IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 OP.No. 8827 of 2001(A) ------------------------------- PETITIONER(S): ------------------------- 1. T.A.SHERRIF, AGED 40 YEARS, S/O. LATE ABDUL KHADER, MANAGER , I.I.V.U.P. SCHOOL, MALIPPURAM P.O. 2. SHEELA V.K. U.P.S.A. , I.I.VUP, SCHOOL, MALIPPURAM. BY ADVS.MR.T.P.SAJAN MR.S.S.THAJUDEEN MR.P.N.SUKUMARAN RESPONDENT(S): ---------------------------- 1. THE STATE OF KERALA REP.BY SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE ASSISTANT EDUCATIONAL OFFICER, VYPEEN, ERNAKULAM DISTRICT. 3. C.A.JAMEELA IBRAHIM, CHENNAMPILLY HOUSE, VATTAPARAMPU P.O., KUTTIKATTUKARA, ALUPURAM, ERNAKULAM DISTRICT. SR. GOVERNMENT PLEADER MR.P.K.RAVIKRISHNAN, FOR R1 & R2 BY ADV.MR.V.A.MUHAMMED FOR R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON 12/06/2009 DELIVERED THE FOLLOWING: ORDER ON CMP. NOS.14127/01 , CMP.38884/2002 IN OP. 8827/2001 DISMISSED 12/06/2009 SD/- T.R.RAMACHANDRAN NAIR, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE GOVERNMENT ORDER NO.GO(RT) NO.53/2001/G.EDN.DIRECTING TO APPOINT THE 3RD RESPONDENT AS LOWER GRADE ARABIC TEACHER IN THE IST PETITIONER'S SCHOOL DT. 4.1.01. P2:- COPY OF THE STATEMENT SHOWING THE VACANCY OF U.P.S.A. DUE TO THE RETIREMENT OF SHRI. C.B.KHALID. P3:- COPY OF THE APPOINTMENT ORDER ISSUED BY THE IST PETITIONER APPOINTING THE 2ND PETITIONER AS UPSA. TRUE COPY P.S. TO JUDGE TSS T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P. No.8827 of 2001-A - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of June, 2009. JUDGMENT The first petitioner is the Manager of I.I.V.U.P. School, Malippuram and the second petitioner is an Upper Primary School Assistant appointed in the school. They are aggrieved by Ext.P1 order passed by the Government in revision filed by the Manager. 2. One Shri C.B. Khalid has retired from the service of the school as Headmaster on 31.5.2000. He was originally working as U.P.S.A. before his promotion as Headmaster. In the vacancy of Shri C.B. Khalid, one Shri V.A. Sayed Mohammed, a claimant under Rule 43 who is having the qualification of B.Ed. was promoted as Headmaster with effect from 1.6.2000. He was working in the sanctioned post of Lower Grade Arabic Teacher. The said promotion was approved by the Educational authority also. The vacancy arose due to the retirement of Shri C.B. Khalid in the post of U.P.S.A. was filled up by the appointment of the second petitioner, who is a Rule 51-A claimant. The third respondent raised a claim for appointment under Rule 51-A of Chapter XIV-A K.E.R. as Lower Grade op 8817/2001 2 Arabic Teacher. That was accepted by the authorities, which was upheld by the Government also by Ext.P1. 3. Heard learned counsel for the petitioners, learned Govt. Pleader and learned counsel for the third respondent. 4. Learned counsel for the petitioners submitted that actually the vacancy arose in the post of UPSA due to the retirement of the then Headmaster-cum-UPSA. Prior to the promotion of Shri C.B. Khalid as Headmaster, he was only a UPSA. Therefore, on his retirement as Headmaster, a vacancy has arisen in the post of UPSA also. It is pointed out that the present Headmaster who was working as L.G. Arabic Teacher, will function as Headmaster as well as Arabic Teacher in the school. The view taken by the authorities below is that he being a qualified UPSA, he can function as UPSA. It is submitted that the same is against the relevant rules of Chapter XXIII K.E.R. My attention was invited to the Note to Rule 45 of Chapter XIV-A K.E.R. also. This argument is countered by the learned Govt. Pleader and by the learned counsel appearing for the third respondent by submitting that the previous Headmaster was working as U.P.S.A., and on his retirement when Shri Sayed Mohammed is promoted as Headmaster he will fill the vacancy in the post of UPSA also and therefore the third respondent is the rightful claimant for the post of Arabic op 8817/2001 3 Teacher, being a Rule 51-A claimant. Both sides referred to the decision of a learned Single Judge of this court in Rejimol v. Asst. Educational Officer (2004 (2) KLT 899). 5. The Note to Rule 45 of Chapter XIV-A, K.E.R. is in the following terms: “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.” Going by the above Note, a language teacher who is qualified for promotion as Headmaster, shall also be appointed as Headmaster of the U.P. School. It is accordingly the present Headmaster was appointed by promotion. Going by Rule 5 of Chapter XXIII K.E.R., “in every Upper Primary School there may be - (i) One post of Headmaster; (ii) As many posts of Upper Primary School Assistants as the number of class divisions, reduced by one; (iii) As many posts of Lower Primary School Assistants as there are divisions in the Lower Primary School classes.” The sanctioning of post of Language Teacher is as provided in Rule 6 of Chapter XXIII K.E.R. There is no dispute that the post of Arabic Teacher is in the L.P. Section. Such a op 8817/2001 4 teacher who is having the qualification for promotion as Headmaster, is entitled for such promotion, going by the Note to the Rule 45 of Chapter XIV-A K.E.R. The scheme envisaged under Chapter XXIII shows that the person who has been promoted as Headmaster from the post of Language Teacher, will continue to teach the subject in language which was being taught by him. The question of appointing a fresh hand consequent on the promotion of such a person as Headmaster, does not arise since no resultant vacancy arises because of the said promotion. 6. In Rejimol's case (2004 (2) KLT 899), the question that was examined was: what will be the situation in a school having both Lower Primary and Upper Primary Sections and where the Headmaster is to be from the Lower Primary Section? The legal position that Lower Primary School Assistant cannot teach in Upper Primary schools is reiterated in para 6. In para 8 it was held thus: “The provisions will have to be understood in the background of the general scope of the statute and the legal mischief that it intended to remedy. The rule requires the Headmaster of L.P.School or U.P. School, as the case may be, to handle one class division. The L.P. School Teacher turned Headmaster is not competent to teach in the U.P. School.” op 8817/2001 5 In that view of the matter, learned counsel for the petitioner is right in submitting that no vacancy has arisen in the post of Arabic Teacher. 7. In Ext.P1 order, the view taken by the Government is that “Shri Khalid, the Headmaster who retired on 31.5.2000 was holding the post of Headmaster and also handling classes as UPSA. As such, the resultant vacancy is that of a UPSA. In this particular case the Manager appointed Shri V.A. Sayed Mohammed who was an LPSA in Arabic, as he possessed the qualification as per Rule 45 Chapter XIV-A K.E.R. and was senior. But when Shri V.A. Sayed Mohammed was promoted and posted as Headmaster by virtue of his B.A. and B.Ed. qualification required for UPSA and as he was appointed in the vacancy of Sri Khalid who was working as UPSA- cum-Headmaster, Sri Sayed Mohammed should perform the same duties performed by Shri Khalid, ie. UPSA-cum-Headmaster, since there is no independent charge of Headmaster in the Primary School and the Headmaster is bound to teach any subject in the UPS being fully qualified.” 8. The said reasoning cannot be supported in law. The present Headmaster was only handling classes in L.P. Section. There is only one post of L.G. Arabic Teacher. Merely because he is having the qualification for appointment as U.P.S.A., that does not mean that he gained an automatic appointment as UPSA when he is promoted as Headmaster. The vacancies op 8817/2001 6 which arose due to the retirement of Shri Khalid are that of UPSA and that of Headmaster. Prior to his promotion as Headmaster, Shri Sayed Mohammed was never posted or promoted as UPSA. In that view of the matter also, the other vacancy which has arisen here is only in the post of UPSA. This was filled up by appointing the second petitioner. Therefore, the said appointment is liable to be approved and the rejection of the approval is therefore not justified. 9. Learned counsel for the third respondent submitted that the third respondent the rightful claimant for the post of L.G. Arabic Teacher under Rule 51-A of Chapter XIV-A K.E.R. It is submitted that the post of Headmaster in the U.P. Section is a separate one having a higher scale of pay and he is to be in independent charge of one class division in U.P. Section and therefore once Shri V.A. Sayed Mohammed was promoted as Headmaster, he has ceased to be an Arabic Teacher and he cannot be in charge of an Arabic Teacher. The said contention cannot be accepted in the light of the statutory scheme provided under Chapter XXIII K.E.R. Clearly, a post of Arabic Teacher has been sanctioned in the L.P. Section. The promotee Headmaster is therefore expected to take classes as Arabic Teacher and he cannot, because of the grant of promotion as Headmaster, be op 8817/2001 7 treated as a UPSA, as already held. Therefore, the said contention cannot be accepted. 10. In the result, the original petition is allowed. Ext.P1 is quashed. There will be a direction to the second respondent to approve the appointment of the second petitioner as UPSA, as per the order of appointment in the vacancy which arose on 13.6.2000 and she will be entitled for the monetary benefits flowing from the same accordingly. Order shall be passed within a period of three months from the date of receipt of a copy of this judgment. (T.R. Ramachandran Nair, Judge.) kav/