IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 11TH MARCH 2008 / 21ST PHALGUNA 1929 RP.No. 91 of 2008() ------------------- AGAINST THE JUDGEMENT IN WA.1904/2007 Dated 24/08/2007 .................... PETITIONER/RESPONDENT NO.4 IN THE WA ------------------------------------ THE MANAGER, A.U.P.SCHOOL, VAZHIKKADAVU, NILAMBUR, MALAPPURAM DISTRICT. BY ADV. SMT.P.V.ASHA RESPONDENTS: WRIT APPELLANT & RESPONDENTS IN THE WA --------------------------------------------------- 1. M.GEEVARGHESE, U.P.S.A., A.U.P.SCHOOL, VAZHIKKADAVU, NILAMBUR, MALAPPURAM DISTRICT. 2. M.MUHAMMED ASHRAF, HEADMASTER, A.U.P.SCHOOL, VAZHIKKADAVU, NILAMBUR, MALAPPURAM DISTRICT. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 4. ASSISTANT EDUCATIONAL OFFICER, NILAMBUR. R1 BY ADV. SRI.KALEESWARAM RAJ R3 & R4 BY GOVT.PLEADER SRI P.LAKSHMINARAYANAN THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 25/02/2008 THE COURT ON 11/03/2008 PASSED THE FOLLOWING: P.R.RAMAN & V.K.MOHANAN, JJ. ------------------------------- R.P.NO.91 OF 2008 IN W.A.NO.1904 OF 2007 -------------------------------- Dated this the 11th day of March, 2008 O R D E R Raman, J The 4th respondent in W.A.No.1904/07 is the petitioner herein. The petitioner seeks for a review of the judgment in the writ appeal on the ground that though the petitioner was the 4th respondent, he was not herd in the matter. His counsel, who appeared in the writ petition was not given notice of the appeal. Hence, he was unable to raise his contention in the writ appeal. 2. In the counter affidavit filed by the lst respondent herein, who is the appellant in the writ appeal, it is stated that the appeal was filed against the judgment of the learned Single Judge in the writ petition and the 4th respondent was the Manager of the School. Both the counsel appearing for the writ petitioner as well as the counsel appearing for the 4th respondent in the writ appeal are in the same office and they had a common Clerk and copy of the writ appeal was served on the Clerk as a representative and authorised person on -2- R.P.No.91/08 behalf of the writ petitioner (lst respondent in the writ appeal) as well as the review petitioner herein (4th respondent in the writ appeal). But the Clerk put only one signature, instead of putting two signatures. Thus in substance, notices were given to the counsel for the review petitioner as well. 3. We have heard both sides. 4. The fact remains that the review petitioner though was arrayed as the 4th respondent in the writ appeal and he was represented through counsel, no separate notice was given to the counsel appearing for the 4th respondent at the writ appeal stage. The counsel appearing for the 4th respondent in the writ appeal and the lst respondent in the writ appeal, who is the writ petitioner may have a common registered Clerk. But admittedly in the absence of any separate endorsement by the Clerk for and on behalf of the counsel appearing for the 4th respondent and in the absence of his name being shown in the cause title, when the writ appeal came up for consideration, we think in the larger interest that the review petitioner should be given an opportunity to address his argument on the merits of the contention raised in the review petition. However, we are told that the writ petitioner, who is the lst respondent in the writ appeal, -3- R.P.No.91/08 has preferred a Special Leave before the Apex Court against the judgment rendered by the Division Bench of this Court in W.A.No.1904/07 and the same is pending consideration. Hence, unless we are satisfied on merits that a different conclusion is to be reached based on the appreciation of the contention now raised by the review petitioner, there is no reason to set aside the judgment of the Division Bench in the writ appeal to reiterate the same view on a technical reason that the petitioner was not heard in the matter. Therefore, the course open to us is to re-hear the appeal and after appreciating the contention of the review petitioner on merits, to see whether the conclusion reached by this Court requires re-consideration. Hence, the appeal was re-heard. 5. The matter relates to the appointment of a Headmaster in an Upper Primary School. The writ appellant was a graduate Teacher. The senior most under graduate Teacher in the school had put in 32 years 10 months and l7 days service and the next in line, Smt.K.P.Sulaikhabeevi had 32 years 29 months and 10 days service and the 3rd senior most teacher C.V.Varghese had put in 31 years 10 months and 12 days service as found by the learned Single Judge in the writ petition. All the three -4- R.P.No.91/08 senior most teachers relinquished their claim for the post of Headmaster. The writ petitioner based on the seniority is the next senior most under graduate in the school. The review petitioner, who is the Manager, appointed the writ petitioner to the post of Headmaster considering his seniority. It is approved by the Controlling Officer as per Ext.P1. The claim of the graduate teacher, who was the 4th respondent in the writ petition and who was the appellant in the writ appeal, was rejected. The matter was taken up before the Government in a statutory revision and the Government by passing Ext.P4 order upheld the claim of the graduate teacher and declared that he was entitled to be promoted as Headmaster, since he had got half the period of service of the writ petitioner, who had become the senior most teacher as the other senior most teachers had relinquished their claim for promotion. This order was challenged in the writ petition by the writ petitioner, who, by virtue of the relinquishment of the claim by the three senior most under graduate, became eligible to be considered. The learned Single Judge, after considering the provisions contained in Rule 45 of Chapter XIV-A of the KER, held that the post of Headmaster shall be filled up from among the qualified teachers of the staff of the school or schools under the educational agency and as per the -5- R.P.No.91/08 rules, if there is a graduate teacher with B.Ed. or other equivalent qualification, who has got 5 years' experience in teaching after acquisition of B.Ed. degree, he should be appointed as a Headmaster provided he has got a service equal to half of the period of service of the senior most under graduate teacher. Therefore, the provisions contained in the rule undoubtedly show that a graduate teacher with minimum 5 years' experience after acquisition of B.Ed. degree has to necessarily have half of the period of service of the senior most under graduate teacher. According to the learned Single Judge, the rule does not however envisage or contemplate a situation where the the words " senior most under graduate teacher" have to be read and understood as " the senior most under graduate claimant". Though the senior most undergraduate teacher had relinquished his claim, once the graduate teacher does not have 50% of the service of that the senior most teacher, he loses his claim and the next senior most under graduate teacher had a rightful claim for appointment to the post of Headmaster. In short, in order to decide the eligibility of a graduate teacher to be appointed as a Headmaster, he has to possess 50% of the service possessed by the senior most teacher and the mere relinquishment of the claim of that senior most teacher, it is no -6- R.P.No.91/08 longer open to such a graduate teacher to stake his claim as against the next senior most teacher and if he had 50% of the total service rendered by the next senior most teacher, that is no reason to hold that such a graduate teacher is entitled to be appointed. Accordingly, the learned Single Judge quashed the Government Order, Ext.P4 and the orders, Exts.P1 to P3, passed by the Assistant Educational Officer were restored. In the writ appeal filed by the graduate teacher, a Division Bench of this court by judgment dated 24/8/2007 took the view that what has to be examined is as to whether a graduate qualified teacher is available in the school for filling up the post of Headmaster and the post can be filled only if teachers are available for being filled up. There is no logic in comparison of the service of graduate teacher with an undergraduate teacher, who is not available while filling up the post of Headmaster. It was held that once an undergraduate teacher is not staking any claim for the post of Headmaster he is out of the fray. So there is no legal bar in comparing the length of service of a graduate teacher to that of an undergraduate teacher available, while the post is being filled up. Comparison should be between the persons available in the field, when the post is to be filled up. The word "senior most undergraduate teacher" -7- R.P.No.91/08 means the senior most undergraduate teacher, against whom a qualified graduate teacher's length of service has to be equated while filling up the post and not against a senior undergraduate who is not interested in the post of Headmaster. Thus, when the claim is between the graduate teacher and the non-graduate teacher, comparison has to be made for the eligibility between themselves and not between a person, who is not aspiring for the post. Accordingly, the judgment of the learned Single was set aside and the Government Order, Ext.P4 was restored. 6. The learned counsel for the review petitioner would contend that the word "senior most teacher" occurring in Rule 45, has to be understood in contra distinction to the word "senior most claimant" and hence this distinction has to be made while interpreting the rule. In this case though the senior most undergraduate teacher relinquished his claim for appointment of a Headmaster, for the purpose of considering the eligibility of a graduate teacher comparison could only be made of such senior most undergraduate teacher irrespective of whether he had relinquished his claim or not. Once it is found that the graduate teacher did not have the prescribed qualification of 50% service of the senior most under graduate teacher working in the school, he has no further claim to -8- R.P.No.91/08 be considered. Therefore, a graduate teacher's eligibility cannot be compared to the next senior most teacher, who becomes entitled to be promoted by virtue of the relinquishment of the claim by his or her seniors. 7. Thus the whole question depends upon the interpretation of Rule 45 of Chapter XIV-A KER. For the purpose of easy reference, it is re- produced hereunder: "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 S.S.L.C. or equivalent and [T.T.C. issued by the Board of Public Examination Kerala or T.C.H. issued by the Karnataka -9- R.P.No.91/08 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 promotion as Headmaster of U.P.School on the date of occurrence of vacancy]" 8. We may also refer to Rule 44 of Chapter XIV of the KER which reads as follows: "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 -10- R.P.No.91/08 shall obtain a written consent from such senior claimant renouncing his claim permanently. Such consent shall have the approval of the Educational Officer concerned]" 9. The rest of the rule is not relevant for this case and hence it is not extracted. The qualification prescribed for appointment as Headmaster by a junior graduate teacher in preference to a senior most under graduate teacher under Rule 45 as referred above is that he should be (i) A graduate teacher must have a B.Ed. qualification or other equivalent qualification; (ii) He must have at least five years experience in teaching after acquisition of B.Ed. and (iii) He has got a service equal to half of the period of service of the senior most under graduate teacher. 10. According to the counsel appearing for the review petitioner, if there is a senior under graduate teacher and if the incumbent, a graduate stakes a preferential claim for appointment as per this rule, necessarily he should also satisfy the condition that he should have service equal to half of the period of service of the senior most under graduate teacher. The fact that the senior most under graduate teacher has relinquished his claim, however, is not relevant in deciding the qualification to be acquired by the graduate teacher. According to him, while Rule 44 uses the expression -11- R.P.No.91/08 "senior claimant" Rule 45 only uses the expression "the senior most under graduate teacher." Therefore, the expression "senior most under graduate teacher" cannot be understood or interpreted to mean as a "senior most under graduate claimant" for the post. If the Rule Making Authority had intended that the claim of the graduate teacher with reference to the claimant under graduate teacher has to be considered, then necessarily, the Authority would have used the expression "senior most under graduate claimant." 11. We are however unable to accept the said contention for the following reasons: The appointment is for the post of Headmaster in U.P. School and as per Rule 45, if there is a graduate teacher with requisite qualification as prescribed therein, he must be preferred to be appointed to that of an under graduate teacher. The word "senior most teacher" occurring in the former part of Rule 45 and in the latter part is indicative of the fact that the experience possessed by the graduate teacher is to be compared with the experience possessed by the senior most graduate teacher, who would otherwise be appointed in case there is no graduate teacher of the requisite qualification as otherwise the very object the rule will be -12- R.P.No.91/08 defeated. It is between the two claimants, namely, graduate teacher and under graduate teacher and as to who should be appointed in the school as the Headmaster becomes relevant in this regard. To consider the qualification of a graduate teacher with reference to the experience possessed by an under graduate teacher, who relinquished his claim for appointment and to appoint the next undergraduate teacher on the ground that the graduate teacher does not possess the qualification, namely, the service equal to half the period of service of the senior most under graduate teacher is not only illogical but also run contrary to the object of the very section itself. The word "senior most under graduate teacher referred to in the former rule will then be different from the word "senior most graduate teacher to be appointed on the relinquishment of claim of his senior. Such an interpretation is not intended by the rule. When an appointment has to be made to the post of Headmaster, there are two claimants, graduate and under graduate. Preference will be given to under graduate teacher for being appointed provided he have the requisite experience namely, half of the service rendered by the senior most under graduate teacher. In other words, the expression "senior most under graduate teacher" referred to in both the former part of the rule and the -13- R.P.No.91/08 latter part of the rule is in reference to the person, who ultimately has a claim for consideration for being appointed. If that be so, we do not find any error apparent on the face of the record warranting review of the judgment rendered in the writ appeal and there is no merit in the contention now raised by the review petitioner. Accordingly, the review petition is dismissed. P.R.RAMAN, Judge. V.K.MOHANAN, Judge. kcv.