WA.No. 2452 of 2015 (C) IN WP(C).22029/2015

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE A.HARIPRASAD WEDNESDAY, THE 27TH DAY OF JANUARY 2016/7TH MAGHA, 1937 WA.No. 2452 of 2015 (C) IN WP(C).22029/2015 --------------------------------------------AGAINST THE ORDER/JUDGMENT IN WP(C) 22029/2015 of HIGH COURT OF KERALA DATED 19-10-2015 APPELLANT(S)/RESPONDENTS 5 AND 6: ---------------------------------------------------------------- 1. THE MANAGER RAMAGURU U.P.SCHOOL, P.O. CHIRAKKAL, KANNUR - 670 001. 2. R.V. GEETHA, W/O.T.N. RADHAKRISHNAN, HEADMISTRESS (UNAPPROVED) RAMAGURU U.P. SCHOOL, P.O. CHIRAKKAL, KANNUR DISTRICT. BY ADVS.SRI.V.A.MUHAMMED SRI.M.SAJJAD RESPONDENT(S)/PETITIONERS AND RESPONDENTS 1 - 4: ------------------------------------------------------------------------------------------------ 1. SMT.K.P.SACHITHA - L.P.S.A, RAMAGURU U.P. SCHOOL, P.O. CHIRAKKAL KANNUR -670 011. 2. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT THIRUVANATHAPURAM - 695 001. 3. THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM - 695 014. 4. THE DISTRICT EDUCATIONAL OFFICER, KANNUR - 670 001. 5. THE ASSISTANT EDUCATIONAL OFFICER, P.O. PAPPINISSERY, KANNUR - 670 562. R1 BY ADV. SRI.P.M.PAREETH R2-R5 BY SR GOVT PLEADER RINNI STEPHEN CHAMAPARAMBIL THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12-01-2016, THE COURT ON 27.01.2016 DELIVERED THE FOLLOWING: ANTONY DOMINIC & A. HARIPRASAD, JJ. ----------------------------------W.A.No.2452 of 2015 ----------------------------------Dated this the 27[th] day of January, 2016 ## JUDGMENT ## Antony Dominic, J. 1. This appeal is filed by respondent Nos.5 and 6 in W.P(C).22029/15 challenging the judgment of the learned single Judge, by which, the claim of the first respondent herein for appointment to the post of Headmistress of Ramaguru U.P.School was upheld, on the basis that she was eligible for the benefit of permanent exemption from acquiring the Accounts Test (Lower) conducted by the Kerala Public Service Commission in terms of Rule 45B (4) of Chapter XIV A KER, having attained the age of 50 years as on 1.5.2014 when the post fell vacant. The contention raised before us is that the benefit of Rule 45 B(4) of Chapter XIV B KER was available only to teachers who have attained the age of 50 years as on 3.11.1978 when Rule 45 B was inserted in Chapter XIV KER. - 2.The short facts required to be noticed in the case are that the first respondent was in the third position in Ext.P1 seniority list. The first person WA.2452/15 2 in the seniority list had already retired and the second person had relinquished her claim for promotion. However, overlooking the seniority of the first respondent, the second appellant, who was the 7[th] person in Ext.P1 seniority list, was promoted to the post of Headmistress, on the basis that she had acquired the test qualification prescribed in Rule 45 B(1) of Chapter XIV A KER. 3.That was objected to by the first respondent, who, though was not test qualified, had attained 50 years of age as on 1.5.2014, the date of occurrence of vacancy. In Ext.P7 order of the Assistant Educational officer, the appointment of the second appellant was declined to be approved and this order was confirmed by the District Educational Officer in Ext.P9. However, in Ext.P11 proceedings of the Director of Public Instructions, it was held that the test qualification prescribed in Rule 45 B(1) of Chapter XIVA KER was an essential qualification and on that basis, the appointment of the second appellant was upheld. WA.2452/15 3 4.In the writ petition filed, the first respondent challenged Ext.P11. In the judgment under appeal, learned single Judge held that since the first respondent had attained 50 years of age as on the date of occurrence of vacancy, by virtue of Rule 45B (4) of Chapter XIV A KER, she stood permanently exempted from passing Accounts Test (Lower) prescribed in Rule 45B(1) and that therefore, being senior, the first respondent was entitled to be promoted as Headmistress of the school. Accordingly, it was ordered that she shall be permanently posted as Headmistress and paid her salary from 1.5.2014. It was also ordered that the salary shall be recovered under Rule 7 of Chapter III KER from the Manager. - 5.As we have already stated, the decision in this appeal would depend upon the answer to the question whether the first respondent is eligible for the benefit of exemption as contained in Rule 45B(4) of Chapter XIVA KER. By G.O.(P) 156/78/G.Edn. dated 3.11.1978 published in the gazette dated 19.12.1978, WA.2452/15 4 Rule 45B was added to Chapter XIVA KER. Rule 45B, as it stands now, reads thus: “45B. (1) Notwithstanding anything contained in rules 45 and 45A, Account Test (Lower) conducted by the Kerala Public Service Commission shall be an obligatory qualification to the teachers for promotion as Headmasters of Lower Primary and Upper Primary Schools. (2) Every person who is holding the post of Headmaster in a lower primary school or an upper primary school on the date of these rules shall stand exempted from acquiring the qualifications specified in sub-rule (1) (3) In the case of teachers awaiting promotion as Headmasters under rule 45 and 45A as the case may be there shall be temporary exemption to them from acquiring the qualification specified in sub-rule (1) till 31st day of March 1988 (4) Teachers who have attained the age of 50 years shall stand exempted permanently from acquiring the qualification specified in sub-rule (1) (5) During the period of exemption allowed under sub-rule (3) promotions to the posts of Headmasters shall be made without insisting on the qualification specified in sub-rule (1) and those WA.2452/15 5 who fail to acquire the said qualification within the said period of exemption shall be reverted.” 6.In fact, Rule 45B(4) initially provided that 'teachers who have attained the age of 50 years or who have completed 25 years of service shall stand exempted permanently from acquiring the qualifications specified in sub-rule (1)'. Subsequently, by G.O.(P) 24/82/G.Edn. dated 24.2.1982 published in the gazette dated 2.3.1982, sub-rule (4) was substituted by providing that 'teachers who have attained the age of 50 years shall stand exempted permanently from acquiring the qualification specified in sub-rule (1)'. The explanatory note to the notification states that by Government Order dated 26.3.1981, the stipulation of service of 25 years for permanent exemption from passing the obligatory departmental test under Rule 13B of the General Rules has been dispensed with so that all Government servants who attained the age of 50 years will be eligible for permanent exemption from the obligatory departmental test for all purposes such as promotion, appointment as full member of service etc. WA.2452/15 6 and that the Government have decided to extend the above benefit to the aided school teachers also and hence the amendment. 7.Obviously therefore, by substituting sub-rule (4) in the manner as it stands today, the Government was extending to the aided school teachers a benefit similar to the exemption which is provided in Rule 13B, and which benefit is available to their counterparts in the Government schools. Therefore, once the Government have decided to extend the benefit of permanent exemption from acquiring test qualification to those teachers who attained the age of 50 years and when the same benefit was extended to the teachers of the aided schools, as is evident from the Government Order dated 24.2.1982, it is only reasonable to think that the teachers of aided schools are also eligible for the benefit of permanent exemption on their attaining the age of 50 years as in the case of teachers of the Government schools. WA.2452/15 7 8.It is true, as contended by the learned counsel for the appellants, that this Court has considered Rule 45B(3) in the judgment in Pankajaksy v. George Mathew [1987 (2) KLT 723], where, it was held that the Kerala Education Act is intended to meet the educational needs of the State effectively and to maintain uniform standards of discipline and teaching in all educational institutions governed by the Act and that it is to achieve this object that power has been conferred on the Government to make the rules. On this basis, this Court held that it was to achieve the aforesaid object that Rule 45B was made imposing the requirement of passing certain obligatory tests for appointment as Headmistress. However, in this judgment itself, this Court has also taken note of the fact that Headmistresses in all the schools viz., schools under the control of the Government and aided and recognized schools covered by the Kerala Education Act and the Rules, practically discharge the same duties and that therefore, the Government was justified when it decided to fix uniform qualifications for Headmistresses, whether they be in Government schools or aided or recognized schools. WA.2452/15 8 It was in Rule 45B itself that the Government, while prescribing uniform qualifications, have also prescribed that teachers who have attained the age of 50 years shall stand permanently exempted from acquiring the test qualification prescribed in Rule 45B(1). Therefore, the object of Rule 45B cannot be pressed into service to defeat the purpose of subrule (4) of the Rule. 9.We should also take note of the fact that this very issue was considered by a learned single Judge of this Court in W.P(C).14971/14 and connected case, in the context of the provisions contained in Rule 18 of the Kerala Right of Children to Free and compulsory Education Rules, 2011. Paragraph 4 of that judgment, to the extent relevant, is extracted below: “4. I have considered the submissions made at the Bar by the learned counsel appearing for the petitioners. I have also gone through the pleadings and the materials on record. Rule 45(B) of Chapter XIVA of the Kerala Education rules stipulates that a pass in Account Test (Lower) conducted by the Kerala Public Service Commission shall be an obligatory qualification for promotion as WA.2452/15 9 Headmasters of Lower Primary Schools and Upper Primary Schools. Sub rule (4) stipulates that teachers who have attained the age of 50 years shall stand permanently exempted from acquiring the qualifications specified in sub rule (1). By virtue of operation of sub rule (4) of rule 45(B) of Chapter XIV-A of the Kerala Education Rules teachers like the party respondents herein who are aged 50 years are permanently exempted from passing the Account Test (Lower) conducted by the Kerala Public Service Commission.” 10.Reading of the judgment would show that the learned single Judge has held that teachers on attaining 50 years of age are permanently exempted from acquiring the test qualification prescribed in Rule 45B(1). This judgment of the learned single Judge was upheld by this Court in the judgment in W.A.1097/14. 11.Pointing out that Rule 13B of Part II KS & SSR provides that “persons in Government Service who attain the age of 50 years”, learned counsel for the appellants contended that the language of Rule 13B being different from the language of Rule 45B(4) of Chapter XIV A KER, the intention of the rule making authority was to confine the benefit of exemption WA.2452/15 10 only to the teachers who had attained 50 years as on the date of introduction of the rule. It is true that while the language of Rule 13B is couched in present tense and that the wordings of Rule 45B is in past tense, since it is evident and clear that what was intended by the Government was to extend benefits similar to what is contained in Rule 13B of KS & SSR to teachers in the aided and recognized schools, we are not persuaded to be guided by the difference in the language of the rules and thus to confine the benefit of rule 45B(4) only to teachers who were in service as on the date of introduction of the rule and had attained 50 years, as on that date. 12. There is yet another compelling reason for us to take the aforesaid view. Rule 45B came into force with effect from 3.11.1978 and the substitution of sub-rule (4) in the form, as is now available in the statute book, was by Government Order dated 24.2.1982. Since then, the authorities who are entrusted with the task of implementing the rule have understood the rule as one providing permanent exemption to teachers who attain the age of 50 years. WA.2452/15 11 When such a consistent interpretation has been adopted by the authorities for more than a quarter of a century and when such interpretation is a plausible one, this Court will not be justified in upsetting that settled view of the authorities at this distance of time and unsettle the settled matters. - 13.For all the aforesaid reasons, we are inclined to take the view that the learned Judge was justified in allowing the writ petition and directing the appointment of the first respondent as Headmistress in the school of the first appellant with effect from 1.5.2014 when the vacancy arose. Appeal fails and is accordingly dismissed. Sd/ANTONY DOMINIC, Judge. Sd/- A. HARIPRASAD, Judge. kkb. /True copy/ PS to Judge