RADHA Vs. DISTRICT EDUCATIONAL OFFICER BADAGARA

JUDGEMENT

(1.) THESE appeals arise from the judgment of Namboodiripad j. dismissing the original petition 5411 of 1972 moved by the appellants in these writ appeals as petitioners 2 and 1 respectively. They challenged in the writ petition the order passed by the Regional Deputy Director refusing the approval of the appointment of the appellant in writ appeal 296 of 1973 as a high School Assistant in the school managed by the appellant in writ appeal 376 of 1973. The Regional Deputy Director held by Ext. P8 that the 4th respondent in this appeal has preferential claim arising under R. 43 in Chapter XIV-A or the Kerala Education Rules.

(2.) THE facts are the following. THE appellant in writ appeal 296 of 1973 had functioned in the leave vacancy caused by the 4th respondent being deputed for the B. Ed. Course in the year 1971-72. It is therefore admitted that she should ordinarily get the benefit of R. 51a if that rule alone has to be considered. THE 4th respondent has been working in the school as an upper primary school assistant from 1964. She passed her B. A. in the year 1969 and was deputed as was said earlier for the B. Ed. Course in the year 1971-72. Her examination result was published on the 30th July, 197 2 , and she was declared to have passed. A vacancy in the cadre of High School Assistant occurred on 15 7 72 and the manager appointed the appellant in writ appeal 296 of 1973 on 17-7-7 2 to the vacancy and had applied for approval of the appointment. This approval had been denied. We shall now extract R. 43 and 51-A in Chapter XIVA of the Kerala Education Rules: "43. Subject to R. 44 and 45 and considerations of efficiency and any general order that may be issued by the Government, vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority, if such hands are available. Note A teacher in a lower grade of pay in one category of post is eligible for promotion to a higher grade of pay in another category of post provided: (i) he has the prescribed qualifications; and (ii) there is no teacher with the prescribed qualifications in the lower grade of pay of the category of post to which promotions are to be made. " "51 A. Qualified teachers who are relieved as per r. 49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in schools under the same Educational Agency, provided they have not been appointed in permanent vacancies in schools under any other Educational Agency. Note: If there are more than one claimant under this rule the order of preference shall be according to the date of first appointment. If the date of first appointment it the same', then preference shall be decided with reference to age, the older being given first preference. In making such appointments, due regard should be given to requirement of subjects and to the instructions issued by the Director under sub-rule (4) of R. 1 as far as High schools are concerned. "

(3.) IT was doubted at one time whether qualifications bad been prescribed at that time by the State Government. In this connection again counsel for the 4th respondent raised two arguments. He contended that the expression "prescribed" occurring in Note (i) to S. 43 must be understood only as 'prescribed' under the Act as defined in the Act. He brought to our notice the fact that the rules prescribing qualifications as embodied in chapter XXXI of the Kerala Education Rules came into force only long after the vacancy had occurred. He doubted whether there were any Government orders providing for qualifications. On this latter point we may state that Government had passed orders indicating qualifications necessary for the post of an High school Assistant and this is seen from the 1966 Edition of the Commentaries to the Kerala Education Act by K. K. Narendran at page 10. IT has been held in M. P. Lakshmi v. Assistant Educational Officer 1966 KLT 1042 that apart from prescribing by rules under the Act in a formal manner it was open to the government by an executive order to lay down the required qualifications. "prescribed" has been defined in S. 2 (6) of the Kerala Education Act as meaning prescribed by rules under the Act. But S. 2 itself states that the definition therein contained will apply only "unless the context otherwise requires. " We do not think that we must understand the word prescribed in note (i) to R. 43 in Chapter XIV-A as meaning that only prescribed by rules under the Act. The prescription in the general sense of the word by an executive order would be sufficient. We therefore reject this argument. The government having stated in an executive order the qualifications necessary, ext. P9 can only be understood as granting exemption from the qualifications. This is clear from Ext. P9 itself. Ext. P9 has been clarified further by Exts. P10 and P11 and by reading these three exhibits together the position is evident that a person promoted by relying on Ext. P9 will have to be reverted if he did not obtain the qualifications of B. Ed. within the three years provided. This is proof positive that there has not been a prescription of qualifications but only a temporary exemption from qualifications granted by ext. P9. We may also state that Ext. P9 only permits something being done and it does not enjoin or command as R. 43 purports to do by providing "shall appoint". The wording of Ext. P9 uses the expression "will be allowed to be promoted. " This is apparently a direction to the educational authorities not to stand in the way of the managers if they choose to appoint a person who has no qualification but relying on the exemption. As long as the statute and the rules are complied with we conceive that the managers have got the right to choose a person for appointment to a particular post and if they have chosen a person who was fully qualified, by virtue of Ext. P9 it is not possible to say that a person who has been granted exemption under that order will have a right to preferential appointment which the manager is bound to grant. The Regional Deputy Director in Ext. P8 order finds fault with the manager for not having waited. But such a procedure cannot be said to be enjoined by any rule or law. The only question to consider and decide is whether the appointment of the appellant in writ appeal 296 of 1973 was or was not in accordance with the Act or the Rules and if there was no infringement of the Act or the Rules the educational authorities cannot in the light of what they think would be proper, set aside the appointment or refuse the grant of the approval. We do not think that Ext. P9 enables the persons exempted under ext. P9 to claim the right to be appointed nor are we satisfied that Ext. P9 has prescribed qualifications. No argument had been advanced before us on the basis of the principles if any we do not suggest that there is any general principle in these rules-in R. 28bb and 28bbb of the Kerala State and subordinate Services Rules which are admittedly not applicable to the parties concerned.