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2023 Supreme(Online)(KER) 22712
HIGH COURT OF KERALA
P. B. Suresh Kumar, SOPHY THOMAS, JJ
THE MANAGER – Appellant
Versus
RAJESWARI DEVI S – Respondent
WA 637 2023
GEORGE ABRAHAM, T.T.MUHAMOOD, V.E.ABDUL GAFOOR(K/1278/2000), NAZEER HUZAIN.H(K/1166/2020), A.J.VARGHESE, SR.GOVERNMENT PLEADER
The application of seniority rules under Chapter XIVA KER is invalid for teacher appointments in Chapter XXXII KER; age may serve as an alternate criterion when dates of appointment are the same.
Headnote:
Appointment - Principal - Kerala Education Rules - Chapter XIVA Rule 37; Chapter XXXII Rule 2, 4, 6 - The court determined that Rule 37 of KER did not apply for determining seniority between Higher Secondary School Teachers for principal appointments, favoring general principles based on age instead.
Fact of the Case:
The case involved a dispute over the appointment of a Principal at an aided Higher Secondary School, with two teachers claiming seniority and the right to the position based on appointments and qualifications as defined by the Kerala Education Rules.
Issues: Whether Rule 37 of Chapter XIVA KER applies to determine the seniority of two teachers for the appointment of a Principal and the validity of using age as a criterion.
Ratio Decidendi: The court ruled that since Rule 37 of Chapter XIVA KER could not be applied due to a conflict with the method of appointment prescribed in Chapter XXXII KER, the general principle of considering age for seniority should prevail.
Final Decision: The appeals were dismissed.
J U D G M E N T
P.B.Suresh Kumar, J.
These appeals arise from the common judgment in two writ petitions, viz, W.P.(C) No.7070 of 2022 and W.P.(C) No.9671 of 2022. As the writ petitions were disposed of by a common judgment, the appeals are also disposed of by this common judgment. Parties and documents are referred to in this judgment for convenience, as they appear in W.P.(C)
No.7070 of 2022.
2. The matter relates to the appointment of Principal of an aided Higher Secondary School. The petitioner and the fifth respondent were the rival claimants. Both the petitioner as also the fifth respondent were appointed in the School as Higher Secondary School Teachers on 03.10.2000. The petitioner had earlier worked in the High School unit of the School in a short term vacancy as High School Assistant (HSA) from 28.06.1999 to 13.10.1999 before her continuous approved service as Higher Secondary School Teacher (HSST). The post of Principal of the School fell vacant on 31.03.2019. The Manager appointed the petitioner initially as Principal-in-charge of the School. Though the said appointment of the petitioner was approved by the competent authority on 12.04.2019, in terms of Ext.P6 order dated 06.05.2019, the Regional Deputy Director of Education directed the Manager to appoint the fifth respondent as the Principal of the School taking the stand that she is senior to the petitioner as per the approved seniority list of teachers of the School. Ignoring Ext.P6 order, the Manager appointed the petitioner as the Principal of the School on 29.05.2019 in the vacancy that arose on 31.03.2019. The fifth respondent, in the circumstances, filed a representation before the Director of Higher Secondary Education seeking directions to the Manager to appoint her as the Principal of the School in the vacancy that arose on 31.03.2019. On the said representation, the Director of Higher Secondary Education issued Ext.P9 order upholding the claim of the fifth respondent and directing the concerned Regional Deputy Director to give effect to Ext.P6 order. The view taken by the Director of Higher Secondary Education in Ext.P9 order is that inasmuch as the date of first appointment of both the petitioner and the fifth respondent as HSST is one and the same, in the light of the provisions contained in Rule 37(2) of Chapter XIVA of the Kerala Education Rules (the KER ), the fifth respondent who is elder to the petitioner, is to be considered as senior between the two of them. The argument advanced by the petitioner that the date of first appointment of the petitioner is to be treated as the date of her appointment as HSA in the School was not accepted in Ext.P9 order. The petitioner though challenged Ext.P9 order before the Government in revision, the Government affirmed the said order, as per Ext.P14 order. Exts.P9 and P14 orders were under challenge in the writ petition. The case set out by the petitioner in the writ petition is that she is to be considered as senior to the fifth respondent in the light of the provision in Rule 37(2) that seniority shall be decided with reference to the date of the first appointment in the School in the case of the teachers in the same grade in the same unit whose date of commencement of continuous service is the same.
3. W.P.(C) No.9671 of 2022 was one instituted by the fifth respondent seeking directions to the official respondents to implement Ext.P6 order.
4. The learned Single Judge took the view that Rule 37 of Chapter XIVA KER cannot have any application in the matter of deciding the inter se seniority between Higher Secondary School Teachers for deciding their entitlement for appointment to the post of Principal of the School, and that in the absence of any specific provision in Chapter XXXII , the inter se seniority between Higher Secondary School Teachers for deciding their entitlement for appointment to the post of Principal of the School shall have to be decided based on the general principle that the older is to
