Lalitha, V.P. vs The District Educational Officer and Others

Om Prakash, J.—Heard learned Counsel for the Appellant.

The Appellant/Petitioner filed O.P. No. 732 of 1995 challenging her reversion order dated 10th January 1995, Ext. P-2. The Appellant was appointed by order dated 1st April 1992 as temporary Headmistress in the V.V.U.P.S., Kothaparamba with effect from 1st April 1992. The appointment order clearly states that the appointment is subject to provisions of the Kerala Education Act and the Rules framed there under.

The reversion order Ext. P-2 came to be passed by the Assistant Educational Officer (A.E.O.), when Respondent No. 4 acquired requisite qualification. Rule 45-C, Sub-rule (2) of the Kerala Education Rules (briefly, K.E.R.), provides that the teacher temporarily appointed under Sub-rule (1) shall be replaced as soon as possible by the member of the service, who becomes entitled to the promotion under the Rules. Rule 45B(1), starting with a non-obstinate clause, states that notwithstanding anything contained in rules 45 and 45A, Account Test (Lower) conducted by the Kerala Public Service Commission, shall be an obligatory qualification to the teachers fop promotion as Headmasters of Lower Primary and Upper Primary Schools. It is not disputed that the 4th Respondent acquired such qualification in July, 1993. Admittedly, neither the Appellant nor the 4th Respondent was qualified on 1st April 1992, when the vacancy occurred.

The Appellant was appointed under Rule 45 of the K.E.R., which inter alia, provides that if there is a graduate teacher with B.Ed. or other equivalent qualification and who has got at least five years experience in teaching, 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. From Rule 45, it is clear that a graduate teacher could get preference to be appointed as Headmaster. Since the Appellant was a graduate teacher, and the 4th Respondent was not qualified as on 1st April 1992, preference was given to the Appellant and she was appointed as temporary Headmistress by Ext. P-1.

Rule 45C(2) clearly states that a teacher temporarily promoted under Sub-rule (1) shall be replaced as soon as possible by a member of the service, who becomes entitled to promotion under the Rules. Therefore, the 4th Respondent having acquired qualification in July , 1993, became entitled to be appointed as Headmistress and consequent upon that, the reversion order Ext. P-2 was passed on 10th January 1995. There is no dispute that whereas Respondent No. 4 had become qualified in July 1993, the Appellant did not acquire requisite qualification at that time. Admittedly, the 4th Respondent is senior to the Appellant.

The question for consideration is whether the Appellant can be preferred over the 4th Respondent, who was senior to the Appellant and qualified. Under the Rules, unless a teacher acquires requisite qualifications, he or she cannot be appointed as Headmaster. But, if a qualified teacher is not available, to meet out that eventuality, several provisions have been made under the Rules. It is only in that situation, the Appellant, though she was not qualified, came to be appointed under Rule 45, because the was given preference, being a graduate teacher.

The learned Single Judge took note of Rule 45B Chapter XIVA, K.E.R., which says that a pass in Account Test (Lower) is an obligatory qualification for promotion as Headmaster in U.P. School. As the 4th Respondent acquired that qualification earlier than the Appellant, the learned Single Judge took the view that the former had become entitled to replace the Appellant under Rule 45C(2) with effect from 2nd July 1993. The Appellant was consequently reverted as she acquired the test qualification much later in December 1995. The learned Single Judge also took into consideration the seniority of the 4th Respondent.

The statutory Rules fully support the action, taken by the A.E.O. in reverting the Appellant. As already pointed out, the reversion order Ext. P-2 is nothing but a consequence of Rule 45C(2), which clearly states that unqualified teacher will be replaced by a qualified teacher.

Counsel for the Appellant states that appointment of the Appellant was duly approved by the A.E.O. and, therefore, the A.E.O. cannot review his own order by passing reversion order Ext. P-2. We do not see any substance in this submission. Ext. P-2 is not a review order of the order according approval to the appointment order Ext. P-1. The A.E.O. is under legal duty to pass reversion order in view of Rule 45C(2) after the 4th Respondent-a qualified teacher-became available.

Another submission of counsel for the Appellant is that the A.E.O. is not competent to appoint Respondent No. 4. This submission was made referring to the reversion order Ext. P-2, in which the A.E.O. stated as follows:

Hence Smt. V.P. Lalitha is hereby reverted as U.P.S.A. and Smt. K.S. Ushakumari, L.P.S.A. who is fully qualified is posted as Teacher-in-charge with effect from 2nd July 1993 until further orders.

Pointing out the delineated portion, counsel for the Appellant submits that Respondent No. 4 was appointed by the A.E.O. Adverting to Section 11 of the Kerala Education Act and Rule 44(1), which conferred the power of appointment on the Manager, counsel for the Appellant submits that the appointment of Respondent No. 4 by Ext. P-2 is without jurisdiction. We do not agree with this averment of counsel for the Appellant. The order Ext. P-2 is a reversion order simplicitor and that cannot be termed as an appointment order of the 4th Respondent. By order Ext. P-2, the 4th Respondent was posted as teacher-in-charge with effect from 2nd July 1993 until further orders. This, in fact, is not an appointment order. But the A.E.O. had to pass the consequential order, as the Appellant was reverted by the order Ext. P-2. When the Appellant was reverted, somebody had to be put in charge in place of the Appellant and this is what had been done by Ext. P-2. In the place of the Appellant, the 4th Respondent was put in charge. The appointment order, no doubt, could be issued only by the Manager. Challenging the order Ext. P-2, the Appellant approached this Court by means of the Original Petition and obtained a stay order. This is how a regular appointment order could not be passed by the Manager.

Another submission of counsel for the Appellant is that the 4th Respondent permanently relinquished her claim to be appointed as Headmistress and, therefore, she cannot be permitted now to claim the post of Headmistress. In this connection the ''Note'' to Rule 44(1) of the K.E.R. states that whenever the Manager intends to appoint a person as Headmaster other than the senior claimant, the Manager shall obtain a written consent from such senior claimant, renouncing his claim permanently. Such consent shall have the approval of the Educational Officer concerned. The question for consideration is whether the 4th Respondent had relinquished her claim permanently. Our attention has been drawn to Ext. R-4(a) to the counter-affidavit filed by the 4th Respondent, which is a letter from the A.E.O., Kodungallur to the District Educational Officer, Irinjalakuda. The A.E.O. in the said letter Ext. R-4 (a) clearly stated as under:

No teacher had passed Account Test Lower. Nobody except Sl. No. 1 had either attained the age of 50 years or had 25 years of service-Sl. No. 1 Smt. A.S. Nalini was aged 51 and had 28 years of service. But she had informed on writing her relinquishment to the post of H.M. In this connection I may state that not only Smt. A.S. Nalini but all the senior teachers except Smt. K.S. Ushakumari, Sl. No. 4 had expressed their willingness to relinquish the post of H.M. The Petitioner K.S. Ushakumari has informed in writing that she has no objection in appointing Smt. V.P. Lalitha as. H.M., provided if the rule was in favour of her (V.P. Lalitha) and it could not affect her (Ushakumari) future claim for the post of H.M." (Underlining by the Court.)

From the above reproduced communication, it is amply clear that all teachers, except the 4th Respondent, had relinquished their claim. It will, therefore, be seen that Respondent No. 4 did not relinquish her claim. Relinquishment envisaged by the Note to Rule 44(1), must be unequivocal, which cannot be inferred from the letter Ext. R-4(a) by any stretch of imagination.

Lastly, counsel for the Appellant has submitted before us that civil consequences flow from the reversion order Ext. P-2 and, therefore, it was obligatory on the part of the A.E.O. to give an opportunity of being heard to the Appellant before passing the reversion order Ext. P-2. The learned Single Judge dealt with this contention as follows:

Therefore, if a notice is given to the Petitioner to explain why orders of reversion should not be passed against her, no useful purpose will be served, since the facts are not in dispute. Therefore, under the discretionary jurisdiction exercised by me under Article 226 of the Constitution, I am not inclined to quash Exhibit P-2 order.

It is not disputed that the 4th Respondent is senior to the Appellant and that she acquired requisite qualification in July 1993. On these admitted facts, the A.E.O. passed the reversion order in view of Rule 45C(2). Such fact situation which is relevant to invoke Rule 45C(2), stood admitted. In view of these facts, we see no good reason to differ from the view, taken by the learned Single Judge in this behalf.

Counsel for the Appellant, relying on a decision of the Supreme Court rendered in Civil Appeal No. 503-31 of 1993, (The Manager, C.L.P. School and Ors. v. Mary Leena and ors.) stated before us that the order Ext. P-2 reverting the Appellant could not be passed simply on the basis of fortuitous circumstance that the 4th Respondent acquired qualification in July 1993 before the Appellant, who acquired qualification in the year 1995. After a careful perusal of the judgment, it appears that Rule 45C(2) of the K.E.R. was not considered by the Supreme Court. The effect of Rule 45C(2) is that as soon as a qualified teacher becomes available, a teacher temporarily appointed shall have to be replaced. This being the statutory Rule cannot be whittled down to save the appointment of the Appellant as against the 4th Respondent, who is senior and qualified as compared to the Appellant. In view of Rule 45C(2), the 4th Respondent is entitled to be appointed as Headmistress.

The appeal, therefore, fails and is dismissed.