MAIDHILY.M Vs. STATE OF KERALA

JUDGEMENT

(1.) A Division Bench of this Court by an order of reference directed to place this appeal before the Full Bench so as to consider the impact of the third proviso to Rule 44A of Chapter XIV-A of the Kerala Education Rules (KER) in the matter of appointment to the post of Headmaster/Headmistress. The Division Bench doubted the correctness of the observations in the reference order in Narayanan.A v. Vijayalakshmi P. and others [2020 (4) KLT 198] regarding classification of teachers into two based on the 2nd and 3rd provisos, rendered by a co-equal bench. In the reference order dtd. 19/10/2023, the Division Bench noted that the intention of the amendment by which the third proviso to Rule 44A was incorporated seems to be to give preference to teachers who have crossed the age of 50 years and possessed test qualification in preference to those who are exempted from acquiring the test qualifications by virtue of the second proviso to Rule 44 A. We are therefore called upon to decide these two aspects.

(2.) Reference to the relevant provision is essential to analyze the issue. Rule 44A is extracted hereunder omitting the explanations and the note thereunder:

(3.) The said Rule deals with appointment of Headmaster [Headmistress, Vice-Principal] in aided High Schools and Training Schools. The qualification is 12 years of continuous graduate service with a pass in the test in the Kerala Education Act and the Kerala Education Rules and a pass in Account Test (Lower) conducted by Kerala Public Service Commission. The requirement of pass in the Kerala Education Act and the Kerala Education Rules was added in 1968 vide G.O.(P)No.479/68 dtd. 6/11/1968 which was notified in the Gazette dtd. 10/12/1968. The further requirement of pass in Account Test (Lower) conducted by PSC was incorporated in 1976 vide G.O. (P)No.149/76/Edn. dtd. 7/8/1976 notified in Gazette dtd. 31/8/1976. The first proviso to the Rule provided exemption for those who were holding the post of Headmasters on the 11th day of June, 1974 from passing the Account Test (Lower). The second proviso was inserted by G.O(P)No.96/97/G.Edn. dtd. 17/3/1997 as S.R.O.No.237/97 with effect from 2/3/1982. By virtue of it, teachers who have attained the age of 50 years are exempted permanently from acquiring the test qualification specified in sub-rule (1). The third proviso, effect of which is to be analysed in this reference was inserted by G.O. (MS)No.157/15 G.Edn. dtd. 10/6/2015 published in Gazette dtd. 13/12/2017 with effect from 1/6/2015. The gazette notification has been produced as Ext.P5 in the writ petition. Notification includes an explanatory note. The same is extracted hereunder:-