IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 WP(C).No. 36875 of 2010(H) --------------------------------------- PETITIONER: ------------------- PRADEEP.R, HSST IN CHEMISTRY, GHSS, VETTIKKAVALA, VIA. KOTTARAKKARA, KOLLAM DISTRICT. BY ADV. SRI.V.VARGHESE. RESPONDENTS: ------------------------ 1. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SANTHINAGAR, THIRUVANANTHAPURAM-695 032. 2. PRATHAPACHANDRAN NAIR, HSST IN BOTANY, GHSS, VETTIKKAVALA, VIA.KOTTARAKKARA, KOLLAM DIST-691 538. R1 BY GOVERNMENT PLEADER SMT. NISHA BOSE, R2 BY ADV. SRI.ANCHAL C.VIJAYAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 36875 of 2010-H - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of February, 2011. JUDGMENT The dispute between the petitioner and the second respondent with regard to the charge arrangement in their school whenever the Principal takes leave or absent, is the issue to be resolved in this writ petition. By Ext.P5, the first respondent informed the Principal that the second respondent has to be given charge, since after reckoning the existing service, he will be having more length of service. 2. The contention raised by the petitioner is mainly that he is having more service and thereby seniority in the cadre of Higher Secondary School Teacher and therefore he is the rightful claimant whenever the charge arrangements have to be made. 3. The details with regard to the service particulars of the petitioner are the following: He entered service as H.S.A. (Physical Science) on the advice of the Public Service Commission, on 24.1.2002. He was promoted as H.S.S.T. (Junior) in Chemistry on 27.2.2004 and to the category of HSST in Chemistry by order dated 5.6.2004. He joined the present school on 15.6.2004. wpc 36875/2010 2 4. With regard to the second respondent, he entered service as H.S.A. (Natural Science) on 3.8.1995 and he was also advised by the Public Service Commission. He was promoted to the post of HSST (Junior) in Botany on 28.6.2003 and was later promoted to the category of HSST in Botany as per order dated 13.11.2006. He was working thereafter in the Government Higher Secondary School, Pala, Kottayam, Govt. Higher Secondary School, Thazhava and joined he present school on 5.9.2008. 5. It is evident from the above that the petitioner became Higher Secondary School Teacher on 15.6.2004. His initial service as H.S.A. started on 24.1.2002. The initial service of the second respondent started on 3.8.1995, earlier than that of the petitioner as H.S.A. (Natural Science). But his service as HSST (Senior) started pursuant to the appointment as such on 13.11.2006, later than that of the petitioner. 6. The appointment of Principal in Higher Secondary Schools is governed by the Special Rules, viz. Kerala Higher Secondary Education State Service, 2001. Under the said rules, as it stood originally which has been extracted in para 7 of the writ petition, the appointment was by promotion as well as by transfer. Under Rule 5 which relates to the qualifications for promotion as Principal, apart from the academic wpc 36875/2010 3 qualification, the person concerned should have minimum approved teaching experience of 12 years. The Note therein provided that “preference shall be given based on the teaching experience at Higher Secondary level.” For appointment by transfer, one should have minimum approved teaching experience of 12 years at Higher Secondary/High School level and preference shall be given based on the teaching experience at Higher Secondary level. This rule was amended in the year 2009 as per Ext.P4 amendment. As per the amendment, against the entry “By promotion” item (iii) and the Notes were substituted as follows: “(iii) Minimum approved teaching experience of 12 years in the Kerala Higher Secondary Education State Service/Kerala Higher Secondary Education Subordinate Service. Note: 1. In the absence of persons having qualification as specified above, teaching experience in Government Schools at High School/Upper Primary/Lower Primary Schools in the General Education Service shall be considered. 2. Such experience shall be reckoned only for qualifying service and shall not be reckoned for seniority. 3. Such persons must possess a minimum service of six years as Higher Secondary School Teacher (Senior/Junior).” wpc 36875/2010 4 Going by the above, for promotion to the post of Principal, one should have teaching experience of 12 years in the Kerala Higher Secondary Education State Service/Kerala Higher Secondary Education Subordinate Service. In the absence of such persons, Notes 1, 2 and 3 will govern the field. Going by Note 1, teaching experience in Government schools at High School/Upper Primary/Lower Primary Schools in the General Education Service shall be considered and going by Note 3, such persons should have a minimum service of six years as Higher Secondary School Teacher (Senior/Junior). Evidently, going by Note 2, experience will be reckoned only for qualifying service and shall not be reckoned for seniority. 7. It is contended by the learned counsel for the petitioner Shri Varghese that going by the amended rules, the first preference goes to persons having 12 years service as HSST (Senior and Junior). It is pointed out that if the said criteria is reckoned, the petitioner and the second respondent are not having 12 years service as HSST, but even then the petitioner who is having more length of service as HSST, should get preference as he is senior to the second respondent in the HSST category. 8. Shri Anchal C. Vijayan, learned counsel appearing for the second respondent submitted that since the petitioner and the second respondent are wpc 36875/2010 5 not having 12 years of teaching experience in the Higher Secondary division, Notes 1, 2 and 3 alone will govern. If that be so, the teaching experience of the second respondent as H.S.A. will make him eligible for being given charge as Principal. It is pointed out that going by Note 2, even though it will not be considered for the purpose of seniority, it should be considered for the purpose of reckoning qualifying service. It is therefore submitted that Ext.P5 is perfectly valid and legal. 9. In Ext.P5, in an answer to the communication to the Principal of the school, the Director of Higher Secondary Education clarified that if there are teachers having eligibility for appointment as Principal, then the seniormost in the HSST category should be given charge in the absence of Principal. It is further clarified that if such teachers are not available, the teacher who is having seniority based on H.S.A. service, will have to be given charge and therefore the second respondent is entitled for that. 10. The emphasis given by the learned counsel for the petitioner in his argument, is that even in Ext.P3 provisional seniority list of H.S.S.Ts. appointed during the period from 13.6.2001 to 9.1.2005, the second respondent's name is not there, whereas the petitioner is serial No.647. It is pointed out that seniority being a concept which is relevant for the purpose wpc 36875/2010 6 of regular promotion as evident from the statutory rule, the same should govern the field, whenever charge arrangement is so thought of. It is also pointed out that the petitioner was being given charge earlier, but overlooking the same, Ext.P5 communication has been issued. It is further pointed out that the circulars Exts.P6 and P7 will also support the plea that the petitioner being senior in the HSST category, cannot be superseded by the second respondent. 11. As far as the claim for promotion of a person to be appointed as Principal is concerned, evidently the main body of the special Rules as amended, requires the minimum approved teaching experience of 12 years in the Higher Secondary division. But we are concerned with a situation wherein both the petitioner and the second respondent are not having total 12 years of teaching experience in the HSST category. In such cases, the method prescribed under Notes 1, 2 and 3 alone will govern. When the rule provides for such a method, there cannot be any deviation from the same. There is no challenge against the provisions of Notes 1 to 3 herein. Notes 1 to 3 will therefore govern cases not covered by the main body of the rule. If that be so, it can be seen that when no person having 12 years experience as HSST is available, the teaching experience in Government schools at High wpc 36875/2010 7 School/Upper Primary/Lower Primary schools will have to be considered. But he should also fulfill the minimum service of six years as HSST (Senior/Junior). 12. Therefore, when the above conditions are applied to the situation herein, it can be seen that the second respondent is having more service as H.S.A.(Natural Science), as he was appointed on 3.8.1995 as H.S.A. whereas the petitioner was appointed as H.S.A. (Physical Science) on 24.1.2002. The second respondent is having more than six years of service as HSST, as his date of appointment as HSST (Senior) is 13.11.2006. Therefore, he fulfills both the conditions under Notes 1 and 3. With regard to by transfer category under item 3, it is stated that “minimum approved teaching experience of 12 years in Government schools” is required. Therefore, that also will give idea under the amended rules. Therefore, if both these contingencies are also considered, the second respondent is entitled to be given charge whenever the Principal takes leave or he is absent. 13. In that view of the matter, Ext.P5 cannot be said to be illegal. It is well settled that when the statutory rule provides a particular method for doing things, that method should be followed. Evidently, the seniority in the wpc 36875/2010 8 HSST category is not a criteria in such situations. When a person having teaching experience of 12 years in Higher Secondary division is not available, the matter will have to be governed by the relevant clauses in Notes 1 to 3. The writ petition fails and the same is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/