Manager, Pavandoor Higher Secondary School, Pavandoor v. Sadanandan C.M. High School Assistant (Social Science), Pavandoor Higher Secondary School, Pavandoor; Balakrishnan K.C. High School Assistant (Malayalam); State of Kerala; The Secretary to Government General Education Department; The District Educational Officer Thamarassery; Suresh Kumar M.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 20TH DAY OF SEPTEMBER 2016/29TH BHADRA, 1938 WA.No. 1846 of 2016 () IN WP(C).19425/2016 -------------------------------------------- AGAINST THE ORDER/JUDGMENT IN WP(C) 19425/2016 of HIGH COURT OF KERALA DATED 30-08-2016 APPELLANT(S)/APPELLANT/RESPONDENT NO.4: ---------------------------------------------------MANAGER, PAVANDOOR HIGHER SECONDARY SCHOOL, PAVANDOOR P.O., KOZHIKODE DISTRICT-673613. BY ADVS.SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.S.NITHIN (ANCHAL) RESPONDENT(S)/RESPONDENTS/PETITIONERS & RESPONDENTS NO.1 TO 3 & 5: ----------------------------------------------------------------------------------1. SADANANDAN C.M. HIGH SCHOOL ASSISTANT (SOCIAL SCIENCE), PAVANDOOR HIGHER SECONDARY SCHOOL, PAVANDOOR P.O., KOZHIKODE DISTRICT-673613. 2. BALAKRISHNAN K.C. HIGH SCHOOL ASSISTANT (MALAYALAM), PAVANDOOR HIGHER SECONDARY SCHOOL, PAVANDOOR P.O., KOZHIKODE DISTRICT-673613. 3. STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695001. 4. THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 5. THE DISTRICT EDUCATIONAL OFFICER THAMARASSERY, KOZHIKODE DISTRICT-673573. 6. SURESH KUMAR M. HEADMASTER, HIGH SCHOOL SECTION, PAVANDOOR HIGHER SECONDARY SCHOOL, PAVANDOOR P.O., KOZHIKODE DISTRICT-673613. BY SRI.V.A.MUHAMMED BY SRI.S.P.ARAVINDAKSHAN PILLAY BY GOVERNMENT PLEADER SRI.NICHOLAS JOSEPH THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20-092016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **CR** C.K.ABDUL REHIM & ANIL K.NARENDRAN, JJ. ----------------------------------------------WA No. 1846 of 2016 ----------------------------------------------Dated this the 20th day of September, 2016 ## JUDGMENT ## Abdul Rehim,J. The 4[th] respondent in the writ petition, who is the Manager of an aided Higher Secondary School, is in appeal against judgment of the Single Judge, which is mainly concerned with interpretation of Rule 44A of Chapter XIV-A of the Kerala Education Rules (KER for short). 2. There were rival claims between the petitioners in the writ petition and the 5[th] respondent therein with respect to promotion to the post of Headmaster in the appellant's/4[th] respondent's school. While deciding the issue the learned Single Judge observed that, the petitioners stood permanently exempted from acquiring the test qualification prescribed under Rule 44A, by virtue of the 2[nd] proviso to that Rule. It is held that, as long as the proviso grants a general exemption, the petitioners stood exempted from acquiring the test qualification as on the WA.1846/2016 2 date of arising of the vacancy. Hence it is found that the only criteria for promotion to the post of Headmaster is the seniority. Resultantly the impugned order passed by the appellant/Manager promoting the 5[th] respondent therein as Headmaster was quashed and the Manager was directed to issue fresh appointment considering the seniority. 3. Contention of the appellant is that, interpretation with respect to applicability of the 2[nd] proviso to Rule 44A, is illegal and improper, especially in view of the fact that the State Government have issued Ext.P3 order clarifying the effect of the said proviso. Learned counsel for the appellant contended that, the view taken in the impugned judgment is not legally correct because the 2[nd] proviso to Rule 44A can be interpreted only as granting exemption from acquiring the test qualification, in a case where no qualified teachers are available under the same management. Further contention is raised that the learned Judge went highly erred in granting the relief without quashing the Government Order, which was in force at the relevant time of promotion and which the appellant was bound to comply with. WA.1846/2016 3 4. We take note of the fact that, while deciding the writ petition the learned judge placed reliance on an earlier judgment passed by him in WP(C).No.15353/16. A copy of the said judgment is made available for our perusal. Evidently, while interpreting the 2[nd] proviso to Rule 44A of Chapter XIV-A KER it was observed that a candidate who had crossed the age of 50 years as on the date of arising of the vacancy stands permanently exempted from acquiring the test qualification prescribed under Sub Rule (1) to Rule 44A. Therefore a candidate who had crossed the age of 50 years as on the date of arising of the vacancy need to be treated as a candidate fully qualified in all respects for promotion to the post of Headmaster. If that be the case, the only criteria which need to be looked into is the seniority, as contemplated under Rule 44 of Chapter XIV A KER. While taking such a stand the learned Judge had placed reliance on another decision of this court in **Jolly George vs. Manager (2015 (4) KLT 679).** In the said case, while interpreting provisions of sub Rule 4 of Rule 45B of chapter XIV A KER, which is in almost pari materia with the 2[nd] proviso to Rule 44A, it is held that, there is a permanent exemption granted WA.1846/2016 4 to the teachers who had attained the age of 50 years and that there is nothing to show that such exemption is confined to the date on which such provision was brought into force. Eventhough the question decided is not strictly the one which arises for consideration in the present case, the effect of a permanent exemption is seen considered in that decision. 5. While considering the legal contentions we are of the opinion that, the wording of the statute in the 2[nd] proviso to Rule 44A, that teachers who have attained the age of 50 years shall stand permanently exempted from acquiring the test qualification, would make the situation clear that any teacher who had crossed the age of 50 years stands permanently exempted from acquiring the test qualification. Therefore, if he/she is the seniormost under the management in question, he/she will become automatically entitled for promotion to the post of Headmaster. Learned counsel for the appellant contended that, by virtue of such an interpretation of the proviso, a qualified teacher available under the same management will be deprived of the opportunity for promotion. In other words, contention is that the effect of the proviso is WA.1846/2016 5 only to the extent of creating two streams for promotion and the exemption will operate only in a case where there is no test qualified teachers available under the same management. 6. Going by the wordings of the statute, which according to us does not require any clarification, we are not persuaded to accept the above contention. As held by the learned single judge, by virtue of the 2[nd] proviso the teachers who attained the age of 50 years stands permanently exempted and became eligible for promotion to the post of Headmaster if he/she is the seniormost teacher under the management, provided the vacancy arose after he/she had crossed the age of 50 years. 7. Next contention raised is regarding the non-quashing of Ext.P3 Government Order. Learned counsel who entered appearance on behalf of respondents 1 and 2 (writ petitioners) contended that, the Government Order in question run contrary to the statutory provision. But according to the appellant there is no repugnancy with the Rule and it only clarifies about the manner in which the 2[nd] proviso need be applied. It remains well settled that the effect of a statutory provision cannot be nullified WA.1846/2016 6 or diluted through an executive order of the Government. Therefore Ext.P3 cannot even be taken as clarificatory in nature, because the wordings of the statute does not suffer from any ambiguity. In that respect, Ext.P3 has no legal effect and the statutory provisions contained in Rule 44A will survive. When the learned judge had quashed the impugned appointment order, after interpreting the proviso in accordance with the wordings contained in the statute book, it had an implied effect of nullifying the Government Order. Hence, despite the fact that the learned Judge had not specifically quashed Ext.P3, the effect of the judgment and the directions issued on the basis of the interpretation of the statute will stand perfectly valid and justified. Consequently the appeal deserves no merit and the same is accordingly dismissed. 8. Learned counsel for the appellant sought indulgence of this court in extending the time limit stipulated for compliance of the directions contained in the WA.1846/2016 7 impugned judgment. Considering the fact that the appellant was agitating the issue in this appeal, the time for compliance of the direction will stand extended till 6.10.2016. C.K.ABDUL REHIM, JUDGE ANIL K.NARENDRAN,JUDGE Pmn/ WA.1846/2016 8