Alexander v. State of Kerala — 1996 DIGILAW 101 (KER)

Judgment :- K.J.Joseph, J. Petitioner is the manager of an aided school. He challenges the validity of Ext. P2 order passed by (lie Deputy Director of Education, Kollam as illegal and contrary to the provisions of the Kerala Education Rules. He has prayed for a declaration that the 3rd respondent in this petition is not entitled to get an appointment to the post of Headmaster of the school under Rules 44 and 45 of Chapter XIV A K.E.R. He has further prayed for consequential reliefs. 2. The brief facts necessary for disposal of this Original Petition are as follows: 3. Petitioner's school is an U.P. School. When a vacancy of Headmaster arose in the school, petitioner had promoted the senior most under-graduate teacher, one P.D. Mariamma as Headmistress of the school. When the said appointment was reported for approval to the Assistant Educational Officer, Kollam, he declined approval for the said appointment on the ground that 3rd respondent is having more than half of the service of the senior most under-graduate teacher and therefore, she is entitled to get appointment to the post of Headmaster of the school under Rule 45 of Chapter XIV A K.E.R. It is also found by the Assistant Educational Officer in Ext.P1 order dated 7-10-1995 that it is the 3rd respondent, a graduate teacher entitled to get appointment to the post of Headmaster in preference to the senior most under-graduate teacher appointed by the manager to the post of Headmaster. 4. Admittedly, on the date of occurrence of the vacancy of Headmaster, the senior most under-graduate teacher is having 23 years and 4 months service in the school whereas the 3rd respondent graduate teacher is having only 10 years and 2 months service in the school. and having 9 years of graduate service in other schools while she was retrenched from the school for want of vacancy. According to the Assistant Educational Officer, the total graduate service of the 3rd respondent had taken note of for the purpose of calculating the half of the service of the senior most under-graduate teacher for the purpose of Rule 45 of Chapter XIVA K.E.R. 5. Against Exi. PI order passed by the Assistant Educational Officer, petitioner had-filed O.P. No. 16192/95. According to the Assistant Educational Officer, the total graduate service of the 3rd respondent had taken note of for the purpose of calculating the half of the service of the senior most under-graduate teacher for the purpose of Rule 45 of Chapter XIVA K.E.R. 5. Against Exi. PI order passed by the Assistant Educational Officer, petitioner had-filed O.P. No. 16192/95. This Court directed the petitioner to file an appeal against Ext.P1 order before the Deputy Director of Education, Kollair and a further direction to the 'Deputy Director to consider the appeal on merits and pass appropriate orders thereon. 6. Pursuant to the said direction, petitioner filed an appeal on 24-10-1995 before the Deputy Director of Education. The Deputy Director of Education, the 2nd respondent considered the said appeal after hearing all parties concerned including the petitioner, senior most under-graduate teacher, Mariamma, and the 3rd respondent. He had passed Ext. P2 order dated 21-12-1995 wherein the Deputy Director concurred with the findings arrived at by the Assistant Educational Officer in Ext. PI and found that the 3rd respondent is qualified to be appointed as Headmaster of the school taking into consideration her total graduate service rendered by her on protection in other schools during the period of retrenchment. Petitioner challenges the validity of the said order in this proceedings under Article 226 of the Constitution of India. 7. On receipt of notice from this Court, 3rd respondent entered appearance. She had riled a detailed counter affidavit wherein she had stated that she is a graduate teacher and having 19 years and 2 months service as graduate teacher both-in the 3rd respondent school as well as in other schools to which she was deputed when (here was no vacancy to which she could be absorbed in the petitioner's school. It is also the case of the 3rd respondent that the service rendered by her on the basis of the Government Orders dealing with protection for retrenched teachers also shall be taken note of for the purpose of calculating half of the service of the senior most under-graduate teacher for the purpose of Rule 45 of Chapter XIV A of the Kerala Education Rules. It is the definite case of the 3rd respondent that their service contemplated in Rule 45 of Chapter XIV A K.E.R.,need not necessarily be in the service in the same school in which the vacancy of Headmaster had arisen and there is no legal justification for denying the service rendered by her in other school for the purpose of calculating half of the service required under Rule 45 of Chapter XIVA K.E.R. Therefore, according to the 3rd respondent, Exts. PI and P2 orders are not liable, to he interfered with by this Court in this proceedings under Article 226 of the Constitution. 8. I heard the learned counsel for the petitioner as well as the learned counsel for 3rd respondent and also the learned Government Pleader for respondents 1 and 2. 9. The short question that has to he considered and decided in this case is whether the service contemplate under Rule 45 of Chapter XIVA K.E.R. is the service confined to the school in which the vacancy of Headmaster had arisen or whether the total service rendered by the graduate teacher both in the school as well as outside the school can be considered as sufficient to enable the graduate teacher to get an appointment to the post of Headmaster in U.P. School in performance to the senior most under graduate teacher. 10. Rule 45 of Chapter XIVA K.E.R. is extracted below: "45. Subject to rule 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 (he staff of the School or Schools' under the Educational agency, if there is a Graduate teacher with B. Ed, or other equivalent qualifications who has got at least five years experience in teaching alter acquisition of B. Ed. Degree he may be appointed as Headmaster provided he has got a service equal to half of the period of service of the senior most under-graduate teacher. Degree he may be appointed as Headmaster provided he has got a service equal to half of the period of service of the senior most under-graduate 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. issued by the Board of Public Examination, Kerala or T.C.H.issued by the Karnataka Secondary Education Examination Board, Bangalore or a pass in Pre-degree Examination with Pedagogy as an elective subject conducted by the University of Kerala or any other equivalent training qualification prescribed for appointment as Primary School Assistant may be appointed." A reading of the above rule would show that what is required for getting an appointment to the post of Headmaster for a graduate teacher in preference to the senior most undergraduate teacher is that the said graduate teacher should have at least 5 years experience in teaching after acquisition of B. Ed, degree provided he has got a service equal to half of the period of service of the senior most undergraduate teacher .This true (hat the rule did not specifically say that the said service should be confined to the school wherein the vacancy of Headmaster had arisen. But a reading of the said Rule would positively show that the experience and service are treated differently. The 5 years experience in teaching after acquisition of B. Ed, degree is an essential qualification for getting a preference for a graduate teacher to get an appointment to the post of Headmaster. The said experience need not necessarily be experience in the school since the language used is 'experience in teaching after acquisition of B. Ed. Degree'. Therefore the experience contemplated under Rule 45 need not necessarily be confined to the experience that the graduate-teacher acquired in the school in question. If 'service' also is having the same meaning as 'experience', there is no justification for the Legislature to use the different expression in Rule 45, 'experience' and 'service'. That itself shows that there is a vital difference in regard to the experience of a graduate teacher required under rule 45 and the service required under the same Rule. If 'service' also is having the same meaning as 'experience', there is no justification for the Legislature to use the different expression in Rule 45, 'experience' and 'service'. That itself shows that there is a vital difference in regard to the experience of a graduate teacher required under rule 45 and the service required under the same Rule. In that view of the matter, it has to be necessarily held that the service necessary for getting a preference for graduate teacher over the under-graduate teacher must be a service in the same school in which the vacancy of the Headmaster had arisen. Admittedly, 3rd respondent did not have half of the period of service of the senior-most under-graduate teacher in the same school. The senior-most under-graduate teacher is having 23 years and 4 months service on the date of occurrence of the vacancy. Admittedly, 3rd respondents having only 10 years and 2 months service in the school when the vacancy had arisen. 11. The same question was considered by the Government in a similar case. As per Ext. P4 order dated 12-5-1987, Government found that Rule 45 of Chapter X1VA K.E.R. insists that the experience after graduation should be 5 years and the service should be at least half of the period of service of the senior most under-graduate teacher. The choice of the words by the rule-making authority is only he presumed to be deliberate. While the word 'experience' is used in the first part of the Rule, the word used in the latter part of the Rule is 'service'. Thus half of the period of the service of the senior most under-graduate teacher is prescribed, not half the experience. In the light of the above finding, Government found that the graduate teacher did not have half of the service as graduate teacher in the school and therefore, she is not entitled to get an appointment to the post of Headmaster of the school in preference to the senior most under-graduate teacher. 12. The validity of Ext. P4 order had been questioned by the manager as well as the graduate teacher before this Court in O.P. No. 4599 of 19 13. Even though an appeal had been preferred against Ext. P5 judgment, the above findings arrived at by. the learned single judge was not disturbed or reversed by the Division Bench. 14. 12. The validity of Ext. P4 order had been questioned by the manager as well as the graduate teacher before this Court in O.P. No. 4599 of 19 13. Even though an appeal had been preferred against Ext. P5 judgment, the above findings arrived at by. the learned single judge was not disturbed or reversed by the Division Bench. 14. Under rule 44 of Chapter XIVA K.E.R.,the senior most qualified teacher shall be promoted for the post of Headmaster when a vacancy arises. rule 45 of Chapter XIVA K.E.R. also states that subject to Rule 44, when the post of a Headmaster in a 1).P. School arises, the post shall be filled up from among the qualified teacher or staff of the schools under the same educational agency. But if there is a graduate teacher having 5 years of teaching experience after graduation, he shall be appointed in preference to the senior most under-graduate teacher provided the said graduate teacher is having hall of the service of the senior most under-graduate teacher in the school. Therefore, overlooking the seniority of a teacher, a preference is being given to a graduate teacher for getting appointment to the post of Headmaster of a U.P. School. Thus, the service mother school cannot be taken for the purpose of determining the seniority of any teacher in the school under Rule 13 read with Rule 37 of Chapter XIVA K.E.R. On the same reasoning, the said service cannot be taken note of for the purpose of calculating the half" , of the service of the senior most under-graduate teacher contemplated in Rule 45 of Chapter XIX" A K.E.R. In that view of the matter also, it has to be held that the service contemplated under Rule 45 of Chapter XIVA K.E.R. relates only to the service rendered by the teacher in the parent school. This is the view taken by the Government, in Ext. P4 Government Order dated 12-5-1987 and approved by this Court in Ext. P5 judgment dated 2-12-1987. 15. This is the view taken by the Government, in Ext. P4 Government Order dated 12-5-1987 and approved by this Court in Ext. P5 judgment dated 2-12-1987. 15. The service as a protected teacher or retaining the lien of such teacher in the parent school or deputation of the said teacher on working arrangement in Government school or other private school as a protected teacher will not satisfy the actual service that is required under Rule 45 of the Rules referred to above, since service contemplated under Rule 45 of Chapter XIVA K.E.R. is the actual service rendered by the graduate teacher in that school itself. Therefore, the contention raised by the learned counsel for the 3rd respondent that she is entitled to count her entire service as a graduate teacher both in the school in question as well as other Government and aided schools for the purpose of Rule 45 cannot be accepted as legal or correct. The seniority of a teacher in any unit shall be determined with reference to continuous service in that unit only. Service that could be counted for seniority under Rule 37 alone can be considered relevant under rule 45 for the purpose of appointment of the graduate teacher since such a right is an inroad on the existing right of the senior most under-graduate teacher conferred under Rule 44 and 45 of Chapter XIVA K.E.R. to get an appointment to the post of Headmaster, normally on the basis of seniority. 16. Admittedly, in this case, 3rd respondent did not have half of the service of the senior most under-graduate teacher. On the date of occurrence of the vacancy of Headmaster, she has only 10 years and 2 months service in the school whereas the senior most tinder-graduate teacher, P.D. Mariamma, lias 23 years and 4 months service in the school even though under Rule 45 broken service in the school can be taken note of as * held by this Court in the decision reported in A.S. Sreedevi v. State. & Others (1996 (1) KLJ 223). Even taking of the broken service of the 3rd respondent in the school, it will not satisfy half of the service of the senior most under-graduate teacher. & Others (1996 (1) KLJ 223). Even taking of the broken service of the 3rd respondent in the school, it will not satisfy half of the service of the senior most under-graduate teacher. In that view of the matter, it has to be held that 3rd respondent is not entitled to get appointment to the post of Headmaster in preference to the senior most under-graduate teacher. Exts. PI and P2 orders are, therefore, illegal and hence the same are hereby set aside. It is also declared that it is perfectly open for the petitioner manager to appoint the senior most under-graduate teacher to the post of Headmaster of the School in accordance with Rule 44 and 45 of Chapter XIVAK.E.R. Original Petition is allowed. But in the circumstances, there will be no order as to costs.