IMPORTANT POINT
Amendments to qualifications for Head-teachers cannot have retrospective effect as they violate vested rights under existing rules.

JUDGMENT :

These writ petitions pertain to the appointment of Head- teachers in the Upper Primary/Lower Primary Schools with specific reference to Rule 18(1) of the Kerala Right of Children to Free and Compulsory Education Rules, 2011.

2. The conditions of service of aided school teachers were prescribed under Chapter XIVA of the Kerala Education Rules, 1959 (hereinafter referred to as the ‘KER’). Rule 45B provided for the obligatory qualifications for teachers seeking promotion as Headmasters of LP/UP Schools. Sub-rule (1) thereto provided that an Account Test (Lower) conducted by the Kerala Public Service Commission shall be an obligatory qualification. Sub-rule (2) provided exemption from the requirement for the qualification under sub-rule (1) as against those who were holding the post of Headmaster in the LP/UP Schools as on the date of introduction of Rule 45B and sub-rule (3) extended a temporary exemption to those teachers awaiting promotion as Headmasters from the requirement of sub-rule (1) till 31.03.1988. At the same time, sub-rule (4) extended a complete exemption from the rigor of sub-rule (1) for those teachers who have attained the age of 50 years.

3. The Right of Children to Free and Compulsory Education Act, 2009, (hereinafter referred to as the ’Central Act’) was introduced by the parliament to provide free and compulsory education to all children of the age of 6-14 years. The Central Government framed the Right of Children to Free and Compulsory Education Rules, 2010 (hereinafter referred to as the ‘Central Rules’) in exercise of the rule-making power under Section 38 of Central Act. The State Government, too, came out with the Kerala Right of Children to Free and Compulsory Education Rules, 2011 (hereinafter referred to as the ‘Kerala Rules’) under Section 38 of the Act. Rule 18 of the Kerala Rules originally provided as under:-

“18. Duties to be performed by Head-teacher and Teachers.- (1) The Head-teacher shall be a person having a minimum of twelve years of teaching experience and possessing pass in such departmental tests and test on Kerala Education Act and Rules as may be specified in that regard:

Provided that teachers in service shall be given time up to three years to pass the above tests.”

Thus, under the provisions of Rule 18, the Head-teacher was to be a person with a minimum of 12 years of teaching experience and a pass in such departmental tests and test on the Kerala Education Act and Rules, as specified. The proviso to Rule 18(1) extended a period of three years to those teachers who were in service, to pass the above test.

4. A Division Bench of this Court in Thomas v. Joint Secretary, General Education Department [2020 (1) KLT 840] was called upon to consider the question as to whether the test qualifications under Rule 18(1) of the Kerala Rules are mandatory as regards the teachers who have attained the age of 50 years. It was contended before this Court by the teachers who had obtained the qualifications, that there can be no appointment as Head-teachers without the qualifications as specified. Teachers who have already attained the age of 50 years and who are disabled on account of the non-acquisition of the test qualification, relied on the proviso to Rule 18(1) to contend that they have a window of three years for acquiring the qualification. The Division Bench of this Court found that the proviso cannot be found as having exempted such qualifications for a period of three years or permitted appointment of unqualified teachers as Head-teachers, subject to qualification being obtained within three years. The Division Bench of this Court considering the afore situation, held that since the proviso extends three years for acquisition of required qualification for those who have attained 50 years of age, the same has to be given due effect, that there can be no appointment/promotions of persons who are not qualified in accordance with Rules, that the unqualified senior teacher would be entitled