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1977 Supreme(Ker) 312
High Court of Kerala
Vazhakkulangarayil Khalid, J.
Balakrishnan Nambiar & Ors - Appellant
Versus
State of Kerala & Ors - Respondent
O.P. No. 119 of 1976
Decided On : 23-06-1977
The main legal point established in the judgment is that untrained teachers, by virtue of S.151(3), became Government servants automatically and were entitled to seniority as per Rule 27 of the Kerala State and Subordinate Services Rules, 1958.
Headnote:
Seniority - Untrained Teachers - Kerala Panchayats Act, 1960 - Madras District Boards Act, 1920 - Madras Village Panchayats Act, 1950 - Kerala State and Subordinate Services Rules, 1958
Fact of the Case:
The case involved untrained teachers appointed under the 'Relief of educated unemployed' scheme sponsored by the Madras Government. After the schools were taken over by the Government, the question arose whether they could claim seniority against those with necessary qualifications.
Finding of the Court:
The court held that the untrained teachers, by virtue of the operation of S.151(3), became Government servants automatically and their service conditions should be governed by the Kerala State and Subordinate Services Rules, 1958. The court also found that the untrained teachers were entitled to seniority as per Rule 27, and quashed certain orders affecting their seniority.
Issues: The main issue was whether untrained teachers could claim seniority against those with necessary qualifications, and whether the conditions of service as per S.151(3) would affect their entitlement to seniority.
Ratio Decidendi: The court relied on the Kerala State and Subordinate Services Rules, 1958, particularly Rule 27, to determine the seniority of the untrained teachers. It held that in the absence of any other rule having the force of law sufficient to override the effect of Rule 27, Rule 27 should prevail, entitling the untrained teachers to succeed in their claim for seniority.
Final Decision: The writ petitions were allowed, certain orders were quashed, and the untrained teachers were entitled to have their seniority restored as claimed by them. The court directed the Regional Deputy Director of Public Instruction to refix the seniority list in conformity with the directions given.
V. Khalid, J.
1. These Writ Petitions involve a common question of law and are therefore being disposed of by a common judgment. In O.P. No, 119/76 there are four petitioners. Petitioners 1, 3 and 4 were appointed as Headmasters respectively on 17th February 1955, 5th October 1956 and 6th May 1955. The second petitioner was appointed as teacher on 5th July 1956. In O. P. No. 3923/76 the petitioner was appointed as Headmaster on 1st November 1954. In O.P. No. 3946/76 the petitioner was appointed as teacher on 23rd April 1956. In O.P. No. 3987/76 the petitioner was appointed as Headmaster on 4th November 1955. In O.P. No. 4354/75 the first petitioner was appointed as Headmaster on 23rd January 1956, the second petitioner on 25th September 1954, the third petitioner on 27th December 1954, the fourth petitioner on 3rd October 1955, the fifth petitioner on 19th March 1956 and the sixth petitioner on 27th December 1954. All the petitioners except the petitioners in O.P. No. 4354/75 were appointed under the Malabar District Board and the Petitioner in O.P. 4354/75 were appointed under the South Kanara District Board. All the petitioners were appointed in schools that are called single teacher schools,
2. The petitioners were appointed as untrained Headmasters under the "Relief of educated unemployed" scheme sponsored by the Madras Government during the first five year plan. All the District Board Schools were taken over by Government with effect from 1st October 1957 and therefore the former District Board teachers including single teacher school teachers became Government employees from 1st October 1957. With the coming into force of the Kerala Panchayats Act. 32 of 1960, the Madras District Boards Act, 1920, the Madras Village Panchayats Act, 1950 etc. were repealed by section 151. Under S.151(3) all the employees of the District Board, became on the repeal of the Madras District Boards Act, employees of the Government, subject to such conditions of service as the Government may fix.
3. Admittedly the writ petitioners had no training qualifications when they were appointed. Their appointments were under peculiar circumstances. They were appointed as untrained teachers and they continued to be so when these schools were taken by the Government. The question is whether they can, by virtue of this special benefit extended to them, press their claim for seniority against those who had the necessary qualifications when appointed. The counsel for the State would contend that the petitioners claim cannot be sustained since all of them were untrained teachers. On the other hand the petitioners counsel would contend that there are sufficient materials in the case to indicate that the Government had accepted the period of service of the untrained teachers appointed prior to 10th April 1958 for reckoning their seniority.
4. It is submitted that by virtue of the operation of S.151(3), the petitioners became Government servants automatically. That being so, their service conditions should be governed by the provisions contained in the Kerala State and Subordinate Services Rules, 1958. Under R.27 seniority is to be fixed with reference to the date of first appointment or the date of advice by the Public Service Commission as the case may be. Appointment to a service is defined in R.2(1), Part I of the K.S.S.R. as the date on which he discharges the duties of a post borne on the cadre of such service or commences the probation etc. In the case of the petitioners by virtue of the operation of S.151(3) they should be deemed to have been appointed to the service on the date of their first appointment the respective dates being given in the petition and also indicated above. The scope of R.2(1), Part I has been clarified by a Division Bench of this Court in the decision reported in Joseph v. State of Kerala 1972 KLT 45 at page 46 in paragraph 4.
5. The Government Pleader had two contentions against the claim by the petitioners. According to him S.
