Fully qualified service is to be taken into account for determining seniority, and an unqualified teacher cannot be regarded as senior in relation to a fully qualified teacher.

V. Balakrishna Eradi, J.

1. The short question that arises for decision in this writ petition is whether as between an unqualified teacher in an aided school who has commenced service in the said school a little earlier than a fully qualified teacher who has also been regularly appointed in service of the school, though shortly after the appointment of the unqualified teacher, the qualified teacher is liable to be retrenched from service when there is a shortfall of one post consequent on the fixation of staff-strength for a particular year.

2. In the staff fixation of 1974-75 for the M.K.M. L.P. School, Kanjoor, there was a reduction of one post of Lower Primary Assistant and consequently it became necessary to retrench the juniormost teacher working in the school. The petitioner Smt. C. P. Rajam, who is admittedly a fully qualified teacher came over to the service of this school on 8th August 1969 on intermanagement transfer from the St. George U.P. School, Puthempally. At that time the 5th respondent Smt. C. Padmavathy was already working in the M.K.M. L.P. School as an unqualified hand. Under rule 13 of Chapter XIV-A a teacher who has been transferred at his own request from one school to another school run by a different management will have to take rank as the juniormost teacher in the particular category in the new school to which he is transferred. Apparently acting on the basis of the said rule the Director of Public Instruction informed the District Educational Officer, Always as per the letter Ext. P-4 dated 11th February 1975 that since the petitioner had joined duty on 8th August 1969 on intermanagement transfer she is to be regarded as junior to the 5th respondent despite the latter being only an unqualified hand and that the petitioner is the person liable to be retrenched for want of vacancy. The correctness of the said view taken by the Director of Public Instruction is under challenge in this writ petition.

3. The relevant rule governing the determination of seniority of teachers of aided school is rule 37 of Chapter XIV-A of the Kerala Education Rules. That rule reads:

"37. (1) Seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit provided he is duly qualified for the post."

It is implicit from the above rule that for the purpose of seniority only fully qualified service is to be taken into account. Inasmuch as the 5th respondent is admittedly not a qualified teacher she cannot be regarded as senior in relation to the writ petitioner who is fully qualified and who has been regularly appointed in the service of the school. The effect of rule 13 is only to lay down that teachers who are transferred from one school to another, otherwise than under rule 10, which deals with cases of transfers of teachers employed by the educational agencies having more than one school, will take their rank, in the new school next below the juniormost teacher in the particular grade. The reference in the said rule to the juniormost teacher can cover only qualified teachers since under rule 37 only such teachers will be eligible for the assignment of seniority and rank. There is, therefore, nothing in rule 13 which confers on an unqualified teacher who may be already working in the particular school a right to be regarded as senior in relation to a fully qualified teacher who subsequently joins the said school pursuant to an intermanagement transfer given to him under the rules. The contrary view by the Director of Public Instruction in Ext. P-4 cannot, therefore, be sustained.

4. Ext. P-4 will accordingly stand quashed. There will be a declaration that as between the petitioner and the 5th respondent, the petitioner is entitled to be retained in the service of the school in preference to the 5th respondent when there is any redaction of sanctioned staff-strength and that the petitioner was not liable to be retrenched from service during 19