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2025 DIGILAW 1175 (KER)

Soni Gabriel W/o. Jacob Thomas v. State of Kerala

2025-05-13

N.NAGARESH

body2025
JUDGMENT : N.NAGARESH, J. The petitioner is aggrieved by the action of the respondent in appointing the 7 th respondent as Headmaster in the CSI VHSS for the Deaf, Thiruvalla. 2. The petitioner was appointed as UPSA in the School on 02.06.1997. The petitioner was promoted as HSA on 03.06.2013. The petitioner states that she holds Degrees in MA Malayalam, MA English, B.Sc Physics, B.Ed in Physical Science and a D.Ed in Hearing Impairment. The petitioner has passed the Departmental Tests including the Account Test (Lower), the Kerala Education Act and Rules and the Account Test (Higher). 3. The 7 th respondent was appointed as UPSA on 02.06.1997. The 7 th respondent was promoted as HSA on 01.06.2022. 4. In anticipation of the retirement of the Headmaster, Smt. Susha Susan George on 31.05.2024, the Manager of the School issued Ext. P2 notice dated 20.05.2024. The petitioner and the 7 th respondent submitted applications. The petitioner states that overlooking the superior seniority, claim and merit of the petitioner, the 5 th respondent appointed the 7 th respondent as Headmaster as per Ext.P7 order dated 01.06.2024. 5. The petitioner submitted Ext.P8 representation dated 05.06.2024 before the 4 th respondent-District Educational Officer. When the representation was not considered, the petitioner filed W.P.(C) No.19662/2024. This Court as per Ext.P8 judgment dated 01.07.2024 directed the 4 th respondent to consider Ext.P8 objection submitted by the petitioner while considering the approval to the appointment of the 7 th respondent. The 4 th respondent, however, rejected the request of the petitioner and issued Ext.P12 order dated 11.09.2024 approving the appointment of the 7 th respondent as Headmaster. Ext.P12 order is under challenge in this writ petition. 6. The petitioner states that her case is analogous to the case of Smt. Susha Susan George, who was appointed as Teacher-in-charge despite having fewer years of service, based on Ext.P6 Government Order. The petitioner, having completed 11 years of service at the High School level, is entitled to the same benefit and should have been considered for promotion. 7. The petitioner submitted that the 4 th respondent wrongly interpreted Rule 37(2) by emphasising age and service seniority. Rule 37(2) of Chapter XIVA of KER clearly states that seniority should be determined by the length of continuous service in the same grade. Only if the date of first appointment and the length of service are identical, the age should be considered. Rule 37(2) of Chapter XIVA of KER clearly states that seniority should be determined by the length of continuous service in the same grade. Only if the date of first appointment and the length of service are identical, the age should be considered. In the present case, the petitioner has more years of service in the grade of HSA than the 7 th respondent. The petitioner is therefore senior to the 7 th respondent. 8. The petitioner further submitted that she has cleared all necessary departmental tests, whereas the 7 th respondent has not passed the requisite test. Rule 44 of the KER mandates that the appointment of Headmaster should ordinarily follow seniority from the seniority list. Ext.P12 order is arbitrary and reflects misuse of discretionary powers. 9. The 4 th respondent-District Educational Officer filed the counter affidavit. The 4 th respondent stated that both the petitioner and the 7 th respondent are equally qualified for the post of Headmaster. Both entered in regular service on same day. In that situation, under Rule 37(2) of Chapter XIVA of the KER, the 7 th respondent is considered as senior on the basis of age, as per Government Order dated 22.11.1979. Ten years of service in teaching the blind and deaf, is the qualification. Both the petitioner and 7 th respondent have same years of experience in service. Therefore, the 7 th respondent was appointed taking into consideration his age. 10. The 4 th respondent further submitted that the argument of the petitioner that the District Educational Officer had approved the appointment of Smt. Susha Susan George as Headmistress considering only her service in the post of HST, is not correct. The said appointment was approved, reckoning her total service. 11. The 5 th respondent-Manager also filed a counter affidavit. The 5 th respondent submitted that the 7 th respondent was appointed as Headmaster on the strength of Ext.P6 Government Order and in exercise of minority rights guaranteed under Article 30(1) of the Constitution of India. Ext.P6 Rules are special provisions dealing with the Schools for handicapped. That has to prevail over KER. There is no provision requiring appointment of qualified Teachers or reference to them in Ext.P6. 12. Ext.P6 Rules are special provisions dealing with the Schools for handicapped. That has to prevail over KER. There is no provision requiring appointment of qualified Teachers or reference to them in Ext.P6. 12. In the counter affidavit, the 7 th respondent submitted that a careful reading of Ext.P6 Government Order would categorically establish that the post of High School Teacher has not been treated as a feeder category to the post of Headmaster. The requirement in Ext.P6 Government Order is that qualified Teachers in service having ten years of teaching the blind and deaf are entitled to be promoted to the post of Headmaster. Both the petitioner and the 7 th respondent commenced the service as Assistant Teachers with effect from 02.06.1997. Therefore, the 7 th respondent is entitled to seniority over the petitioner as the 7 th respondent is elder in age. 13. I have heard the learner counsel for the petitioner, the learned Government Pleader representing respondents 1 to 4 and the respective learned counsel appearing for respondents 5 and 7. 14. The petitioner as well as the 7 th respondent were appointed as UPA on 02.06.1997. The petitioner was appointed as HSA on 03.06.2013, whereas the 7 th respondent was appointed as HSA on 01.06.2022. The 7 th respondent was promoted as Headmaster on 01.06.2024. The question is whether the petitioner being senior in the category of HSA, should have been promoted as Headmaster in preference to the 7 th respondent. 15. It is not in dispute that the 5 th respondent-School being a special School, the entire provisions of the KER are not applicable to the School. Ext.P6 Order dated 22.11.1979 issued by the Government of Kerala governs the qualification and methods of appointment / recruitment of Headmasters, Assistant Teachers, and Special Teachers attached to the Schools for the handicap and resource teachers. 16. The educational qualifications prescribed for appointment to the post of Headmaster in Ext.P6 Government Order are as follows: “1.Qualification:- A.Headmaster on Rs . 535-835 (pre-revision) (i) B.A., B.Sc. or B.Com. (ii) L.T., B.T., or B.Ed. and (iii) Lower Certificate /Junior Diploma in Teaching the Blind (for Headmasters of Schools for the Blind and combined Schools for the Blind and Deaf). OR Lower Certificate / Junior Diploma in Teaching the Deaf (for the Headmasters of the Schools for the Deaf and combined Schools for the Deaf and Blind). or B.Com. (ii) L.T., B.T., or B.Ed. and (iii) Lower Certificate /Junior Diploma in Teaching the Blind (for Headmasters of Schools for the Blind and combined Schools for the Blind and Deaf). OR Lower Certificate / Junior Diploma in Teaching the Deaf (for the Headmasters of the Schools for the Deaf and combined Schools for the Deaf and Blind). Note (1) Preference will be given to the candidate who possess both the Lower Certificate / Junior Diploma in Teaching the Blind and Deaf, for appointment in combined Schools for the Blind and Deaf. (2) 50% of the posts of Headmasters are reserved for the qualified teachers in service with 10 years service in teaching the blind / deaf as the case may be. If qualified teachers with 10 years of service in teaching the Blind / Deaf are not available qualified teachers with 5 years of service or more will be eligible for promotion as teacher-in- charge of Special Schools, but they will not be given the Headmaster's scale. Only an allowance of Rs. 50/- will be paid in addition to his / her pay till he / she completed 10 years service. (3) Handicapped persons shall not be recruited or promoted as Headmaster of Special Schools.” 17. The petitioner as well as the 7 th respondent satisfy the educational qualifications for appointment as Headmaster. The petitioner argues that the 7 th respondent does not possess test qualifications required. A reading of Ext.P6 Government Order would show that passing of departmental tests have not been prescribed as mandatory qualification for appointment to the post of Headmaster. 18. Ext.P6 Government Order governing qualifications and methods of appointment to the Special Schools would indicate their 10 years service in teaching the blind / deaf is the qualification prescribed for appointment to the post of Headmaster in special Schools. If qualified Teachers with the 10 years of service in teaching the blind / deaf are not available, qualified Teachers with five years of service or more will be eligible for promotion as Teacher-in-charge of special Schools. Ext.P6 nowhere states that seniority for appointment as Headmaster should be based on the seniority in the category of HST. In fact, there is no indication in Ext.P6 that the category of HST is the feeder category for appointment / promotion to the post of Headmaster. 19. Ext.P6 nowhere states that seniority for appointment as Headmaster should be based on the seniority in the category of HST. In fact, there is no indication in Ext.P6 that the category of HST is the feeder category for appointment / promotion to the post of Headmaster. 19. The petitioner as well as the 7 th respondent were appointed in the School initially as UPSA on the same date namely 02.06.1997. As the date of joining of the petitioner and the 7 th respondent is the same, the School appointed the 7 th respondent as Headmaster, following Rule 37(2) of Chapter XIVA of KER. 20. The argument of the petitioner that provisions of the KER and Ext.P6 Government Order should be construed harmoniously, and going by the general rules of service law, seniority in the feeder category should be taken as basis for promotion, cannot be accepted. This is because Ext.P6 is a Government Order issued specifically to govern Special Schools and the conditions for appointment as Headmasters, have been laid down in Ext.P6 in clear terms. In the judgment in Sherin M. Chandy v. State and others (1993 KHC 253), this Court has held that the provisions of Chapter XIVA of KER are not applicable in the case of Teachers appointed in the Special Schools for handicapped in the State. 21. As both the petitioner and the 7 th respondent were appointed in service on the same day, the 5 th respondent appointed the 7 th respondent as Headmaster based on age, following the spirit of Rule 37(2) of Chapter XIV of KER. I do not find any illegality and arbitrariness in the appointment of the 7 th respondent as Headmaster. The writ petition is therefore without any merit and it is dismissed.