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Judgment
The point that arises for decision in this case is, whether the service rendered by a Primary School Teacher in an Aided School managed by a different Educational Agency can be counted in his present school for the purpose of reckoning the period of service under Rule 45 Chapter XIV-A K.E.R. The brief facts necessary for the purpose of the case are the following:-
The Petitioner joined Bavode East U.P.School, Bavode, Kannur District on 10-8-1977 on inter-management transfer from Vadakkumpad Aided L.P.School, Mundalloor. He joined the school at Mundalloor on 2-6-1975 and has continuous approved service in that school upto 9-8-1977. On the strength of the order of the competent authority, the Petitioner joined the present school on. 10-8-1977.
A vacancy arose in the post of Headmaster on 1-6-1999. The Petitioner and the 6th Respondent were the rival claimants. It is not in dispute that both of them are qualified to be promoted as Headmaster. The Petitioner''s qualifications are SSLC and TTC, whereas that of the 6th Respondent are Graduation and B.Ed. The Petitioner has a service of 21 years 9 months and 22 days as en 1-6-1999. The 6th Respondent has 11 years 3 months and 24 days service. If the service in the present school alone is reckoned, the 6th Respondent is liable to be preferred for appointment as Headmaster on the basis of the preference available to Graduates under Rule 45 Chapter XIV-A KER. If the Petitioner''s service of 2 years, 2 months and 7 days rendered by him in Vadakkumpad Aided L.P.School, Mundalloor is also reckoned, the Petitioner is entitled to be appointed in preference to the 6th Respondent, who joined the school on 6-2-1988.
The Manager appointed the 6th Respondent as Headmaster of the School with effect from 1-6-1999. The Petitioner filed Exhibit P1 objection before the A.E.O., against the said appointment. He also prayed that the Manager may be directed to appoint him as the Headmaster. The A.E.O. as per Exhibit P2 order, rejected the Petitioner''s representation and ordered approval of the appointment of the 6th Respondent. The Petitioner preferred Exhibit P3 appeal before the D.E.O., Kannur. The appeal was dismissed by Exhibit P4 order dated 17-2-2000. His further revision Exhibit P5 before the Government was also dismissed by Exhibit P6 order dated 18-10-2000. In this Original petition, the Petitioner challenges Exhibits P2, P4 and P6 orders.
The Petitioner has another grievance against, the entry regarding the date of commencement of his service shown in the seniority list of the school as 10-8-1977. According to him, the same should be 2-6-1975. Against the said alleged irregularity in the seniority list, the Petitioner unsuccessfully moved the A.E.G., D.E.O. and D.P.I. Those Authorities rejected his representations by Exhibits P10, P12 and P14 orders. Those orders are also challenged in this Original petition.
The 1st Respondent has filed a Counter affidavit supporting the impugned orders. According to the Government, the service rendered by the Petitioner in the present School alone can be counted for the purpose of seniority as well as for computing the total service contemplated under Rule 45 Chapter XIV-A KER.
I heard both sides. Learned counsel for the Petitioner relied on the decision of the Full Bench of this Court in Sasidharan Nair v. State of Kerala 2003 (1) KLT 998. It was a decision interpreting Rule 44 of Chapter XIV-A KER. Learned counsel for the 6th Respondent on the other hand relied on the decision of this Court in Alexander v. State of Kerala 1996 (1) KLT 602.
Rule 45 of Chapter XIV-A KER 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 E.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 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".
The point to be decided, as stated earlier, is, while computing the total service of the seniormost under-graduate teacher, whether the service rendered in a school run by another Educational Agency can be reckoned. It is common case that the Petitioner is the senior most under-graduate teacher in that school. It is also not in dispute that the 6th Respondent is a graduate teacher having five years service. The only point in dispute iswhether he is having half the service of the senior most under graduate teacher. If the Petitioner''s past serviceis also reckoned, he is entitled to succeed.
In the afore-mentioned Full Bench decision, inSasidharan Nair.''s'' Case 2003 (1) KLT 998 this Court was interpreting the Explanation to Rule 44A, which reads as follows:
"44A. (1) Subject to the provisions contained in sub-rule (1) of rule 44, the minimum service qualification for appointment as Headmaster in Aided Complete High Schools/Training Schools shall be twelve years of continuous graduate service with a pass in the test in Kerala Education Act and the Kerala Education Rules, and a pass in account Test (Lower) conducted by Kerala Public Service Commission.
Provided that Headmasters of High and Training Schools, who were actually holding the said post on the eleventh day of June, 1974 shall stand exempted from passing the Account Test (Lower).
Provided further that Teachers who have attained the age of 50 years shall stand exempted permanently from acquiring the test qualification specified in Sub-rule (1)".
Explanation: For the purpose of this Rule, "Graduate Service" means all service of a teacher as High School Assistant, Training School Assistant, Headmaster of an incomplete High School, Headmaster of a complete Upper Primary School/Middle School or Headmaster of a Training School after acquisition of Collegiate training such as B.T., L.T., or B.Ed. But in the case of such teachers appointed prior to 15-10-1957 their untrained service after graduation shall also be reckoned as "Graduate Service", provided that their appointments were not in accordance with the Madras Education Rules:.
This Court said, the service rendered in another school can also be reckoned for the purpose of the above said Explanation. Relying on the said decision, the Petitioner would contend that the said principle will squarely ''apply to Rule 45 Chapter XIV-A KER also, earned counsel for the 6th Respondent on the other hand, submitted that the case is squarely covered in his favour by the decision of this Court in Alexander v. State of Kerala 1996 (1) KLT 602. It was a decision under Rule 44 and 45 Chapter XIV-A KER. This Court considered whether the service rendered on deployment as a protected teacher can also be reckoned for the purpose of determining whether the Graduate teacher is having half the service of the seniormost under-graduate teacher. This Court held that the service rendered on protection by the Graduate teacher cannot be reckoned. The point whether the service rendered in another school could be counted under Rule 45 Chapter XIV-A KER directly arose for decision in Manager, AUP School v. State of Kerala 1988 (1) KLT 402. This Court in the said decision held that,
"We have, therefore, no hesitation in taking the view that a teacher on transfer under rule 11 of Chapter XIV-A of the, Rules cannot count service rendered by him before his transfer, for the purpose of earning eligibility for being appointed as Headmaster under rule 45 in the transferred school".
The Full Bench of this Court in Sasidharan Nair''s Case 2003 (1) KLT 998 has over-ruled the said decision of this Court. The Full Bench said.
"Thus, on a consideration of the provisions of the statutory rules as well as the binding precedents, we find that the benefit of the service rendered by a teacher in one school is not lost on his transfer to another school under a different management when his claim/eligibility for promotion has to be considered. The view as taken by the two Division. Benches in 1988 (1) KLT 402 and W.A.No. 214 of 1998 is not correct. It is, thus overruled".
In view of the above authoritative pronouncement, the Petitioner is entitled to succeed. The decision of the single bench of this Court in Alexander''s Case 1996 (1) KLT 602 cannot stand with/the above Full Bench decision.
Accordingly, I quash Exhibits P2, P4 and P6 orders. It is declared'' that the Petitioner is entitled to be appointed as Headmaster with effect from 1-6-1999. The 5th Respondent shall pass consequential orders appointing the Petitioner as Headmaster with effect from 1-6-1999 within one month from the date of receipt of a copy of this judgment. The Petitioner shall be entitled to all consequential benefits notionally from 1-9-1999 except arrears of salary. He will be eligible to get arrears of salary with effect from the date he joins duty in the post of Headmaster or on completion of one month from the date of receipt of a copy of this judgment by the Manager, whichever is earlier. There shall not be any recovery of the salary drawn by the 6th Respondent in the post of Headmaster.
In view of the above directions, the dispute regarding the date of commencement of service of the Petitioner which should be shown in the seniority list is irrelevant. Therefore, I am not going into the validity of Exhibits P10, P12 and P14 as the same is unnecessary.
The O.P. is disposed of as above. No costs.