Manager, F.M.C.T. High School and Another vs District Educational Officer and Others

C.S. Rajan, J.—First Petitioner appointed 2nd Petitioner as Headmistress of the school as per Ext. P-1 order. The appointment was approved by the first Respondent. The 5th Respondent filed an appeal against the order of approval of the appointment before the 2nd Respondent. Second Respondent confirmed the order of the first Respondent approving the appointment of the 5th Respondent. But the third Respondent by Ext. P-3 order found that approval granted to the appointment of the 2nd Petitioner is irregular and the first Respondent was directed to consider the request of the 5th Respondent for approval favourably. Second Petitioner took up the matter before the 4th Respondent in revision. By Ext. P-4, 4th Respondent confirmed Ext. P-3 order passed by the 3rd Respondent. Exts. P-3 and P-4 are under challenge in this Original Petition.

Second Petitioner was first appointed as a High School Assistant in St. Peters High School, Kolenchery on 4th July 1977. She continued in the above school till 15th November 1977. Thereafter, she continued her service as High School Assistant in the same school from 17th July 1978 till 19th October 1981 on which date, she was deployed as a protected teacher to Government Boys High School, Thiruvamkulam. She continued to be a protected teacher in the above school till 22nd December 1985. During the academic year 1982-83, first Petitioner started a new school. As per Ext. P-6 order dated 30th November 1983, 2nd Respondent accorded sanction to appoint the 2nd Petitioner as High School Assistant in order to satisfy the conditions in G.O. (Ms.) 20/82/G. Edn., dated 15th February 1982 which stipulated that one protected H.S.A. had to be appointed in a newly sanctioned High School. The 2nd Petitioner submitted a petition before the first Petitioner to absorb her in the school as a regular teacher. Accordingly, first Petitioner as per Ext. R-5(a) absorbed the 2nd Petitioner as regular H.S.A. with effect from 14th June 1990.

The 5th Respondent was appointed in the school as H.S.A. by the first Petitioner on 1st June 1982. She is the senior most teacher in the above school considering her seniority from the very inception of the school. The rivalry between the 2nd Petitioner and the 5th Respondent started when a vacancy of Headmistress arose on 1st April 1990. First Petitioner appointed the second Petitioner as Headmistress. The 5th Respondent objected the same on the ground that 2nd Petitioner is not eligible or qualified to be appointed as Headmistress because she did not have 12 years of graduate service in the school belonging to the first Petitioner. According to the 5th Respondent, she became qualified on 3 Last May 1994 whereas 2nd Petitioner became qualified only on 2 Last December 1995 taking into consideration her service in the school of the first Petitioner. Therefore, the short question to be decided in this case is as to whether the previous service of the 2nd Petitioner either in her parent school or her services as protected teacher can be counted or computed for 12 years of graduate service for the purpose of appointment of the Headmistress.

Shri N. Sugathan, learned Counsel appearing for the Petitioners submitted that there is no scope for restricting the service mentioned in Rule 44A of Chapter XIV A of the Kerala Education Rules to the service rendered in the very same school in which the vacancy arose. There is no justification also for excluding the services rendered by the 2nd Petitioner in Anr. school. Learned Counsel relied on three decisions of the Supreme Court in order to impress this Court about his argument, K. Madhavan and Another Vs. Union of India (UOI) and Others, , Sharadendu Bhushan Vs. Nagpur University, Nagpur and Others, and Union of India and others Vs. C.N. Ponnappan, . In K. Madhavan and Another Vs. Union of India (UOI) and Others, Supreme Court was considering whether 8 years service prescribed for appointment to the post of Superintendent of Police in the C.B.I, must be in the C.B.I, itself or it can be in any other service. Dealing with the above contention, the Supreme Court found it unable to accept the contention that 8 years service must mean 8 years service in the C.B.I. itself. In the case of Sharadendu Bhushan Vs. Nagpur University, Nagpur and Others, , the Supreme Court was considering the question whether experience of University teaching prescribed by the U.G.C. must be in the same University or it can be in Anr. University. The Supreme Court held that the emphasis in the circular of the U.G.C. is on the experience gained by the teacher while in employment of University and not on the continuity of the service. In Union of India and others Vs. C.N. Ponnappan, , the Supreme Court was considering the question whether the service rendered by an employee from the place where he was transferred on compassionate ground is regular service or not. Dealing with the above question, Supreme Court observed as follows:

The service rendered by an employee at the place from where he was transferred on compassionate grounds is regular service. It is no different from the service rendered at the place where he is transferred. Both the periods are taken into account for the purpose of leave and retiral benefits. The fact that as a result of transfer he is placed at the bottom of the seniority list at the place of transfer does not wipe out his service at the place from where he was transferred. The said service, being regular service in the grade, has to be taken into account as part of his experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferred. In our opinion, the Tribunal has rightly held that the service held at the place from where the employee has been transferred has to be counted as experience for the purpose of eligibility for promotion at the place where he has been transferred.

In order to appreciate the arguments of the learned Counsel for the Petitioners, it is advantageous to note the relevant provisions contained in Chapter XIV A of the Kerala Education Rules regarding appointment of Headmasters in the high schools and U.P. schools. Rule 44(1) 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.

Rule 44A is 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 the Kerala Education Act and the Kerala Education Rules and pass in Account Test (Lower) conducted by Kerala Public Service Commission.

Thus, the appointment of Headmaster''s on the basis of seniority in the seniority list must be in accordance with the qualifications prescribed in Rule 44A which is 12 years continuous graduate service and pass in Departmental tests. The seniority of the teachers is governed by Rule 37 of Chapter XIV A K.E.R., Rule 37(1) provides as follows:

37(1) Seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit provided he is duly qualified for the post.

The seniority of the 2nd Petitioner in the school of the first Petitioner can commence only from the date of her regular appointment. In this case, the above date is the date of Ext. R-5(a). The earlier appointment evidenced by Ext. P-6 is only an absorption of a protected teacher which was a condition precedent for sanctioning of a new school.

The status of a protected teacher was the subject matter of a decision of this Court reported in Manager, Mar Sleeba U.P. School v. State of Kerala 1990 (1) KLT 626. In the above case, this Court considered the right of a protected teacher to be appointed as Headmaster of the parent school at a time when the teacher was continuing on deployment in Anr. school. This Court negatived the above claim and declared that the post of the Headmaster in the parent school should be filled up from among qualified teachers and the staff of the school at the time of occurrence of the vacancy. The right of protected teacher is only a preferential claim for appointment to the future vacancies as provided in Rule 51A of Chapter XIV A K.E.R.

Shri Kurian Joseph, learned Senior Counsel for 5th Respondent invited my attention to a Division Bench ruling of this Court in Manager, A.U.P. School v. State of Kerala 1988 (1) KLT 402. In the above case, this Court was considering the question whether a teacher who was transferred from one school to Anr. can count the service rendered by him before his transfer for the purpose of earning eligibility for being appointed as Headmaster under Rule 45 of Chapter XIV A K.E.R. in the transferred school. Under Rule 45, a graduate teacher must have rendered half the service of senior-most non-graduate teacher available in the school in order to be appointed as Headmaster in preference to the senior-most non-graduate teacher. The teacher in the above ruling wanted to count his previous service in the school from which he was transferred in order to become eligible to be appointed as Headmaster. This Court in categorical terms held that such a transferred teacher cannot count the service rendered by him before his transfer for the purpose of earning eligibility for being appointed as Headmaster.

Learned Senior Counsel brought to my notice a recent ruling of a Division Bench of this Court reported in Rahelamma v. State of Kerala 1997 (2) KLT 429. In the above case, the question arose as to whether a retrenched teacher who rendered service as a protected teacher can take into consideration his service as protected teacher for the purpose of Rule 45 of Chapter XIV A K.E.R. as against the senior-most non-graduate teacher in the school. Dealing with the above question, this Court observed as follows:

On an analysis of various provisions contained in the K.E.R. it is clear that a teacher who has been retrenched from service for want of vacancy is to be treated as not in service of that school even if he is deployed to work in Anr. school under the scheme of protection given to the retrenched teachers. The protected teacher is allowed to work in Anr. school, but his service cannot be counted for the purpose of seniority vis-a-vis the teachers working in the parent school. A teacher working on deployment as a protected teacher may be entitled to get increment and other service benefits for the period he had worked as a protected teacher. Under Rule 37 of Chapter XIV A of the K.E.R., he cannot reckon his service for the purpose of seniority in any grade in any unit he had worked previously, namely, in his parent school. The service he has rendered as a protected teacher cannot be taken into consideration as service for the purpose of Rule 45 of Chapter XTV A of the K.E.R. For a qualified graduate teacher to claim preference over the senior-most qualified under graduate teacher, he should have got service equal to half of the period of service in the school under the Same management.

The conclusion which emerges from a discussion on these rulings is as follows: The rulings of the Supreme Court which were cited by the learned Counsel deal with the question whether the service rendered in Anr. unit or the University can be counted as service for satisfying the qualification prescribed by the rules for promotion. Perhaps, there may not have any difficulty in accepting the above propositions, but for the peculiar nature of the status of a protected teacher which is available under the K.E.R. It is now a settled position that a protected teacher is no more a member of the staff of his parent school. His only claim is to get an appointment in the parent school in case a vacancy arises under the preferential treatment recognised in Rule 51A of Chapter XIV A K.E.R. Even if a post of Headmaster falls vacant in the parent school, the protected teacher cannot claim the above post in preference to the existing members of the staff. The two rulings of the Division Bench of this Court had considered the question under Rule 45 of Chapter XIV A K.E.R. The Division Bench held that a teacher who was transferred from Anr. school or who was continuing in protection in Anr. school cannot claim the respective service as part of the service rendered by him so as to claim the benefit of appointment as Headmaster under Rule 45 of Chapter XIV A K.E.R. In this case, 2nd Petitioner was working on protection till 14th June 1991 on which day, she was appointed permanently by Ext. R-5(a). The service of the 2nd Petitioner between 1983-1991 can only be that of a protected teacher because her appointment was in implementation of a condition precedent for sanction of a new school. Moreover, 2nd Petitioner''s seniority also can be counted only from her date of regular appointment in the unit as per Rule 37(1) of Chapter XIV A K.E.R. But at the same time, 5th Respondent commenced her service in the school of the first Petitioner with effect from 1st June 1982. Therefore, even if there was no qualified hand available as on 1st April 1990, the 5th Respondent became qualified with effect from 1st June 1994 whereas the 2nd Petitioner became qualified only with effect from 22nd December 1995. Thus, 5th Respondent was the first person to become qualified after the occurrence of the vacancy.

Under these circumstances, I do not find any justification to interfere with Exts. P-3 and P-4. According to me, Respondents 3 and 4 have taken the correct legal stand while dealing with the rival contentions of the 2nd Petitioner and the 5th Respondent.

Original Petition is, therefore, dismissed.