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2008 DIGILAW 452 (KER)

Geetha P. I. v. State of Kerala

2008-07-29

JACOB BENJAMIN KOSHY, P.N.RAVINDRAN

body2008
JUDGMENT J. B. Koshy, J. 1. These appeals are filed against the common judgment of the learned Single Judge dated 05/01/2007. Petitioner in WP (C) No. 34410 of 2006 was appointed as headmaster with effect from 01/04/2004 in a retirement vacancy. There was delay on the part of the management in applying for approval of appointment of the petitioner as headmaster. That delay was condoned by Ext. P3 order. Nobody objected his appointment as headmaster till he retired. He retired with effect from 31/03/2005. By Ext. P4 there was a direction by the Director of Public Instructions to approve the appointment if he is otherwise eligible. Since there was no rival claimant at the time of his appointment or even before his retirement, we are of the opinion that his appointment ought to have been approved as he is an eligible candidate. It is true that after the retirement, a revision petition was filed by the sixth respondent stating that she had a superior claim because of her graduate service. We are of the opinion that a representation was filed by the sixth respondent for the first time only on 15/10/2006 whereas petitioner retired from service on 31/03/2005. In the above circumstances, we are of the view that even if there is superior claim of the sixth respondent in view of the absence of any objection, appointment of the petitioner in WP (C) No. 34410 of 2006 ought to have been approved and consequential benefits ought to have been given to him. With regard to the superior claim of the graduate teacher, we shall consider the same while disposing of the writ appeals. 2. The challenge in the writ appeals is regarding the appointment to the vacancies of headmaster which arose due to the retirement of the petitioner in WP (C) No. 34410 of 2006, that is, with effect from 01/04/2005. WP (C) No. 34551 of 2006 was filed by an undergraduate teacher. She got regular appointment in the school on 06/12/1983. She is a TTC holder and passed predegree and account test. She had approved temporary service prior to her regular appointment. The sixth respondent joined the service on 02/06/1986 and she is a graduate and also possesses B.Ed. and account test (lower). The sole question is whether she is entitled to preferential appointment as headmaster than the petitioner who was a TTC holder. She had approved temporary service prior to her regular appointment. The sixth respondent joined the service on 02/06/1986 and she is a graduate and also possesses B.Ed. and account test (lower). The sole question is whether she is entitled to preferential appointment as headmaster than the petitioner who was a TTC holder. Admittedly, sixth respondent was appointed only on 02/06/1986. R.45, Chap.XIVA of the Kerala Education Rules as it then stood on the date of occurrence of the vacancy reads as follows: "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 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. 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 SSLC or equivalent and TTC issued by the Board of Public Examination Kerala or TCH issued by the Karnataka Secondary Education Examination Board, Bangalore or a pass in Predegree 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. Note.- The language / specialist teachers, according to their seniority in the combined seniority list of teachers shall also be appointed as Headmaster of U.P. School 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." It clearly shows that graduate teachers have preferential right to be appointed as headmaster. Therefore, even though manager appointed the petitioner as headmaster once, her appointment was not approved correctly in view of the superior claim of the sixth respondent. The learned Judge after considering various judgments of this Court held that sixth respondent had a superior claim and she ought to have been appointed as headmaster with effect from 01/04/2005. Therefore, even though manager appointed the petitioner as headmaster once, her appointment was not approved correctly in view of the superior claim of the sixth respondent. The learned Judge after considering various judgments of this Court held that sixth respondent had a superior claim and she ought to have been appointed as headmaster with effect from 01/04/2005. The wordings of R.45 is very clear. The learned counsel for the appellant contended that at the time of entry into service, TTC was the qualification and it was amended only in 2000. It is contended that degree holders are not entitled to get appointment as UPSAs only when R.3(1) of Chap.XXXI was amended (respondent joined as a graduate teacher in 1996). However, appointment of sixth respondent is irregular. Such a contention was not raised before the educational authorities or in the writ petition and hence it cannot be raised in the appeal. R.45 was in force from 1971. That shows that teachers with B.Ed. qualification were being appointed as UPSAs. Hence, there is no irregularity in the appointment of the sixth respondent. R.45 is applicable even at the time when the appellant and sixth respondent were appointed regularly. After considering R.3A and 4A of Chap.XIVA of Kerala Education Rules, a Full Bench of this Court in SNDP L.P. School v. Roy, 2006 KHC 1495 : 2006 (4) KLT 497 : ILR 2006 (4) Ker. 385, para 31 to 38, held that B.Ed. degree holders can be appointed as UPSAs. It affirmed the decision in Mathew v. State of Kerala, 1992 KHC 309 : 1992 (2) KLT 116 : 1992 (2) KLJ 158 : ILR 1993 (1) Ker. 130 and followed the decision in Thulasibhai Amma v. Asst. Educational Officer, 1993 KHC 320 : 1993 (2) KLT 245 : 1994 (1) KLJ 764 : ILR 1994 (1) Ker. 43. The Full Bench also considered the effect of amendment in paragraph 36 of the judgment. Further, validity of R.45 is not questioned in this writ petition. To declare a rule ultra vires, mere taking up a ground in writ appeal is not enough. Validity of R.45 was approved in Unnikrishnan Nambiar v. Govt. of Kerala, 1996 KHC 440 : 1996 (2) KLT 1010 ; Hameed v. State of Kerala, 1992 KHC 109 : 1992 (1) KLT 565 : ILR 1992 (3) Ker. 58 and Thulasibhai Amma v. Asst. Validity of R.45 was approved in Unnikrishnan Nambiar v. Govt. of Kerala, 1996 KHC 440 : 1996 (2) KLT 1010 ; Hameed v. State of Kerala, 1992 KHC 109 : 1992 (1) KLT 565 : ILR 1992 (3) Ker. 58 and Thulasibhai Amma v. Asst. Educational Officer, 1993 KHC 320 : 1993 (2) KLT 245 : 1994 (1) KLJ 764 : ILR 1994 (1) Ker. 43. Further, there is no vested right for promotion. Rules as on the date of promotion alone can be considered for promotion. But, at the same time, if any amendment of the service rule is applicable, that will not affect the promotions which were already given. In this case, sixth respondent, graduate teacher with B.Ed. with requisite experience was the eligible claimant to be considered for appointment on 01/04/2005. In this connection, we also refer to the decision of this Court in Prasad v. Philipose Mar Dilshus U. P. School, 2005 KHC 1001 : 2005 (3) KLT 487 : 2005 (2) KLJ 404 . As per the Government order, she is also getting salary as headmaster from the date she took charge. Ext. P3 order was passed on 29/11/2006. There is no justification for the manager in denying appointment to the sixth respondent at least after receipt of Ext. P3. It is stated that during the pendency of the writ petition, there was no stay. Even if they obtained stay of appointment, that is only an interim arrangement. Appointment of the writ petitioner was not approved. However, since it was finally rejected by the educational authorities only by Ext. P3, sixth respondent is entitled to salary as headmaster at least from the date of Ext. P3. Even though her service from 01/04/2005 will be counted as headmaster for the purpose of calculating service benefits, sixth respondent will get salary of headmaster only with effect from the date of the impugned order. In other words, he will get all notional service benefits as headmaster with effect from 01/04/2005 and pay as headmaster from the date of Ext. P3. It is pointed out that R.45 was altered in 2008, but, that will not affect the vested right of already promoted persons. Educational authorities are directed to give consequential benefits and implement the orders. In other words, he will get all notional service benefits as headmaster with effect from 01/04/2005 and pay as headmaster from the date of Ext. P3. It is pointed out that R.45 was altered in 2008, but, that will not affect the vested right of already promoted persons. Educational authorities are directed to give consequential benefits and implement the orders. In this connection, we also refer to the decision of this Court in Sadanandan v. State of Kerala, 2000 KHC 665 : 2000 (3) KLT 516 . Both the writ appeals are dismissed and WP (C) No. 34410 of 2006 is allowed.