STATE OF KERALA Vs. C. KUNHIKKAMMA

JUDGEMENT

(1.) The Headmasters in Aided Complete Secondary Schools shall ordinarily be appointed according to the seniority from among the graduate teachers having necessary test qualifications (Rule 44A in Chapter XIV-A of the Kerala Education Rules, 1959 (KER). Subject to that, teachers put in 12 years of continuous service are eligible to be appointed as Headmasters (Rule 44A in Chapter XIV-A of the KER). Rule 3 of Chapter XXVI of KER provides that a Headmaster of an Aided Complete Secondary School shall be given departmental Headmaster's scale of pay only if he has put in minimum of 16 years of continuous service as graduate teacher. The Government issued G.O.(Ms) No.88/83/G.Edn. dtd. 30/5/1983 and G.O.(Ms) No.50/ 2001/G.Edn. dtd. 13/2/2001 entitling Headmasters of secondary schools a higher grade on their completing seven years of service. The question that arose before the Division Bench was whether service of seven years in the post of Headmaster is enough or whether service in the pay scale of the Headmaster is essential to get higher grade. It was noticed that a Division Bench of this Court in W.A.No.1886 of 1997 held as per the judgment dtd. 10/12/1999 that 7 year service in the scale of pay of Headmaster is the eligibility requirement for higher grade. Another Division Bench as per the judgment dtd. 5/7/2016 in W.A.Nos.1577 of 2010 and connected cases took the view that service of seven years in the post of Headmaster is enough to get the higher grade. Confronted with those conflicting decisions, the Division Bench as per the order dtd. 5/10/2020 referred to a larger Bench and thereby this matter is placed before us.

(2.) This Writ Appeal was filed against the judgment dtd. 26/9/2018 in W.P.(C) No.12564 of 2018. The challenge in the Writ Petition was against Exts.P2 and P3 orders. Ext.P2 was issued by the 2nd appellant directing the 3rd appellant asking to take curative action in regard to the order allowing higher grade to the respondent on completing seven years of service in the post of Headmaster. Ext.P3 is the order issued by the 3rd appellant refixing the pay of the respondent reckoning that she became eligible for the higher grade only on completion of seven years in the scale of pay of the Headmaster. Ext.P3 order also directed recovery of the excess amount paid.

(3.) The Writ Petition was allowed as per the impugned judgment by placing reliance on Ext.P7 judgment in W.A.No.1577 of 2010 and connected cases, wherein it was held that a graduate teacher who put in seven years of service in the post of Headmaster is eligible for higher grade in the scale of the Headmaster, notwithstanding the fact that he/she has not been granted the scale of Headmaster. In the Reference Order, it is pointed out that Ext.P7 judgment was in direct conflict with the judgment in W.A.No.1886 of 1997, which was disposed of along with W.A.No.826 of 1997 and a few other cases. The Division Bench made the reference observing as follows: