The retrospective amendment to Rule 44A of the Kerala Education Rules applies to appointments, limiting the Manager's discretion under Article 30 to statutory qualifications.

JUDGMENT :

(HARISANKAR V. MENON, J.)

These two writ petitions pertain to the dispute with respect to the appointment to the post of Headmaster in a School, having a minority status, managed by the 5^th respondent in W.P.(C) No.8113 of 2019.

2. The petitioner in W.P.(C) No.8113 of 2019 was appointed to the post of Headmistress, which stood vacant on 01.06.2017, on account of the retirement of the incumbent with effect from 31.05.2017. The appointment as above was effected by the 5^th respondent Manager. However, the approval as regards the afore appointment was rejected by virtue of Ext.P3 issued by the 4^th respondent. A reference to Ext.P3, by which the approval was rejected, would show that the 4^th respondent made reference to a representation / complaint filed by the 6^th respondent in W.P.(C) No.8113 of 2019, who took up the contention that he was entitled to appointment as Headmaster insofar as he had already acquired the required test qualifications prescribed under Rule 44A of Kerala Education Rules. Ext.P3 order also makes reference to a Government Order dated 10.06.2015, which is seen produced by the petitioner as Ext.P6 in the writ petition. The afore Government Order is, in fact, dated 13.12.2017 and by the afore order, the provisions of Rule 44A of Chapter XIV A of KER stood amended by inserting the third proviso, providing for a preference to those who had test qualifications to the post of Headmaster.

3. It is in the afore circumstances that W.P.(C) No.8113 of 2019 is filed by the petitioner therein.

4. The 6^th respondent in W.P.(C) No.8113 of 2019 has independently filed W.P.(C) No.25581 of 2017, pointing out about the appointment as above given to the petitioner in W.P.(C) No. 8113 of 2019 and also pointing out to a representation filed, seeking appointment on the afore basis.

5. Heard Sri.Paulson Thomas, the learned counsel for the petitioner in W.P.(C) No.8113 of 2019, Smt.Thulasi K. Raj, the learned counsel for the petitioner in W.P.(C) No.25581 of 2017, Smt.S.Anjusha, the learned counsel appearing for the Manager in the respective cases and Sri.E.G.Gorden, the learned Senior Government Pleader.

6. Two issues arise for consideration in these writ petitions.

7. The first issue arising for consideration is with reference to the Government Order at Ext.P6 in W.P.(C) No.8113 of 2019, by which the third proviso inserted in Rule 44A was given retrospective effect from 01.06.2015. Sri.Paulson, the learned counsel for the petitioner in W.P.(C) No.8113 of 2019, would fairly submit that the retrospectivity as above was the subject matter of challenge before this Court, and a Full Bench of this Court in Rajamohanan K. v. State of Kerala [2024 KHC OnLine 290] has repelled the challenge against the retrospectivity. However, he would add that, even on the face of the afore judgment, insofar as the petitioner in W.P.(C) No.8113 of 2019 was appointed as early as on 01.06.2017, at which point of time, Ext.P6 dated 13.12.2017 was not in existence, the appointment has to be approved, with reference to the statutory provision as it existed on 01.06.2017. At the first blush, the afore contention raised by the learned counsel, Sri.Paulson requires acceptance.

8. However, I notice that the retrospectivity as above to Ext.P6 was specifically considered by the Full bench. The Full Bench in the afore judgment, after taking note of the provisions of Rule 44A in its entirety, as also the history behind the introduction of the third proviso, held that the retrospectivity cannot be declared illegal. When that be so, full effect has to be given to the retrospectivity granted to the insertion of the third proviso as above. True, on 01.06.2017, when the petitioner was appointed, the amendment was not introduced as seen from Ext.P6. However, his appointment as above, not being approved on 13.12.2017, the approval would be subject to the amendment brought in by virtue of Ext.P6 as above. In the result, I hold that even though the petitioner in W.P.(C) No.