Maidhily M. v. State of Kerala, Represented By Secretary To Government, Department of General Education
2024-07-25
A.MUHAMED MUSTAQUE, S.MANU, SHOBA ANNAMMA EAPEN
body2024
DigiLaw.ai
ORDER : S.MANU, J. A Division Bench of this Court by an order of reference directed to place this appeal before the Full Bench so as to consider the impact of the third proviso to Rule 44A of Chapter XIV-A of the Kerala Education Rules (KER) in the matter of appointment to the post of Headmaster/Headmistress. The Division Bench doubted the correctness of the observations in the reference order in Narayanan.A v. Vijayalakshmi P. and others [ 2020 (4) KLT 198 ] regarding classification of teachers into two based on the 2nd and 3rd provisos, rendered by a co-equal bench. In the reference order dated 19.10.2023, the Division Bench noted that the intention of the amendment by which the third proviso to Rule 44A was incorporated seems to be to give preference to teachers who have crossed the age of 50 years and possessed test qualification in preference to those who are exempted from acquiring the test qualifications by virtue of the second proviso to Rule 44 A. We are therefore called upon to decide these two aspects. 2. Reference to the relevant provision is essential to analyze the issue. Rule 44A is extracted hereunder omitting the explanations and the note thereunder: “[44A. (1) Subject to the provisions contained in sub-rule (1) of rule 44, the minimum service qualification for appointment as Headmaster, [Headmistress, Vice-Principal] in Aided Complete High Schools/Training Schools shall be twelve years of continuous graduate service [with a pass in the test in the Kerala Education Act and the Kerala Education Rules] [and a pass in Account Test (Lower) conducted by Kerala Public Service Commission.] [Provided that Headmasters [Headmistresses, Vice-Principals] of High and Training Schools, who were actually holding the said post on the eleventh day of June, 1974 shall stand exempted from passing the Account Test (Lower)] [Provided further that Teachers who have attained the age of 50 years shall stand exempted permanently from acquiring the test qualification specified in sub rule (1)] [x x x x ] [Provided also that, notwithstanding anything contained in the second proviso, in the case of appointment to the post of Headmaster, [Headmistress, Vice-Principal] preference shall be given to those teachers who have acquired the test qualifications specified in this rule].” 3. The said Rule deals with appointment of Headmaster [Headmistress, Vice-Principal] in aided High Schools and Training Schools.
The said Rule deals with appointment of Headmaster [Headmistress, Vice-Principal] in aided High Schools and Training Schools. The qualification is 12 years of continuous graduate service with a pass in the test in the Kerala Education Act and the Kerala Education Rules and a pass in Account Test (Lower) conducted by Kerala Public Service Commission. The requirement of pass in the Kerala Education Act and the Kerala Education Rules was added in 1968 vide G.O.(P)No.479/68 dated 06.11.1968 which was notified in the Gazette dated 10.12.1968. The further requirement of pass in Account Test (Lower) conducted by PSC was incorporated in 1976 vide G.O. (P)No.149/76/Edn. dated 07.8.1976 notified in Gazette dated 31.08.1976. The first proviso to the Rule provided exemption for those who were holding the post of Headmasters on the 11th day of June, 1974 from passing the Account Test (Lower). The second proviso was inserted by G.O(P)No.96/97/G.Edn. dated 17.3.1997 as S.R.O.No.237/97 with effect from 02.03.1982. By virtue of it, teachers who have attained the age of 50 years are exempted permanently from acquiring the test qualification specified in sub-rule (1). The third proviso, effect of which is to be analysed in this reference was inserted by G.O. (MS)No.157/15 G.Edn. dated 10.06.2015 published in Gazette dated 13.12.2017 with effect from 01.06.2015. The gazette notification has been produced as Ext.P5 in the writ petition. Notification includes an explanatory note. The same is extracted hereunder:- “Explanatory Note (This does not form part of the notification, but is intended to indicate its general purport) Second proviso to sub-rule (1) of rule 44A of Chapter XIV A of the Kerala Education Rules, 1959 provides that teachers who have attained the age of 50 years shall stand exempted from acquiring test qualification specified in this rule for appointment to the post of Headmaster. Since many teachers who have completed the age of 50 years had acquired the prescribed test qualifications Government have decided to give preference to those teachers who have acquired the test qualification in the case of appointment to the post of Headmaster, as per G. O. (Ms.) No. 157/2015/ G.Edn dated 10th June, 2015 and to amend the Kerala Education Rules, 1959 accordingly. The amendment rules has been given effect from 1.6.2015, i.e, the date of starting of the relevant academic year. This notification is intended to achieve the above object.” 4.
The amendment rules has been given effect from 1.6.2015, i.e, the date of starting of the relevant academic year. This notification is intended to achieve the above object.” 4. Appellant in this writ appeal is a retired Headmistress of the 5th respondent's school. She was appointed as Headmistress with effect from 02.04.2018 and retired on 31.05.2018. Request of the Manager to approve the appointment of the appellant as Headmistress was rejected by the District Educational Officer. Appeal filed by the Manager against the rejection did not yield desired result. Revision petition filed by the appellant also met the same fate. Thereafter she approached this Court in W.P.(C)No.16651/2019. 5. The reason for rejection expressed by the authorities was that there were other teachers in the seniority list who had the qualifications prescribed under Rule 44A of Chapter XIV-A of KER suitable for appointment as Headmaster and appointment of the appellant was hence not in accordance with the rules. It was also pointed out that relinquishment of such qualified teachers was not obtained. The rejection was hence with reference to the third proviso to Rule 44A. 6. In the writ petition, the appellant contended that the explanatory note forming part of Ext.P5 gazette notification makes it clear that the introduction of the third proviso was to provide for preference to those teachers having test qualifications and attained the age of 50 years in the matter of promotion. Hence the appellant contended that the third proviso would apply only in a situation where there are teachers who are above 50 years having test qualification as also those claiming the benefit of the second proviso; those who have attained the age of 50 years but not acquired the test qualification. In other words, the argument raised on behalf of the appellant was that the third proviso cannot have any application in the case of teachers who have not attained 50 years of age. The said contention was rejected by the learned Single Judge. The learned Judge held that the only meaning that can be attributed on a plain reading of the main part of the Rule and the proviso is that, in a case where there is only an exempted teacher in terms of the second proviso and no test qualified teacher, the exempted teacher would be entitled to appointment as Headmaster.
The learned Judge held that the only meaning that can be attributed on a plain reading of the main part of the Rule and the proviso is that, in a case where there is only an exempted teacher in terms of the second proviso and no test qualified teacher, the exempted teacher would be entitled to appointment as Headmaster. However, in a case where there are exempted teachers as well as qualified teachers, then, the preference has to be given to the qualified teacher regardless of the exemption available to persons who have crossed the age of 50 years. The finding of the learned Single Judge is assailed in this appeal. 7. We note that another Full Bench had considered some other aspects regarding the ambit and scope of the third proviso in Rajamohanan.K v. State of Kerala & Ors [ 2024 (3) KLT 116 ]. Reference in the said case arose from Narayanan.A v. Vijayalakshmi P. and others (supra) wherein the Division Bench doubted the judgments of two other Division Benches in Pavandoor Higher Secondary School v. Sadanandan [ 2016 (4) KLT 207 ] and in Harifa Beevi Kallan v. The Manager, PPM Higher Secondary School and others (W.A.No.925/2019). The Full Bench considered the following questions as stated in paragraph 8 of the judgment: (i) Is G.O.(MS)No.157/2015/G.Edn. invalid, as held in Sadanandan; (ii) Can the benefit of permanent exemption granted to teachers from acquiring test qualifications in terms of the second proviso to Rule 44A(1), be taken away, by giving retrospectivity to the third proviso to the Rule as held in Harifa Beevi Kallan. The judgment of the Full Bench was rendered after the order of reference in this case was passed by the Division Bench. However, the views taken by the Division Bench in Narayanan's case (supra) regarding classes of teachers qualified for appointment as Headmaster and also the intention of the amendment regarding preference as indicated by the Division Bench in the present reference order were not arising for consideration directly or indirectly before the Full Bench. Hence, we need to decide those issues. 8. The qualification for appointment as Headmaster is specified in Rule 44A(1). The provision was inserted by G.O. (P)45/68/Edn. dated 31.1.1968 in Gazette dated 13.2.1968.
Hence, we need to decide those issues. 8. The qualification for appointment as Headmaster is specified in Rule 44A(1). The provision was inserted by G.O. (P)45/68/Edn. dated 31.1.1968 in Gazette dated 13.2.1968. At the risk of repetition, we may point out that the requirement of pass in the test in Kerala Education Act and Rules was added later by G.O.(P) 479/68 /dated 6.11.68 in Gazette dated 10.12.1968. The further requirement of pass in Account Test (Lower) conducted by Public Service Commission was inserted by G.O.(P)149/76/Edn. dated 07.08.1976 in Gazette dated 31.8.1976. Therefore, the Government introduced requirements of pass in the tests as aforesaid in addition to the original requirement of having 12 years of continuous graduate service in different phases. The second proviso was inserted much later by G.O.(P)96/97/G.Edn. dt. 17.03.1997 as SRO No.237/97 w.e.f. 02.03.1982. By virtue of the second proviso, teachers who have attained the age of 50 years got permanent exemption from acquiring the test qualification specified in sub-rule (1).The third proviso was inserted still later which contains a non obstante clause indicating that it is intended to overshadow the second proviso. 9. It is to be kept in mind that the appointment of Headmaster is a very important aspect as far as the functioning of a school is concerned. All teachers will be having the basic qualification as also the training qualification. They are thus equipped to teach the concerned subjects. When a teacher is appointed as Headmaster the role changes drastically. A teacher who had been engaged only in the academic activity is vested with administrative powers and duties also on his/her appointment as a Headmaster. Administrative duties involve various facets to which a teacher who has only teaching experience is never exposed to. The experience acquired only by teaching may be not helpful in discharging the administrative duties. Basic knowledge of the relevant rules and regulations becomes indispensable. A teacher with only the basic qualification as well as the training qualification may not have any knowledge of the relevant rules and regulations also. It is therefore desirable in the interest of better administration of the schools to have Headmasters with requisite knowledge of the relevant legal and administrative aspects.
A teacher with only the basic qualification as well as the training qualification may not have any knowledge of the relevant rules and regulations also. It is therefore desirable in the interest of better administration of the schools to have Headmasters with requisite knowledge of the relevant legal and administrative aspects. This is obviously the reason for incorporating test qualifications also in Rule 44 A. While describing the importance of the role of the Headmaster, we cannot fail to refer to the following oft-quoted elegant exposition by Chief Justice M.S.Menon in Aldo Maria Patroni v. E.C.Kesavan [1964 KLT 731 (FB)]- “The post of Headmaster is of pivotal importance in the life of a school. Around him wheels the tune and temper of the institution; on him depends the continuity of its tradition, the maintenance of discipline and the efficiency of its teaching.” 10. Proviso is a legislative tool often used to carve out exceptions to the preceding provisions. Learned author P.M.Bakshi in his “Interpretation of Statutes” describes the main roles that can be properly assigned to the proviso in legal drafting as follows: (a) exclusionary, (b) qualifying, (c) clarificatory. In its exclusionary role, the proviso excludes something which would otherwise fall within the main part of the statutory provision. In its qualifying role, the proviso qualifies, or attaches conditions to the proposition laid down in the main enactment. In its clarificatory role, the proviso clarifies some doubt or ambiguity which might possibly arise from the apparently elastic phraseology of the main part. 11. By incorporating the first proviso to Rule 44A the Government excluded those who were actually holding the post of Headmaster/Headmistress/Vice-Principal on the 11th day of June, 1974 from passing the Account Test (Lower). By incorporating the second proviso which is also exclusionary in nature, another exception was created for the benefit of teachers who have attained the age of 50 years, not having the test qualifications prescribed in sub-rule (1). The said proviso, in our view, diluted the rigour of Rule 44A(1) in the case of teachers who have attained the age of 50 years. For teachers falling within the ambit of the said proviso the only requirement is having the minimum service qualification of 12 years of graduate service. The third proviso contains a non obstante clause with reference to the second proviso. It is therefore ostensibly a provision introduced to override the second proviso.
For teachers falling within the ambit of the said proviso the only requirement is having the minimum service qualification of 12 years of graduate service. The third proviso contains a non obstante clause with reference to the second proviso. It is therefore ostensibly a provision introduced to override the second proviso. It clarifies that preference shall be given to those teachers who have acquired the test qualifications specified in Rule 44A(1) in the case of appointment to the post of Headmaster. 12. The learned counsel appearing for the appellant referred to the notification produced as Ext.P5 and took us through the explanatory note. It is true that the explanatory note contains a sentence meaning that the Government have decided to give preference to those teachers who have acquired the test qualification in the case of appointment to the post of Headmaster since many teachers who have completed the age of 50 years had acquired the prescribed qualifications. The learned counsel therefore submitted that the third proviso has been introduced to govern the cases of teachers who have attained 50 years of age and to provide preference to those having test qualifications coming within the said category. According to the learned counsel, the intention of introducing the third proviso is to be understood from the explanatory note which is included in the gazette notification. The learned Government Pleader on the other hand submitted that the intention of the Government is to give preference to teachers having test qualifications irrespective of age and that the test qualifications have been insisted to ensure that the Headmasters should have basic understanding of the legal and other administrative aspects. 13. It is a well settled principle of statutory interpretation that where the meaning of the words in a statutory provision admit no ambiguity, the Court need not undertake exploration of the wisdom or policy of the makers of the statute. When the plain meaning of the words used in the provision are reasonably capable of only one construction, the Court need not look into any external aids like explanatory notes. If the actual language leaves no room for doubt, the ideas of policy gathered from extrinsic sources, extraneous to the text of the statute are immaterial for the Court endued with the task of interpreting the provision. 14.
If the actual language leaves no room for doubt, the ideas of policy gathered from extrinsic sources, extraneous to the text of the statute are immaterial for the Court endued with the task of interpreting the provision. 14. Therefore, in our view, if the plain language of the third proviso is capable of logical and reasonable construction, we need not look into any other aspects including external aids. We also note that the explanatory note heavily relied on by the learned counsel for the petitioner is not a part of the rule and it is merely a note added to the notification. It is trite law that even the statement of objects and reasons cannot be utilized for interpreting the provisions where the language of the statutory provision is clear and unambiguous. The note relied on by the learned counsel for the petitioner need not be looked into for the purpose of understanding the effect of the third proviso if we find that the proviso is not ambiguous or capable of interpretation in different manners. 15. Let us now analyse the third proviso. The chronology of amendments made to Rule 44A as we noted above shows that the third proviso is the latest introduction. In King v. Dominion Engineering Co. Ltd [ AIR 1947 PC 94 ] the Privy Council held that where a section of an enactment contains two provisos and the second proviso is in any way repugnant to the first, the second proviso must prevail, for it stands last in the enactment and speaks the last intention of the makers of the law. In this case three provisos have been added to Rule 44A. We are not concerned about the first proviso which has already served its purpose. By efflux of time the said proviso has become redundant as the same was intended only to protect the Headmasters at the time of introduction of the Rule. We need to focus only on the second and third provisos and their interplay. Though the case is not strictly comparable to the situation dealt with by the Privy Council in the above mentioned judgment, we find that the principle laid down that the latest proviso speaks the last intention of the makers of the law can be applied to the case on hand.
Though the case is not strictly comparable to the situation dealt with by the Privy Council in the above mentioned judgment, we find that the principle laid down that the latest proviso speaks the last intention of the makers of the law can be applied to the case on hand. Third proviso, the latest in point of time, with a non obstante clause, has been added by the rule makers well aware of the position of law as it stood prior to the amendment. Therefore, the third proviso has to be comprehended and interpreted, giving full effect to the language employed in it. At the risk of repetition we may point out that the non obstante clause in the third proviso can be understood only as intentionally incorporated to give it overriding effect over the second proviso. No other interpretation is possible as the provision is so plain and unambiguous. The provision hence clearly provides for preference to those teachers who have acquired test qualifications in the case of appointment to the post of Headmaster, notwithstanding the exemption granted to the teachers who have attained the age of 50 years by the second proviso. As we find no ambiguity in the provision, we need not look into the explanatory note relied on by the learned counsel for the appellant in the light of the principles of interpretation discussed previously. Therefore the contention, raised on the basis of the explanatory note is rejected. 16. Learned counsel for the appellant had passionately submitted that if the effect of the third proviso is understood as we have mentioned in the previous paragraphs, then the benefit of the second proviso available to the teachers who have attained the age of 50 year will be lost. She further argued that such an interpretation will offend the rule of seniority contained in Rule 44. However it must be noted that the benefit of the second proviso will be available to teachers who attain the age of 50 years in case no test qualified teachers are available. To put it differently, the third proviso will turn relevant only if there are test qualified teachers. Otherwise the second proviso will govern the situation.
However it must be noted that the benefit of the second proviso will be available to teachers who attain the age of 50 years in case no test qualified teachers are available. To put it differently, the third proviso will turn relevant only if there are test qualified teachers. Otherwise the second proviso will govern the situation. It in fact the third proviso remedies the weakening of the Rule 44 A (1) caused by the second proviso, by enabling the authorities to prefer test qualified teachers for appointment as Headmasters, nevertheless without totally frustrating the second proviso. Therefore, it cannot be said that the third proviso, if interpreted literally, would defeat the second proviso and such a construction would not be harmonious. Moreover, difficulties that may be caused to a section of teachers who are not test qualified on account of introduction of the third proviso is not a reason to adopt any other interpretation when the language of the third proviso is clear. We also note that a Full Bench of this Court in Rajamohanan's case (supra) considered the second proviso which provides for the exemption and held in unmistakable terms that an exemption is only a concession and the beneficiary gets no legally enforceable rights vested with him. Therefore, the overriding effect bestowed on the third proviso by employing the non obstante clause cannot be overlooked for the reason that it may adversely affect the career prospects of teachers who have no test qualifications, but attained 50 years of age. The rule of seniority in Rule 44 also will not become redundant as the same shall govern the selection when several test qualified teachers are available. Principle that the latest provision shall be understood as incorporated, keeping in mind all earlier provisions, also justifies this conclusion. 17. As we noted above, the role of Headmaster is much different from that of a teacher. Apart from academic activities, Headmaster is bound to discharge various administrative duties also. Syllabi of the tests mentioned in Rule 44A makes it clear that knowledge of various relevant Rules, Codes, and so on is required to pass the test. Such knowledge will definitely help a teacher to discharge the administrative duties effectively when he is posted as the Headmaster. In the larger interest of the institution, having a test qualified Headmaster will be definitely helpful.
Such knowledge will definitely help a teacher to discharge the administrative duties effectively when he is posted as the Headmaster. In the larger interest of the institution, having a test qualified Headmaster will be definitely helpful. Therefore, even when there are teachers who have attained the age of 50 but without test qualification, giving preference to juniors having test qualifications will be in the better interest of the institution. Accordingly, the third proviso can be considered as a well-intended provision incorporated to ensure better management of the schools. 18. The resultant position can be summarized as follows:- (1) The third proviso to Rule 44A has overriding effect over the second proviso. It is intended to give preference to test qualified teachers in appointments to the post of Headmaster [Headmistress, Vice- Principal] irrespective of age. (2) Consequently, preference shall be given to teachers who have acquired test qualifications mentioned in Rule 44A(1) for appointment as Headmaster [Headmistress, Vice-Principal] even if teachers who enjoy exemption by virtue of the second proviso are available. (3) By operation of the second and third provisos only two classes of teachers are created, exempted teachers in terms of the second proviso and test qualified teachers who are eligible for preference by virtue of the third proviso. 19. In the light of the above conclusions, we find that there is no infirmity in the observations in the reference order of the Division Bench in Narayanan's case (supra), regarding classes of teachers created by the operation of the provisos to Rule 44A. We answer the reference as above. The writ appeal may be placed for consideration by the Division Bench having roster, for disposal.