IMPORTANT POINT
• If the senior acquires the test qualifications within the period, the junior who is also qualified can raise no objection on his senior being then posted as Head Teacher on acquisition of qualification. The proviso only enables a teacher to acquire the qualification within three years and seek for the post of Head Teacher on acquiring the test qualification. It does not enable the State to make appointments in violation of the rule, by promoting a senior who is not qualified in accordance with the Rule
• The unqualified senior teachers would be entitled to appear for the test and acquire the test qualifications within three years. On acquiring such qualification if any junior has been promoted earlier, within the three year period, the senior who qualified within that period would be entitled to seek promotion as Head Teacher on the basis only of his/her subsequent qualification within the three year period. In that circumstance the junior has to be reverted and the senior promoted as Head Teacher. The pay drawn by the Junior in the post of Head Teacher, in the interregnum would be his entitlement and the senior would be entitled to the higher pay and allowances, if at all there is any in the post of Head Teacher, only from his/her date of promotion.

JUDGMENT :

K.VINOD CHANDRAN, J.

1. Whether the test qualification specified in Rule 18(1) of the Kerala Right of Children to Free and Compulsory Education Rules 2011 [for brevity 'the Rules'] is mandatory even for the teachers who have crossed the age of 50 years is the issue arising in the Original Petitions.

2. The petitioners in O.P.(KAT) Nos.105 and 259 of 2019 are persons qualified in the mandatory tests prescribed. They canvassed for the position that after the Rules came into effect and the prescription made, there can be no Head Teacher appointed without the test qualification which has been specified by the Government. The petitioners in O.P.(KAT) Nos.181 and 184 of 2019, who were not originally impleaded in the Original Applications before the Tribunal, are persons who filed review before the Tribunal. They are teachers who crossed 50 years of age and are eligible to be posted as Head Teachers on the basis of their seniority, but are disabled for reason of they having not acquired the test qualification. They contend that they need only acquire such qualification within three years.

3. Before the Tribunal the challenge was against Annexure A6 dated 06.03.2018 as produced in O.A.No.1018 of 2018, which granted exemption from test qualification to teachers who have crossed 50 years of age. The said exemption granted by notification was alleged to be in conflict with Rule 18(1). Before looking at the controversy which can be resolved on interpretation of Rule 18(1) and its proviso, we have to look at the background facts to pin-point on the controversy arising here.

4. Annexure A2 order was earlier challenged in W.P.(C) No.14971 and 15011 of 2014, again on the ground that it is in conflict with Rule 18(1). This Court took the view that unless and until the test qualifications required for appointment as Head Teacher are specified by a notification, the exemption granted cannot be found, ultra vires the Rules. This view was followed by the Tribunal in an Original Application, which has been approved by a Division Bench of this Court in O.P.(KAT) No.131 of 2015. It is an admitted fact that by Annexure A6 dated 06.03.2018 the Government has prescribed that Account Test (Lower) conducted by the Kerala Public Service Commission ['PSC' for brevity] and a pass in the test in Kerala Education Act and Kerala Education Rules would be obligatory qualification for promotion of teachers as Head Masters of LP and UP Schools. Hence, as of now there is a specification of the test qualifications required for promotion to the post of Head Teacher and the exemption granted is in conflict with the Rule. The Tribunal held so and we agree with the Tribunal.

5. However, the Tribunal on an interpretation of Rule 18(1) found that the proviso grants three years to a teacher for acquiring the test qualifications. The notification at Annexure 6 having been brought out on 06.03.2018, necessarily the teacher should be granted three years for the purpose of acquiring the said qualification, was the finding. Finding that the function of the proviso is to carve out an exception and the instant proviso having provided three years time for acquisition of test qualification, the exemption limited to three years was held to be not in conflict with Rule 18(1).

6. The specific direction sought for in the Original Applications was to exclude those teachers who do not have the prescribed qualification from the seniority list for the purpose of consideration for promotion to the post of Head Teacher. Again relying on proviso to Rule 18(1), it was found that such a direction cannot be issued. A review was filed by some of the petitioners as noticed above, who were not parties in the Original Application, on the ground that, based on the order of the Tribunal, persons who have crossed the age of 50 years and who have not acquired the test qualification are sought to be excluded. The review applicants obviously did not have the test qualifications and apprehended that the