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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.Muhamed Mustaque, ACJ, Shoba Annamma Eapen, S.Manu, J.
Maidhily M. – Petitioner
Versus
The State of Kerala, Represented By Secretary To Government, Department of General Education and Ors. – Respondents
WA NO. 1664 OF 2023
Decided On : 25-07-2024
Fact of the Case:
The appellant, a retired Headmistress, challenged the rejection of her appointment as Headmistress based on Rule 44A of the Kerala Education Rules, which stipulates qualifications for the position. The rejection was due to the presence of other qualified teachers in the seniority list, despite the appellant's claim that the third proviso to Rule 44A should apply only when there are teachers over 50 with test qualifications.
Finding of the Court:
The court found that the third proviso to Rule 44A has an overriding effect over the second proviso, allowing preference for teachers with test qualifications regardless of age. The court emphasized the importance of having qualified Headmasters for effective school administration.
Issues: The main issues were whether the third proviso to Rule 44A applies only to teachers over 50 with test qualifications and the interpretation of the relationship between the second and third provisos.
Ratio Decidendi: The court held that the third proviso is intended to give preference to test qualified teachers for Headmaster appointments, irrespective of age, thereby overriding the exemption provided by the second proviso. This interpretation aligns with the legislative intent to ensure better school management.
Final Decision: The court concluded that the observations in the reference order regarding the classification of teachers under Rule 44A were correct and upheld the preference for test qualified teachers in appointments, dismissing the appellant's claims.
ORDER :
S.MANU, J.
A Division Bench of this Court by an order of reference directed to place this appeal before the Full Bench so as to consider the impact of the third proviso to Rule 44A of Chapter XIV-A of the Kerala Education Rules (KER) in the matter of appointment to the post of Headmaster/Headmistress. The Division Bench doubted the correctness of the observations in the reference order in Narayanan.A v. Vijayalakshmi P. and others [2020 (4) KLT 198] regarding classification of teachers into two based on the 2nd and 3rd provisos, rendered by a co-equal bench. In the reference order dated 19.10.2023, the Division Bench noted that the intention of the amendment by which the third proviso to Rule 44A was incorporated seems to be to give preference to teachers who have crossed the age of 50 years and possessed test qualification in preference to those who are exempted from acquiring the test qualifications by virtue of the second proviso to Rule 44 A. We are therefore called upon to decide these two aspects.
2. Reference to the relevant provision is essential to analyze the issue. Rule 44A is extracted hereunder omitting the explanations and the note thereunder:
[Provided that Headmasters [Headmistresses, Vice-Principals] 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)]
[x x x x ]
[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].”
3. The said Rule deals with appointment of Headmaster [Headmistress, Vice-Principal] in aided High Schools and Training Schools. The qualification is 12 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. The requirement of pass in the Kerala Education Act and the Kerala Education Rules was added in 1968 vide G.O.(P)No.479/68 dated 06.11.1968 which was notified in the Gazette dated 10.12.1968. The further requirement of pass in Account Test (Lower) conducted by PSC was incorporated in 1976 vide G.O. (P)No.149/76/Edn. dated 07.8.1976 notified in Gazette dated 31.08.1976. The first proviso to the Rule provided exemption for those who were holding the post of Headmasters on the 11th day of June, 1974 from passing the Account Test (Lower). The second proviso was inserted by G.O(P)No.96/97/G.Edn. dated 17.3.1997 as S.R.O.No.237/97 with effect from 02.03.1982. By virtue of it, teachers who have attained the age of 50 years are exempted permanently from acquiring the test qualification specified in sub-rule (1). The third proviso, effect of which is to be analysed in this reference was inserted by G.O. (MS)No.157/15 G.Edn. dated 10.06.2015 published in Gazette dated 13.12.2017 with effect from 01.06.2015. The gazette notification has been produced as Ext.P5 in the writ petition. Notification includes an explanatory note. The same is extracted hereunder:-
(This does not form part of the notification, but is intended to indicate its general purport)
Second proviso to sub-rule (1) of rule 44A of Chapter XIV A of the Kerala
Amendments to qualifications for Head-teachers cannot have retrospective effect as they violate vested rights under existing rules.
Teachers over 50 years old are permanently exempt from certain qualification requirements under Rule 45B(4) of the Kerala Education Rules.
Test qualifications for Headmaster appointments were upheld as paramount under statutory provisions, superseding seniority based on age exemptions.
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Denying aided school principals the permanent exemption from departmental tests available to government principals after age 50 constitutes unconstitutional discrimination, as no intelligible differe....
a teacher who has obtained a right to preferential appointment to future vacancies in identified posts, based on past service rendered in a teaching post in the school prior to retrenchment therefrom....
Completion of 7 years of service in the pay scale of Headmaster is the requirement for getting the first grade pay for Headmasters of Aided Complete Secondary Schools, as per the interpretation of Ke....
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