C.K. ABDUL REHIM, J.

1. The 4th respondent in the writ petition, who is the Manager of an aided Higher Secondary School, is in appeal against judgment of the Single Judge, which is mainly concerned with interpretation of Rule 44A of Chapter XIV-A of the Kerala Education Rules (KER for short).

2. There were rival claims between the petitioners in the writ petition and the 5th respondent therein with respect to promotion to the post of Headmaster in the appellant's/4th respondent's school. While deciding the issue the learned Single Judge observed that, the petitioners stood permanently exempted from acquiring the test qualification prescribed under Rule 44A, by virtue of the 2nd proviso to that Rule. It is held that, as long as the proviso grants a general exemption, the petitioners stood exempted from acquiring the test qualification as on the date of arising of the vacancy. Hence it is found that the only criteria for promotion to the post of Headmaster is the seniority. Resultantly the impugned order passed by the appellant/Manager promoting the 5th respondent therein as Headmaster was quashed and the Manager was directed to issue fresh appointment considering the seniority.

3. Contention of the appellant is that, interpretation with respect to applicability of the 2nd proviso to Rule 44A, is illegal and improper, especially in view of the fact that the State Government have issued Ext.P3 order clarifying the effect of the said proviso. Learned counsel for the appellant contended that, the view taken in the impugned judgment is not legally correct because the 2nd proviso to Rule 44A can be interpreted only as granting exemption from acquiring the test qualification, in a case where no qualified teachers are available under the same management. Further contention is raised that the learned Judge went highly erred in granting the relief without quashing the Government Order, which was in force at the relevant time of promotion and which the appellant was bound to comply with.

4. We take note of the fact that, while deciding the writ petition the learned judge placed reliance on an earlier judgment passed by him in WP (C) No. 15353/16. A copy of the said judgment is made available for our perusal. Evidently, while interpreting the 2nd proviso to Rule 44A of Chapter XIV-A KER it was observed that a candidate who had crossed the age of 50 years as on the date of arising of the vacancy stands permanently exempted from acquiring the test qualification prescribed under Sub-Rule (1) to Rule 44A. Therefore a candidate who had crossed the age of 50 years as on the date of arising of the vacancy need to be treated as a candidate fully qualified in all respects for promotion to the post of Headmaster. If that be the case, the only criteria which need to be looked into is the seniority, as contemplated under Rule 44 of Chapter XIV A KER. While taking such a stand the learned Judge had placed reliance on another decision of this court in Jolly George vs. Manager, 2015 (4) KLT 679. In the said case, while interpreting provisions of sub Rule 4 of Rule 45B of chapter XIV A KER, which is in almost pari materia with the 2nd proviso to Rule 44A, it is held that, there is a permanent exemption granted to the teachers who had attained the age of 50 years and that there is nothing to show that such exemption is confined to the date on which such provision was brought into force. Even-though the question decided is not strictly the one which arises for consideration in the present case, the effect of a permanent exemption is seen considered in that decision.

5. While considering the legal contentions we are of the opinion that, the wording of the statute in the 2nd proviso to Rule 44A, that teachers who have attained the age of 50 years shall stand permanently exempted from acquiring the test qualification, would make the situation clear that any teacher who had crossed the age of 50 years stands permanently exempted from acquiring the test qua