AIDRAVASSU Vs. MANI

JUDGEMENT

(1.) ALL these Writ Petitions relate to the appointment of principal in Higher Secondary Schools (Government and aided private) in Kerala. The Kerala Education Act, 1958 and the Rules, 1959 (hereinafter referred to as k. E. R.) are governing the Aided Private Schools. Special Rules are framed for government Schools. At the time when the Kerala Education Act was passed, in the schools for general education there were two categories, primary, which consists of standard I to VII, and secondary, which consists of standards VIII to XI, as can be seen from Chap. 2 K. E. R. When National Education Policy was implemented making school education as 10+2, the 11th standard was taken away from the High School and Pre Degree course of two years was started in colleges. However, as an experimental measure in 55 schools Higher Secondary section was started as standards XI and XII, commonly called Plus Two Course. When the Higher Secondary section was started there was no statutory rules framed for the qualification of teachers, Principal, etc. By Government Order dated 12. 9. 1991 when sanction was accorded to start Higher Secondary Course in 55 High Schools, the names of the schools were stated as Higher Secondary schools and post of Headmaster was redesignated as Principal and they were given a special allowance of Rs. 250/-, considering their additional work. In government Order, G. O. (Ms) No. 138/90/g. Edn. dated 27. 6. 1990, it is stated as follows: " (xiii) Staff: Principal::-- The Headmasters of the schools selected will function as Principals for the time being. They will be given a special pay of Rs. 250 p. m. for the additional work. No scale of pay will be prescribed for the post of Principals till rules are framed for regular recruitment. &quot ; The above would show that it was only an arrangement on provisional and ad hoc basis for the time being. It is not disputed that the state Government has power to issue administrative orders governing service conditions of the employees, in the absence of any statutory provisions governing the field, especially to handle special situations. Later by Pre degree Course (Abolition) Act, 1997 it was decided to abolish Pre Degree Act delinking the above Course from the colleges and start Higher Secondary Schools attached with High Schools in State. Accordingly, by S. R. O. No. 238/1997 dated 2. 4. 1997, applications were invited by the Government for starting Higher secondary Schools from the Managers of the concerned High Schools and in the case of Government Schools from the Headmasters. Finally, Pre degree Course was abolished and large number of Higher Secondary Schools were established. Appointment. of teachers in the Higher Secondary Schools were also done on the basis of ad hoc orders. The ad hoc placement of Principals also continued by giving Headmasters an additional amount of Rs. 250/- per month, considering their additional responsibility.

(2.) THE Supreme Court in M. M. Dolichan and Others, v. :--THE Headmasters of the schools selected will function as Principals for the time being. THEy will be given a special pay of Rs. 250 p. m. for the additional work. No scale of pay will be prescribed for the post of Principals till rules are framed for regular recruitment. " THE above would show that it was only an arrangement on provisional and ad hoc basis for the time being. It is not disputed that the state Government has power to issue administrative orders governing service conditions of the employees, in the absence of any statutory provisions governing the field, especially to handle special situations. Later by Pre degree Course (Abolition) Act, 1997 it was decided to abolish Pre Degree Act delinking the above Course from the colleges and start Higher Secondary Schools attached with High Schools in State. Accordingly, by S. R. O. No. 238/1997 dated 2. 4. 1997, applications were invited by the Government for starting Higher secondary Schools from the Managers of the concerned High Schools and in the case of Government Schools from the Headmasters. Finally, Pre degree Course was abolished and large number of Higher Secondary Schools were established. Appointment. of teachers in the Higher Secondary Schools were also done on the basis of ad hoc orders. THE ad hoc placement of Principals also continued by giving Headmasters an additional amount of Rs. 250/- per month, considering their additional responsibility. 2. THE Supreme Court in M. M. Dolichan and Others, v. State of Kerala and Others, (2001 (1) SCC 151) directed the Government to frame rules regarding qualification, method of appointment of teachers etc. in Higher secondary Schools, within three months. THE Supreme Court also directed that if for any unforeseen circumstances the statutory rules cannot be notified and recruitment of teachers is necessitated, they should get specific permission from the Supreme Court. Certain categories of teachers appointed already were protected by the Supreme Court. On the basis of the direction of the Apex court, statutory rules were framed and incorporated as Chap. 32, which was published in the Gazette on 12. 11. 2001. Special Rules for the Kerala Higher secondary Education State Service were already published by notification dated 16. 4. 2000. THErefore, after framing of the statutory rules, the ad hoc government Orders came to an end.

(3.) A Division Bench of this Court in Shaji v. Ramachandran (2003 (2) KLT 814) was referred to. In that case, a High School assistant, who was senior in the High School section claimed the post of Headmaster, (who in turn as per the then existing ad hoc orders can also act as Principal on special pay) approached this Court when his claim was not accepted. The division Bench noticed that he does not possess the basic qualification as prescribed in the statutory rules. The Court also stated that hie was undergoing trial for different offences including rash and negligent driving under the influence of alcohol and about six criminal cases are pending against him. The Division Bench held that such a person cannot be appointed as headmaster or Principal. In paragraph 30 the Division Bench observed as follows: "30. There is another aspect of the matter. It is the admitted position that the petitioner does not possess even the basic qualifications as prescribed under the statutory Rules. Still more, various cases are pending against him. It has been inter alia alleged that he is undergoing trial for different offences including rash and negligent driving under the influence of alcohol. Should such a person be really foisted by the director on a Higher Secondary School as an Academic and Administrative Head? should the Director force the School Manager to ignore the person who is duly qualified and has been selected by a duly constituted selection committee? Such a person cannot be a good example for the young students to emulate. The decision of the Director is apparently arbitrary and unfair. In fact, it appears that the procedure of appointing a Headmaster to perform, the duties of the Principal is a device to ignore the eligible. It cannot be sustained. It is academically improper, administratively unsound and legally untenable. " But in the course of discussion, in the judgment it is stated that Headmasters can only be the Academic Head in High Schools and not in Higher Secondary Schools and Higher Secondary Schools can have only one academic and Administrative Head, viz. the Principal. Based on the above observation it is argued that in Higher Secondary Schools which are attached to high Schools, there can only be one Head and that is the Principal and headmaster post is no more available in such Schools. But the question that was considered in the above case was only whether the petitioner in that case is entitled to be appointed as Headmaster or Principal. The Court held that because of the antecedents and lack of qualifications he can not become a headmaster. Whether a Higher Secondary School which is having High School section can have a separate Headmaster was not a question in issue considered in that case and that is, therefore, only an obiter dictum.