Soumini vs State of Kerala and Others

Hon''ble Mrs. Justice D. Sreedevi

The petitioner is an Upper Primary School Assistant Teacher (UPSA) in Orkkatteri North Upper Primary School, Chombala in Vatakara Education District. The School is an aided school governed by the Kerala Education Act (in short the Act) and the Kerala Education Rules (The KER). As she had acquired the qualifications of B.A. and B.Ed., she was regularly appointed with approval as UPSA of the School. The petitioner acquired the obligatory test qualification mandated in Rule 45 B (1) of Chapter XIV A of the K.E.R for promotion to the post of Headmaster of the school under Rule 45 of Chapter XIV A of the K.E.R. While she was working there, a vacancy of Headmaster arose on 1-6-1994. According to the petitioner, she is the rightful claimant for appointment as Headmaster. But the 5th respondent was appointed as the Headmaster. Hence the dispute in this case is in respect of the preferential right of the petitioner to be promoted as Headmaster of the school. The petitioner has filed this Original Petition for a writ of certiorari quashing Ext. P2 order of the A.E.O and to declare that the petitioner is duly entitled to be promoted as Headmaster of the School with effect from 1-6-94 and approval of the 5th respondent as Headmaster is void and to direct the A.E.O to approve the appointment of the petitioner as Headmaster. The 3rd respondent filed a counter affidavit contending that the Manager on arising a vacancy of Headmaster has promoted the 5th respondent, as he was working as Physical Education teacher, with effect from 1 -6-94 and the said appointment as Headmaster, he was having B.A. and B.Ed and pass in Account test. (Lower). As per the combined seniority list of staff working in the school, the 5th respondent''s rank No. is 8 and the petitioner''s rank No. is 11. Originally when he was appointed as Physical Education teacher, he has only passed S.S.L.C. and obtained a certificate in Physical Education. Subsequently he acquired B.A. Degree in 1978 and B.Ed Degree in 1982. He has passed Account test (Lower) in 1988. The petitioner was appointed as U.P. School Assistant from 15-7-75 onwards with qualification of B.A and B.Ed. She passed Account test (Lower) in 1991. 5th respondent also filed a counter supporting the contentions of the 3rd respondent.

Ext. P2 is the order issued by the Assistant Educational Officer dated 25-10-1995. In this order the A.E.O. has stated that the 5th respondent is the senior most qualified teacher and he can be appointed as Headmaster with effect from 1-6-1994 as per Rule 45 A Chapter XIV A KER. The petitioner has challenged the validity of this order. Rule 45 Chapter XIV A KER reads as follows:

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 B.Ed or other equivalent qualification and who has got atleast five years experience in teaching (after acquisition of B.Ed. Degree) he may be appointed as Headmaster provide he has got a service equal to half of the period of service of the senior most under graduate teacher."

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Note to Rule 45 provides as follows:

Note:-The language/specialist teachers, according to their seniority in the combined seniority list of teachers, shall also be appointed as Headmaster of U.P. Schools under an Educational Agency provided the teacher possesses the prescribed qualifications for promotion as Headmaster of U.P. School on the date of occurrence of vacancy."

The petitioner claims that she has preferential claims to be promoted as Headmaster in the vacancy occurred on 1-6-94 in accordance with the provisions of Rule 45 read with Rules 34, 43 and 44 of Chapter XIV A of KER. Rule 34 (B) provides as follows:

In the case of Upper Primary School and Lower Primary School a combined seniority list of teachers, if any, specified in clauses (iii), (iv) and (v) of Rule 3, Chapter XXIII shall be prepared.

Rule 3 of Chapter XXIII provides designations of various posts of teachers. Sub clause (iii) of Rule 3 relates to upper Primary School Assistants. Sub clause (iv) relates to Lower Primary School Assistants and sub clause (v) relates to language teacher. On a reading of Rule 34 of Chapter XIV A and Rule 3 of Chapter XXIII it can be seen that the seniority list shall be prepared in respect of Upper Primary School Assistants and Lower Primary School Assistants and language teacher. For preparing a combined seniority list under Rule 34 (b) Specialist teacher is not included. Therefore, the combined seniority list of teachers shall be prepared in respect of U.P.S. Assistants, L.P.S Assistants and language teacher.

The learned counsel appearing for the petitioner submitted that the 5th respondent who is a specialised teacher cannot be included in the seniority list. Therefore he cannot claim to be a senior teacher to be promoted as Headmaster. Rule 43 Chapter XIV A KER provides that subject to Rules 44 and 45 and considerations of efficiency any general order that may be issued by the Government, vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority, if such hands are available. Rule 44 Chapter XIV A KER provides that 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.

Learned Counsel appearing for the 5th respondent submitted that the 5th respondent is entitled to the benefit of note under Rule 45. As per the note of Rule 45, the language/Specialist teachers, according to their seniority in the combined seniority list of teachers, shall also be appointed as Headmaster. Hence a Physical Education teacher is also entitled to be promoted if he satisfies the conditions in Rule 45. Admittedly, the 5th respondent is senior to the petitioner and he has got service nearly half of the period of service of the senior most undergraduate teacher.

The learned Counsel for the petitioner submitted that the 5th respondent has to satisfy that he has got atleast 5 years experience in teaching after the acquisition of B.Ed Degree. It is argued for the petitioner that the 5th respondent has no teaching experience as he is only imparting physical education training and that cannot be considered to be teaching experience. According to him, teaching experience relates to teaching within the class room and not training outside class room. The dictionary meaning of the word ''teach'' is : to show; to direct; to impart knowledge of art to; to guide the studies of; to exhibit so as to impress upon the mind; to impart the knowledge or art to; to accustom; to counsel. Thus it does not make any distinction between teaching inside the class room and outside the classroom. The physical education teacher is also imparting knowledge. Therefore it cannot be said that training given by the physical education teacher does not come within the word ''teaching''. Therefore, his experience of imparting training has to be considered as teaching experience, and as such it cannot be said that he is not eligible for promotion. The next argument advanced for the petitioner is that the department has prepared the seniority list not in accordance with provisions of the KER. It is true that the Physical Education teacher is not eligible to be included in the list contemplated under clause (b) of Rule 34. Note to Rule 45 was subsequently introduced by amendment by G.O (P) 273/84/G.Edn. dated 18-12-1984. At that time Rule 34 clause (b) was not amended including specialist teachers also in the seniority list. It is true that the seniority list is not in accordance with Rule 34 Chapter XIV A. Ext. R5 (a) combined seniority list was prepared as on 1-1-1994. In this seniority list the petitioner was shown as item No. 11 and the 5th respondent was shown as item No. 8. The department ought not have included the name of the 5th respondent in the seniority list. But the petitioner has not challenged this seniority list so far. The seniority list has therefore become final. Since the seniority list has not so far been challenged by the petitioner, she is bound by it. The appointment was made on the basis of the combined seniority list. Hence, she cannot now turn round and say that she is the rightful person to be appointed as Headmaster.

In the result, the original petition is dismissed.