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2016 Supreme(Online)(KER) 22858
HIGH COURT OF KERALA
K VINOD CHANDRAN, J
S.VIMALA – Appellant
Versus
STATE – Respondent
WP(C)/34849/2004
SRI.V.A.MUHAMMED, SRI.K.E.HAMZA, SRI.MURALI PURUSHOTHAMAN, SRI.P.M.BENZIR, SRI.DEEPU LAL MOHAN, SRI.K.M.MOHAMMED KUNHI, SR. GOVERNMENT PLEADER SRI.M.A. FAYAZ, SRI.N.SUGATHAN, SMT.R.SEEMA, SMT.VARSHA BHASKAR
A qualified junior teacher with requisite qualifications and experience can be preferred for appointment over a senior graduate under specific conditions outlined in the Kerala Education Rules.
Headnote:
Preference - Appointment of Head Master - Kerala Education Rules, 1959 - Sections 44, 45 - The Court interpreted Rules 44 and 45 emphasizing that a qualified junior teacher with requisite experience can be preferred over a senior graduate teacher when fulfilling certain conditions, thus allowing the appeal of the junior teacher.
Fact of the Case:
The petitioners, Smt. Vimala and Sri. Asokan, claimed the post of Head Master in a primary school following the vacancy created by the incumbent's termination. Despite Smt. Vimala's later appointment, Sri. Asokan argued his seniority entitled him to the post, leading to a legal dispute over their qualifications and experience under Kerala Education Rules.
Issues: Whether Smt. Vimala, as a junior with the required qualifications and experience, was entitled to be appointed as Head Master over her senior Sri. Asokan, who had also claimed the post based on seniority alone.
Ratio Decidendi: The interpretation of Rule 45 allows preference for a qualified junior teacher over a senior graduate teacher provided the junior meets specific qualifications and service conditions; thus, qualification and teaching experience become significant irrespective of the seniority of a graduate teacher.
Final Decision: Smt. Vimala is entitled to be appointed as Headmistress with benefits, while Sri. Asokan remains a retired UPSA.
J U D G M E N T
The petitioners in the above writ petitions are rival claimants to the post of Head Master in a Upper Primary School. The admitted facts are that the vacancy arose on the termination of the incumbent Head Master on 31.12.1999, i.e., on 1.1.2000. Smt.Vimala, who was put in charge of the post of the Head Master earlier, was appointed to the said post. Smt.Vimala was initially appointed as a UPSA on 4.6.1987 and had M.A. and B.Ed. degree. The said UPSA also had qualified in the Account test conducted by the Kerala Public Service Commission on 6.7.1999, the results of which were published on 18.10.1999.
The rival claimant Sri.Asokan was the admitted senior of Smt.Vimala; having been appointed as a UPSA on 4.9.1975. Sri.Asokan had the qualification of LTTC acquired in 1983, B.A. in 1993 and B.Ed. in 1998.
2. The entire issue revolves around the interpretation of Rule 45 of Chapter XIV A of Kerala Education Rules, 1959 , (for brevity ' KER ') as it existed at that point of time, which is extracted hereunder:
“45. Subject to rule 44, when the post of Headmaster of complete U.P. School is vacant or when an incomplete U.P. School becomes a complete U.P. School, the post shall be filled up from among the qualified teachers on the staff of the school or Schools under the Educational Agency. If there is a Graduate teacher with B.Ed. or other equivalent qualification and who has got at least five years experience in teaching after acquisition of B.Ed. Degree he may be appointed as Headmaster provided he has got a service equal to half of the period of service of the senior most under graduate teacher. If graduate teachers with the aforesaid qualification and service are not available in the School or Schools under the same Educational Agency, the senior most primary School teacher with S.S.L.C or equivalent and T.T.C issued by the Board of Public Examination Kerala or T.C.H. issued by the Karnataka Secondary Education Examination Board, Bangalore or a pass in Pre- degree Examination with pedagogy as an elective subject conducted by the University of Kerala or any other equivalent training qualification prescribed for appointment as primary School Assistant may be appointed.
Note:- The language/specialist teachers, according to their seniority in the combined seniority list of teachers shall also be appointed as Headmaster of U.P. School or Schools under an Educational Agency provided the teacher possesses the prescribed qualifications for promotion as Headmaster of U.P. School on the date of occurrence of vacancy.”
3. Both the petitioners were graduates and also had B.Ed. The edge over the senior, claimed by Smt.Vimala was on account of her having five year service from the date of acquisition of B.Ed. degree, which the senior UPSA, Sri.Asokan, did not have.
4. The learned Counsel appearing for Sri.Asokan, however, would contend that Rule 45 would have application only when there was no senior graduate teacher and the preference cannot be claimed when there is a senior graduate teacher available. It is also evident from the records that the admitted senior, Sri.Asokan had challenged the appointment of Smt.Vimala before the educational authorities, all of which ended in his favour, on the ground that the senior had an LTTC and had five years teaching experience from the acquisition of that teachers' training qualification.
5. Pursuant to Interim Order issued by this Court in the above writ petition, Sri.Asokan is said to have been appointed as Head Master on 31.3.2005 and retired after the vacations. Both the petitioners are now retired. The issue survives insofar as Asokan's claim at least to the pensionary benefits as a Head Master.
6. Rule 44 of KER talks about appointment of Head Masters which shall ordinarily be according to seniority from the seniority list prepared and maintained under clauses (a) and (b) of Rule 34 of . The appointment has to be made of the senior most person, but, however, with due regard to Rule 45
