IMPORTANT POINTS
Acquisition of test qualification under the Kerala Education Act and the Rules was prescribed under Rule 44A of Chapter XIV A KER as early as in the year 1968 and Account Test (lower) in the year 1976. Over a period of time, exemption had been given to the teachers for acquiring the qualification which was found to be unconstitutional in Pankajakshy’s case (supra). It is to give benefit to those teachers who had acquired the test qualification to be promoted as Headmasters in preference to those teachers who were given permanent exemption on attaining the age of 50 years that the Government Order dated 10.6.2015 had been issued.

ORDER :

A.M. Shaffique, J.

The Writ Petitions have been referred to this Court based on a reference order dated 29/5/2019 of the learned Single Judge. W.A.No.755/2018 relates to a similar issue and are heard and decided together.

2. The issue referred relates to interpretation of the 3rd proviso to Rule 44A of Chapter XIV A of Kerala Education Rules, 1959 (KER) inserted as per Gazette notification dated 13.12.2017, and brought into force w.e.f. 1.06.2015. Rule 44A with the provisos reads as under:

“44A. (1) Subject to the provisions contained in sub-rule (1) of Rule 44, the minimum service qualification for appointment as Headmaster in Aided Complete High Schools/Training schools shall be twelve years of continuous graduate service with a pass in the test in Kerala Education Act and the Kerala Education Rules and a pass in account Test (Lower) conducted by Kerala Public Service Commission:

[Provided that Headmasters of High and Training Schools, who were actually holding the said post on the eleventh day of June, 1974 shall stand exempted from passing the Account Test (Lower)]:

Provided further that Teachers who have attained the age of 50 years shall stand exempted permanently from acquiring the test qualification specified in sub-rule (1):

Provided also that, notwithstanding anything contained in the second proviso, in the case of appointment to the post of Headmaster, preference shall be given to those teachers who have acquired the test qualifications specified in this rule.”

3. By virtue of the third proviso, teachers with test qualifications as provided under Rule 44A are given preference for appointment to the post of Headmasters, as against teachers who do not have the test qualification. The question is whether the said proviso has only prospective operation and whether it negates the right of certain teachers who had obtained the benefit of second proviso.

4. In the reference order, the learned Single Judge observed that there has been conflicting views expressed by a few Division Bench judgments of this court and accordingly, the Registry was directed to place the matter for consideration before a Bench of more Judges.

5. In fact, prior to the aforesaid reference order, the learned Single Judge had taken a decision in W.P.(C) No.19421/2017 against which W.A.No.755/2018 had been filed. In the said case it was held that a test qualified person cannot have any preference for appointment, as against the petitioner who is the senior most HSA and above 50 years, who is entitled for the exemption as provided in the second proviso to Rule 44A. The said judgment was rendered based on the Division Bench judgment in Manager Pavandoor Higher Secondary School v. Sadanandan C.M. & Ors. (2016 (5) KHC 781). Both these judgments were rendered prior to the amendment, incorporating the 3rd proviso to Rule 44A, when a Government order dated 10/6/2015 was in force, which provided that teachers having test qualification have preference to be promoted as Headmaster, vis-a-vis teachers who availed the benefit of second proviso to Rule 44A. The Government Order was held to be invalid in the absence of a specific Rule.

6. During the pendency of the above matters, another Division Bench of this Court had occasion to consider an almost similar issue in W.A.No.925/2019 decided as per judgment dated 28.3.2019 (Harifa Beevi Kalen v. The Manager P.P.M. Higher Secondary School and Others). This Court after considering the effect of amendment bringing in 3rd proviso to Rule 44A of Chapter XIVA KER held that in so far as the Headmaster was appointed on 01.4.2017 on the strength of permanent exemption which he had, by virtue of the 2nd proviso to Rule 44A(1) of Chapter XIVA of KER and since the benefit had already inured to him, it cannot be taken away by giving retrospective effect to the 3rd proviso. It was therefore held that the amendment bringing in 3rd proviso to Rule 44A will only have prospective operation.

7. We heard the learned counsel appearing on ei