Allowed

P.Sasi v. the Director of Public Instruction

Kerala HC21 May 2009OP/16111/1999

Case brief

AI extract

What is this about?

The High Court of Kerala held that Central NCTE norms regarding qualifications for Headmasters prevail over Kerala Education Rules. The petition was allowed: the respondent's unauthorized appointment as Headmaster was quashed, while the petitioner was directed to be appointed Teacher-in-Charge and promoted to Headmaster with effect from when he acquired requisite service.

What did the court decide?

Appointment of 4th respondent as Headmaster set aside; Petitioner appointed as Teacher-in-Charge from 1-4-1998 and promoted as Headmaster from 4-6-2002; Salary/allowances of 4th respondent to remain i

P.Sasi Vs the Director of Public Instruction — Pension and Retirement Benefits | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 OP.No. 16111 of 1999(R) ----------------------PETITIONER(S): ---------------

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SASI. P, TEACHER-IN-CHARGE OF HEADMASTER, SREE NARAYANA TEACHERS' TRAINING INSTITUTE, NEELESWAR, PATTANAKKAD P.O., KASARAGODE DIST.

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BY ADV. SRI.ELVIN PETER P.J.

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RESPONDENT(S): ---------------

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THE DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM.

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THE DISTRICT EDUCATIONAL OFFICER, KANHANGAD.

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THE MANAGER, SREE NARAYANA TEACHERS' TRAINING INSTITUTE, NEELESWAR, PATTANAKKAD P.O., KASARAGOD DIST.

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K. RAVINDRAN, P.V. HOUSE, NEAR PAYANGADI RLY. STN., PAYANGADI, KANNUR DIST.

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ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE APPEARING ALONG WITH SRI.A.K.JAYASANKAR NAMBIAR

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THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON19/03/2009, , THE COURT ON 21/05/2009 DELIVERED THE FOLLOWING:

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PETITIONER'S EXHIBITS: O.P. 16111/1999.

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EXT.P1 TRUE COPY OF DEGREE CERTIFICATE. EXT.P2 TRUE COPY OF M.Ed. DEGREE CERTIFICATE. EXT.P3 APPOINTMENT ORDER DT. 11-10-1989 EXT.P4 APPOINTMENT ORDER DT. 4-6-1990. EXT.P5 CERTIFICATE DT. 1-12-1997. EXT.P6 CERTIFICATE DT. 24-3-1998. EXT.P7 ORDER DT. 30-3-1998. EXT.P7(a) APPOINTMENT ORDER ISSUED BY R3. EXT.P8 INTIMATION DT. 23-11-1998. EXT.P9 MEMO DT. 14-11-1998. EXT.P10 MEMO OF CHARGES DT. 16-11-1998. EXT.P11 REPLY DT. 20-11-1998. EXT.P12 STATEMENT OF DEFENCE DT. 24-11-1998. EXT.P13 REPRESENTATION DT. 15-3-1999. EXT.P14 JUDOGMENT IN O.P.11552/1999. EXT.P15 REPRESENTATION DT. 10-6-1999. EXT.P16 DO. DT. 16-6-1999. EXT.P17 LETTER DT. 3-6-1999. EXT.P18 NORMS AND STANDARDS. EXT.P19 ORDER DT. 7-12-1998. EXT.P20 COMMUNICATION DT. 8-3-1999. EXT.P21 NORMS AND STANDARDS. RESPONDENTS' EXHIBITS: EXT.R4(a) ORDER DT. 14-5-1999. EXT.R4(b) ORDER DT. 14-5-1999. EXT.R4(c) OFFICE ORDER DT. 14-5-1999. EXT.R4(d) LETTER DT. 20-4-1999. EXT.R4(e) TRUE COPY OF M.Ed CERTIFICATE.

[TRUE COPY]

P.S TO JUDGE.

S. Siri Jagan, J.

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O.P. No. 16111 of 1999

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Dated this, the 21^st May, 2009.

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J U D G M E N T

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The petitioner in this original petition is a teacher in the Sree Narayana Teacher's Training Institute, Neeleswar, of which the 3^rd respondent is the manager. He has acquired qualifications of M.Sc and M.Ed, as evidenced by Exts.P1 and P2 degree certificates. By Ext. P3 order dated 11-10-1989, he was appointed as a temporary teacher, in a leave vacancy, for the period from 11-10-1989 to 2-21990. Later on, by Ext. P 4 order dated 4-6-1990, he was appointed permanently with effect from 4.6.1990. He passed Account Test (Lower) and test in Kerala Education Act and Rules conducted by the Public Service Commission as evidenced by Exts.P5 and P6 certificates. While so, the post of Headmaster of the Institute became vacant on 1-4-1998 on the incumbent retiring from service on 31-31998. by Ext. P7 dated 30-3-1998, the 3^rd respondent directed the retiring manager to handover charge of the post of Headmaster to the petitioner, who was the senior-most teacher of the school. By Ext. P7 (a) order dated 1-4-1998, the petitioner was appointed as teacher-incharge and the petitioner took charge as such. However, the 2^nd respondent-District Educational Officer, refused to approve the said appointment. In the meanwhile, difference of opinion arose between the 3^rd respondent and the petitioner and by Ext. P9 show cause memo dated 14-11-1998, the 3^rd respondent directed the petitioner to show cause, why the appointment of the petitioner as teacher-in-charge should not be reviewed. Ext. P10 memo of charges dated 16-11-1998 was also issued to the petitioner, to which the petitioner had submitted Ext. P11 reply as also Ext. P12 statement of defence. However, the disciplinary action was not proceeded with by the 3^rd respondent. Since the petitioner's appointment as teacher-in-charge was not approved by the D.E.O, the petitioner submitted Ext. P13

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representation dated 15-3-1999 before the D.E.O. By Ext. P14 judgment dated 11-5-1999, this Court directed the D.E.O to pass orders on Ext. P 13 within three months. While so, the petitioner had to take medical leave. While the petitioner was on leave, the 3^rd respondent appointed the 4^th respondent as Headmaster of the school by transfer from an aided school under another educational agency, where he was working as a H.S.A (Maths), replacing the petitioner, although the 4^th respondent did not have the minimum qualification of M.Ed prescribed by the National Council for Teacher Education for holding the post of Headmaster/Principal. Since Exts.P15 and P16 representations of the petitioner against such appointment did not evoke any response from the 2^nd and 1^st respondents, the petitioner has filed this original petition seeking the following reliefs:

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“i) Issue a writ of mandamus or any other appropriate writ, order or direction calling for the records leading to the case.

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ii) issue a writ of certiorari or any other appropriate writ, order or direction quashing the appointment of 4^th respondent to the post of Headmaster of the Sree Narayana Teachers' Training Institute, Neeleswar;

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iii) issue any appropriate writ, order or direction declaring that the petitioner is entitled to continue in the post of teacher-incharge of Headmaster of Sree Narayana Teachers' Training Institute, Neeleswar;

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iv) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1^st and 2^nd respondents to issue all the service benefits to the petitioner by restituting the petitioner as the Headmaster of the school managed by the 3^rd respondent;

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v) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1^st and 2^nd respondents to consider and dispose of Ext. P14 & P15 in accordance with law;

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vi) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1^st and 2^nd respondents to initiate appropriate legal actions against the 3^rd respondent for appointing the 4^th respondent as headmaster of the school, in violation of the binding provisions of Kerala Education Act and

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Kerala Education Rules.”

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The contention of the petitioner is that the NCTE being the supreme central authority competent to prescribe educational standards for Teacher's Training Institutes, the qualifications prescribed by NCTE for appointment as Headmaster in Teacher's Training Institutes are mandatory and therefore no person who does not process the qualifications prescribed by the NCTE can be appointed as Headmaster of a Teacher's Training Institute. By Ext. P20, the NCTE has prescribed norms and standards for Teacher Education Institutes in 1995, as per which M.Ed. is an essential qualification for appointment to the post of Headmaster in a Teacher's Training Institute. The 4^th respondent, at the time of his appointment, did not possess the qualification of M.Ed. and therefore was not qualified to be appointed as Headmaster of the Institute. Once it is found that the 4^th respondent was not qualified at the time of appointment, then the petitioner who is the senior-most teacher of the school is entitled to be approved as the teacher-in-charge of the school as per Rule 45C(6) of Chapter XIVA of the Kerala Education Rules and on his acquiring 12 years' service prescribed in Rule 44A of Chapter XIVA of the KER, the petitioner is entitled to be promoted as Headmaster of the Institute, since the petitioner does possess the qualifications prescribed by the NCTE also. According to the petitioner, the petitioner obtained 12 years' service qualification on 3- 6-2002 and since no other teacher of the Institute became qualified for promotion as Headmaster by that time, and the vacancy is deemed to have continued till then, the petitioner is entitled to be promoted as Headmaster with effect from 4-6-2002.

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Counter affidavits have been filed by the 1^st respondentDirector of Public Instruction, the 4^th respondent and the 3^rd respondent-manager. The 1^st respondent states that the petitioner's

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appointment as teacher-in-charge could not be approved since the manager had not forwarded the approved seniority list of teachers of the Institute. The 1^st respondent supports the appointment of the 4^th respondent as Headmaster. According to the 1^st respondent, the 4^th respondent having more than 20 years of service as HSA (Maths) in another aided school, and passed Account Test (Lower) and KER test submitted an application for inter-management transfer as Headmaster of the 3^rd respondent's school with consent from both managers as per Rule 11 of Chapter XIVA of KER. The 3^rd respondent approached the 1^st respondent for sanction of appointment of the 4^th respondent as Headmaster by transfer and on the recommendation of the Dy. Director of Education, the 1^st respondent sanctioned the inter-management transfer by order No. B1-2298/99 dated 14-5-1999. Accordingly, the 3^rd respondent appointed the 4^th respondent as headmaster which was approved by order No. K. Dis. 2298/99 dated 20-5-1999 of the 2^nd respondent. The 1^st respondent contends that such appointment being in accordance with the provisions of the KER, is perfectly valid and proper.

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The 4^th respondent would contend that the qualifications for appointment as Headmaster of a Training school is prescribed in Rule 44A of Chapter XIVA, which the 4^th respondent possesses. Rule 11 thereof permits inter-management transfer of teachers of two educational agencies and the term 'teacher' includes Headmaster also. Therefore, according to the 4^th respondent, the appointment of the 4^th respondent as Headmaster of the 3^rd respondent's school by transfer is perfectly valid. He would further submit that the petitioner, who admittedly did not possess the minimum 12 years' service prescribed by Rule 44A, at the relevant time, is not entitled to challenge the 4^th respondent's appointment. It is further contended that for the purpose of Headmasters in Teachers Training Schools, the Rules applicable is the Kerala Education Rules and therefore the

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qualifications prescribed by the NCTE are not applicable to such appointments. In addition, he would submit that as evidenced by Ext. R4(e), he has acquired M.Ed. qualification also in April, 2001. The 3^rd respondent 's counter affidavit is also on the same lines.

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In reply, the petitioner would contend that the 3^rd respondent's school has no existence without recognition from NCTE and Ext. P19 provisional recognition dated 7-12-1998 has been issued with the specific condition that NCTE norms shall be strictly followed. He points out that one of the specific conditions therein is that qualified teaching and non-teaching staff should be appointed as per para 5 of NCTE norms. According to the petitioner, Ext. P20 contains the norms prescribed by the NCTE, and since para 5 thereof, which is what is referred to in Ext. P19, stipulates that M.Ed. with 5 years' teaching experience is an essential qualification for Headmaster/Principal of Teacher Education Institutions, the 3^rd respondent could not have validly appointed the 4^th respondent, who did not possess the qualification so prescribed. He further contends that at best the qualification prescribed in Rule 44A of Chapter XIVA of KER can only be treated as an additional qualification prescribed by the State Government. He also submits that the norms prescribed by the NCTE overrides the qualifications prescribed by the State and that it has been settled by the decisions of this Court and the Supreme Court that in the event of conflict between the two, the qualifications prescribed by the statutory authority under the Central Act would prevail over the prescriptions in the State Rules, although the State can prescribe higher or additional qualifications. Since the 4^th respondent did not possess M.Ed. Degree at the time of his appointment as Headmaster of the 3^rd respondent's school in 1999, his appointment is liable to be set aside on the ground that he did not posses the essential qualification for appointment as Headmaster of a Teacher's Training Institute, is the contention of the petitioner.

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O.P. No. 16111/99

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I have considered the rival contentions in detail.

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It cannot be disputed that in order that degrees or diplomas issued by institutions offering courses in teacher education should be recognised for employment in any State, Central, University or aided establishment engaged in teaching students, such institutions have to be recognised by NCTE and the courses offered by the Institutions are conducted as per NCTE norms. This has been made amply clear by a Division Bench of this Court in University of Calicut v. N.C.T.E ., [AIR 2004 Kerala 295], thus:

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“NCTE has given directions to all the institutions affiliated to maintain the standards prescribed in the norms including the pupil-teacher strength. The contention raised by the petitioners that the University Act and various other Acts and Rules framed by the State Government were existing before the NCTE came into force, and therefore, directions issued by NCTE to such institutions are not binding, cannot be accepted. To keep up the standards of teacher education centres, Act empowers NCTE to issue directions for teaching the teachers which is a higher professional and sensitive subject. With the new development in the world, concept of school education technology and teacher training institutes must have the facility and modern infrastructure to train the teachers to get optimum results. Therefore, one cannot be satisfied with old methods. Being a Central Legislation whenever there is conflict with State enactment, Central Act will prevail. This issue is clear from the decision of the Supreme Court in (2002) 8 SCC 288: (AIR 2002 SC 36750 (supra). The matter is further made clear with regard to the application of Indian Medical Council Act, 1958 in Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Meduical Education & Charitable Trust v. State of Tamil Nadu (1996) 3 SCC 15: (AIR 1996 SC 2384) and with regard to application of all India Council for Technical Education Act, 1987 in State of T.N. v. Adhiyaman Educational & Research Institute (1995) 4 SCC 104: (1995 AIR SCW 2179) and in Jaya Gokul Education Trust v. Commissioner & Secretary to Government Higher Education Department, Thiruvananthapuram, AIR 2000 S C 1614. In all these cases, with regard to identical Acts in relation to technical education, the Supreme Court held that Central Act will prevail. Further, the Act itself was introduced to improve Teacher Education system. As far as B.Ed. Is concerned, it is to train the teachers who have to train our future generation. It is also submitted that NCTE Act was implemented in all India level. Challenges made in the Act and directions of NCTE were dismissed by various High Courts. The decision of the Madhya Pradesh High Court in National Council for Teachers

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O.P. No. 16111/99

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Education v. Chouhan Educaton Society, AIR 1999 Madh. Prd. 206 was cited as an example. It is also submitted that in Karnataka with regard to aided colleges where salary is paid under UGC Scheme, the Scheme was implemented. Therefore, we are of the opinion that the Act and its provisions and regulations framed by the NCTE cannot be interfered by this Court and the Teacher Education Institutions are bound to follow the NCTE Act. No value contention is raised to show that the regulations issued by the NCTE are unconstitutional or arbitrary.”

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(U nderlining supplied)

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The 3^rd respondent's institute admittedly being an aided institution governed by the Kerala Education Rules, there cannot be any doubt that being an institution aided by the State of Kerala, they are bound to obtain recognition from the N.C.T.E, in so far as diplomas to students of the institute are issued by the Government. It is also clear from Exts.P.19 and P20 that they have sought and obtained recognition from the NCTE, which was specifically on condition that they shall comply with the norms prescribed by the N.C.T.E . One of the conditions stipulated in Ext. P19 is that “qualified teaching and non-teaching staff should be appointed as per para 5 of N.C.T.C norms.” The N.C.T.E norms prevailing at the time of arising of the vacancy of Headmaster in the 3^rd respondent's institute, namely, 1-41998, was Ext. P21 (produced along with I.A. No. 3668/2009 and wrongly numbered as Ext. P20 by the petitioner) issued in the year 1995, which was replaced from 11-9-1998 by Ext. P18. In both Exts. P21 and P18, for the post of Principal/Headmaster, M.Ed/M.A Education with 5 years' teaching experience as lecturer/teacher/educator are prescribed as essential qualifications. Para 5 of Ext. P21 reads thus:

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“5.0 NORMS FOR STAFF

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5.1 Teaching Staff:

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Suggested teacher-student ratio is 1:12. The Principal

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O.P. No. 16111/99

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is counted as an additional teacher. For an intake of 100 students (50 in first year class and 50 in second year) the teaching staff required would be 1 Principal and 8 teachers. If students' intake is more, the number of teachers should be increased on the basis of the teacher-student ratio 1:12. Part-time teachers will not be counter for this purpose.

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Teachers should be so selected that there should be at least one teacher with knowledge of the subject-content and its methodology in each of the following: English, mother Tongue (or State language), Mathematics, Science, Social Studies. There should be one or more teachers to teach Foundations of Education. In addition, there should be one teacher for each of the following areas: Health and Physical Education, Art, Work-experience. The number of teachers required will depend on subject wise theory work-load, and work-load of supervision of practice teaching and other practical work.

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The rank and qualifications of the Principal and teachers will be as follows:

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*Designation*	*Essential*	*Desir*	*able*
Headmaster/	Rank:	Rank – Re	ader
Principal	Lecturer	Master's	Degree
One.	Qualification	in	school
	: M.Ed./M.A Education with 5 years teaching experience as lecturer teacher educator	foundatio subject Master's in Educat five teaching experienc rank of le as educator.	n plus Degree ion with years e in the cturer or teacher

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S. 12(d) of the National Council for Teacher Education Act, 1993 reads thus:

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“ S.12(d). Functions of Council:- It shall be the duty of the Council to take all such steps as it may think fit for ensuring planned and co-ordinated development of teacher education and for purpose of performing its functions under this Act, the Council

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may-
(a)	xx	xx	xx
(b)	xx	xx	xx
(c)	xx	xx	xx

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(d) lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognised institutions;

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xx xx	xx xx	xx xx”

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Exts. P21 and P18 norms and standards have been prescribed by the NCTE in exercise of powers under Section 12 of Act. In fact, later on such norms and standards have been incorporated in the NCTE Regulations 2002, Regulation 5 of which reads thus:

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“5. Qualifications of Teaching Staff:- (a) Principal/Head-

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(i) Academic and professional qualifications will be as prescribed for the post of Lecturer.

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(ii) At least five years' experience of teaching in elementary teacher education institutions.

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(b) Lecturer-

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Good Academic record with M.Ed/M.A. (Education) with 55% marks, preferably with specialisation in elementary education; or

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Good academic record with Master's Degree with 55% marks in the relevant school subject and Bachelor of Elementary Education (B.El.Ed.) or B.Ed. preferably with specialisation in elementary education, and with five years' teaching experience in recognised elementary schools.

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(d) Qualifications for other academic staff for teaching physical education, art, work experience, information technology literacy, etc. shall be as prescribed by the concerned State Government.”

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Therefore, it cannot now be disputed that the said norms are binding on the 3^rd respondent and respondents 1 and 2 can approve appointments made by the 3^rd respondent only if the said appointments are in accordance with the said norms.

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Respondents 3 and 4 raise a contention that the 3^rd respondent's institute is governed by the Kerala Education Rules and therefore is bound only by the qualifications prescribed in Rule 44A of Chapter XIVA of the KER. This argument cannot be countenanced since the N.C.T.E. Act has been promulgated by the Parliament in exercise of powers conferred by Entry 66 of List I of the Seventh Schedule to the Constitution of India, whereas the Kerala Education Act and Rules thereunder trace their legislative competence to Entry 25 of List III and as between legislations under the two entries, the Central Act would prevail over the State Enactment. The Supreme Court has, in para 10 of its decision in State of Tamilnadu and another v. S.V. Bratheep (minor) and others , reported in AIR 2004 SC 1861 = 2004(2) KLT (SC) (SN) 38 held thus:

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“10. Entry 25 of List III and Entry 66 of List I have to be read together and it cannot be read in such a manner as to form an exclusivity in the matter of admission, but if certain prescription of standards have been made pursuant to Entry 66 of List I, then those standards will prevail over the standards fixed by the State in exercise of powers under Entry 25 of List III in so far as they adversely affect the standards laid down by the Union of India or any other authority functioning under it. Therefore, what is to be seen in the present case is whether the prescription of the standards made by the State Government is in any way adverse to or lower than the standards fixed by the AICTE . . . . .”

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That judgment had been rendered in the context of norms fixed for technical education under the All India Council for Technical Education Act, 1987, an Act similar to the NCTE Act. Therefore, the ratio of that decision squarely applies to the present case.

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Then, what is the effect of Rule 44A of Chapter XIVA of K.E.R.? In the decision of University of Calicut v. N.C.T.E (supra), the Division Bench had repelled the contention that since the Act and Rules framed by the State of Kerala came into force prior to the NCTE Act, the directions issued by NCTE are not binding on institutions governed by such Act and Rules. Further, in paragraph 11 of S.V. Bratheep's case (supra), referring to the earlier decision in Dr. Preeti Srivastava & another v. State of Madhya Pradesh and another , [AIR 1999 SC 2894], the Supreme Court held thus:

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“11. Arguments advanced on behalf of the respondents is that the purpose of fixing norms by the AICTE is to ensure uniformity with extended access of educational opportunity and such norms should not be tinkered with by the State in any manner. We are afraid, this argument ignores the view taken by this Court in several decisions including Dr. Preeti Srivastava's case that the State can always fix a further qualification or additional qualification to what has been prescribed by the AICTE and the proposition is indisputable. The mere fact that there are vacancies in the colleges would be a matter, which would go into the question of fixing the standard of education. Therefore, it is difficult to subscribe to the view that once they are qualified under the criteria fixed by the AICTE, they should be admitted even if they fall short of the criteria prescribed by the State. The scope of the relative entries in Seventh Schedule to the Constitution have to be understood in the manner as stated in the Dr. Preeti Srivastava's case and therefore, we need not further elaborate in this case or consider arguments to the contrary such as application of occupied theory no power could be exercised under Entry 25 of List III as they would not arise for consideration.”

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Rule 44A of Chapter XIVA of KER reads thus:

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“ 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.

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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

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(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)

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x x x x

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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 Educational Rules.

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Note :- A period of 8 years from 6-11-1968 is given to Headmasters or 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.”

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Although Rule 44A was introduced in 1968, i.e prior to the NCTE Act, 1993 and Ext. P21 was issued in 1995, for a harmonious construction of the two, Rule 44A can be safely construed as an additional or further qualification to those fixed by NCTE, prescribed by the State, power to do which has been recognised in the abovesaid decision. In fact, for a Headmaster of a Teachers Training Institute, minimum 12 years service as a teacher and pass in Account Test and KER test would certainly be a most desirable qualification and can be accepted as additional or superior qualifications prescribed by the State, which would only help to enhance the standards of education in the State.

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In short, for Headmasters of Teachers Training Institutes in Kerala, both the qualifications prescribed by the NCTE and the qualifications prescribed in Rule 44A of Chapter XIVA of KER are

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essential qualifications and appointments made of persons not in possession of both the qualifications would be invalid and respondents 1 and 2 cannot validly approve such appointments.

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In view of my above findings, the appointment of the 4^th respondent, who does not possess the qualifications prescribed by the NCTE, as Headmaster of the 3^rd respondent's Institute, is unsustainable and liable to be set aside. I hereby do so.

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Now, I shall consider the claims of the petitioner for approval of his appointment as teacher-in-charge and his further claim to be promoted as Headmaster on his acquiring the 12 years' service qualification prescribed in Rule 44A of Chapter XIVA of KER. These claims are based on Rule 45C of Chapter XIVA of KER, which reads thus:

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45C . Temporary Promotion :- (1) Where in any aided school, a qualified teacher is not available to be promoted as Headmaster in accordance with the provisions contained in rule 44, 44A, 45, 45A and 45B the appointing authority shall promote, the senior most teacher on the staff of the school or the schools under the Educational Agency as Headmaster, temporarily. Provided that in the case of High Schools and Training Schools the teacher so promoted shall be the seniormost graduate teacher on the staff of the school or the schools under the Educational Agency who has put in at least 12 years of continuous graduate service as provided sub-rule (1) of rule 44A of this Chapter and in the case of primary schools it shall be the senior most teacher possessing qualifications prescribed in rule 45 or, as the case may be, rule 45A:

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(2) A teacher temporarily promoted 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.

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(3) A teacher temporarily promoted under sub-rule (1) shall not be regarded as a probationer in the higher category or be entitled by reason only of such promotion to any preferential claim to future promotion to such higher category.

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(4) If such person is subsequently promoted to the higher category in accordance with the rules, he shall commence his probation, if any, in such category from the date of such subsequent promotion or from such earlier date as the appointing authority may determine without prejudice to the seniority of others.

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(5) The pay of the promotee shall be fixed as provided in rule 43A.

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Provided that in the case of Headmaster of Aided primary school the promotee is entitled to draw the scale of pay applicable to the Headmaster of Government School only on completion of the period of service as specified in sub-rule (1) of rule 1, Chapter XXVI, and in the case of Headmaster of Aided High Schools and training schools, the promotee is entitled to draw the departmental Headmaster's scale of pay only on completion of the period of service as specified in rule 3, Chapter XXVI. Those who have not completed the prescribed service qualification for drawing the respective departmental Headmaster's scale of pay will be paid their grade pay and supervision allowance only.

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(6) If no teacher with the prescribed service qualification is available on the staff of the school or the schools under the Educational Agency for temporary promotion as Headmaster under sub-rule (1) and the proviso thereunder, the seniormost teacher on the staff of the school or the schools under the Educational Agency shall be appointed as Teacher-in-charge, provided that in the case of a High School, the teacher-in-Charge should be the Senior most Graduate teacher on the staff of the school or the Unit, and he shall be replaced as soon as a fully qualified teacher as provided in the rules becomes available.

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(7) The Teacher-in-charge so appointed under sub-rule (6) shall be eligible for his grade pay plus charge allowance fixed by Government. He shall be counted against the post of the Headmaster and the consequential vacancy shall also be filled”.

¶114

Sub-rule 6 thereof recognises a right in the senior-most teacher of the school for being appointed as a teacher-in-charge, in the absence of any person qualified to be given regular promotion or temporary promotion as Headmaster. It is not now disputed before me by anybody that as on the date of occurrence of vacancy of Headmaster in the 3^rd respondent's institute, the petitioner was the senior-most graduate teacher in the school. He has been appointed as such by the 3^rd respondent by Ext. P7, which cannot be held to be invalid and therefore, the 2^nd respondent was bound to appoint the petitioner's appointment as Teacher-in-charge by Ext. P7 as per Rule 45C(6) of Ch. XIV A of KER. The contention of the 1^st respondent that the

¶115

O.P. No. 16111/99

¶116

-: 15 :-

¶117

Manager has not forwarded the approved seniority list cannot be held against the petitioner, especially since it is now an admitted fact that at that time, and even now, the petitioner is the senior-most teacher of the Institute. In any event, it was the duty of the 2^nd respondent to compel the 3^rd respondent to forward the approved seniority list, along with the appointment order, in so far as the failure of the manager to forward the seniority list cannot prejudice the right of a teacher, if he was in fact entitled to such approval.

¶118

In the decision of Padmanabhan Nair v. Dy. Director [1991 (1) KLT 337], which is rendered in the context of qualifications prescribed under Rule 44A, a Full Bench of this Court has, while holding that a Teacher-in-charge has to be replaced as soon as a qualified hand becomes available, also held that the person who first becomes qualified thereafter is entitled to be considered for appointment, if the vacancy continues to remain. Here, in this case, once the appointment of the 4^th respondent is set aside and the petitioner's appointment as Teacher-in-charge is approved, the regular vacancy of Headmaster is deemed to have continued till the petitioner acquired the qualification of 12 years' of continuous graduate service on 4-6-2002. Nobody has a case that another qualified hand having superior claims became available prior to that date. Therefore, the petitioner is entitled to be appointed and approved as Headmaster of the 3^rd respondent's Institute, regularly, with effect from 4-6-2002.

¶119

However, simply because I have quashed the appointment of the 4^th respondent, he cannot be left high and dry. He applied for and was appointed by transfer as Headmaster with the approval of all concerned, although wrongly. He is in this difficult situation not because of any fault of his. Respondents 1 to 3 bona fide believed that he is fully qualified for the post on the premise that what is applicable is Rule 44A of Chapter XIV-A of KER only. He has attained the age of

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O.P. No. 16111/99

¶121

-: 16 :-

¶122

superannuation on 31-3-2009. In the peculiar facts and circumstances of the case, although his appointment as Headmaster is set aside, the salary and allowances drawn by him as Headmaster shall not be recovered from him. He should further be allowed to draw retirement benefits as if he had continued and retired from service as H.S.A (Maths) of the former school where he was working prior to joining the 3^rd respondent's institute as Headmaster, on attaining age of superannuation on 31-3-2009.

¶123

In the result, this original petition is allowed on the following terms:

¶124

(a) The appointment of the 4^th respondent as Headmaster of the 3^rd respondent's Institute with effect from 14-5-1999 is hereby set aside. However, the salary and allowances received by the 4^th respondent as Headmaster shall not be recovered from him. It shall be deemed that the 4^th respondent has retired from service on 31-3-2009 as HSA (Maths) from the Karimbil High School, Kumbalappally, Nileswar and his retirement benefits shall be computed and disbursed accordingly. The same shall be done within two months from the date of receipt of a copy of this judgment.

¶125

(b) The 2^nd respondent shall pass orders approving Ext. P7 appointment of the petitioner as Teacher-in-charge of the 3^rd respondent 's Institute with effect from 1-4-1998, within one month from the date of receipt of a copy of this judgment. He shall also be paid allowance, if any, for such appointment for the period during which he actually held that appointment, namely, till 13-5-1999. For the period from 14-5-1999 to 3-6-2002 the appointment shall only be

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O.P. No. 16111/99

¶127

-: 17 :-

¶128

notional, without monetary benefits.

¶129

(c) The 3^rd respondent shall forward an appointment order to the 2^nd respondent promoting the petitioner regularly as Headmaster of his Institute with effect from 4- 6-2002, within two weeks from the date of receipt of a copy of this judgment. The 2^nd respondent shall approve such appointment within one month from the date of receipt of the appointment order, notionally, without any monetary benefits up to 31-3-2009, but with monetary benefits also from 1-4-2009 onwards.

¶130

(d) All arrears of monetary benefits arising from the above directions shall be disbursed to the petitioner within one month from the date of approval of the respective appointments.

¶131

Tds/

P.Sasi v. the Director of Public Instruction

Case brief

What is this about?

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P.Sasi v. the Director of Public Instruction

Case brief

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