THYAGARAJAN Vs. SANTOSH T ALEXANDER

JUDGEMENT

(1.) THE question raised in the connected Writ Appeals filed by one and the same person is whether the appellant who joined four years earlier than the contesting respondent as a High School Teacher will lose his seniority for promotion as Headmaster by virtue of his redeployment in a Government High School on account of loss of division for a period of less than two years. The parties, facts and documents referred to in this judgment are those contained in W.A.No.257/2012.

(2.) WE have heard learned counsel appearing for the appellant, learned counsel for the 1st respondent, learned Government Pleader for respondents 2 to 5 and learned Standing Counsel for the Management.

(3.) IN our view, the amendment to Rule 37 was occasioned only by virtue of the Full Bench judgment and the problem created by it. Explanatory note makes it clear that the original Rule was not intended to cover a situation like this. All what is prohibited is a teacher from claiming service in different Schools for the purpose of his seniority. In our view, the amendment itself is clarifying the legal position stated by us above. The position canvassed by the 1st respondent's counsel, in our view, does not apply here because as on the date of arising the vacancy i.e. on 01/04/2010 the 1st respondent was not appointed and his appointment was also not approved. On the other hand, during the pendency of the controversy, the manager chose to appoint a third teacher as a teacher in-charge of Headmaster. This pre-supposes that the Manager is not willing to supersede appellant's seniority and appoint the 1st respondent, who is junior to him by four years as Headmaster. The position is recognized by the Government when they sought to correct the mistake vide Ext.P6 notice. In fact by the time wrong appointment was made, i.e. on 07/12/2010, the amendment had already taken effect on 23/07/2010. So much so the appellant is entitled to get protection of the proviso to Rule 37(1) with reference to the date on which the Government decided the matter. So much so, even without declaring that the amendment is clarificatory in nature, what we feel is that the appellant is entitled to be appointed as Headmaster of the School in preference to the 1st respondent, who is four years junior to him in service. It is worthwhile to note that the appellant never suffered a break in service because as soon as the work load was reduced in 6th respondent's School, he was sent to a Government School to work there until restored to the parent School. So much so, the appellant was given continuity in service by the respondents and his short term deployment on working arrangement should not lead to lose of seniority and the same is not visualised or authorised by any provision of the KER. We, therefore, uphold the entitlement of the appellant for appointment as Headmaster.