JUDGMENT
A.K. Basheer, J.
1. The short but interesting question that has come up for consideration in these Writ Petitions is whether the claim of a Language/Specialist teacher of an aided upper primary school for promotion to the post of Headmaster is in any way inferior to that of a qualified Upper Primary School Assistant with equal qualifications. Yet another ancillary question that has cropped up is whether a graduate teacher with B.Ed., who had entered service with those qualifications, is entitled to claim a superior right for promotion to the post of Headmaster as against a senior graduate teacher with B.Ed., who had acquired those qualifications much later.
2. Relevant facts as are available in Writ Petition No. 4397/2005 may be briefly noticed.
3. The post of Headmaster in K.M. Upper Primary School, Edayur fell vacant on March 25, 2003 when the incumbent Headmistress entered on leave preparatory to her retirement on superannuation. The Manager promoted and appointed respondent No. 5 who is a graduate with B.Ed., as Headmistress. The above appointment was made rejecting the claim of respondent No. 6 who is a Sanskrit teacher having graduation and B.Ed, to his credit. However, by order dated April 4, 2003, a copy of which is on record as Ext. P2, the Asst. Educational Officer, Kuttippuram, refused to approve the above appointment. The appeal preferred by the Manager against the above order was dismissed by respondent No. 3. A copy of the order of the appellate authority has been produced as Ext. P4. Though the Manager preferred revision petitions before the Director of Public Instruction and also the Government, those-petitions were also dismissed. Thus, all the authorities concurrently found that respondent No. 5 was not eligible to be appointed as Headmistress overlooking the claim of respondent No. 6, the Sanskrit Teacher. While the Manager and the unsuccessful teacher have preferred Writ Petition Nos. 4397/2005 and 4114/2005 respectively, the Language teacher had approached this Court even earlier in Writ Petition No.25355/2004 praying for a direction to the Manager to appoint him as Headmaster in terms of the orders passed by the educational authorities.
4. It is contended by Shri K.R.B. Kaimal, learned Senior Counsel for the Manager that the orders passed by the statutory authorities are manifestly illegal and vitiated. Respondent No. 5 who had entered service after acquisition of graduation and B.Ed., had got a longer period of qualifying service to her credit as compared to that of respondent No. 6 who started his service in the school as an under-graduate Sanskrit teacher. He obtained his graduation and B.Ed, qualification after the entry of respondent No. 5 in service. Though respondent No. 6 is senior in service to respondent No. 5, he had a shorter tenure of qualifying service to his credit on the crucial day when the vacancy arose. It is further contended that respondent No. 6 had to he treated as the junior most among the graduate teachers, since he had acquired graduation and B.Ed, in the course of his service. In other words, the contention is that since respondent No. 5 had entered service as a qualified graduate teacher, she had a better claim over respondent No. 6 who started service only as an under-graduate teacher, though later on he became a qualified graduate teacher.
5. Respondent No. 5 had admittedly joined the service as an Upper Primary School Assistant on July 14, 1983. She had a Bachelor’s degree in Science and B.Ed, to her credit at the time of joining the service. It is also not in dispute that respondent No. 6 joined the service in the school on June 6, 1979 as a Sanskrit Teacher with Pre degree (Sanskrit) as his qualification. It is beyond controversy that the above qualification is the prescribed qualification for a Language teacher as provided in Chapter XXXI Kerala Education Rules. Respondent No. 6 passed his B.A. degree examination in the year 1986 and obtained his B.Ed, degree in the year 1988. He had also passed the obligatory Account test lower and higher in June, 2002.
6. Rule 45 of Chapter XIV-A K.E.R. postulates that the post of Headmaster in a complete Upper Primary School shall be filled up from among the qualified teachers of 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. It is pertinent to note that Rule 45 is subject to Rule 44 which mandates that appointment of Headmasters shall ordinarily be according to seniority, from the seniority list prepared and maintained under Clauses (a) and (b) of Rule 34. It is also relevant to note that Rule 4 makes it mandatory that every management shall prepare and maintain a seniority list of teachers. In the case of Upper Primary and Lower Primary Schools a combined seniority list of teachers shall be prepared as provided under the relevant rules.
7. It is not in dispute that the school in question is an aided complete Upper Primary School and the provisions contained in Rule 45 are squarely applicable. It is admitted by the Manager and respondent No. 5 that respondent No. 6 is senior to respondent No. 5 in the seniority list. While respondent No. 5 is placed at serial No. 12, respondent No. 6 is ranked at No. 6 in the list. Thus, if the inter se seniority between respondent Nos. 5 and 6 is taken into account, obviously respondent No. 6 is better placed.
8. However, it is contended by the Manager and respondent No. 5 that the period of “qualifying service” rendered by respondent No. 6 as a graduate (with B.Ed.) teacher is much shorter as compared to that of respondent No. 5. Respondent No. 5 had been in service as a graduate teacher with B.Ed, since 1983. Though respondent No. 6 had entered service in the year 1979, he was only an under graduate teacher at that time. He obtained his B.A. degree in the year 1986 and passed his B.Ed, degree examination only in the year 1988. Thus, his service as a qualified graduate teacher was admittedly for a shorter period. It is further contended that the period of service rendered by respondent No. 6 as an under graduate teacher cannot be reckoned as “qualifying service” for promotion as Headmaster and therefore respondent No. 5 with a longer period of “qualifying service” to her credit, was entitled to be promoted as Headmistress.
9. In my view, the above contention is totally misconceived. As noticed earlier, Rule 45 only postulates that the post of Headmaster shall be filled up from among the qualified teachers of the staff of the school. The said Rule does not contemplate reckoning of length of “qualifying service of graduate teachers with B.Ed,” If there are more than one graduate teacher with B.Ed, or other equivalent qualification, the senior most among them has to be preferred, because as noticed earlier, Rule45 is only subject to Rule 44. The above rule does not contemplate any ‘qualifying service’ as vehemently contended by the Manager and respondent No. 5. What is stipulated in Rule 45 is that the post of Headmaster shall be filled up from among the qualified teachers in the school. The prescription of “qualifying service” for reckoning the eligibility for promotion to the post of Headmaster in an aided Upper Primary School is alien to the Kerala Education Rules. If there are graduate and under graduate teachers among the staff, the graduate teacher with B.Ed, or other qualification, and who has got at least five years experience in teaching after acquisition of B.Ed, may be appointed as Headmaster, if he has got a service equal to half of the period of service of the senior most under graduate teacher. When it comes to the question of eligibility of one among the qualified graduate teachers with B.Ed., undoubtedly the senior amongst them should be preferred.
10. The other contention raised by the Manager is based on the Note in Rule 45 which reads thus:
Note: The language/specialist teachers according to their seniority in the combined seniority list of teaches 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.
(emphasis supplied)
it is contended by the learned Counsel that a language teacher like respondent No. 6 who entered service as an under graduate teacher merely on the strength of his specialisation in the language concerned, cannot be treated on par with an upper primary school assistant falling within the ambit of Rule 45. The contention of the learned Counsel is that respondent No. 6 who is only a language teacher, will fall within the zone of consideration for promotion as Headmaster only by virtue of the Note under Rule45. But if there are other qualified teachers with graduation and B.Ed, to their credit and who satisfy the other conditions in Rule 45, language/specialist teachers like the petitioner need not be considered for promotion at all. Is this contention legally tenable?
11. It may be noticed that the Note under Rule 45 was incorporated in the Kerala Education Rules in the year 1985. In Writ Appeal No. 318/1975, a question as regards the inter se seniority of an Assistant and a language teacher had arisen for consideration. The Division Bench, while confirming the view taken by the learned single judge, held that inter se seniority of the two teachers, whether they are Assistants or Language Teachers, will have to be determined with reference to their length of continuous service in the same grade. The Note under Rule 45 was introduced in the K.E.R. after the above judgment was rendered by the Division Bench. The uncertainty about the eligibility of language teachers with requisite qualifications for promotion as Headmaster was thus obviated or clarified by the introduction of the Note under Rule 45 in Chapter XIV-A K.E.R. A perusal of the Note makes it unambiguously clear that a language/specialist teacher shall also be eligible to be appointed as Headmaster of an Upper Primary School according to the seniority in the combined seniority list, provided he possesses the prescribed qualifications on the date of occurrence of vacancy.
12. However, the contention of the Manager appears to be that there are two channels for promotion to the post of Headmaster in Upper Primary schools; (a) from among graduate teachers with B.Ed, or other equivalent qualification; and (b) from language/specialist teachers and under graduate teachers. It is contended by the learned Counsel for the Manager that language/specialist teachers shall come into reckoning for promotion to the post of Headmaster only if graduate teachers with B.Ed, and requisite minimum years of service as provided under Rule 45 of the Rules are not available. According to the learned Counsel the Note has to be treated as subservient to the main body of Rule 45 and the language/specialist teachers will get a right to be considered for promotion only if there are no qualified candidates as provided under the main rule.
13. The above contention cannot be sustained for reasons more than one. The seniority list of teachers as contemplated under Rule 34 does not envisage any distinction between graduate/under graduate teachers or language/specialist teachers. What is provided under Rule 34 is that the management shall prepare and maintain a combined seniority list of teachers in the case of Upper Primary and Lower Primary schools irrespective of their qualifications. Of course, a tussle or conflict of interest may arise between a graduate and a non graduate teacher in the matter of promotion to the post of Headmaster, if there is a senior non-graduate teacher in the school. Rule 45 stipulates that in such a contingency, 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., 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. But in the case on hand, such a contingency did not arise at all. Respondents 5 and 6 are both graduates with B.Ed. Both of them had five years service to their credit after acquisition of B.Ed, as on the date when the post of Headmaster fell vacant. Therefore, the Note under Rule 45 does not come into play at all.
14. Learned Counsel for the petitioner has raised yet another contention. It is submitted that since respondent No. 6 had acquired graduation and B.Ed, qualification while he was continuing in service, he shall be treated as the junior most among the graduate teachers as on the date when he became a graduate teacher. Learned Counsel places reliance on a decision of their Lordships of the Supreme Court in Chandravathi v. Saji 2004 (2) KLT 320 (SC) in support of the above contention. The question which arose for consideration before their Lordships was whether in terms of the scheme of the Kerala Engineering Service (General Branch) Rules diploma holders were entitled to claim any weightage in the service rendered by them prior to their acquisition of degree qualification, in the matter of promotion or transfer to higher posts in the Kerala Water Authority, when specific quota is fixed for graduates and diploma holders in the matter of promotion.” The Supreme Court held that since “separate seniority lists were being maintained in respect of the degree holders, diploma holders and certificate holders, once a diploma holder acquires a qualification of a degree in engineering for being included in the stream of the degree holders, he would have to be placed at the bottom of the relevant seniority list.” (emphasis supplied) I am afraid, the above dictum laid down by the Supreme Court cannot have any bearing on the factual or legal position available in this case. Therefore, the contention that a language/specialist teacher cannot be considered for promotion to the post of Headmaster so long as a graduate teacher (even if junior), is available in the school, is wholly misconceived and untenable.
15. Evidently separate seniority lists were maintained in respect of diploma holders, certificate holders and graduates in the above case. In the case on hand, it is the admitted position that a common seniority list is being maintained. Therefore, the above contention based on Chandravathi’s case (supra) cannot be sustained at all.
16. As noticed earlier, there is no ambiguity as regards the provisions contained in Rule 45 in relation to the eligibility for promotion to the post of Headmaster from among the qualified teachers in the school. If a graduate teacher with B.Ed, qualification satisfies the conditions stipulated under Rule 45, he will be eligible for promotion and appointment, as against the claim of an under graduate teacher, if the former has got a service equal to half of the period of service of the senior most teacher belonging to the latter category. But if the rival claimants are graduates with B.Ed., the rule makes it clear that the senior among the two shall get preference. The only condition to be satisfied is that a graduate teacher with B.Ed, qualification should have at least five years experience in teaching after acquisition of B.Ed, degree.
17. The statutory authorities had rightly found that respondent No. 6 had graduation with B.Ed, to his credit and he had also got more than five years experience in teaching after acquisition of B.Ed. More importantly, he was senior to respondent No. 5 in the combined seniority list. Thus, respondent No. 6 in Writ Petition Nos. 4114/2005 & 4397/ 2005 was, in any view of the matter, eligible to be promoted and appointed as Headmaster with effect from March 25, 2003, the date on which admittedly the post of Headmaster fell vacant in the school. Therefore, the two questions posed in the judgment are answered in the negative.
16. Writ Petition No. 25355/2004 is allowed. The petitioner shall be appointed as the Headmaster of the school forthwith. He will be eligible to get all the service benefits including the scale of pay of Headmaster with effect from March 25, 2003, Appropriate consequential orders shall be issued by the respondents concerned within 10 days from the date of receipt of a copy of this judgment.
Writ Petition Nos. 4114/2005 and 4397/2005 are dismissed.
