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2001 DIGILAW 559 (KER)

K. Mallika v. The Manager, Ramaguru U. P. School

2001-10-11

K.BALAKRISHNAN NAIR, K.S.RADHAKRISHNAN

body2001
Judgment :- Balakrishnan Nair, J. The point that arises for decision in this Writ Appeal is whether seniority alone must be the criterion for filling up of the post of Headmaster in a Upper Primary School when both the rival claimants are graduate teachers and there is no senior under graduate teacher in the school. Essential facts necessary for the disposal of the case are the following. The vacancy in the post of Headmaster in the first respondent school arose on 1.4.1994. The appellant and the second respondent were the rival aspirants for the post. Both of them joined the School as under graduates with SSLC and TTC qualifications in the post of U.P.S.A. The second respondent commenced service on 1.6.1967 and the appellant on 6.6.1979. So, obviously the second respondent is senior to the appellant in the cadre of U.P.S.A.. While in service, the second respondent and the appellant passed B. A. and B.Ed. The second respondent passed B. Ed. only in 1990 and the appellant in 1989 (20.2.1989). So, when the vacancy arose on 1.4.1994, the second respondent did not complete five years service after acquisition of B.Ed. whereas the appellant completed five years service after acquiring B.Ed. on 20.2.1994. Both of them have passed the obligatory departmental test prior to 1.4.1994. It is common case of both sides that there is no senior under graduate teacher in the school. If five years service after acquisition of B.Ed. is an essential qualification, the second respondent is unqualified, albeit she is senior in service. She is qualified in every other respect and in senior in service also. The appellant is qualified in every respect, but she is junior to the second respondent. Pithily put, the dispute is whether five years service after acquisition of B. Ed. is an obligatory qualification for promotion as Headmaster in the absence of a senior under-graduate teacher. 2. The Manager preferred the second respondent by Ext.P2 dated 30.3.1994. Appeal by the appellant herein before the A.E.O. was rejected by Ext.P4 dated 18.6.1994. A further motion made before the D.E.O. met with the same fate as evidenced by Ext.P6 order dated 17.10.1994. Appellant challenged Exts.P2, P4 and P6 orders by filing OP No.1996/95. Learned single Judge dismissed the original Petition by judgment dated 4.2.1999 holding that there was nothing wrong with the orders impugned. Aggrieved appellant appeals. 3. A further motion made before the D.E.O. met with the same fate as evidenced by Ext.P6 order dated 17.10.1994. Appellant challenged Exts.P2, P4 and P6 orders by filing OP No.1996/95. Learned single Judge dismissed the original Petition by judgment dated 4.2.1999 holding that there was nothing wrong with the orders impugned. Aggrieved appellant appeals. 3. Now, it appears, the second respondent has already retired from service. She has received all benefits. Now the benefits enjoyed by her cannot be disturbed after her retirement. Now what remains to be decided is whether the appellant is entitled to be appointed as Headmaster notionally with effect from 1.4.1994. 4. The qualifications for appointment of aided school teachers are prescribed in Chapter XXXI of the Kerala Education Rules. But the additional qualifications required for appointment as Headmasters are contained in Chapter XIV A. Rule 44 of Chapter XIV A. provides that the appointment of Headmasters shall ordinarily be according to seniority. Rule 45 prescribes the order of preference when there are graduates and undergraduates among the teachers. Rule 45B prescribes Account Test (Lower) conducted by the Public Service Commission as an obligatory qualification for promotion as Headmaster of a primary school. In this case, the construction of rule 45 alone is relevant. The said rule as it stood prior to the Amendments introduced on 31.1.1987 and 7.12.1988 reads as follows: - "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 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 seniormost Primary School Teacher with S.S.L.C. or equivalent and T.T.C. qualification may be appointed." 5. If graduate teachers with the aforesaid qualification and service are not available in the School or Schools under the same Educational Agency, the seniormost Primary School Teacher with S.S.L.C. or equivalent and T.T.C. qualification may be appointed." 5. Interpreting the said rule, a Full Bench of this Court in P.P. Raghavan v. State of Kerala (1988(1) ILR Kerala 339) has held that if there is a contest between two graduates, the person with a minimum of five years service after graduation should be preferred. A person without five years graduate service although senior is not entitled to be appointed as Headmaster. In the said case also, there was no senior under graduate teacher. The dispute was only between graduate teachers. The relevant portion of the said decision reads: - "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 1st April, 1979 when the post 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 seniormost undergraduate teacher in the school. It is also brought to our notice that the S.S.L.C., T.T.C 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 rule 45 is only when the contest is between a graduate teacher with B.Ed. or other equivalent qualification and a primary school teacher with S.S.L.C. or equivalent and T.T.C. 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 rule 44. We find it difficult to accept this contention. Rule 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 seniormost undergraduate teacher. We find it difficult to accept this contention. Rule 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 seniormost undergraduate teacher. The five years experience after graduation need not be after the acquisition of the B.Ed. or equilvent 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. 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 rule45. " (Emphasis supplied) 6. By G.O.(P) No.24/87/G.Edn. dated 31.1.1987, the said rule was amended introducing some additional qualifications which are equivalent to T.T.C.. By G.O. (P) No.178/88/G.Edn. dated 7.12.1988, an amendment was introduced to provide that teaching experience should be after acquisition of B.Ed. Degree. Rule 45 in the present from reads: - " 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 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 acquisition of B.Ed. 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 acquisition of B.Ed. Degree he may be appointed as Headmaster provided he has got service equal to half of the period of service of the seniormost 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 seniormost 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." 7.The portions introduced by the amendment are underlined. A comparison of Rule 45 as it stood earlier and as it stands now will show that the amendments will not affect the construction given to the said Rule by the Full Bench in the matter of preference of graduates. The factual position is identical. In this case also, there is no senior under-graduate teacher. Contest is between graduates only. Appellant, as stated earlier, has five years service after acquisition of B.Ed., whereas the second respondent does not have the said qualification. The relevant part of the rule remains unaltered by the amendments. The substantial change brought about by the amendment is only relating to the definition of graduate service. Therefore, the decision of the Full Bench will squarely apply to the present case. No decision overruling the said Full Bench decision has been brought to our notice. Therefore, we are bound by the Full Bench decision of this Court. So, five years service after acquisition of B.Ed. will tilt the balance in favour of the appellant as against the second respondent. The learned Judge has relied on an unreported decision of this Honourable Court in OP No.10125/89 rendered by a Full Bench of this Court. In the said decision, there is an observation to the effect that if a graduate teacher is the senior-most teacher in the School, the qualification of five years service is not applicable. The learned Judge has relied on an unreported decision of this Honourable Court in OP No.10125/89 rendered by a Full Bench of this Court. In the said decision, there is an observation to the effect that if a graduate teacher is the senior-most teacher in the School, the qualification of five years service is not applicable. It is also observed that if such a condition is insisted, it will operate to the detriment of the senior graduate teacher whereas an under-graduate teacher can get appointment purely on the basis of seniority as Headmaster if there is no qualified graduate rival claimant. From the facts of the case, it appears that there was no rival graduate claimant in the said case. Here, in the present case, the dispute was between two graduate teachers. So, the decision of the Full Bench in P.P. Raghavan v. State of Kerala (1988(1) ILR 339) will squarely apply. 8. Therefore, the appellant should have been appointed as the Headmaster on 1.4.1994. We declare so. The impugned orders are quashed. But, as said earlier, this will not in any way affect the second respondent as she has already retired from service. The appellant is entitled to get appointment as Headmaster with effect from 1.4.1994, ofcourse, notionally. Respondents 4 and 5 are directed to ensure that the first respondent appoints the appellant as Headmaster notionally with effect from 1.4.1994. The appellant will be entitled to all service benefits notionally except arrears of salary. She will be eligible to arrears only with effect from today. The direction issued to respondents 4 and 5 should be complied with within one month from the date of receipt of a copy of this judgment. The Writ Appeal is allowed as above. No costs.