(2012) 257 KLR 517 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM THURSDAY, THE 21ST DAY OF JUNE 2012/31ST JYAISHTA 1934 WP(C).No. 10245 of 2012 (E) --------------------------- PETITIONER(S): ------------- P.R.RAJAMMA, AGED 47 YEARS H.S.A., ST.GEORGE HIGH SCHOOL, ARAKKUNNAM (PUTHUKULATHIL HOUSE, EDAKKATTUVAYAL P.O.). BY ADV. SRI.K.G.ANIL BABU RESPONDENT(S): -------------- 1. THE MANAGER, ST.GEORGE HIGH SCHOOL, ARAKKUNNAM ERNAKULAM DISTRICT, PIN-682313. 2. THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM, PIN - 682 031. 3. SMT.PREETHA JOSE, HIGH SCHOOL ASSISTANT-IN-CHARGE OF HEAD MASTER ST.GEORGE HIGH SCHOOL, ARAKKUNNAM ERNAKULAM DISTRICT, PIN-682313. 4. THE STATE OF KERALA, REP. BY ITS SECRETARY GENERAL EDUCATION (A) DEPARTMENT THIRUVANANTHAPURAM, PIN - 691 001. R3 BY ADV. SRI.ABRAHAM VAKKANAL (SR.) BY ADV. SRI.PAUL ABRAHAM VAKKANAL BY ADV. SRI.DIJO SEBASTIAN BY ADV. SMT.VINEETHA SUSAN THOMAS BY ADV.GEORGE MECHERIL, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.10245/2012 APPENDIX PETITIONER(S) EXHIBITS
RESPONDENT'S EXHIBITS
//TRUE COPY// PA TO JUDGE. jg C.R. C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. .................................................................... WP(C) No.10245 of 2012 .................................................................... Dated this the 21st day of June, 2012. Head Note:- Kerala Education Rules, 1959 - Rule 44A of Chapter XIV A - Continuous Service - Appointment as a Headmaster in Aided Complete High School/Training School - Continuous service means all service rendered on being appointed as a graduate teacher on regular basis - Broken period of service rendered in the same School or any other Schools in leave vacancy or otherwise as a graduate teacher cannot be clubbed with regular service to make it part of continuous service for the purpose of considering minimum service of 12 years as a qualification for appointment as Headmaster. Held:- Sub Rule (1) of Rule 44A clearly states that in order to qualify for appointment as a Headmaster in Aided Complete High School/Training School the teacher concerned should have 12 years of continuous graduate service with pass in departmental tests referred to therein. Admittedly, the petitioner was appointed as a High School Teacher on regular basis in the School only on 05/06/2000 vide Ext.P3. So much so, if continuous service only means service after appointment on regular basis, then the petitioner has not completed 12 years as on the date of arising of the post of Headmaster, which happened on 01/04/2011. On the other hand, if previous services rendered by her in broken periods i.e. 74 days during 1991 and one year during 1993-94 are to be added to regular service then the petitioner had the service above 12 years making her eligible for appointment as on the date of arising of vacancy. The specific contention canvassed by the learned counsel for the petitioner is that graduate service as explained in the Rule means all service of a teacher as High School Assistant after acquiring the training qualification namely B.T., L.T., or B.Ed. Therefore, according to him, the temporary service rendered on appointment in leave vacancy also answers the description of "graduate service". The claim made is that when graduate service takes in broken service rendered after appointment in leave vacancy, it should be counted as continuous service within the meaning of Sub Rule (1) of Rule 44A. We are unable to accept this contention because the word "continuous" is not given any technical meaning, and therefore it should be understood in the literal sense which means service without any break whatsoever. Even though graduate service takes in broken period of service also within the meaning of the explanation to the Rule, still sub Rule (1) of Rule 44A qualifies graduate service with a further word "continuous" which can only be regular service rendered after appointment as a regular teacher. The Rule certainly does not contemplate service without the teacher availing leave whatever be the reason for the same. However, "continuous service" means all service rendered on being appointed as a graduate teacher on regular basis. In other words, broken period of service rendered in the same School or any other Schools in leave vacancy or otherwise as a graduate teacher cannot be clubbed with regular service to make it part of continuous service for the purpose of considering minimum service of 12 years as a qualification for appointment as Headmaster. We therefore hold that continuous service referred to in Rule 44A is the total service rendered on being appointed in the School as a regular teacher. Since the petitioner was appointed only on 05/06/2000 as a regular teacher in the School her continuous service should be reckoned from that date until the date of arising the vacancy, and going by this interpretation the petitioner is short of 12 years continuous service for eligibility for appointment as Headmistress on 01/04/2011. We, therefore, uphold the findings of the Government in Ext.P12. Accordingly, we direct the 2nd respondent to approve the appointment of the 3rd respondent as Headmistress in terms of Ext.P12 and give arrears of salary to her within a period of two months from the date of receipt of a copy of this judgment. This Writ Petition fails and is accordingly, dismissed. J U D G M E N T Ramachandran Nair, J. The controversy is as to who between the petitioner and the 3rd respondent is eligible to be appointed as Headmistress of the High School in the regular vacancy that arose on 01/04/2011. While the case of the petitioner is that the District Educational Officer as well as the Deputy Director found petitioner's eligibility, the Government vide Ext.P12 reversed their decision and upheld the decision of the Management appointing the 3rd respondent as Headmistress and ordered approval of the same. It is against Ext.P12 the petitioner has filed this Writ Petition challenging the said order and for a declaration that she is entitled to be appointed to the post of Headmistress that arose on 01/04/2011. 2. We have heard Shri.K.G.Anil Babu, learned counsel appearing for the petitioner and Shri.Abraham Vakanal, learned Senior counsel appearing for the 3rd respondent and also learned Government Pleader appearing for the 2nd and 4th respondents. 3. There is no dispute that the 3rd respondent is senior in service to the petitioner by 7 years, and therefore if qualification remained equal the 3rd respondent is the necessary choice. However, the petitioner's specific case is that as on the date of arising of vacancy i.e. on 01/04/2011, the 3rd respondent is not qualified in as much as she has not passed all departmental tests and has not completed 50 years of age to dispense with test qualification to be appointed to the post of Headmistress. Learned Senior counsel opposed the contention by stating that the 3rd respondent had the required service and was the senior most and the disqualification for appointment was only because the result of departmental test written by her was not published as on the date of arising of the vacancy. In fact, she had written the test in January 2011, and on publishing the result on 30/04/2011 she had passed the test. What we notice is that there is no need to consider whether the delay in publication of the test result by the Department authorities should lead to denial of promotion to the 3rd respondent until she passed the test because the Management also did not accept the position that the 3rd respondent acquired the qualification for appointment as Headmaster as on the date of arising of vacancy that is on 01/04/2011. On the other hand, the Management was of the view that as on the date of arising of vacancy even the petitioner was not qualified as she did not have continuous service of 12 years as a graduate teacher in High School as on the date of arising of the vacancy, and on finding that nobody is qualified as on the date of arising the vacancy, the Management appointed the 3rd respondent as a teacher in- charge of the Headmaster's post until the 3rd respondent acquired the qualification i.e. on 30/04/2011. The stand of the Management did not find acceptance with the District Educational Officer and the Deputy Director because according to them, the broken period of service rendered by the petitioner as a High School Assistant in leave vacancy prior to her regular appointment should also be clubbed with regular service. The Government did not accept the finding of the District Educational Officer as well as the Deputy Director because according to the Government continuous service means service without break and it should be regular service as a teacher after appointment on regular basis. Learned Senior counsel appearing for the 3rd respondent argued in support of the findings of the Government in Ext.P12. However, relying on the definition of "Graduate Service" as explained in Rule 44A of Chapter XIV A of the Kerala Education Rules, the petitioner's counsel contended that continuous service should be considered with reference to the meaning of graduate service, which takes in all service of a teacher as a High School Assistant after acquisition of training qualification, namely B.T., L.T. or B.Ed. Since the controversy is on the meaning of continuous service as contained in Rule 44A of Chapter XIV A of KER, we extract hereunder the said provision. "44A (1) Subject to the provisions contained in sub-rule (1) of rule 44, the minimum service qualification for appointment as Headmaster in Aided Complete High Schools/Training schools shall be twelve years of continuous graduate service (with a pass in the test in Kerala Education Act and the Kerala Education Rules)by(andKerala a pass in account Test (Lower) conducted Public Service Commission.) Provided that Headmasters of High and Training Schools, who were actually holding the said post on the eleventh day of June, 1974 shall stand exempted from passing the Account Test (Lower). Provided further that Teachers who have attained the age of 50 years shall stand exempted permanently from acquiring the test qualification specified in Sub rule (1). Explanation :- For the purpose of this rule, "Graduate Service" means all service of a teacher as High School Assistant, Training School Assistant, Headmaster of an incomplete High School, Headmaster of a complete Upper Primary School/Middle school or Headmaster of a Training School after acquisition of Collegiate training such as B.T., L.T. or B.Ed. But in the case of such teachers appointed prior to 15/10/1957 their untrained service after graduation shall also be reckoned as "Graduate Service", provided that their appointments were not in accordance with the Madras Education Rules." 4. Sub Rule (1) of Rule 44A clearly states that in order to qualify for appointment as a Headmaster in Aided Complete High School/Training School the teacher concerned should have 12 years of continuous graduate service with pass in departmental tests referred to therein. Admittedly, the petitioner was appointed as a High School Teacher on regular basis in the School only on 05/06/2000 vide Ext.P3. So much so, if continuous service only means service after appointment on regular basis, then the petitioner has not completed 12 years as on the date of arising of the post of Headmaster, which happened on 01/04/2011. On the other hand, if previous services rendered by her in broken periods i.e. 74 days during 1991 and one year during 1993-94 are to be added to regular service then the petitioner had the service above 12 years making her eligible for appointment as on the date of arising of vacancy. The specific contention canvassed by the learned counsel for the petitioner is that graduate service as explained in the Rule means all service of a teacher as High School Assistant after acquiring the training qualification namely B.T., L.T., or B.Ed. Therefore, according to him, the temporary service rendered on appointment in leave vacancy also answers the description of "graduate service". The claim made is that when graduate service takes in broken service rendered after appointment in leave vacancy, it should be counted as continuous service within the meaning of Sub Rule (1) of Rule 44A. We are unable to accept this contention because the word "continuous" is not given any technical meaning, and therefore it should be understood in the literal sense which means service without any break whatsoever. Even though graduate service takes in broken period of service also within the meaning of the explanation to the Rule, still sub Rule (1) of Rule 44A qualifies graduate service with a further word "continuous" which can only be regular service rendered after appointment as a regular teacher. The Rule certainly does not contemplate service without the teacher availing leave whatever be the reason for the same. However, "continuous service" means all service rendered on being appointed as a graduate teacher on regular basis. In other words, broken period of service rendered in the same School or any other Schools in leave vacancy or otherwise as a graduate teacher cannot be clubbed with regular service to make it part of continuous service for the purpose of considering minimum service of 12 years as a qualification for appointment as Headmaster. 5. We therefore hold that continuous service referred to in Rule 44A is the total service rendered on being appointed in the School as a regular teacher. Since the petitioner was appointed only on 05/06/2000 as a regular teacher in the School her continuous service should be reckoned from that date until the date of arising the vacancy, and going by this interpretation the petitioner is short of 12 years continuous service for eligibility for appointment as Headmistress on 01/04/2011. We, therefore, uphold the findings of the Government in Ext.P12. Accordingly, we direct the 2nd respondent to approve the appointment of the 3rd respondent as Headmistress in terms of Ext.P12 and give arrears of salary to her within a period of two months from the date of receipt of a copy of this judgment. This Writ Petition fails and is accordingly, dismissed. (C.N.RAMACHANDRAN NAIR, JUDGE) (C.K.ABDUL REHIM, JUDGE) jg |
