Denial of departmental test exemption to aided school teachers while granting it to Government sector teachers, despite identical duties, constitutes discriminatory practice under Article 14, and curative Government orders clarifying such rights operate retrospectively to rectify administrative omissions.

JUDGMENT :

1. The question that arises for consideration in these writ petitions is whether there exists any intelligible differentia in denying exemption from passing departmental tests to Higher Secondary School Teachers (HSSTs) in aided schools who have attained the age of 50 years, while granting such exemption to HSSTs in Government service under Rule 13B of Part II of the Kerala State and Subordinate Services Rules (KS&SSR).

2. Since the issue involved in both writ petitions is identical, they are heard together and disposed of by this common judgment.

WP(C) No.11715 of 2018

3. The petitioner herein entered service as HSA (Biology) on 04.10.1993. Subsequently, upon the establishment of the Higher Secondary Section, she was promoted as HSST (Botany). Thereafter, she was appointed as Principal of CMS HSS, Melukavu, on 01.08.2011, which appointment was approved by the Regional Deputy Director as per order dated 07.10.2011. Later, the Manager declared her probation with effect from 06.12.2013, upon her attaining the age of 51 years, taking into account the exemption available under Rule 13B of Part II KS&SSR as applicable to HSSTs in Government service. The petitioner was granted annual increments from 2013 to2016.

4. However, when she applied for the annual increment for the year 2017 on 04.01.2018, the same was denied on the ground that she had not passed the obligatory departmental tests, as evident from Ext.P2. Aggrieved thereby, she submitted Ext.P3 representation before the Regional Deputy Director and subsequently Ext.P4 before the Government, contending that upon attaining the age of 50 years, she was entitled to exemption from test qualifications on par with HSSTs in Government service. It was further contended that her appointment and promotion had already been duly approved.

WP(C) No.6969 of 2021

5. The petitioner herein was initially appointed as HSST (Junior) (History) on 25.08.2003 and was promoted as HSST on 15.07.2004. Being the senior-most HSST, she was promoted as Principal with effect from 15.07.2004. The said appointment was approved as per order dated 12.08.2006 with effect from 15.07.2004. However, as per Ext.P3 dated 30.01.2021, the Regional Deputy Director informed that her probation could not be declared due to non-acquisition of departmental test qualifications. This position was reiterated by the Joint Director as per Ext.P4 and the Government as per Ext.P5, resulting in withholding of her salary from 2021 onwards.

6. The petitioner seeks a declaration that Principals of aided Higher Secondary Schools are also entitled to exemption from test qualifications upon attaining the age of 50 years, as is the case with their counterparts in Government service.

7. The legal issue involved in these cases are summarised as follows:

8. The appointment of Principals in aided Higher Secondary Schools is governed by Rule 9, Chapter XXXII of the Kerala Education Rules (KER), which mandates passing of prescribed departmental tests during probation. Rule 7 of Chapter XXXII KER deals with probation. Rules 45B and 45BB of Chapter XIVA KER provide exemption from test qualifications to certain categories of teachers in aided schools upon attaining the age of 50 years. Rule 13B of Part II KS&SSR grants permanent exemption from passing departmental tests to Government servants who attain the age of 50 years.

9. In both these cases, the appointments of the incumbents as Principal were approved by the respective Deputy Directors. The appointment of Principal in higher secondary school in aided sector is guided by Rule 9 Chapter XXXII KER, which says:

“Every person appointed to the category of Principal, shall during the period of probation, pass the Account Test for Executive Officers (Kerala) or Account Test (Lower) if he has not already passed the test.”

Rule 7 of chapter XXXII KER deals with the declaration of probation of higher secondary school teachers, and reads as follows:

“Every person appointed to any of the categories shall fr