IMPORTANT POINT
Legislative amendments can be applied retrospectively, and exemptions do not create vested rights that are immune to change; thus, the retrospective application of rules is permissible if it does not violate constitutional rights.

ORDER :

P.B.Suresh Kumar, J.

The above matters are placed before this Full Bench on a reference by a Division Bench doubting the correctness of the decisions of two other Division Benches, one in Pavandoor Higher Secondary School v. Sadanandan, 2016 (4) KLT 207 and the other in Harifa Beevi Kallan v. The Manager, PPM Higher Secondary School and Others (W.A.No.925 of 2019).

2. The disputes in Sadanandan and Harifa Beevi Kallan relate to the appointment of Headmasters of Aided High Schools governed by Rule 44A(1) of Chapter XIVA of the Kerala Education Rules, 1959 (Rules) framed under the Kerala Education Act (Act), 1958. Rule 44A(1) as it stands now, excluding the Explanations and Note to the same, reads thus:

“(1) Subject to the provisions contained in sub-rule (1) of rule

44, the minimum service qualification for appointment as Headmaster, Headmistress, Vice Principal in Aided Complete High Schools/Training schools shall be twelve years of continuous graduate service with a pass in the test in the Kerala Education Act and the Kerala Education Rules and a pass in account Test (Lower) conducted by Kerala Public Service Commission.

Provided that Headmasters, Headmistress, Vice Principal 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, Headmistress, Vice Principal preference shall be given to those teachers who have acquired the test qualifications specified in this Rule.

Explanation I: xxx

Note: xxx

Explanation II: xxx ”

As explicit from the extracted provision, the sub-rule prescribes the minimum service qualification for appointment as Headmaster in Aided Complete High Schools/Training Schools. The qualifications prescribed are twelve years of continuous graduate service and pass in two tests namely, the test in the Act and Rules and Account Test (Lower), the latter conducted by the Kerala Public Service Commission. The second proviso to the Rule, however, exempts permanently, teachers who have attained the age of 50 years from acquiring the test qualifications. The third proviso to the Rule was added on 13.12.2017 with retrospective effect from 01.06.2015.

3. Prior to the introduction of the third proviso to the Rule, on 10.06.2015, the Government issued G.O.(MS) No.157/2015/G.Edn., providing that even though teachers who have attained the age of 50 years are exempted from acquiring the test qualifications, if there are test qualified teachers under the management, they shall be preferred over others for appointment as Headmaster. In Sadanandan, the Division Bench held that G.O.(MS) No.157/2015/G.Edn. has no legal effect inasmuch as it dilutes the statutory provision contained in the Rule that teachers who have attained the age of 50 years shall stand exempted permanently from acquiring the test qualifications, for a statutory provision cannot be diluted by an executive order. It is thereafter that the third proviso was introduced with retrospective effect from 01.06.2015 providing exactly the same stipulation as contained in G.O.(MS) No.157/2015/G.Edn. dated 10.06.2015.

4. Harifa Beevi Kallan was a case decided after the introduction of the third proviso to the Rule. In the said case, another Division Bench upheld the appointment of a teacher who completed the age of 50 years, but who had not qualified the tests as Headmaster, therefore, overlooking the claim of a test qualified teacher despite the introduction of the third proviso, taking the stand that by virtue of the second proviso to the Rule, a right is accrued in favour of the teacher who has completed the age of 50 years and the said right cannot be taken away retrospective