IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 WA.No. 2240 of 2008() --------------------- AGAINST THE JUDGEMENT IN WPC.21339/2008 Dated 16/09/2008 .................... APPELLANT/PETITIONER: -------------- AJITHA K, AGED 44 YEARS, W/O. LAKSHMANAN HIGH SCHOOL ASSISTANT (SOCIAL SCIENCE), AZHIKODE HIGH SCHOOL, P.O. AZHIKODE, KANNUR DIST. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): RESPONDENTS:- ---------------------------- 1. THE STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION, DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM. 2. THE DIRECTOR PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM -14. 3. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR, P.O., KANUR -2. 4. THE DISTRICT EDUCATIONAL OFFICER, KANNUR P.O., KANNUR-2. 5. SMT. K. MEERA, UPPER PRIMARY SCHOOL ASSISTANT, AZHIKODE HIGH SCOOL, P.O. AZHIKODE, KANNUR DISTRICT. 6. THE MANAGER, AZHIKODE HIGH SCHOOL P.O. AZHIKODE, KANNUR DISTRICT. BY GOVERNMENT PLEADER SRI.BENNY GERVASIS FOR R1 TO R4 SRI.P.K.RAVISANKAR FOR R5 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26/03/2009, THE COURT ON 03/04/2009 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- W.A. NO. 2240 OF 2008 ----------------------------------------- Dated 3rd April, 2009. JUDGMENT Balakrishnan Nair, J. The writ petitioner is the appellant. The respondents herein were the respondents in the Writ Petition. The question that arises for decision in this case is whether for promotion to the post of High School Assistant an Upper Primary School Assistant can claim preference over a Specialist Teacher and get promoted, even if the Upper Primary School Assistant is junior to the Specialist Teacher. 2. The brief facts of the case are the following: The appellant was working as a Physical Education Teacher in the Upper Primary Wing of Azhikode High School, Azhikode, Kannur district. She was having B.A. and B.Ed. qualifications and therefore, she was qualified to be promoted as High School Assistant (for short “H.S.A”) (Social Studies). When a vacancy arose in the post of H.S.A (Social Studies) in the School, she was promoted under Rule 43 of Chapter XIV A of the Kerala Education Rules (for short “the K.E.R”). The said appointment was approved by the District WA 2240/2008 2 Educational Officer (for short “D.E.O”). Ext.P1 is the appointment order, appointing the appellant in the 6th respondent's School as H.S.A. (Social Studies) and it also contains the endorsement of the D.E.O., Kannur, approving the said appointment. The 5th respondent was an Upper Primary School Assistant (for short “U.P.S.A.”), who was appointed to that post on 2.6.1992. She was also qualified to be promoted as H.S.A. (Social Studies). Claiming that she has got a superior claim for promotion and also challenging the promotion of the appellant, the 5th respondent filed a representation dated 18.6.1999 before the D.E.O., Kannur. That representation was rejected by the D.E.O. by Ext.P2 order dated 25.11.1999. Against that order the 5th respondent filed an appeal before the Deputy Director of Education, Kannur on 3.12.1999. The said appeal was dismissed by Ext.P3 order dated 18.2.2000. Challenging Ext.P3 order, the 5th respondent filed O.P.No.15879/2000 before this Court. The said O.P was disposed of by this Court by judgment dated 19.1.2006, directing the petitioner therein (5th respondent) to pursue the statutory remedy available to her. Pursuant to the said judgment, the 5th respondent filed a revision petition dated 2.4.2007 before the 2nd respondent Director of Public Instruction (for short “D.P.I.”). The D.P.I. relying on Note (1) to Rule 43 of Chapter XIV A of the K.E.R, held that qualified Specialist Teachers are WA 2240/2008 3 eligible for promotion as H.S.A., only in the absence of qualified Upper Primary School Assistants and Lower Primary School Assistants (for short “L.P.S.A.”). U.P.S.A was held to be the lower grade post of H.S.A. Based on that finding, the D.P.I directed the Manager of the School to appoint the 5th respondent as H.S.A. (Social Studies) from 1.6.1999 notionally with eligibility to receive salary from 2.6.2004. It was also ordered that the salary already paid to the appellant need not be recovered. A copy of the said order dated 18.10.2007 is Ext.P4. The appellant challenged Ext.P4 before the Government by filing a revision on 20.11.2007. This Court by the judgment in W.P.(C) No.35417/2007 dated 30.11.2007, directed the Government to dispose of the revision within three months. The Government, after hearing both sides, dismissed the revision by Ext.P5 order dated 21.5.2008. The Government also, relied on Note (1) to Rule 43 of Chapter XIV A of the K.E.R., to support its decision. The appellant filed the Writ Petition, challenging Exts.P4 and P5 orders of the D.P.I and the Government respectively. The learned Single Judge, who heard the Writ Petition, dismissed the same and affirmed the impugned orders. Hence this appeal. 3. We heard the learned counsel on both sides. The learned counsel for the appellant submitted that the post of U.P.S.A cannot be treated as a WA 2240/2008 4 lower grade post of H.S.A., and therefore, Note (1) to Rule 43 of Chapter XIV A has no application in this case. So, it is submitted that the 5th respondent is not entitled to get preference in the matter of promotion as H.S.A. The learned counsel for the respondents, on the other hand, supported the view taken by the D.P.I and the Government. 4. Before dealing with the rival contentions, we will first refer to the relevant Rules, as they stood in 1999. Rule 3 of Chapter XXIII of the K.E.R refers to the various posts of teachers available in the Schools. The said Rule reads as follows: “3. The strength of the teaching staff in Upper Primary and Secondary Schools shall be fixed on the basis of the number of recognised class divisions and periods of work. The various posts of teachers shall be referred to by the following designations:- (i) Headmaster. (ii) High School Assistant. (iiA) High School Assistant – Language- (a) Malayalam (d) Sanskrit (g) Urdu (b) Tamil (e) Hindi (h) Latin (c) Kannada (f) Arabic (i) Hebrew, etc. (iii) Upper Primary School Assistant. (iv) Lower Primary School Assistant. (v) Language Teachers (a) Malayalam (d) Sanskrit (g) Urdu (b) Tamil (e) Hindi (h) Latin WA 2240/2008 5 (c) Kannada (f) Arabic (i) Hebrew, etc. (vi) Specialist Teachers (a) Drawing Teacher (b) Physical Education Teacher (c) Combined Drawing and Physical Education Teacher (d) Sewing Teacher (e) Music Teacher, etc. (vii) Craft Teacher (viii) Part-time Teachers (ix) Training School Assistant.” Clause (ii) deals with H.S.As in the core subjects – Mathematics, Social Studies, General Science (Physical Science and Natural Science). Clause (iiA) deals with H.S.As in languages. Clauses (iii) and (iv) deal with U.P.S.As and L.P.S.As. Clause (v) deals with Language Teachers in the primary wing. Clause (vi) deals with Specialist Teachers, including Physical Education Teachers. Clause (vii) deals with Craft Teachers. Sub- rule (viii) deals with Part-time Teachers. Clause (ix) deals with Training School assistants. 5. The seniority of a teacher in any grade in any unit is determined with reference to the length of continuous service in that grade in that unit. The relevant rule dealing with seniority is Rule 37 of Chapter XIV A of the K.E.R., which reads as follows: “37. (1) Seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous WA 2240/2008 6 service in that grade in that unit provided he is duly qualified for the post. (2) In the case of teachers in the same grade in the same unit whose date of commencement of continuous service is the same, seniority shall be decided with reference to the date of first appointment. If the date of first appointment is also the same, seniority shall be decided with reference to age, the older being the senior.” If the management has got more than one school, those schools shall be taken together as one unit for the purpose of seniority. In the case on hand, the management has got only one school. Therefore, that school is treated as the unit for the purpose of Rule 37 quoted above. Based on the principles contained in Rule 37, the management of every school is bound to main a seniority list of teachers, as provided in Rule 34 of Chapter XIV A of the K.E.R. The said Rule reads as follows: “34. Every Management shall prepare and maintain in Form 11A a staff list otherwise called the seniority list of teachers as specified below:- (a) In the case of High Schools, a combined seniority list of teachers specified in clauses (ii) and (iiA) of Rule 3, Chapter XXIII shall be prepared. (b) In the case of Upper Primary School and Lower Primary School a combined seniority list of teachers if any, WA 2240/2008 7 specified in clauses (iii), (iv) and (v) of Rule 3, Chapter XXIII shall be prepared.” As per clause (a) of Rule 34, a combined seniority list of H.S.As [clause (ii) of Rule 3 of Chapter XXIII] and H.S.As Language [clause (iiA) of Rule 3 of Chapter XXIII] has to be prepared. Going by clause (b) of Rule 34, a combined seniority list of U.P.S.As., L.P.S.As and the language teachers in the primary wing (categories in clauses (iii), (iv) and (v) of Rule 3 of Chapter XXIII of the K.E.R.) shall be prepared. Promotions to various higher grades in a school are made in accordance with Rules 43, 43B, 43C, 44, 45, 45A and 45C of Chapter XIV A of the K.E.R. 6. Rule 43 provides that posts in the higher grade shall be filled up by promotion of qualified hands in the lower grade. The said Rule reads as follows: “43. Subject to Rules 44 and 45 and considerations of efficiency and any general order that may be issued by the Government, vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority, if such hands are available. Provided that in the case of promotion to the post of High School Assistant (Subject), the minimum subject requirements alone need be satisfied, to safeguard the interests of trained graduates who are awaiting promotions as High WA 2240/2008 8 School Assistants. Note:- (1) A teacher in a lower grade of pay in one category of post is eligible for promotion to a higher grade of pay in another category of post provided, (i) he has the prescribed qualifications; and (ii) there is no teacher with the prescribed qualifications in the lower grade of pay of the category of post to which promotions are to be made. Note:-(2) Promotion under this rule shall be made from persons possessing the prescribed qualifications at the time of occurrence of vacancy.” Note (1) to Rule 43 would imply that for a particular category of posts there can be posts with higher grade and lower grade. Normally, if a qualified person is available in the lower grade of a category of posts, that person shall be preferred. Only in the absence of such a person, persons working in the lower grade of another category of posts can be preferred. For example, Language Teachers in the High School and primary wing may form one category of teachers. But, there are two grades among them. Those teaching in the High School are called H.S.A. (Language) and those who are teaching in the primary wing are called Language Teacher. For Hindi, there will be H.S.A. (Hindi) and Language Teacher (Hindi). If a vacancy arises in the post of H.S.A. (Hindi), a Language Teacher (Hindi) in the WA 2240/2008 9 primary wing with the qualifications for appointment as H.S.A. (Hindi) shall be preferred for appointment to that vacancy. Only in his/her absence, a Language Teacher (in any other language), who is qualified to be appointed as H.S.A. (Hindi) can be appointed in that vacancy. We think, Note (1) to Rule 43 of Chapter XIV A of the K.E.R is meant to take care of the above situation only. 7. Now, we will refer to the other relevant Rules also, to consider whether the contentions of the respondents are tenable. Rule 43A of Chapter XIV A of the K.E.R deals with the fixation of pay on promotion under Rule 43. Rule 43B further amplifies how the vacancies in the post of H.S.A in a particular language should be filled up from among various lower grade posts. Rule 43B reads as follows: “43B (1) Notwithstanding anything contained in rule 43, posts of full time High School Assistants in a particular Language shall be filled up by promotion in the following order of preference: (i) Lower Grade Language Teachers who have the prescribed qualifications in that Language for promotion to the post of High School Assistants in that language at the time of occurrence of the vacancy and who had given option in writing as per G.O.(Ms) 612/Edn. dated 10.11.1964 to continue as Lower Grade Language Teachers. WA 2240/2008 10 (ii) Part time High School Assistant in that Language. (iii) Other Lower Grade Language Teachers in that Language. (iv) Regular Primary teachers having the prescribed qualifications. (v) Craft and Specialist teachers having the prescribed qualifications. (vi) If no teacher with the prescribed qualifications is available in the categories mentioned above, Lower Grade Language Teachers in any other Language having the prescribed qualifications. Note:- Promotion under this sub-rule shall be made according to seniority from persons possessing the prescribed qualifications at the time of occurrence of vacancy. (2) If qualified teachers as mentioned in sub-rule (1) are not available in schools under the same Educational agency for promotion to the post of High School Assistants in that language, qualified candidates from outside may be appointed to that post.” Rule 43C deals with the order of preference, while filling up part-time posts of H.S.As in a particular language. Rule 44 deals with appointment of Headmasters, which should, ordinarily, be according to seniority from the seniority list prepared and maintained under clauses (a) and (b) of Rule 34. Rule 44(1) of Chapter XIV A of the K.E.R reads as follows: WA 2240/2008 11 “44(1) The appointment of Headmasters shall ordinarily be according to seniority from the seniority list prepared and maintained under clauses (a) and (b) as the case may be of rule 34. The manager will appoint the Headmaster subject to the Rules laid down in the matter. A teacher if he is aggrieved by such appointment will have the right of appeal to the Department. Note:- Whenever the Manager intends to appoint a person as Headmaster other than the senior claimant, the Manager shall obtain a written consent from such senior claimant renouncing his claim permanently. Such consent shall have the approval of the Educational Officer concerned.” Rule 44A deals with the special qualifications, including test qualifications necessary for promotion to the post of Headmaster of High Schools. Rule 44B is a special provision dealing with the Headmasters of High Schools appointed prior to 6.11.1968. Rule 45 deals with appointment of Headmasters of Upper Primary Schools. The Note to the said Rule inserted by G.O.(P) 273/84/G.Edn. dated 18.12.1984 published in Gazette dated 12.2.1985 reads as follows: “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 WA 2240/2008 12 the prescribed qualifications for promotion as Headmaster of U.P. School on the date of occurrence of vacancy.” The above quoted Note makes eligible specialist teachers also for promotion to the post of Headmaster of U.P.School, provided he is qualified, though, the combined seniority list contemplated under Rule 34(b) does not include specialist teachers. Rule 45A deals with appointment to the post of Headmaster of L.P. Schools. The Note added to Rule 45A by G.O.(P) 273/84/G.Edn. dated 18.12.1984 published in Gazette dated 12.2.1985 provides that qualified specialist teachers can also be appointed as Headmaster of L.P.School. The said Note reads as follows: “Note:- The language/specialist teachers according to their seniority in the combined seniority list of teachers shall also be appointed as Headmaster of L.P. School or schools under an Educational Agency, provided the teacher possesses the prescribed qualifications for promotion as Headmaster of L.P. Schools on the date of occurrence of vacancy.” Rule 45B(1) deals with the acquisition of Account Test (Lower) qualification, conducted by the Public Service Commission for promotion to the post of Headmaster of U.P and L.P. Schools. Rule 45BB deals with exemption from clearing the test. Rule 45C deals with temporary promotion of the senior-most teacher in the absence of any qualified hand for WA 2240/2008 13 promotion to the post of Headmaster. 8. Going by the above Rules, it can be seen that promotion to the post of H.S.A in any of the core subjects is governed only by the opening part of Rule 43 of Chapter XIV A of the K.E.R., which, we again quote here for convenience: “43. Subject to Rules 44 and 45 and considerations of efficiency and any general order that may be issued by the Government, vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority , if such hands are available : ...............” (Emphasis supplied) Appointment to the post of H.S.A Language is governed by Note (1) under Rule 43 and also Rules 43B and 43C. Rules 44 and 45 deal with appointment to the post of Headmaster of High Schools and U.P. Schools respectively. Subject to those Rules, which are special provisions dealing with those posts, all teaching posts in the higher grade shall be filled up by teachers working in the lower grades. Grade means scale of pay. The word “grade” is not defined under the K.E.R. But, it is generally treated in service jurisprudence as scale of pay. See the decision of the Apex Court in H.N.S. Bhatnagar v. S.N.Dixit [(1969)2 SCC 245]. The relevant portion WA 2240/2008 14 of the rule that was interpreted in the said decision reads as follows: “Recruitment to the post of Superintendent shall be made by promotion from the grade of superior service assistants in the Council Department. .......” Interpreting the said provision, the Allahabad High Court held as follows: “All officials working in the same scale of pay in a department, although holding posts with different designations, shall be deemed to be holding posts in the same grade, because their rank in the same department will be the same and equal to one another.” The Apex Court affirmed the above view taken by the High Court in the above decision. 9. H.S.A. (Social Studies) is a separate category of post. The post of U.P.S.A cannot be treated as a lower grade post of the category of post of H.S.A (Social Studies). Nothing in the Rules would support the contention to the contrary, canvassed by the respondents. Rule 34(a) provides for a combined seniority list of H.S.As (Core Subjects) and H.S.As (Languages). H.S.As in different core subjects and different languages also form separate categories for the purpose of retrenchment. If an H.S.A (Hindi) post is reduced in the staff fixation, the junior among the H.S.As in Hindi will be retrenched. The same is the case of other languages also. The case of core WA 2240/2008 15 subjects is also not different, but, of course, subject to the principle of minimum subject requirement. In this case, it is unnecessary to go into the said principle. For the purpose of retrenchment, U.P.S.As are treated as one category and language teachers in each language are treated as forming separate categories. The combined seniority lists under Rules 34(a) and 34 (b) were meant for promotion to the posts of Headmaster of High School and Headmaster of U.P. School respectively. But, subsequently, the combined seniority list under Rule 34(b) has become irrelevant for the purpose of promotion to the posts of Headmaster of U.P. School and Headmaster of L.P. School, with the addition of a Note, each to both the Rules 45 and 45A of Chapter XIV A of the K.E.R., with effect from 12.2.1985. By no stretch of imagination a U.P.S.A can be treated as a lower grade post of H.S.A. Note (1) to Rule 43 deals with lower grade posts and higher grade posts in the same category of posts. The H.S.As and U.P.S.As cannot be treated as belonging to the same category of posts in the higher grade and lower grade, like H.S.A. (Malayalam) and Language Teacher (Malayalam). Such an assumption is not warranted by the Rules. So, the finding of the D.P.I and the Government that a junior U.P.S.A gets preference over a senior Physical Education Teacher in the matter of promotion as H.S.A (Social Studies) is plainly untenable. U.P.S.A and WA 2240/2008 16 Specialist Teacher in the U.P. wing belong to the same grade. So, the tenability of their rival claims for promotion will depend upon their seniority, in view of Rule 43. Going by Rule 37, the appellant is admittedly senior. So, she was rightly promoted by the Manager and the same was rightly approved by the D.E.O. The judgment under appeal, which affirms Exts.P4 and P5 orders, is, therefore, unsustainable. In the result, the Writ Appeal is allowed. The judgment of the learned Single Judge is reversed. Exts.P4 and P5 are quashed. The Manager and the D.E.O shall take appropriate further action to undo the adverse orders, if any, passed against the appellant, based on Exts.P4 and P5. Such actions shall be completed within two months from the date of receipt of a copy of this judgment. No costs. K.BALAKRISHNAN NAIR, JUDGE. M.L.JOSEPH FRANCIS, JUDGE. nm/ WA 2240/2008 17