KUNHIRAMAN NAMBIYAR Vs. GOPALAN NAIR

JUDGEMENT

(1.) These two writ appeals are against the judgment of a learned Judge in O.P. No. 478 of 1973. W.A. No. 75 of 1975 is by the 5th respondent in the writ petition and W.A. No. 85 of 1975 is by the State. The question agitated was whether the petitioner or the 5th respondent possessed the requisite qualifications for appointment as Headmaster in an Upper Primary Aided School. The controversy hinges around the question as to which of the two qualifications a pass in the S.S.L.C. with the Teachers' Training Certificate, or what we may call, a non S.S.L.C. with a Higher Elementary Teachers' Training Certificate is the required qualification for appointment as Headmaster, and as to which of these is superior to the other. The appellant who has passed the S.S.L.C. and has got the Teachers' Training Certificate, is junior to the 1st respondent who is a non S.S.L.C. with a Higher Elementary Teachers' Training Certificate. By an amendment effected to Chap. 14(A) R.45 in 1971, it was provided that for the post of a Headmaster, if there is a graduate teacher with B. Ed. or other equivalent qualification and who has got at least five years experience in teaching after graduation, he may be appointed as Headmaster provided he has got a service equal to half of the period of service of the seniormost undergraduate teacher. If graduate teachers with the aforesaid qualifications and service are not available in the School, the seniormost Primary School Teacher with S.S.L.C. or equivalent and T.T.C. qualification may be appointed. This statutory prescription of qualifications having been effected in 1971, and the vacancy with which we are concerned being prior to the same, it admitted that the rule has no application. There was in force a prior executive instruction G.M. Ed. (B) 2734O/57/E.H.D., dated 3rd May 1957 by the Government, a copy of which is filed as Ext. R1. That was as follows

(2.) We are unable to agree with the learned judge. Under the Kerala Education Act prescription of qualifications for appointment as Headmaster has to be done by the rules. See S.10 read with S.2(6) of the Act. This was done only by the amendment of Chap. 14(A) R.45 in 1971. It was claimed that it was also done about the same time by Ext. R3 G.O. Ms. 32/71/S/ Edn., dated 19th March 1971, Even assuming that Ext. R3 is to be regarded as a statutory rule, it is plain on its terms, that it can have no application to the case. For one thing, it prescribes qualifications only for the post of Headmasters of Government Schools; for another, it makes clear that it applied only to future vacancies and vacancies which remained to be filled up on a regular basis. The vacancy with which we are concerned in this case arose on 14th October 1966. Ext. R3 G.O. cannot therefore have any application.

(3.) It is plain that till a statutory rule has occupied the field, there is scope for executive instructions to take the place. This has been recognised by judicial decisions. It is enough to refer to B. N. Nagarajan v. State of Mysore AIR 1966 SC 1942 (para 5) and Lakshmi v. Assistant Educational Officer 1966 KLT 1042 to 1045. We may also refer to the decisions of this Court in Abdul Rahiman v. A.E.O., Balussery ILR 976 (2) Ker. 458 (para 6) and to N. K. Krishnan v. The Manager, Pallipuram Union Basic and U. P. School ILR 1977 (1) Ker. 52 . It is also worthwhile to note that Ext. R1 has clearly recorded that it was merely enforcing the orders of the Madras Government in the matter of qualifications of teachers prescribed by the rules issued in 1939 by that Government. We have no doubt that in the circumstances, Ext. R1 G. O. had operation till the statutory rules under the Kerala Education Rules occupied the place for prescribing qualifications in respect of the appointment of teachers. As Ext. R1 had application at the relevant time in regard to the vacancy with which we are concerned in this case, it is clear that the appellant is entitled to claim the appointment as Headmaster in preference to the 1st respondent. We allow those appeals and set aside the judgment of the learned judge. The result would be that the writ petition O.P. No. 478 of 1973 would stand dismissed. There will be no order as to costs.