Point of Law: Rule 44 reads as appointment of Headmasters shall ordinarily be according to seniority from the seniority list prepared.

JUDGMENT :

The petitioner, Sri. Xavier T.J commenced service as High School Assistant (Physical Science) (for short, ’HSA(PS)’) from 17.07.1989 onwards on a regular basis at St. Sebastian’s High School, Punnakkara (hereinafter referred to as the, 'School'), which is an aided School in terms of Kerala Education Act and Rules. Ext.P1 is the proceedings of the 4th Respondent, The District Educational Officer, Kozhikode, which would reveal that the petitioner was appointed with approval on a regular basis from 17.07.1989 as HSA(PS) and the 7th respondent, Sri. K.J. Jose, another teacher in the school was was appointed with approval from 23.10.1989 as HSA(PS). Therefore, the dispute on seniority between the petitioner and the 7th respondent was settled in favour of the petitioner who commenced service on a regular basis from 17.07.1989 onwards. It is the case of the petitioner that, while continuing as HSA(PS), the petitioner acquired the departmental test qualification with a pass in the Account Test (Lower) and (Higher) under the Kerala Education Act and Rules. Exts.P2 to P4 are the certificates to show that the petitioner has qualified the tests. Hence it is contented by the petitioner that he became qualified for promotion as Headmaster of the School under Rule 43 r/w Rule 44A of Chapter XIV(A) of Kerala Education Rules,1959 (hereinafter referred to as, ’KER’).

2. It is submitted that the incumbent Headmaster named Shalee A. Jose, of the School retired on superannuation on 31.05.2018. Thus, a vacancy of Headmaster arose in the School with effect from 01.06.2018. It is the case of the petitioner that the 7th respondent was appointed as the Headmaster of the School in the vacancy of Smt. Shalee A. Jose as per Ext.P5 order dated 05.06.2018. According to the petitioner, the 7th respondent being junior to the petitioner and an excess HSA(PS) on being retrenched during 2008-09 from the 5th respondent School was working on deployment on protection in another School namely the Government High School, Cheruvady at the time when the vacancy of Headmaster arose in the 5th respondent's School.

It is the definite case of the petitioner that, as per the proviso to Rule 37, it is provided that the period of service rendered in the parent School or in another School by a teacher, who is relieved under Rule 52 shall be reckoned for seniority only on his re-appointment in the parent School. Therefore, it is submitted that the 7th respondent being retrenched and working on deployment at the time when the vacancy of Headmaster arose can claim seniority for promotion only on being re-appointed to the parent School as HSA(PS). Hence it is submitted that the 7th respondent cannot be promoted straight away as the Headmaster of the School while working as HSA in another School on protection without being reappointed as HSA first in his parent school. It is also submitted that a vacancy of HSA(PS) will arise in the 5th respondent School only after promoting an existing HSA as Headmaster. Therefore, it is submitted that a vacancy of HSA had not arisen in the School as the senior-most HSA on the roll namely the petitioner was not promoted. Hence it is submitted that an HSA working on deployment in another School can be re-appointed in the parent School only after a vacancy of HSA has arisen in the parent School and hence the 7th respondent cannot straight away be promoted as Headmaster. It is submitted that the 7th respondent was relieved from the Government High School, Cheruvady with effect from 04.06.2018 and he was illegally appointed by the 6th Respondent, the Corporate Manager straight away as Headmaster with effect from 05.06.2018. This is also in violation of the provisions of the Rules, is the submission. However, when the proposal for approval of the promotion of the 7th respondent was taken up with the 4th respondent, his promotion was rejecte