J U D G M E N T

Dated this the 20th day of May, 2020 Shaffique, J.

These two appeals have been filed by a teacher Smt.Smitha Paul challenging common judgment dated 28.06.2017 in W.P.(C) No. 15688/2017 and W.P.(C) No.18439/2017. She was the petitioner in W.P.(C) No. 15688/2017. She was not a party in W.P. (C) No.18439/2017 and hence she filed W.A.1514 of 2017 after seeking leave of the court. W.P.(C) No.18439/2017 was filed by Sri.K.Ali for implementing an order in his favour. The controversy related to the question as to whom among them was qualified to be appointed as Headmaster in the school.

2. The short facts of the case are as under; and for easy reference the documents are referred as exhibited in W.P.(C) No. 15688/2017, unless otherwise stated. Both Smt. Smitha Paul and Sri. K.Ali were working in an aided Upper Primary school. A post of Head Master became vacant on 21.04.2014 on retirement of one Sri. K.P.Sreedharan. The Manager appointed Smt. Smitha Paul as Headmistress with effect from 1.5.2014. The Assistant Educational Officer rejected the said proposal as she did not have the requisite test qualification under the Kerala Education Act and the Right of Children to Free and Compulsory Education Rules, 2011. The Manager preferred an appeal which came to be rejected as per order passed by the District Educational Officer on 2/12/2015. Finally, the matter was taken up before the Government and by order dated 18/2/2017 (Ext.P10), the Government having observed that the qualification required for promotion to the post of Headmaster being 12 years of teaching experience and pass in Departmental Test and test of Kerala Education Act and Rules, or having attained the age of 50 years, since the appellant was only 44 years, she was not eligible to be appointed. As far as Sri.K.Ali was concerned, it was found that though he had completed 12 years' service and pass in Account Test (Lower), he did not have the test qualification of KER. It was found that Smt.Smitha Paul and Sri.K.Ali were not eligible. The Manager therefore withdrew the order promoting Smt.Smitha Paul as Headmistress on a finding that she did not have test qualification and was not qualified for promotion as Headmistress on 1/5/2014. Consequently, Sri. K.Ali, being the senior most teacher was appointed as Headmaster. Smt. Smitha Paul filed the writ petition challenging the order passed by the Government and other educational authorities inter alia contending that she acquired the test qualification under Kerala Education Rules (KER) on 4/7/2017. The writ petition was later amended challenging Ext.P13 order dated 2/5/2017 passed by the Manager in consequence of Ext.P10 order of the Government.

3. The main contention urged by Smt.Smitha Paul, was that Sri.K.Ali though he had completed 12 years of service and passed Account Test (Lower), he did not acquire the qualification as prescribed under KER. Specific reference was made to Rule 18(1) of the Right of Children to Free and Compulsory Education Rules, 2011 (hereinafter referred to as 'the 2011 Rules') to indicate that a person to be employed as Headmaster ought to have acquired the test qualification as prescribed under the KER. In so far as Sri.K.Ali had only passed the Account Test (Lower), he was not qualified to be appointed as Headmaster. Whereas she became fully qualified for being appointed as Headmistress, on

16/2/2015 by which date she passed the Account test as well as the KER test.

4. Sri.K.Ali in the meantime filed W.P.(C) No.18439/2017 seeking to implement Ext.P13 order of the Manager and challenging Government order dated 18/2/2017 (Ext.P10) wherein there was a finding that in the absence of acquiring qualification under the KER, he did not qualify to be appointed as the Headmaster. He also sought for a direction to declare that he is qualified for the post of Headmaster and also for a direction to the 5th respondent to approve his promotion as Headmaster with effect from 31/4/2014, the date of occurren