RAJAMMA Vs. ST GEORGE HIGH SCHOOL

JUDGEMENT

(1.) The controversy is as to whom between the petitioner and the 3rd respondent is eligible to be appointed as Headmistress of the High School in the regular vacancy that arose on 1.4.2011. While the case of the petitioner is that the District Educational Officer as well as the Deputy Director found petitioner's eligibility, the Government vide Ext.P12 reversed their decision and upheld the decision of the Management appointing the third respondent as Headmistress and ordered approval of the same. It is against Ext.P12 the petitioner has filed this Writ Petition challenging the said order and for a declaration that she is entitled to be appointed to the post of Headmistress that arose on 1.4.2011. We have heard Shri. K.G. Anil Babu, learned counsel appearing for the petitioner and Shri. Abraham Vakkanal, learned Senior counsel appearing for the 3rd respondent and also learned Government Pleader appearing for the second and fourth respondents.

(2.) There is no dispute that the third respondent is senior in service to the petitioner by 7 years, and therefore if qualification remained equal the third respondent is the necessary choice. However, the petitioner's specific case is that as on the date of arising of vacancy i.e., on 1.4.2011, the third respondent is not qualified in as much as she has not passed all departmental tests and has not completed 50 years of age to dispense with test qualification to be appointed to the post of Headmistress. Learned Senior counsel opposed the contention by stating that the 3rd respondent had the required service and was the senior most and the disqualification for appointment was only because the result of departmental test written by her was not published as on the date of arising of the vacancy. In fact, she had written the test in January 2011, and on publishing the result on 30.4.2011 she had passed the test. What we notice is that there is no need to consider whether the delay in publication of the test result by the Department authorities should lead to denial of promotion to the third respondent until she passed the test because the Management also did not accept the position that the third respondent acquired the qualification for appointment as Headmaster as on the date of arising of vacancy that is on 1.4.2011. On the other hand, the Management was of the view that as on the date of arising of vacancy even the petitioner was not qualified as she did not have continuous service of 12 years as a graduate teacher in High School as on the date of arising of the vacancy, and on finding that nobody is qualified as on the date of arising the vacancy, the Management appointed the third respondent as a teacher in-charge of the Headmaster's post until the 3rd respondent acquired the qualification i.e., on 30.4.2011. The stand of the Management did not find acceptance with the District Educational Officer and the Deputy Director because according to them, the broken period of service rendered by the petitioner as a High School Assistant in leave vacancy prior to her regular appointment should also be clubbed with regular service. The Government did not accept the finding of the District Educational Officer as well as the Deputy Director because according to the Government continuous service means service without break and it should be regular service as a teacher after appointment on regular basis. Learned Senior counsel appearing for the third respondent argued in support of the findings of the Government in Ext.P12. However, relying on the definition of "Graduate Service" as explained in R.44A of Chapter XIV A of the Kerala Education Rules, the petitioner's counsel contended that continuous service should be considered with reference to the meaning of graduate service, which takes in all service of a teacher as a High School Assistant after acquisition of training qualification, namely B.T., L.T. or B.Ed. Since the controversy is on the meaning of continuous service as contained in R.44A of Chapter XIVA of K.E.R., we extract hereunder the said provision.

(3.) Sub-rule (1) of R.44A clearly states that in order to qualify for appointment as a Headmaster in Aided Complete High School/Training School the teacher concerned should have 12 years of continuous graduate service with pass in departmental tests referred to therein. Admittedly, the petitioner was appointed as a High School Teacher on regular basis in the School only on 5.6.2000 vide Ext.P3. So much so, if continuous service only means service after appointment on regular basis, then the petitioner has not completed 12 years as on the date of arising of the post of Headmaster, which happened on 1.4.2011. On the other hand, if previous services rendered by her in broken periods i.e., 74 days during 1991 and one year during 1993-94 are to be added to regular service then the petitioner had the service above 12 years making her eligible for appointment as on the date of arising of vacancy. The specific contention canvassed by the learned counsel for the petitioner is that graduate service as explained in the Rule means all service of a teacher as High School Assistant after acquiring the training qualification namely B.T., L.T., or B.Ed. Therefore, according to him, the temporary service rendered on appointment in leave vacancy also answers the description of "graduate service". The claim made is that when graduate service takes in broken service rendered after appointment in leave vacancy, it should be counted as continuous service within the meaning of sub-rule (1) of R.44A. We are unable to accept this contention because the word "continuous" is not given any technical meaning, and therefore it should be understood in the literal sense which means service without any break whatsoever. Even though graduate service takes in broken period of service also within the meaning of the Explanation to the Rule, still sub-r.(1) of R.44A qualifies graduate service with a further word "continuous" which can only be regular service rendered after appointment as a regular teacher. The Rule certainly does not contemplate service without the teacher availing leave whatever be the reason for the same. However, "continuous service" means all service rendered on being appointed as a graduate teacher on regular basis. In other words, broken period of service rendered in the same School or any other Schools in leave vacancy or otherwise as a graduate teacher cannot be clubbed with regular service to make it part of continuous service for the purpose of considering minimum service of 12 years as a qualification for appointment as Headmaster. We therefore hold that continuous service referred to in R.44A is the total service rendered on being appointed in the School as a regular teacher. Since the petitioner was appointed only on 05.06.2000 as a regular teacher in the School her continuous service should be reckoned from that date until the date of arising the vacancy, and going by this interpretation the petitioner is short of 12 years continuous service for eligibility for appointment as Headmistress on 01.04.2011. We, therefore, uphold the findings of the Government in Ext.P12.