IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 WA.No. 1015 of 2008() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.9450/2008 Dated 27/03/2008 .................... APPELLANT(S): PETITIONER: ------------------------- SREEDHARAN MEKKILERI, RETD.HEADMASTER OF KCNM ALP SCHOOL, SANKARAMPADY, KASARAGOD DISTRICT, RESIDING AT 'SREE NILAYAM', SANKARAMPADY P.O., KASARGOD DISTRICT, PIN 671541. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA SRI.K.I.SAGEER RESPONDENT(S): RESPONDENTS: --------------------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KASARAGOD. 3. THE ASSISTANT EDUCATIONAL OFFICER, KASARAGOD. 4. THE ACCOUNTANT GENERAL OF KERALA, THIRUVANANTHAPURAM. GOVERNMENT PLEADER FOR R1-4 SMT.R BINDU THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18.09.2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ WA NO.1015 OF 2008 ------------------------------------------------------------------ Dated 18th September 2009 Judgment Balakrishnan Nair, J. The appellant was the writ petitioner. The Writ Petition was filed by him, challenging Exts.P8 and P11 orders issued by the Deputy Director of Education, Kasaragod and the Government respectively. By those orders, the grant of scale of pay of Headmaster, to the appellant as per Ext.P7 with effect from the date he was promoted as Teacher-in-charge on 14.3.1983 was recalled. The brief facts of the case are the following : 2. The appellant was appointed as LPSA in the KCNM ALP School, Sankarampady, Kasaragod on 1.6.1982. . On 14.3.1983, he was appointed as Teacher-in-charge as per Ext.P1 order by the Manager. The petitioner claimed payment of salary in the scale of pay applicable to Headmasters with effect from 14.3.1983. The Assistant Educational Officer, by Ext.P7 order dated 22.04.2006, allowed the said benefit to him and he was paid arrears of salary in the Headmaster's scale of pay from 14.3.1983 to 28.2.2006. WA 1015/08 2 3. Passing of Account Test was an obligatory qualification for promotion as Headmaster, as evident from Ext.P2. The petitioner cleared the test only in 1989. As per his service records, he was promoted as Probationary Headmaster only on 12.7.1993. On realising that Ext.P7 was contrary to law, immediately thereafter, the Deputy Director of Education, Kasaragod took steps to cancel that order. After hearing the Assistant Educational Officer, the appellant and the present Headmaster of the school, the Deputy Director by Ext.P8 order dated 25.5.2007, directed the Assistant Educational Officer to cancel Ext.P7 and to recover the excess amount paid to him. The aggrieved appellant preferred Ext.P9 revision before the Government. The Government, after hearing both sides, dismissed the same by Ext.P11 order. Exts.P8 and P11 orders were challenged before this court mainly relying on Ext.P4 order of the Government and also Ext.P5 order, which is stated to be an order issued in favour of persons similarly situated. But, the learned Single Judge dismissed the Writ Petition. Hence this appeal. 4. The point that arises for decision is whether a person appointed as Teacher-in-charge is entitled to get the scale of pay of the Headmaster. Rule 45C of Chapter XIV(A) KER deals with WA 1015/08 3 temporary promotion. The said rule reads as follows : “45C. Temporary Promotion :- (1) Where in any aided school, a qualified teacher is not available to be promoted as Headmaster in accordance with the provisions contained in rule 44, 44A, 45A and 45B, the appointing authority shall promote, the senior teacher on the staff of the school or the schools under the Educational Agency as Headmaster, temporarily. Provided that in the case of High Schools and Training Schools, the teacher so promoted shall be the senior-most graduate teacher on the staff of the school or the schools under the Educational Agency who has put in at least 12 years of continuous graduate service as provided in sub-rule(1) of rule 44A of this Chapter and in the case of primary schools, it shall be the senior-most teacher possessing qualifications prescribed in rule 45 or as the case may be, rule 45A. (2) A teacher temporarily promoted under sub-rule (1) shall be replaced as soon as possible by the member of the service who becomes entitled to the promotion under the rules. (3) A teacher temporarily promoted under sub-rule (1) shall not be regarded as a probationer in the higher category or be entitled by reason only of such promotion to any preferential claim to future promotion to such higher category. (4) If such person is subsequently promoted to the higher category in accordance with the rules, he shall commence his probation, if any, in such category from the date of such subsequent promotion or from such earlier date as the appointing authority may determine without prejudice to the seniority of others. (5) The pay of the promotee shall be fixed as provided in rule 43A.” Sub-rule (6) of the above quoted rule deals with appointment of WA 1015/08 4 Teacher-in-charge. As per the rules, especially Sub-rule (5) thereof, a teacher-in-charge is not entitled to get the scale of pay of the Headmaster. Sub-rule (7) thereof also provides that a Teacher-in- charge is entitled to get only a charge allowance apart from his grade pay. 5. Now, we will refer to Ext.P4 order relied on by the petitioner. We are of the view that Ext.P4 has nothing to do with the case of the appellant. It deals with the case of Headmasters who were promoted without Account Test Lower qualification. Ext.P4 contains a concession granted in favour of the Headmasters who were promoted relying on the exemption from the test, granted by the Government from time to time. The grant of exemption in such cases was held to be illegal by this court in Pankajaksy v. George Mathew (1987(2) KLT 723). But the Government decided to give one more chance to the affected Headmasters to pass the account test lower provided there were no qualified teachers eligible for promotion in the concerned schools as on 10.05.1988. In this case, as the appellant was test qualified in 1989 and he was promoted as Headmaster only in 1993, Ext.P4 cannot come to his rescue. The reliance placed on Ext.P5 also cannot be accepted. Even assuming the incumbents who WA 1015/08 5 are the beneficiaries of Ext.P5 were promoted as teachers-in-charge, the benefit granted to them being contrary to law, the petitioner cannot claim any benefit based on that. The learned counsel relied on the decision of this court, a copy of which is produced as Ext.P12. According to him, the said judgment deals with the claim of a Teacher-in-charge for getting the scale of pay of Headmaster. As long as the Rules do not permit payment of salary in the Headmaster's scale of pay to Teacher-in-Charge, the said decision cannot be followed. In view of the above position, the Writ Appeal is devoid of any merit and it is accordingly dismissed. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta WA 1015/08 6