ANNET D CUNHA Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONERS in these Original Petitions are working as headmasters in various Lower Primary and Upper Primary Private Aided Schools. They challenge R. 1, Chap. 26 of the Kerala Education Rules (hereinafter referred to as'the Rules') as amended by S. R. O. No. 1108/88, G. O. (P) No. 136/88/g. Edn. dated 8th September 1988, introducing 15 years service as Teacher for being eligible to get the scale of pay of Headmasters.

(2.) PRIOR to the amendment, R. 1 read as follows: " (1) Teachers of Aided Lower Primary, Upper Primary, high and Training Schools shall be paid the scale of pay applicable to Teachers of Government Lower Primary, Upper Primary, High and Training Schools. Headmasters of Aided Lower Primary Schools shall be eligible for the scale of pay or the scales of pay plus supervision allowance, as may be, applicable to the Headmasters of Government Upper Primary Schools. "

(3.) WHILE disposing of O. P. No. 27056 of 2001, the learned judge was of the opinion that a Private High School Headmaster and Government High school Headmaster cannot be discriminated. The learned judge held as follows: ". . . . Hence, there cannot be any discrimination with regard to the grant of pay and other emoluments between the Headmasters and government and Aided Schools. They do similar work and have the same qualification. Naturally, their pay should also be the same. Depriving headmasters of Aided Schools of the benefit of the scale fixed for the purpose will certainly amount to arbitrary discrimination and a violation of Art. 14 and 16 of the Constitution. " The learned Government Pleader points out that the above observations are factually incorrect. By Government Order dated 8th September, 1988, Government prescribed 15 years service for getting the scale of pay of headmasters in Government L. P. and U. P. Schools also. It is further pointed out that the amendment did not make any change. Government sanctioned new scale of pay to Headmasters of U. P. and L. P. Schools with effect from 1st June, 1973 by g. O. dated 24th April, 1973. By Government Order dated 12th April, 1974, a minimum service of 15 years was prescribed for drawing the scale of pay of headmasters of Aided Primary Schools. The above was not incorporated in the k. E. R. The Government Order dated 8th September, 1988 prescribes a minimum period of service of 15 years for drawing the scale of pay of Headmasters in government Schools also. Concerned amendment was made in the K. E. R. by the impugned provision. In W. A. No. 519 of 1988, Government Order dated 8th september, 1988 prescribing 15 years of service as a teacher for getting the scale of pay of Headmasters was considered in detail and the court held as follows: "a higher pay is granted only when the teacher completes 15 years of service. Thus, it becomes clear that lower emoluments are paid to a Headmaster who does not have 15 years of service as a teacher and that the Headmaster who has 15 years of service as a teacher is entitled to higher emoluments. Though the Headmaster with a lesser teaching experience and headmaster with longer teaching experience discharge the same functions as headmaster on his promotion to that cadre. There is difference in the quality of service between the two classes of Headmasters. The experience makes a person more efficient and competent. That is also a reason why higher emoluments are paid depending upon the number of years a person puts in a particular service. It cannot, therefore, be said that the length of service is not a relevant criteria in the matter of fixing different emoluments. " There the learned judges found that the above provision is not discriminatory and violative of Arts. 14 and 16 of the Constitution. It is true that once a teacher is qualified under the rules for appointment as headmaster on acquiring the requisite qualification and experience and also passing obligatory test prescribed for the Headmasters on their appointment, perform the same duties and discharge the same responsibilities irrespective of the number of years of service they have rendered as teachers. But, at the same time, a person who has put in longer number of years of continuous service will be qualified than one who has lesser number of years of service. Therefore, number of years of continuous service in a particular cadre or in the feeder category is taken into account in the matter of sanctioning a higher scale of pay. It cannot be stated that the State has taken an irrelevant factor for consideration for the purpose of fixation of appropriate scale of pay. We are of the opinion that the amendment made with effect from 15th September, 1988 in r. 1 of Chap. 26 of K. E. R. will not make any difference. Before the impugned amendment also Aided School Headmasters are entitled to get same salary of headmasters of Government Schools. In Government Schools also for getting the scale of pay of Headmasters, 15 years service was made compulsory by the government Order, dated, 8th September 1988. It is true that a Teacher in government School can ordinarily become a Headmaster after getting more than 15 years service. But, in private schools where the number of teachers are less, there is a likelihood that a teacher may get promotion as Headmaster early before completing 15 years of service. But, the rule for getting the scale of pay of the Headmasters is the same in Government and Aided Schools. There is no discrimination between the Government School Headmaster and Private Aided l. P. S. or U. P. S. also before or after 8th September 1988. A teacher who is appointed as Headmaster after 8th September 1988 will get the scale of pay of headmaster only after completion of 15 years of service. Before that, apart from the teachers salary, he is entitled to get a supervisory allowance. Here, in Aided Schools also, because of the provision they will get the scale of pay of Headmasters as soon as they complete 15 years of teaching experience. It is true that apart from teaching experience, Headmasters have to do administrative work also. That is why they are given a supervisory allowance. The Full Bench of this Court did not say that fixing of 15 years of service for getting the scale of pay of Headmasters is discriminatory or illegal. It was only held that teachers/ Headmasters in the Aided schools are entitled to parity in the matter of salary, allowance etc. with their counterparts in the Government Schools. Only the retrospective operation of the Government Order, dated 8th September, 1988 and R. 1 of Chap. 26 fixing 15 years of service for getting the scale of pay of Headmaster alone was struck down by the Full Bench. The Full Bench held as follows: "as we have already said, it is not in dispute that the Government can enact a rule and give it retrospective effect, which is, however, subject to the limitation, that it shall not affect, or take away the accrued or vested rights, that could not be justified even on the plea of public interest as now advanced by the learned Government Pleader. The impugned amendment of the rule, by G. O. (P) No. 136/88/g. Edn. , dated 8th September, 1988 (Ext. P11 in O. P. No. 301 of 1988) we declare is bad and unsustainable as against the petitioners and persons similarly placed inasmuch as it has sought to take away their vested right to the new scale of pay for Headmasters from the date of their respective appointment to the said post. We direct the respondents to pay and disburse the petitioners the salary and allowance due to them as headmistresses, within two months from the date of receipt of a copy of the judgment. " Therefore, only teachers who were already appointed as headmasters on the date of the Government Order had got the benefit as per the decision of the Full Bench. Here also, the rule can act only prospective. Before the impugned amendment of the rules also, right of getting the scale of pay of Headmasters was on par with Government Schools. Retrospective operation of G. O. dated 8th September, 1988 as well as the impugned rule in this case was held to be bad and unconstitutional by the Full Bench and further held that headmasters in Private Aided Schools who were appointed prior to 8th September, 1988 are not affected by the impugned amendment of R. 1 of Chap. 26.