S. Vimala v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 20TH DAY OF JANUARY 2016/30TH POUSHA, 1937** ## **WP(C).No. 34849 of 2004 (W)** **----------------------------** ## **PETITIONER:** **--------------------** **S.VIMALA, AGED 46 YEARS, W/O. KINGSTON BEN, HEADMISTRESS, S.N.U.P.SCHOOL KATTACHALKUZHI, BALARAMAPURAM EDUCATIONAL SUB DISTRICT, THIRUVANANTHAPURAM.** **BY ADVS.SRI.V.A.MUHAMMED SRI.K.E.HAMZA** **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14.** **3. THE DISTRICT EDUCATIONAL OFFICER, NEYYATTINKARA, TRIVANDRUM.** **4. THE ASSISTANT EDUCATIONAL OFFICER, BALARAMAPURAM, TRIVANDRUM.** **5. THE MANAGER, S.N.U.P.SCHOOL,** ## **KATTACHALKUZHI, BALARAMAPURAM, TRIVANDRUM.** **6. SRI.B.ASOKAN,** - **UPPER PRIMARY SCHOOL ASSISTANT, S.N.U.P. SCHOOL KATTACHLAKUZHI, BALARAMAPURAM, TRIVANDRUM.** **R6 BY ADV. SRI.MURALI PURUSHOTHAMAN R6 BY ADV. SRI.P.M.BENZIR R6 BY ADV. SRI.DEEPU LAL MOHAN R5 BY ADV. SRI.K.M.MOHAMMED KUNHI R1 TO R4 BY SR. GOVERNMENT PLEADER SRI.M.A. FAYAZ R5 BY ADV. SRI.N.SUGATHAN R5 BY ADV. SMT.R.SEEMA R5 BY ADV. SMT.VARSHA BHASKAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-01-2016, ALONG WITH WPC. 8297/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 34849 of 2004 (W)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** - **P1: TRUE COPY OF THE DECISION REPPORTED IN 2000 (2) I.L.R. 185** - **P2: TRUE COPY OF THE APPOINTMENT ORDER OF PETITIONER** - **P3: TRUE COPY OF THE ORDER NO.F.2794/99 OF THE 4TH RESPONDENT** - **P4: TRUE COPY OF THE DECISION REPORTED IN 2002 (3) K.L.T. 816** - **P5: TRUE COPY OF THE ORDER NO.B6-1540/02/K.DIS. OF THE 3RD RESPONDENT** - **P6: TRUE COPY OF THE ORDER NOF1-145579/02/DPI OF THE 2ND RESPONDENT** - **P7: TRUE COPY OF THE JUDGMENT IN CIVIL APPEAL NO.6553/2000 OF THE SUPREME COURT** - **P8: TRUE COPY OF THE G.O. (RT) NO.3792/03/G.EDN OF THE GOVERNMENT** - **P9: TRUE COPY OF THE REVIEW PETITION FILED BY THE MANAGER OF THE SCHOOL BEFORE THE HON'BLE MINISTER FOR EDUCATION** - **P10: TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.6117/2004** - **P11: TRUE COPY OF THE G.O.(RT) NO.4812/04/G.EDN. OF THE GOVERNMENT** - **P12: TRUE COPY OF THE DECISION REPORTED IN 2001 (3) KLT 892** **//TRUE COPY//** **P.A. TO JUDGE** **JJJ** ## **K. VINOD CHANDRAN, J.** ------------------------------------------ W.P.(C) No. 34849 of 2004 (W) & W.P.(C) No. 8297 of 2005 (K) -----------------------------------------Dated this the 20[th] day of January, 2016 ## **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. ## **W.P.(C) No. 34849 of 2004 (W) & W.P.(C) No. 8297 of 2005 (K)** **-2-** 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 ## **W.P.(C) No. 34849 of 2004 (W) & W.P.(C) No. 8297 of 2005 (K)** **-3-** 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 Predegree 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, ## **W.P.(C) No. 34849 of 2004 (W) & W.P.(C) No. 8297 of 2005 (K)** **-4-** 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 ## **W.P.(C) No. 34849 of 2004 (W) & W.P.(C) No. 8297 of 2005 (K)** **==> picture [17 x 9] intentionally omitted <==** 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 KER. The appointment has to be made of the senior most person, but, however, with due regard to Rule 45 which talks of preference to a graduate who has a B.Ed. qualification as also five years experience in teaching after acquisition of B.Ed. Degree and atleast half the service of the senior. 7. A reading of Rules 44 and 45 of KER cannot lead to the conclusion that, if there is available a senior ## **W.P.(C) No. 34849 of 2004 (W) & W.P.(C) No. 8297 of 2005 (K)** **-6-** graduate teacher, the B.Ed. qualification or the teaching experience of five years after such acquisition, pales into insignificance. Nowhere is it said that a graduate senior teacher would be entitled to appointment, and in their absence,only the requirement under Rule 45 of KER has to be taken into account. Rule 45 of KER specifically gives a preference to a teacher who has a graduate degree and B.Ed. qualification with five years teaching experience after acquisition of B.Ed. degree, provided, he/she has service equal to half of the period of service of the senior most under-graduate teacher. The additional qualification prescribed is also of B.Ed., and not any teachers training qualification. 8. The contention of the learned counsel appearing for Asokan, is that such a preference can be ## **W.P.(C) No. 34849 of 2004 (W) & W.P.(C) No. 8297 of 2005 (K)** **-7-** given only as against a senior undergraduate teacher and when a senior graduate teacher is available, there can be no preference granted to a junior who is also a graduate merely on account of the B.Ed or the fact that he/she has continuous service of five years after the acquisition of the B.Ed Degree. 9. The issue is no longer res integra and has been squarely considered in **Mallika v. Manager - 2001 (3) KLT 892** . Therein also a graduate teacher, an admitted senior who did not have the minimum five years service after acquisition of B.Ed and an admitted junior, who was qualified in all respects, with respect to the graduation, the B.Ed qualification and five years service after the acquisition of the B.Ed at the time of arising of the vacancy, were the rival claimants. The junior in that case, who had more than half of the ## **W.P.(C) No. 34849 of 2004 (W) & W.P.(C) No. 8297 of 2005 (K)** **-8-** length of service of the senior was held to be entitled to the higher post. The preference cannot be said to be as against an undergraduate teacher alone. The preference is to a junior having half the period of service of the senior, who is a graduate, with B.Ed., and five years service after the acquisition of the specific teachers training qualification, viz. B.Ed. Smt.S.Vimala, on such law declared would have to be deemed to be qualified and entitled to be appointed as a Headmistress on the date on which the vacancy arose, i.e, on 01.01.2000. 10. W.P(C) No.34849/2004 would stand allowed setting aside Exts.P3, P5, P6, P8 and P11. The promotion of Smt.S. Vimala, the petitioner therein, as a Headmistress shall be forwarded to the Educational Officer by the Manager within a period of two weeks ## **W.P.(C) No. 34849 of 2004 (W) & W.P.(C) No. 8297 of 2005 (K)** **-9-** from today and the same shall be approved and she shall be entitled to the entire pay and allowances for the period in which she continued as a Headmistress and shall also be entitled to the pension on that basis. 11. W.P(C) No.8297/2005 would stand dismissed. Sri.Asokan, petitioner in the said petition,shall be deemed to be retired as UPSA and the eligible pension also shall be paid. The computation of pension and payment of arrears shall be made, at any rate within a period of four months from the date of receipt of a certified copy of this judgment, to both the petitioners. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj/jma 21/1/16