Jawahar Lal Gupta, C.J. (Oral)

Does a teacher who is transferred from one school to another and is placed at the bottom of the seniority list in the new school, which is under a different management, lose the benefit of the service rendered by him in the previous school for the determining his eligibility for promotion to the post of Headmaster? This is the short question that arises for consideration in this appeal. A few facts as relevant for the decision of the case may be briefly noticed.

2. On June 21, 1980, the appellant joined service as a High School Assistant in Mathematics at the I.O. High School, Edavanna. On February 1, 1986, he was transferred under Rule 11 of Chapter XIV-A, of the Kerala Education Rules to the P.T.M. High School, Maruthoorkonam. In pursuance to the order of transfer, the appellant was relieved of his duties on February 13, 1986. He joined the new school on February 14, 1986. On his transfer, the appellant was placed at the bottom of the seniority list in the cadre of High School Assistants.

3. The 6th respondent had joined service at the P.T.M. High School, Maruthoorkonam on July 15, 1985. In the seniority list a maintained under Rules 34 and 37, the 6th respondent was admittedly shown senior to the appellant.

4. Sri.G.R.Bhaskaran Nair was the Headmaster of the P.T.M. High School till May 31, 1997. On that day, he retired. Thus the post of Headmaster had fallen vacant on June 1, 1997. The appellant claimed that he was the only eligible High School Assistant in the school. Thus, he had a right to be promoted to the post of Headmaster. His claim was not accepted. Instead, respondent No.6 who had not completed the prescribed period of 12 years of continuous service as a High School Assistant was ordered to be promoted. A copy of the order passed by the District Educational Officer is Ext.P2. The approval was granted to the appointment of the 6th respondent despite the fact that he did not fulfill the prescribed qualification of 12 years of continuous service as High School Assistant. The appellant filed an appeal. It was accepted by the third respondent, the Deputy Director of Public Instruction, vide order dated April 1, 1998. A copy of this order is Ext.P3. The school Manager, viz. respondent No.5 challenged the order. The Director of Public Instructions accepted the appeal vide order dated August 12, 1998. A copy of the order is Ext.P4. The appellant filed a revision petition. It was rejected by the Government vide order dated April 8, 1999. A copy of the order is at Ext.P5. Having lost before the Government, the appellant filed a petition under Article 226 of the Constitution of India.

5. The learned Single Judge considered the matter. In view of the decision of a Division Bench of this Court in W.A.No.214 of 1998 decided on March 24, 1998, it was held that the period of service rendered in the previous school could not be counted as experience. Thus the Writ Petition was dismissed. Hence, this appeal.

6. The matter was placed before a Division Bench of this Court. Learned counsel for the parties were heard. On behalf of the respondents, reliance was placed on the decision of the Division Bench as referred to above. The correctness of the view as taken by the Bench in W.A.No.214 of 1998 was doubted. It was observed that Rule 44A did not contemplate that the graduate service rendered by a High School Assistant in the previous school has to be "discarded". Thus, the matter was referred to a larger Bench.

7. We have heard the learned counsel for the parties. On behalf of the appellant, Mr.Sudhakara Prasad has contended that the view taken by the Division Bench in C.M.Molly v. D.E.O.,Aluva (W.A.No.214 of 1998) is not in conformity with the Rules. It does not embody a correct statement of law. Thus, the decision rendered by the learned Single Judge cannot be sustained. The learned counsel for the respondents controverted the claim made on behalf of the appellant. It has been contended that on t