IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 29TH JULY 2008 / 7TH SRAVANA 1930 WA.No. 478 of 2007 --------------------------- AGAINST THE JUDGEMENT IN W.P.C. NO. 34551/2006 DATED 05/01/2007 .................... APPELLANT/ PETITIONER: -------------------------------------- GEETHA P.I., UPPER PRIMARY SCHOOL ASSISTANT, R.R.UPPER PRIMARY SCHOOL, ULLANNOOR, RESIDING AT 'UGMA', KALPUZHA, KULANADA. P.O., PATHANAMTHITTA DISTRICT. BY ADV. SRI.M.S.UNNIKRISHNAN, SMT.S.KARTHIKA, SMT.K.P.GEETHA MANI, SRI.M.R.ANISON, SRI.T.R.RAJESH. RESPONDENTS/ RESPONDENTS: ------------------------------------------------ 1. STATE OF KERALA, REP.BY SECRETARY TO GOVT., GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR (EDUCATION), OFFICE OF THE DEPUTY DIRECTOR OFFICE (EDN), PATHANAMTHITTA. 4. THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, THIRUVALLA. W.A. NO. 478/2007-C: 5. THE ASST.EDUCATIONAL OFFICER, OFFICE OF THE ASST.EDUCATIONAL OFFICER, ARANMULA. 6. SMT.RADHAMANI AMMA.P. W/O.C.S.PANICKER, KUMBAZHETHU HOUSE, KILDANGANNOOR POST, MEZHUVELI, PATHANAMTHITTA, (UPPER PRIMARY SCHOOL, ASST. R.R. UPPER PRIMARY SCHOOL, ULLANNOOR). SR. GOVT. PLEADER SRI. BENNY GERVACIS FOR R1 TO R5, ADV. SRI.S.SUBHASH CHAND FOR R6. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2008, ALONG WITH W.A NO. 482/ 2007 & WPC NO. 34410/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. J.B. Koshy & P.N.Ravindran, JJ. -------------------------------------- W.A. Nos. 478 & 482/2007 and W.P.(C) No.34410/2006 --------------------------------------- Dated this the 29th day of July, 2008 Judgment Koshy,J. These appeals are filed against the common judgment of the learned single Judge dated 5.1.2007. Petitioner in W.P. (C) No.34410 of 2006 was appointed as headmaster with effect from 1.4.2004 in a retirement vacancy. There was delay on the part of the management in applying for approval of appointment of the petitioner as headmaster. That delay was condoned by Ext.P3 order. Nobody objected his appointment as headmaster till he retired. He retired with effect from 31.3.2005. By Ext.P4 there was a direction by the Director of Public Instructions to approve the appointment if he is otherwise eligible. Since there was no rival claimant at the time of his appointment or even before his retirement, we are of the opinion that his appointment ought to have been approved as he is an eligible candidate. It is true that after the retirement, a revision petition was filed by the sixth respondent stating that she had a superior claim because of her W.A.Nos. 478 & 482/2007 & W.P.(C) No.34410/2006 2 graduate service. We are of the opinion that a representation was filed by the sixth respondent for the first time only on 15.10.2006 whereas petitioner retired from service on 31.3.2005. In the above circumstances, we are of the view that even if there is superior claim of the sixth respondent in view of the absence of any objection, appointment of the petitioner in W.P. (C) No.34410 of 2006 ought to have been approved and consequential benefits ought to have been given to him. With regard to the superior claim of the graduate teacher, we shall consider the same while disposing of the writ appeals. 2. The challenge in the writ appeals is regarding the appointment to the vacancies of headmaster which arose due to the retirement of the petitioner in W.P. (C) No.34410 of 2006, that is, with effect from 1.4.2005. W.P. (C) No.34551 of 2006 was filed by an undergraduate teacher. She got regular appointment in the school on 6.12.1983. She is a TTC holder and passed pre-degree and account test. She had approved temporary service prior to her regular appointment. The sixth respondent joined the service on 2.6.1986 and she is a graduate and also possesses B.Ed. and account test (lower). The sole question is whether she is entitled to preferential appointment as headmaster than the petitioner who W.A.Nos. 478 & 482/2007 & W.P.(C) No.34410/2006 3 was a TTC holder. Admittedly, sixth respondent was appointed only on 2.6.1986. Rule 45, Chapter XIV-A of the Kerala Education Rules as it then stood on the date of occurrence of the vacancy reads as follows: "45. Subject to rule 44, when the post of Headmaster of complete U.P. School is vacant or when an incomplete U.P. School becomes a complete U.P. School, the post shall be filled up from among the qualified teachers on the staff of the School or Schools under the Educational Agency. If there is a Graduate teacher with B.Ed. or other equivalent qualification and who has got at least five years experience in teaching after acquisition of B.Ed. Degree he may be appointed as Headmaster provided he has got a service equal to half of the period of service of the senior most under graduate teacher. If graduate teachers with the aforesaid qualification and service are not available in the School or Schools under the same Educational Agency, the senior most primary School Teacher with SSLC or equivalent and TTC issued by the Board of Public Examination Kerala or TCH issued by the Karnataka Secondary Education Examination Board, Bangalore or a pass in Pre- degree Examination with pedagogy as an elective subject conducted by the University of Kerala or any other equivalent training qualification prescribed for appointment as primary School Assistant may be appointed. 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 W.A.Nos. 478 & 482/2007 & W.P.(C) No.34410/2006 4 promotion as Headmaster of U.P. School on the date of occurrence of vacancy." It clearly shows that graduate teachers have preferential right to be appointed as headmaster. Therefore, even though manager appointed the petitioner as headmaster once, her appointment was not approved correctly in view of the superior claim of the sixth respondent. The learned Judge after considering various judgments of this Court held that sixth respondent had a superior claim and she ought to have been appointed as headmaster with effect from 1.4.2005. The wordings of rule 45 is very clear. The learned counsel for the appellant contended that at the time of entry into service, TTC was the qualification and it was amended only in 2000. It is contended that degree holders are not entitled to get appointment as UPSAs only when rule 3 (1) of Chapter XXXI was amended (respondent joined as a graduate teacher in 1996). However, appointment of sixth respondent is irregular. Such a contention was not raised before the educational authorities or in the writ petition and hence it cannot be raised in the appeal. Rule 45 was in force from 1971. That shows that teachers with B.Ed. qualification were being appointed as UPSAs. Hence, there is no irregularity in the appointment of the sixth respondent. Rule 45 is applicable even at W.A.Nos. 478 & 482/2007 & W.P.(C) No.34410/2006 5 the time when the appellant and sixth respondent were appointed regularly. After considering rules 3A and 4A of Chapter XIVA of Kerala Education Rules, a Full Bench of this Court in SNDP LP School v. Roy (2006 (4) KLT 497), para 31 to 38, held that B.Ed. degree holders can be appointed as UPSAs. It affirmed the decision in Mathew v. State of Kerala (1992 (2) KLT 116) and followed the decision in Thulasibhai Amma v. Asst. Educational Officer (1993 (2) KLT 245). The Full Bench also considered the effect of amendment in paragraph 36 of the judgment. Further, validity of rule 45 is not questioned in this writ petition. To declare a rule ultra vires, mere taking up a ground in writ appeal is not enough. Validity of rule 45 was approved in Unnikrishnan Nambiar v. Govt. of Kerala (1996 (2) KLT 1010); Hameed v. State of Kerala (1992 (1) KLT 565) and Thulasibhai Amma v. Asst. Educational Officer (1993 (2) KLT 245). Further, there is no vested right for promotion. Rules as on the date of promotion alone can be considered for promotion. But, at the same time, if any amendment of the service rule is applicable, that will not affect the promotions which were already given. In this case, sixth respondent, graduate teacher with B.Ed. with requisite experience was the eligible claimant to be considered for W.A.Nos. 478 & 482/2007 & W.P.(C) No.34410/2006 6 appointment on 1.4.2005. In this connection, we also refer to the decision of this court in Prasad v. Philipose Mar Dilshus U.P.School (2005 (3) KLT 487). As per the Government order, she is also getting salary as headmaster from the date she took charge. Ext.P3 order was passed on 29.11.2006. There is no justification for the manager in denying appointment to the sixth respondent at least after receipt of Ext.P3. It is stated that during the pendency of the writ petition, there was no stay. Even if they obtained stay of appointment, that is only an interim arrangement. Appointment of the writ petitioner was not approved. However, since it was finally rejected by the educational authorities only by Ext.P3, sixth respondent is entitled to salary as headmaster at least from the date of Ext.P3. Even though her service from 1.4.2005 will be counted as headmaster for the purpose of calculating service benefits, sixth respondent will get salary of headmaster only with effect from the date of the impugned order. In other words, he will get all notional service benefits as headmaster with effect from 1.4.2005 and pay as headmaster from the date of Ext.P3. It is pointed out that rule 45 was altered in 2008, but, that will not affect the vested right of already promoted persons. Educational authorities are directed to give consequential benefits and W.A.Nos. 478 & 482/2007 & W.P.(C) No.34410/2006 7 implement the orders. In this connection, we also refer to the decision of this court in Sadanandan v. State of Kerala (2000 (3) KLT 516). Both the writ appeals are dismissed and W.P.(C) No.34410 of 2006 is allowed. J.B.Koshy Judge P.N.Ravindran Judge vaa W.A.Nos. 478 & 482/2007 & W.P.(C) No.34410/2006 8 J.B. KOSHY AND P.N.RAVINDRAN,JJ. ------------------------------------- W.A. Nos.478 & 482/2007 and W.P.(C) No.34410/2006 ------------------------------------- Judgment Dated:29th July, 2008