K. Vinod Chandran, J.

1. The petitioner was appointed as a Lower Primary School Assistant [for brevity "LPSA"] with effect from 19.10.1990. The petitioner has passed Account Test [Lower] and Test in Kerala Education Act and Rules, conducted by the Public Service Commission, which enables him to aspire for the post of Headmaster as provided under Rule 45B of Chapter XIV-A KER. The allegation in the writ petition is that, overlooking his claim the 4th respondent, who is not test qualified, was promoted on the basis of seniority only on the ground that the 4th respondent has crossed 50 years of age.

2. The contention raised by the petitioner's counsel is that the exemption granted under sub-rule (4) of Rule 45B is only for teachers who crossed 50 years of age as on the date of introduction of that provision. This is especially so, since the word used is "have" and there is introduced another provision at Rule 45BB, which makes sub-rule (4) of Rule 45B redundant. Even going by sub-rules (3) and (4) of Rule 45B, the Government grants temporary exemption to those who have crossed 50 years of age and a particular period of service as to enable them to qualify the test. The contention is also raised on the basis of Rule 18(1) of the Kerala Right of Children to Free and Compulsory Education Rules, 2011 [for brevity "Rules of 2011"].

3. The respondent has a specific contention that the writ petition is grossly delayed, since the appointment of the 4th respondent was on 01.05.2012 and the challenge is made in the year 2014; on the verge of the retirement of the 4th respondent. The learned counsel for the petitioner, however, would contend that the delay was occasioned only by reason of Rule 18 of the Rules of 2011, providing for three years, in which period an unqualified Headmaster could acquire the qualification provided thereunder. In the nature of the orders to be passed in the writ petition, this Court is of the opinion that the issue of delay can be left open.

4. With respect to Rule 18(1) of the Rules of 2011, the issue is covered by a judgment of this Court in W.P. (C). No. 14971 of 2014 and connected case, dated 24.06.2014, produced as Exhibit R1(a) in the above writ petition. Hence, the same has to be rejected, respectfully following the aforesaid decision.

5. With respect to the effect of Rule 45BB, this Court itself, found so in the judgment in W.P. (C). No. 22029 of 2015 dated 19.10.2015:

"4. The learned Counsel for the respondent however submits that the provision in sub-rule (4) of Rule 45B of Chapter XIVA K.E.R., which is extracted hereunder, only applies to teachers, who attained 50 years as on 24.02.1982; the date of introduction of such rule. Sub-rule (4) of Rule 45B of Chapter XIVA K.E.R. is extracted hereunder:-

Teachers who have attained the age of 50 years shall stand exempted permanently for acquiring the qualification specified in sub-rule (1).

To buttress the above contention, the learned Counsel would in fact refer to Rule 45BB to contend that otherwise there was no reason for the introduction of that Rule.

5. When sub-rule (1) of Rule 45B provided for an obligatory test qualification for promotion as Headmaster/Headmistress sub-rule (2) exempted all Headmaster/Headmistress as on that date from acquiring such qualification. This was effective from 19.12.1978. Subsequently on 04.07.1985, w.e.f. 19.12.1978 sub-rule (3) was introduced granting temporary exemption to teachers awaiting promotion from the test qualification till 31.03.1986 and then till 31.03.1988; the later amendment on 02.09.1986 w.e.f 01.04.1986. Rule 45BB was brought in to permit such temporarily exempted persons to occupy the Headmaster/Headmistress post even without test qualification; provided they attained 50 years and also completed 25 years of service, as on 10.05.1988. Rule 45BB did not deal with teachers who attained 50 years after incorporation of sub-rule (4) of Rule 45B. Rule 45BB only saved those, who were temporarily promoted under