mean identically the same thing and that the inability to give an account of himself is not the exact equivalent of the omission to explain his presence at a particular time and place. This decision does not support the contention of the 4th respondent. So also the decision in Member Board of Revenue v. Arthur Paul Benthall ( AIR 1956 SC 35 ) has no application to the facts of the present case. 11. The learned counsel for the 4th respondent made reference to the meaning of the word 'attain' given in Black's Law Dictionary Vth Edn, at page 116 as 'to arrive at', to Webster's II New Riverside University Dictionary at page 136 as 'to gain or accomplish by mental or physical effort, 'to arrive at.' The learned counsel further submitted that while words used in the statute are to be construed as they are understood in common language and popular meaning of the language should as a general rule be followed. (Crates on Statute Law 7th Edn. (Crates on Statute Law 7th Edn. Page 162). According to the 4th respondent since sub-r.4 of R.458 is a beneficial provision, it has to be given a wider interpretation to State of Kerala v. Mathai Varghese ( AIR 1987 SC 33 ) was relied on in support of the above contention. Similar contentious were raised on behalf of the 1st respondent, manager who was represented by the same counsel appearing on behalf of the 4th respondent. 11A. It is submitted on behalf of the petitioner that the word 'attained' used in sub-r.4 of R.45B as meaning 'completed' and that A the 4th respondent can be treated as attained the age of 50 only on 30-1-92 and not on 31-1-91 as contended by her. The learned counsel pointed out similar language used in R.13B of Kerala State and Subordinate Service Rules, R.60 of part I, Kerala Service Rules, Art.124(2), 217(1) and 315(2) of the Constitution of India. The relevant portion of R.13B of K. S. & S.S.R. reads as follows: "Notwithstanding anything contained in these rules or in the Special Rules, persons in Government service who attain the age of 50 years and who have put in 25 years of service shall be eligible for permanent exemption from passing the obligatory departmental tests for ail purposes, such as promotion, appointment as full member of a service, etc. Provided that persons belonging to Scheduled Castes and Scheduled Tribes shall be eligible for the permanent exemption when they attain the age of 50 years. Provided also that exservicemen employees of the Rajya Sainik Board Department who attaint the age of 45 years and who have successfully completed probation shall be permanently exempted from passing the tests prescribed from promotion irrespective of the period of their service." It is submitted that the word 'attain' is used as meaning 'complete' and only those who have completed the age of 50 years or 45 years as the case may be are being granted the benefit of exemption provided under R.13B of K.S. & S. S. R. 12. The relevant portion of R.60 of Part I K. S. R. reads as follows: - (a) Except as otherwise provided in these rules the date of compulsory retirement of an officer shall take effect from the afternoon of the last day of the month in which he attains the age of 55 years. The relevant portion of R.60 of Part I K. S. R. reads as follows: - (a) Except as otherwise provided in these rules the date of compulsory retirement of an officer shall take effect from the afternoon of the last day of the month in which he attains the age of 55 years. He may be retailed after this date only with the sanction of Government on public grounds which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances. (b) Officers in the Last Grade Service on 7th April, 1970 will retire on the afternoon of last day of the month in which they attain the ago of 60 years provided that this benefit will be available to them only as long as they continue to be in the Last Grade Service as defined in R.12(16A). (c) The teaching staff of all educational institutions (including Principals of Colleges) who complete the age of 55 years during the course of an academic year shall continuous in service till the last day of the month in which the academic year ends. They shall be entitled to the benefits of Increments and promotion which fall due, before the last day of the month is which they attain the age of 55 years. But they shall not be eligible for increment or promotion during the period of their service beyond such date. If they are on leave on the day they attain the age of 55 years and if there is no prospect of their returning to duty before the closing day of the academic year for vacation they shall be retired with effect from the last day of the month in which they attain the age of 55 years. But in cases where officers coming under thin rule are under suspension on the date of superannuation or thereafter but before the closing day of the academic year, they shall be retired from service on the date of superannuation or on the date of suspension whichever is later. If, however, the day on which the teaching staff (including Principals of Colleges) attain the age of 55 years fails within the period of one month beginning with the day of reopening of the. If, however, the day on which the teaching staff (including Principals of Colleges) attain the age of 55 years fails within the period of one month beginning with the day of reopening of the. institutions they shall cease to be on duty with effect from the date of such reopening and they shall be granted additional leave from the date of reopening to the last day of the month its which they attain the age of 55 years. They stall be entitled to the benefit of increment if it falls due before the actual date on which they attain the age of 55 years." 13. Art.124(2) of the Constitution of India provides that every Judge of the Supreme Court shall hold office until he attains the age of 65 years. Art.217(1) provides that every Judge of the High Court shall hold office until he attains the age of 62 years. Art.316(2) provides that every member of a Public Service Commission shall hold office for a term of six years from the date on which he enters upon his office or until he attains in the case of the Union Commission, the age of sixty five years, sod in the case of a State Commission or a Joint Commission, the age of sixty, two years whichever is earlier. 14. The petitioner contends that all the above provisions are being implemented as if the word attained is used synonymous with the word 'completed'. The learned counsel appearing on behalf of the petitioner pointed out that while the word 'attain' has been shown as having the meaning, 'to gain' or 'to accomplish' in Websters II Riverside University Dictionary, the meaning of the word 'accomplished' is given as to fill up 'to complete' in Websters Third New International Dictionary 1969 Edition at page 12. Therefore the word attain can be used as to give the meaning 'complete'. 15. I find substantial force in the contention raised on behalf of the petitioner that the word 'attained' is used in sub-r.4 of R.45B of Chap.14A of Kerala Education Rules In the sense 'completed'. The word attain used in R.13B in K.S. & S.S.R., R.60 part 1 of K.S.R. and in the different Articles of the Constitution mentioned above also mean 'complete and those provisions are being implemented on the above basis. The word attain used in R.13B in K.S. & S.S.R., R.60 part 1 of K.S.R. and in the different Articles of the Constitution mentioned above also mean 'complete and those provisions are being implemented on the above basis. Merely because the word 'completed' is used in R.45B it cannot be contended that the word 'attained' used in R.45B This Product is Licenced to Gopakumar G., Adv, Ekm Page:10 should be given a different meaning in Clause (c) of R.60 of Part I. K.S.R. both the words 'attain' and 'complete' are used simultaneously. Sub-r.C provides that teaching staff of all educational institutions who complete the age of 55 years during the course of an academic year shall continue In service till the last day of the month in which the academic year ends. It is further provided that if they are on leave on the day on which they attain the age of 55 years and if there is no prospect of their returning to duty before the closing day of the academic year for vacation, they shall be retired with effect from the last day of the month in which they attain the age of 55 years. If the 4th respondent's contention is accepted, a teacher whose date of birth is 30-1-1942 would attain the age of 55 on 30-1-1996 and she would complete 55 years on 30-1-1997. The effect of such an interpretation on the provisions contained in Clause (c) above mentioned would be that while the teacher would be entitled to continue in service till 31-3-1997 by applying the first portion of Clause (c) if She teacher is on leave from 30-1-1996 till 31-3-1996 she will have to retire from service on 31-1-1996. On the other hand, if the words 'complete' and attain' are given the same meaning the teacher who takes leave from 30-1-1996 to 31-3-1996 can still continue in service till 31-3-1997. Thus if the contention of the 4th respondent is accepted, the teacher would loose service for more than one year. Such a result is not contemplated by the statute while using the words complete and attain simultaneously in Clause (c) of R.60. It is clear that the words complete and attain were used in the same sense. I am therefore of the view that the word 'attained' is used in R.45B of Chap.14A of K. E. R. in the sense 'completed'. It is clear that the words complete and attain were used in the same sense. I am therefore of the view that the word 'attained' is used in R.45B of Chap.14A of K. E. R. in the sense 'completed'. In the light of the above finding, the contention of the 4th respondent that she became fully qualified for appointment to the post of Headmaster on 31-1-1991 is only to be rejected. 15A. Though, in a different context, a Bench of the Mysore High Court has also taken a similar view. In G. Valsala Rani v. Selection Committee for Admission to Medical Colleges, Bangalore Medical College, AIR 1967 Mysore 135, it was held as follows : "Mr. E.S. Venkataramiah sought to make a distinction between the words 'attained' and 'completed' and submitted that even if a person can be said to have attained a specified age on the day previous to the anniversary of his birthday, he cannot be said to have completed that specified age on that day. As the law does not take cognizance of pari of a day but treats it as a full day, we thick there is no distinction in substance between attaining and completing a specified age.'' This decision was quoted with approval by this Court in Kunjappan v. State of This Product is Licenced to Gopakumar G., Adv, Ekm Page:11 Kerala and Others, 1975 KLT 530 and the judgment in W.A. Nos. 225 & 227 of 1975. While the first case involved interpretation of R.62 of Chap.14A of K.E.R., the second considered R.60(6) of K.S.R. It was held that a person would 'complete' or 'attain a particular age on the day preceding the relevant anniversary of Ms birthday. Learned counsel for the petitioner correctly placed reliance on the above decisions in support of his contention that the word 'attained' is used in R.45B(4) in the sense 'completed.' 16. All the reasons given by the 3rd respondent in Ext. F6 to hold that the petitioner is cot entitled to claim promotion as Headmaster in preference to the 4th respondent are untenable. The temporary appointment of 4th respondent as Headmaster for which she was unqualified under R.45C of Chap.14A of K. E. R. would not give her any claim to continue in the post in the light of the provisions contained in sub-r.2 and 3 of R.45C. The temporary appointment of 4th respondent as Headmaster for which she was unqualified under R.45C of Chap.14A of K. E. R. would not give her any claim to continue in the post in the light of the provisions contained in sub-r.2 and 3 of R.45C. There is no requirement of a minimum service of 16 years as teacher for promotion to the post of Headmaster of an L. P. or U. P. school under the provisions of Kerala Education Rules and therefore the disqualification attributed against the petitioner is untenable in law. In the circumstances of the cage, the petitioner cannot be found fault with for not sending the representation in time or for forwarding her request directly to the A. E. O, In any view of the matter, those are irrelevant factors for considering the eligibility of the petitioner for promotion. Even though the Manager is the authority to make appointment or promotion in the aided School, such power can be exercised only subject to the relevant rules. Manager cannot promote aa unqualified teacher as Headmistress and deny the legitimate claim of a qualified teacher. 17. Before Ext. P 6 was issued by 3rd respondent, the 4th respondent herself had moved the Govt. seeking exemption from test qualification. The petitioner there upon put forward a representation staking her better claim for the post of Headmistress, Ext. P5 dt. 19-5-92 is the order passed by the 6th respondent, A reading of Ext. P5 would show that the 6th respondent Govt. had correctly evaluated the claims put forward by the petitioner and the 4th respondent and came to the conclusion that the petitioner became fully qualified earlier than the 4th respondent for promotion to the past of Headmaster in the school and is therefore entitled to promotion to the above post with effect from the last date of the whole examination conducted by the Kerala Public Service Commission in June 1991 in Account Test (Lower), Before Ext. P6 order was passed by the 3rd A respondent, Government had already taken a decision in favour of the petitioner as evidenced by Ext. P5. The above decides is binding on all the subordinate authorities, therefore I find no merit in the contention that the petitioner should have challenged Ext. P6 order was passed by the 3rd A respondent, Government had already taken a decision in favour of the petitioner as evidenced by Ext. P5. The above decides is binding on all the subordinate authorities, therefore I find no merit in the contention that the petitioner should have challenged Ext. P6 by filling an appeal as This Product is Licenced to Gopakumar G., Adv, Ekm Page:12 contemplated under sub-r.3 of R.44, Chap.14A of K.E.R. An appeal before the Dy, Direction (Education) will have no meaning in view of the specific direction given by the Government under Ext. P5 communication to the Dy. Director of Education, Thrissur. 18. A statement has been filed in this case on behalf of the 7th respondent, the Dy. Director of Education, Thrissur in which it is mentioned that the decision taken by the Government under Ext. P5 was communicated to the manager and also to the Asst. Educational Officer and direction given to promote the rightful claimant to the post of Headmaster as per Ext. P5. The learned Government Pleader who appeared on behalf of the respondents 1, 2, 6 and 7 also took the stated that the finding in Ext. P5 is binding on all the respondents. 19. I therefore quash Ext. P6 as the reasons given therein in support of the finding against the petitioner are untenable in law and also on the ground that the decision evidenced by Ext. P6 is against the view taken by the Government in Ext. P5, 20. A feeble attempt was made by the 1st respondent to contend that the school is a minority school, he is therefore entitled to appoint a person of his choice as Headmaster and thus the appointment of the 4th respondent in preference to the petitioner was justified. I find no merit in the above contention. There are no pleadings or materials available in this case to support the claim that the school is one established and administered by a minority community for the benefit of the minority community as contemplated under Clause.(1) of Art.30 of the Constitution. Even in the case of a minority school, appointment can be made only subject to the qualification prescribed under the Rules. 21. During the academic year 1992-93, there was a reduction of one post in the school. Even in the case of a minority school, appointment can be made only subject to the qualification prescribed under the Rules. 21. During the academic year 1992-93, there was a reduction of one post in the school. If the petitioner is entitled to promotion as Headmistress in preference to the 4th respondent with effect from the last date of the examination held in June. 1991, the 5th respondent will be the junior teacher to face retrenchment. It was under these circumstances, she was impleaded as 5th respondent and she "supported the contention raised by respondents 1 and 4. According to her, the petitioner being junior most teacher, should stand retrenched on the reduction of one post in 1992-93. As a consequence of my finding that the petitioner is entitled to be promoted as Headmistress in preference to the 4th respondent with effect from the last date of the examination held in June, 1991. I further hold that the petitioner is not liable to This Product is Licenced to Gopakumar G., Adv, Ekm Page:13 be retrenched during the academic year 1992-93, Respondents 2, 3, 6 and 7 are directed to implement the direction contained in Ext. P5 to promote the petitioner as Headmistress with effect from the last date of the examination held in June, 1991 within three weeks. Petitioner will be entitled to all benefits including arrears of salary as Headmistress with effect from the above mentioned date. Effective action should be taken by the respondents above mentioned, forthwith, to see that the petitioner is promoted as Headmistress including any action contemplated under R.7 of Chap.3 of K.E.R., if necessary. The Original petition stands allowed as above.