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2024 Supreme(Online)(KER) 33623
HIGH COURT OF KERALA
HARISANKAR V. MENON, J
LAILA BEEGAM A.R – Appellant
Versus
STATE OF KERALA – Respondent
WP(C) 11629/2020
U.BALAGANGADHARAN, SMT.S.ANJUSHA, SRI.JUSTIN JACOB, SRI.K.K.APPU
A teacher over 50 years old is exempt from qualification requirements for promotion under Rule 45B(4) of the Kerala Education Rules.
Headnote:(A) Kerala Education Rules – Rule 45B – Promotion to the post of Headmaster – The petitioner, having completed 50 years of age, claimed exemption from qualification requirements under Rule 45B(4) – The court held that the petitioner is entitled to promotion as Headmistress, being the senior most teacher with test exemption. (Paras 10, 12, 20)
(B) Seniority – Leave without allowance – The court ruled that leave without allowance should not be considered for calculating seniority, as per Circular No.72/2005/Fin. (Paras 12, 13)
Facts of the case: The petitioner challenged the rejection of her claim for promotion to Headmistress, arguing that she was entitled to exemption from qualifications due to her age. The 6th respondent was appointed despite the petitioner being senior. (Paras 1-4)
Findings of Court: The court found that the petitioner was entitled to the benefits under Rule 45B(4) of the KER and should have been promoted as Headmistress. (Paras 20)
Issues: The main issues were whether the leave without allowance affects seniority and if the petitioner is entitled to exemption under Rule 45B(4). (Paras 11)
Ratio Decidendi: The court ruled that the petitioner is entitled to exemption under Rule 45B(4) due to age, and leave without allowance does not affect seniority. (Paras 12, 20)
Result: Writ petition allowed, declaring the petitioner entitled to promotion as Headmistress with all consequential benefits.
JUDGMENT
The petitioner has filed the captioned writ petition challenging Ext.P6 issued by the 5th respondent herein, by which, the petitioner’s claim for appointment to the post of Headmistress, in preference to the 6th respondent herein stood rejected. The petitioner also seeks for a direction to the respondents to promote the petitioner as Headmistress with effect from 01.06.2020 and also to approve the same.
2. The short facts necessary for the disposal of this writ petition are as under:
The petitioner was appointed as UPSA in the 5th respondent Aided School on 16.07.1990. She points out that in the seniority list among the teachers, she was placed at Serial No.9 whereas the 6th respondent was placed at Serial No.10. A vacancy in the post of Headmaster arose in the School on 01.06.2020 and the petitioner being placed at Serial No.9, ought to have been appointed in the said post. The promotion to the post of the Headmaster in lower primary/upper primary schools like the 5th respondent herein is governed by the provisions of Rule 45B of Chapter XIVA of the Kerala Education Rules (for short, the ‘ KER ’). Two qualifications are required for being so appointed – the Accounts Test (Lower) and the test in the Kerala Education Act and Rules. The petitioner had qualified the latter. As regards the Accounts Test (Lower), having four papers, out of which, three were cleared by the petitioner. But, the test for the balance one paper though scheduled to be conducted on 28.03.2020, was postponed on account of the COVID- 19 pandemic, points out the petitioner.
3. However, the petitioner claims that insofar as she had completed 50 years of age on 02.05.2016, was entitled to exemption from acquiring the qualification as above, by virtue of Rule 45B(4) of the KER . Though such a claim was made, the 5th respondent Manager appointed the 6th respondent as the Headmaster who was admittedly fully test qualified. Though the petitioner submitted a representation pointing out that even though the 6th respondent was fully test qualified, insofar as the petitioner has crossed the age of 50, she is entitled to the benefits under Rule 45B(4) of the , the said representation stood rejected by Ext.P6 issued by the 5th respondent, taking the view that the petitioner was bound to pass the required test even if she had crossed the age of 50 years, referring to a judgment rendered by this Court in OP(KAT) No.105 of 2019.
4. It is in the above circumstances, that the captioned writ petition is filed by the petitioner with the afore prayers.
5. A counter affidavit dated 23.04.2021 has been filed by the 4th respondent. In this counter affidavit, it is pointed out that the petitioner had availed leave without allowance during 1997-98 and 1999, on account of which, the petitioner’s seniority is below the 6th respondent herein. A counter affidavit has been filed by the 6th respondent also essentially contending that the petitioner may not be entitled for the benefits under Rule 45B(4) of the KER referred to above. The 6th respondent has also filed I.A.No.2 of 2021, producing Exts.R6(a) and (b) to prove that the petitioner had availed leave without allowance which is to be considered for fixing the seniority, in which event, the petitioner is junior to the 6th respondent as regards the length of service. The 6th respondent has also filed I.A.No.1 of 2024, producing Ext.R6(d) in support of his contentions.
6. I have heard Sri.U.Balagangadharan, the learned counsel for the petitioner, Sri.Justin Jacob, the learned Senior Government Pleader and Sri.K.K.Appu, the learned counsel representing the 6th respondent.
7. Sri.Balagangadharan, the learned counsel for the petitioner contends that:
i. As regards the leave without allowance availed by the petitioner, that is not to be considered for arriving at the seniority, as contended by the respondents herein. He relies on the judgment of a Division Bench of this Court in Nirmaladevi v. State of Kerala [ 2010 (1) KLT 16 ]
