K PUSHPARAJ Vs. K MANOHARAN

JUDGEMENT

(1.) This Writ Appeal comes up for hearing before this Full Bench since a Division Bench was of the opinion that the Full Bench decision of this Court in Sasidharan Nair v. State of Kerala 2003 (1) KLT 998, which overruled the Division Bench decision in Manager, A.U.P. School v. State of Kerala 1988 (1) KLT 402, requires reconsideration at the hands of a larger Bench.

(2.) The bone of contention in this case, between the appellant and the 1st respondent, is the post of Headmaster of an aided U.P. School on promotion under Rule 45 of Chapter XIV-A of the Kerala Education Rules (KER), The 1st respondent is a matriculate with T.T.C and the senior most teacher of the school. After having entered service as an Assistant Teacher in another aided L.P. School on 2-6-1975, he joined the present school on 10-8-1977 after obtaining transfer in terms of Rule 11, Chapter XIV A of the KER, as the junior most teacher of the present school on 10-8-1977. The appellant commenced service in the present school on 8-2-1988. But, he is a graduate with B. Ed.

(3.) On 1-6-1999, the post of Headmaster of the school became vacant. Rule 44(1) of KER stipulates that the appointment of Headmasters shall ordinarily be according to seniority from the seniority list prepared and maintained under Clauses (a) and (b) as the case may be of Rule 34. As per Rule 45 of Chapter XIV A of the KER, the post of Headmaster is to be filled up from among the qualified teachers on the staff of the school or schools under the Educational Agency. However, a graduate teacher of the school with B. Ed or other equivalent qualification with 5 years teaching experience has to be preferred if he has got a service equal to half of the period of service of the senior-most undergraduate teacher. If the service of the 1st respondent is reckoned only from the date he joined the present school, the appellant had half of the period of service of the 1st respondent and had to be preferred over the 1st respondent. Assuming that to be the correct legal position, the 6th respondent-Manager promoted the appellant as Headmaster. The 1 st respondent, contending that for the purpose of deciding whether the appellant had half of the period of service of the 1st respondent, the earlier service of the 1st respondent in the other school from which he was transferred to the present school also has to be reckoned, approached the statutory authorities challenging the promotion of the appellant. Being unsuccessful, he approached this Court with the Original Petition, the judgment in which is impugned in this Writ Appeal. A learned Single Judge, relying on the finding of the Full Bench in Sasidharan Nair's case, holding that a teacher on his transfer from one school to another under a different management does not lose the benefit of the service rendered by him in the previous school for the purpose of determining his eligibility for promotion to the post of Headmaster, upheld the claim of the 1st respondent for promotion as Headmaster in preference to the appellant. Aggrieved by the same, the appellant filed this Writ Appeal. The Division Bench which considered the appeal was of the opinion that since Sasidharan Nair's case was one dealing with promotion to the post of Headmaster in High Schools under Rule 44A of Chapter XIV A of the KER, the overruling of the Division Bench decision in AUP School's case, which specifically dealt with Rule 45 was without adverting to the difference in the language used in Rules 44A and 45, and therefore needs reconsideration.