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Judgment
Bhaskaran Nambtar, J.—Kottapuram High School is an aided institution governed by the Kerala Education Act and the Rules. A vacancy for the post of a Headmaster in this school arose on 20-6-1980 when the previous Headmaster, Sri. Sadanadan died. The sole question to be considered is whether the first respondent, Shri. N. Prabhakaran Nair was entitled to be appointed under the rules This would depend on short facts and on a correct interpretation of Rule 44-B (3) in Chapter XIV A of the Kerala Education Rules (K. E. R. for short). The facts are not in dispute. The first respondent was in service as a teacher in the High school prior to 4th September, 1957. His date of birth is 29-3-1926. and he attained the age of 50 years on 29-3-1976 He did not have the account test qualification on the date when the vacancy arose on 20-6-1980. He, however, contended that he was permanently exempted from acquiring the test qualification in view of rule 43 B (2) as he attained the age of 50 years as early as 1976 and had in 1980, 25 years of service to his credit. If Rule 44-B (2) applied to his case, he has to succeed, for, the authorities then, would be wrong in denying him the benefit of the statutory exemption.
But the appellant in W.A. No. 283 of 1982, Shri K.C. Gangidharan Pillai and the State in W.A. No. 46 of 1982, contend that the first respondent had opted to be governed by the provisions contained in Chapter XIV B, that he was entitled to continue in service till the age of 60 years and therefore sub rule (3) alone and not sub rule (2) of Rule 44-B applied and thus he could claim permanent exemption from the test qualification only when he attained 55 years and not earlier. In this view it is submitted that he could be deemed to be qualified on the strength of the exemption only in 1981 and not in 1980 when the vacancy arose.
The learned single Judge upheld the contention of the 1st respondent holding that all teachers who attain the age of 50 years are entitled to exemption from acquiring test qualification if they attain the age of 50 years and had also 25 years of service to their credit and the first respondent was therefore entitled to the benefit of this statutory exemption when the vacancy arose Repelling the contention of the appellant, construing sub-rule (3) of Rule 44-B, it was held:-
... The distinction between sub-rule [21 and sub-rule [3] is, while the former takes in all teachers, whether headmasters or otherwise, who have attained the age of 50 years and have completed 25 years of service, the latter limits the exemption to headmasters alone, and, that too to headmasters who have completed the age of 55 years, but does not require them to have put in 25 years of service as required under sub-rule (2).
On the other hand, in the case of a headmaster who has opted to remain in Service till 60 years in terms of Chapter XIV B, permanent exemption is granted when he attains 55 years of age, irrespective of his length of service. Sub-rule [3] thus puts a premium on age, but is limited to headmasters who are to remain in service until 60. The reason for this is clear They do not retire at 55 unlike in the case of those coming within Chapter XIVC; and. because of their age and of the fact that they are already appointed as headmasters by virtue of temporary exemption, they would not be reverted.
The judgment of the learned single Judge is reported in Prabhakaran Nair v. State of Kerala ( 1982 KLT 565 ) and these two appeals are against this judgment.
We shall now quote Rule 44-B in its entirety as it stood in 1980.
44B [1] Notwithstanding anything contained in Rule 61, in case of persons appointed to the posts of Headmaster of aided complete, High/Training schools prior to 6-11-1968 and who do not pass the test in the Act and Rules will continue as such but their increments falling after 6-11-1976 will be granted only after passing the test. They will be deemed to have satisfactorily completed their probation and will be eligible for increment in the scale of pay of Headmaster only after passing the tests.
Note:- The benefit of increment on passing obligatory departmental tests will be given from the last day of the qualifying examination which shall be applicable in the same grade and for promotion to posts not involving change of duties.
[2] Person who attain the age of 50 years and who have completed 25 years of service will be granted permanent exemption from passing the tests Explanation:- Untrained Service of the teachers shall also be taken into account for computing the 25 years Service.
(3) Headmasters of complete High/Training Schools who have opted for the rules in Chapter XIV B and who can continue in service up to 60 years of age will be granted exemption from passing the tests if they have passed the age of 55 years.
Explanation:- For the purpose of this rule "service" means "aggregate qualified approved teaching service".
Sub-rule (2) was substituted as per notification dated 24-2-1982 published in gazette dated 2-3-1982 thus:-
[2] Persons who attain the age of 50 years will be granted permanent exemption from passing the tests.
We shall now advert to the scheme of the relevant provisions to understand the true scope and effect of sub rule [3].
All the teachers in aided educational institutions appointed after 1-10-1964 are governed by the rules applicable to government servants for retirement benefits. Thus all these teachers retire on attaining the age of 55 years. But teachers of aided schools who were in service on 1-10-1964 were given the right to opt to be governed by the rules in Chapter XIV-B. If they so opt, those teachers who were already in service in any aided school prior to 4th September, 1957, the age of retirement on superannuation shall be sixty years. [Rule 8 Chapter XXVII A]. The first respondent having exercised the option was entitled to continue till he attained the age of 60 years.
Under Chapter XIV A, applicable to all teachers, rule 44 states that the appointment of Headmaster shall "ordinarily" be according to seniority By a notification dated 13-2-1968, rule 44A was inserted prescribing certain qualifications and tests for appointment as Headmaster in aided complete High Schools. In 1976, a pass in account test was also inserted. Thus acquisition of the test qualification is a pre-requisite for appointment to the post of headmaster after 13-2-1968. The rule, however, took note of the fact that on the date when rule 44-A came into force, there were Headmasters who had not acquired the test qualification Therefore a "Note" was inserted in this rule reading thus;-
Note : Teachers and Headmasters of High and Training Schools will be exempted from passing the Test till the date of the publication of the result of the Third Test conducted after 11-6-1977.
There was another "Note" in the same rule under which further time was given to acquire the test qualification. This Note reads:-
Note:- A period of 8 years from 6-11-1968 is given to Headmasters of Aided Complete High and Training Schools for passing the test in the Act and Rules. All appointments to the posts of Headmasters of Aided complete High and Training Schools during the period of 8 years from 6-11-1968 shall be provisional. If such persons do not secure the test qualification within the specified period they will be reverted.
It was thereafter that rule 44 B was inserted Rule 44 B allowed the under qualified Headmasters appointed prior to 6-11-1968 to continue further as Headmasters on condition that they could not draw their increments till they became test qualified. They could complete the probation satisfactorily and become eligible for increment in the scale of pay of Headmaster only after passing the test. All teachers who attain the of 50 years and who had served for 25 years as teachers were permanently exempted from test qualification. This service requirement was given up by an amendment in 1982. But persons who were appointed as Headmasters and who had opted to be governed by Chapter XIV B and who could continue till 60 years, were given exemption when they attain 55 years.
There are two other provisions which specifically refer to the underqualified Headmasters. They are rules 58 and 61 in the same Chapter XIV-A. These two rules enable the Headmasters who had been exempted from passing the tests from sanctioning leave and increments to other teachers and non-teaching staff in the school.
Thus, when in 1968, test qualification was prescribed under the K.E.R. for appointment lo the posts of Headmasters of High Schools, there were the Headmasters who were appointed already and who did not have the test qualifications and there were the teachers aspiring to be appointed in future vacancies. The rules took care of both these categories Persons who were appointed as Headmasters prior to 6-11-1968 were denied future increments unless they became test qualified or became permanently exempted. If they attain the age of 50 years as the rule stands at present, they are permanently exempted from test qualification. Thus these Headmasters who crossed this age of 50 years were under no obligation to acquire any test qualification and they were, from then, entitled to increments. This is the clear effect of Rule 44B(1) and (2). There was another class of 1 Headmasters who were also appointed prior to 6-11-1968, but who could continue in service up to 60 years of age. These were the Headmasters who had opted to be governed by Chapter XIV Band who were appointed as teachers prior to 4-9-1957. In view of the fact that they could continue in service for another 5 years after completing 55 years, the rule in 44-B (3) prescribed that this specified class was entitled to exemption from test qualification when they attained the age of 55 years. They could earn increments in the Headmaster''s scale of pay on attaining the age of 55 years, for, they too did not require any test qualification thereafter. This is the clear effect of Rule 44-B(3). Rule 44-B[3] therefore, applies only to those. Headmasters [a] who were appointed as Headmasters prior to 6-11-1968; [b] who had opted to be governed by Chapter XIV-B; [C] who were entitled to continue in service up to 60 years and [d] who attain the age of 55 years. Rule 44-B[2] is a general provision applicable to all teachers and all Headmasters, while rule 44-B[3] is a special provision applicable to a limited and specified class of Headmasters as stated above.
The validity of rule 44-B (2) was upheld by one of us in O. P. No. 9916 of 1982, stating thus:-
..This rule applies to all teachers governed by the Kerala Education Act and Rules. The power to grant exemption is not challenged The source of authority to frame the rules is not disputed. This rule applies to all alike. If exemption is granted considering the advanced age and the experience that has been gained in the meanwhile, it cannot be held that an arbitrary age has been fixed for granting exemption. It is not possible to agree with the contention of the petitioner that this provision is opposed to Article 14.
This decision was affirmed in W. A. No. 636 of 1983.
The first respondent was not a Headmaster who was appointed prior to 6-11-1968. His claim to be appointed as Headmaster arose only on 20-6-1980. Rule 44-B (3) did not therefore apply to him. He stood permanently exempted when he attained the age of 50 years in 1976. He was, therefore, qualified to be appointed as Headmaster in 1980. He had functioned as Headmaster from that date and we are told that he has since retired on attaining the age of 60 years. He is thus entitled to the salary and increments, if any, due to him, from 1980, when he was appointed as Headmaster.
The learned single Judge who disposed of the Original Petition held that rule 44-B applied to all Headmasters who had opted for Chapter XIV-B . For the reasons stated already, we have necessarily to limit the scope of the sub-rule (3) to Headmasters who were appointed prior to 6-11-1968 and who satisfied the other conditions mentioned in that provision-And on our reasoning too, it does not affect the conclusion reached by the learned Judge. When the learned Judge disposed of the Original Petition, the general rule 44-B (2) insisted on service for 25 years also for entitlement to exemption. That condition has been deleted since 1982, Any interpretation of sub rule (3) based on the service of 25 years insisted prior to 1982 would then have no force after the amendment in 1982- This would necessarily create another class of Headmasters who would be denied relief after 1982, even though no such limitation can be read into the provision, for, it is cot the intention of the legislature that from 1982, different results should follow and exemption available to some should be denied later.
In the result, we agree with the conclusions of the learned single Judge, though for different reasons. As the 1st respondent has already retired from service, he shall be paid his salary and allowances on the basis that he was regularly appointed as Headmaster on 20-6-1980 and his pensionary benefits will be sanctioned also on that basis. The Writ Appeals are disposed of accordingly, but without costs.