Kurian Joseph, J.

The question to be decided in these two cases is whether a teacher temporarily promoted as Headmaster in the absence of a qualified teacher under R.45C of Chap.XIV-A KER is entitled to the scale of pay attached to the post of Headmaster.

2. In order to understand the legal position it is necessary to appreciate the factual background. Therefore, reference is made to the facts of the former case.

3. The petitioner Smt. Radha entered service as LPSA on 8.6.1966. There arose a vacancy of Headmistress in the school under the third respondent on 22.11.1996. There were no qualified hands available for promotion. Petitioner was the seniormost teacher. To quote from the counter affidavit at paragraph 4, "since no qualified teachers for the Headmaster post were available in the school the appointment of Smt. A.G. Radha, the senicrmost teacher was approved as Headmistress temporarily with effect from 22.11.96 under R.45C Smt. A.G.Radha has more than 30 years of qualifying service as LPSA at the time of appointment as Headmistress, her pay was fixed at Rs.2,600/- in the Headmaster's scale of Rs. 1640-2900 with effect from 22.11.1996. Headmaster's Higher Grade was also sanctioned to the teacher with effect from 22.11.1996 at Rs.2750/- in the scale of Rs.2000-3200/-." It was this fixation that was objectionable in the audit. According to them the teacher acquired the required qualification by way of exemption only on attaining the age of 50, in the instant case on 28.5.1998 and therefore she is entitled to the pay scale attached to the post of Headmistress only from that date.

4. R.45C of Chapter XIV-A KER provides for temporary promotion to the post of Headmaster. To the extent relevant it reads as follows:

"45C. Temporary Promotion:--(1) Where in any aided school, a qualified teacher is not available to be promoted as Headmaster in accordance with the provisions contained in R.44, 44 A, 45,45 A and 45B the appointing authority shall promote, the seniormost teacher on the staff of the school or the schools under the Educational Agency as Headmaster, temporarily. Provided that in the case of High Schools and Training Schools the teachers so promoted shall be the seniormost graduate teacher on the staff of the school or the schools under the Educational Agency who has put in atleast 12 years of continuous graduate service as provided sub-r.(1) of R.44A of this Chapter and in the case of primary schools it shall be the seniormost teacher possessing qualifications prescribed in R.45 or, as the case may be, R.45A:

(5) The pay of the promotee shall be fixed as provided in R.43A.

Provided that in the case of Headmaster of Aided Primary school the promotee is entitled to draw the scale of pay applicable to the Headmaster of Government School only on completion of the period of service as specified in sub-r.(1) of R.I, Chapter XXVI, and in the case of Headmaster of Aided High Schools and training schools, the promotee as entitled to draw the departmental Headmaster's scale of pay only on completion of the period of service as specified in R.3, Chapter XXVI. Those who have not completed the prescribed service qualification for drawing the respective departmental Headmaster's scale of pay will be paid their grade pay and supervision allowance only".

R.43A of Chapter XIV-A KER reads as follows:-

"43A. A teacher promoted from a Lower Scale of pay to a Higher Scale of pay shall have his initial pay in the higher scale of pay fixed applying Rr.28A and 37 of Part I Kerala Service Rules. A fixation of pay will be allowed whenever there is change of pay in the lower time scale.

Note 1. The Government may in individual cases fix by special order the pay of an officiating teacher at an amount less than that admissible under these rules.

Note 2. If the teacher promoted to officiate in the higher post is reappointed to the lower post in the service rendered in the higher post will count for increment in the lower time-scale to which he is