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2007 DIGILAW 572 (KER)

Geevarghese v. Whammed Ashraf

2007-08-24

K.S.RADHAKRISHNAN, V.K.MOHANAN

body2007
Judgment :- K.S. Radhakrishnan, J. An interesting question touching upon the interpretation of R.45 in Chap. XIV-A K.E.R. has come up for consideration in this appeal. 2. A post of Headmaster in A.U.P. School, Vazhikadavu fell vacant on April 1, 2004. Fourth respondent in the Original Petition is the only graduate teacher qualified for appointment to the post of Headmaster. But there were four undergraduate teachers senior to him. Of the undergraduate teachers, first three were not interested in the post of Headmaster with the result that one Muhammed Ashraf, the petitioner in the Writ Petition was the only available senior most undergraduate teacher in the school and 4th respondent, Geevarghese, the only qualified graduate teacher. Petitioner, Mohammed Ashraf joined the School on 4.8.1980. He had put in 23 years 9 months and 28 days service as on the date of occurrence of vacancy. Fourth respondent Geevarghese joined the service on 15.7.1988 and he had put in 15 years 10 months and 16 days service as on the date of occurrence of the vacancy. Geevarghese is a graduate U.P.S.A. and had service of 5 years after acquiring the B.Ed. qualification. He has also got service equal to half the period of service of the petitioner undergraduate teacher who was the only undergraduate teacher available for consideration to the post of Headmaster. Manager appointed the petitioner Mohammed Ashraf as the Headmaster of the school and the same was approved by the Department. Fourth respondent approached the Government in revision. Government passed Ext.P6 order dated 17-1-2006 holding that 4th respondent was the rightful claimant for the post of Headmaster. Government took the view that even though Mohammed Ashraf was the senior most under graduate teacher, the 4th respondent, senior most graduate teacher had put in more than half of the period of service of Mohammed Ashraf, an undergraduate teacher. hence was the legitimate claimant for the post. Government found no justification in comparing the length of service between the 4th respondent and one Dayabai who is not staking any claim for the post of Headmaster. Government therefore allowed the revision holding that 4th respondent was fully qualified and was the rightful claimant for the post of Headmaster since he is graduate and also has more than half the period of service of undergraduate teacher. Aggrieved by the same the present Writ Petition was preferred challenging the Government order. 3. Government therefore allowed the revision holding that 4th respondent was fully qualified and was the rightful claimant for the post of Headmaster since he is graduate and also has more than half the period of service of undergraduate teacher. Aggrieved by the same the present Writ Petition was preferred challenging the Government order. 3. Learned single Judge took the view that a graduate teacher with the requisite qualification and 5 years' experience in teaching after acquisition of B.Ed. degree would get the nod for appointment if he has got half of the period of service of the senior most undergraduate teacher. Learned single Judge took the view that the eligibility of a graduate teacher has to he compared with the senior most undergraduate teacher whether he/she is a claimant for the post of Headmaster or not. Learned single Judge took the view that the rule does not envisage or contemplate a situation where the words "senior most undergraduate teacher" have to be read and understood as "the senior most undergraduate claimant". Learned single Judge referred to the decision in Union of India v. Deoki Nandan Aggarwal (AIR 1992 SC 96) and took the view that the Court has no power to add any words to any section in a Statute. Holding so, learned single Judge interfered with the government order and took the view that 4th respondent is not liable to be considered for the post of Headmaster since he did not have half of the period of service of Dayabhai, senior most undergraduate teacher in that school. Judgment under appeal is reported in Muhammed Ashraf v. State of Kerala (2007 (3) KLT 667 = ILR (2007) 3 Ker. 388). 4. Counsel for the appellant Sri. Kaleeswaram Raj submitted that the learned single Judge has committed an error in interpreting R.45 of Chap. XIVA of Kerala Education Rules. Counsel submitted that the said rule has to he applied between the claimants for the post of Headmaster and not between a person who is not staking any claim for the post of Headmaster. If the rule is applied between the claimants there is no ambiguity in the rule and 4th respondent fully satisfies the qualification for the post, and is entitled to preference. Learned counsel also referred to the decision of the Apex Court in National Insurance Co. If the rule is applied between the claimants there is no ambiguity in the rule and 4th respondent fully satisfies the qualification for the post, and is entitled to preference. Learned counsel also referred to the decision of the Apex Court in National Insurance Co. Ltd. Laxmi Narain Dhut (2007 (2) KLT 470 (SC) = (2007) 3 SCC 700) and submitted a statute is an edict of the legislature and in construing a statute, it is necessary to seek the intention of its maker. Counsel submitted that the rule gives preference to a graduate provided the graduate satisfies that he/she has put in more than half the period of the senior most undergraduate. which according to the counsel, the 4th respondent has satisfied. Learned counsel submitted that the Government was justified in holding so and there is no reason to interfere with the Government order. 5. Sri. V. Rajendran, counsel appearing for petitioner in the Writ Petition submitted that there is no illegality in the order passed by the learned single Judge. Learned counsel submitted, senior most undergraduate teacher means senior most undergraduate teacher in the school, whether he/she is available for consideration for the post is immaterial. Counsel submitted that the senior most undergraduate has relinquished her claim for the post of Headmaster is of no consequence. Counsel submitted that only if the 4th respondent shows that he has more than half the period of service of the senior most undergraduate teacher in the rolls of the school then only he can make a claim for the post of Headmaster. 6. The entire issue is centered round the interpretation of R.45 of Chap. XIVA of the KER which is extracted hereunder for easy reference: "45. 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 he 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. 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 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 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 Educational Examination Board, Bangalore or a pass in Pre-degree Examination will 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. Note:- The language/Specialist teachers, according to their seniority in the combined seniority list of teachers shall also he appointed as Headmaster of U.P. Schools or Schools under an Educational Agency provided the teacher possesses the prescribed qualifications for promotion as Headmaster of U.P. School on the date of occurrence of vacancy." R.45 applies only when the post of Headmaster of a U.P. School is vacant. The post of Headmaster has to he filled up from among the qualified teachers on the staff of the School or Schools under the Educational Agency. Rule specifically says that 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 the Headmaster if he has got a service equal to half the period of service of the senior most undergraduate teacher. The intention of the rule making authority is always to give preference to qualified graduate teacher and the only thing is that he must satisfy the condition that he should have a service equal to half the service of the senior most undergraduate teacher. 7. We are in this case concerned with the claim of the petitioner and the 4th respondent alone and not between persons who have not staked any claim for the post. First we have to examine whether a graduate qualified teacher is available in the school for filling up the post of Headmaster. R.45 speaks of filling up the post. 7. We are in this case concerned with the claim of the petitioner and the 4th respondent alone and not between persons who have not staked any claim for the post. First we have to examine whether a graduate qualified teacher is available in the school for filling up the post of Headmaster. R.45 speaks of filling up the post. Post can be filled only if teachers are available for being filled up. There is no logic in comparing the service of graduate teacher with an undergraduate teacher who is not available while filling up the post of Headmaster. In our view, once an undergraduate teacher is not staking any claim for the post of Headmaster he is out of the fray, there is legal bar in comparing the length of service of a graduate teacher to that of an undergraduate teacher available, while the post is being filled up. Comparison should be between the persons who are available in the field, when the post is to be filled up. Learned single Judge has taken the view that the "senior most undergraduate teacher" cannot he read as "senior most undergraduate claimant". Senior most undergraduate teacher means, the senior most undergraduate teacher, against whom a qualified graduate teacher's length of service has to be equated while filling up the post and not against a senior undergraduate who is not interested in the post of Headmaster. 8. A Division Bench of this Court in Raghavan Nair v. Balachandran Nair (1992 (1) KLT 390) has taken the view that a graduate teacher is to be given preference if certain conditions are satisfied, namely, that he is also having B.Ed. qualification, that he had service of five years after acquiring B.Ed. qualification and he has got a service equal to half of the period of service of the senior most undergraduate teacher. When the claim is between the petitioner and the 4th respondent we have to compare the eligibility between themselves and not between a person who is not aspiring for the post. Preference means an act of choosing, favouring or liking one above another. You can choose only against persons who are available, therefore test of preference has to be applied between the petitioner and the 4th respondent and not between the 4th respondent and Dayabhai, a teacher not interested in the post of Headmaster. Preference means an act of choosing, favouring or liking one above another. You can choose only against persons who are available, therefore test of preference has to be applied between the petitioner and the 4th respondent and not between the 4th respondent and Dayabhai, a teacher not interested in the post of Headmaster. We therefore fully endorse the view taken by the Government in Ext.P4 order. Under such circumstance we are inclined to allow this appeal and set aside the judgment of the learned single Judge.