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T.V. Thomas, P.D. Teacher, Govt. U.P. School, Thottumukkom, Kozhikode & Others v/s Joint Secretary, General Education Department, Government of Kerala, Thiruvananthapuram & Others


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    O.P(KAT). Nos. 105, 181, 184 & 259 of 2019

    Decided On, 27 January 2020

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE K. VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE V.G. ARUN

    For the Petitioners: Philip Antony Chacko, P.M. Sebastian, Murali Pallath, P.M. Sebastian, N.V. Paul, Advocates. For the Respondents: Government Pleader, K. Ramakumar, Sr. Advocate, T. Ramprasad Unni, S.M. Prasanth, G. Renjith, R.S. Aswini Sankar, T.H. Aravind, Philip Antony Chacko, N.V. Paul, Advocates, Antony Mukkath, Sr. GP.



Judgment Text


K. Vinod Chandran, J.

1. Whether the test qualification specified in Rule 18(1) of the Kerala Right of Children to Free and Compulsory Education Rules 2011 [for brevity 'the Rules'] is mandatory even for the teachers who have crossed the age of 50 years is the issue arising in the Original Petitions.

2. The petitioners in O.P.(KAT) Nos.105 and 259 of 2019 are persons qualified in the mandatory tests prescribed. They canvassed for the position that after the Rules came into effect and the prescription made, there can be no Head Teacher appointed without the test qualification which has been specified by the Government. The petitioners in O.P.(KAT) Nos.181 and 184 of 2019, who were not originally impleaded in the Original Applications before the Tribunal, are persons who filed review before the Tribunal. They are teachers who crossed 50 years of age and are eligible to be posted as Head Teachers on the basis of their seniority, but are disabled for reason of they having not acquired the test qualification. They contend that they need only acquire such qualification within three years.

3. Before the Tribunal the challenge was against Annexure A6 dated 06.03.2018 as produced in O.A.No.1018 of 2018, which granted exemption from test qualification to teachers who have crossed 50 years of age. The said exemption granted by notification was alleged to be in conflict with Rule 18(1). Before looking at the controversy which can be resolved on interpretation of Rule 18(1) and its proviso, we have to look at the background facts to pin-point on the controversy arising here.

4. Annexure A2 order was earlier challenged in W.P.(C) No.14971 and 15011 of 2014, again on the ground that it is in conflict with Rule 18(1). This Court took the view that unless and until the test qualifications required for appointment as Head Teacher are specified by a notification, the exemption granted cannot be found, ultra vires the Rules. This view was followed by the Tribunal in an Original Application, which has been approved by a Division Bench of this Court in O.P.(KAT) No.131 of 2015. It is an admitted fact that by Annexure A6 dated 06.03.2018 the Government has prescribed that Account Test (Lower) conducted by the Kerala Public Service Commission ['PSC' for brevity] and a pass in the test in Kerala Education Act and Kerala Education Rules would be obligatory qualification for promotion of teachers as Head Masters of LP and UP Schools. Hence, as of now there is a specification of the test qualifications required for promotion to the post of Head Teacher and the exemption granted is in conflict with the Rule. The Tribunal held so and we agree with the Tribunal.

5. However, the Tribunal on an interpretation of Rule 18(1) found that the proviso grants three years to a teacher for acquiring the test qualifications. The notification at Annexure 6 having been brought out on 06.03.2018, necessarily the teacher should be granted three years for the purpose of acquiring the said qualification, was the finding. Finding that the function of the proviso is to carve out an exception and the instant proviso having provided three years time for acquisition of test qualification, the exemption limited to three years was held to be not in conflict with Rule 18(1).

6. The specific direction sought for in the Original Applications was to exclude those teachers who do not have the prescribed qualification from the seniority list for the purpose of consideration for promotion to the post of Head Teacher. Again relying on proviso to Rule 18(1), it was found that such a direction cannot be issued. A review was filed by some of the petitioners as noticed above, who were not parties in the Original Application, on the ground that, based on the order of the Tribunal, persons who have crossed the age of 50 years and who have not acquired the test qualification are sought to be excluded. The review applicants obviously did not have the test qualifications and apprehended that they would not be considered for promotion as Head Teacher. The Tribunal found that there is no error apparent from the record to invoke the remedy of review. It was found that if the authorities denied promotion to the review applicants, they could resort to appropriate remedies.

7. The Government was non-committal before this Court insofar as no appeal having been filed. The parties were heard and we are of the opinion that the proviso has to be pointedly noted. Rule 18(1) and its proviso reads as under:

“18. Duties to be performed by Head Teacher and Teachers:- (1) The Head Teacher shall be a person having a minimum of twelve years of teaching experience and possessing pass in such departmental tests and test on Kerala Education Act and Rules as may be specified in that regard. Provided that teachers in service shall be given time upto three years to pass the above tests”.

8. As of now there is no dispute with respect to the specification of tests, which have been made as per Annexure A6. The Rule hence requires a Head Teacher to have a minimum of twelve years teaching experience and pass in Accounts Test (Lower) conducted by the PSC as also a pass in the test in KE Act and KE Rules. The proviso enables every teacher in service to acquire such test qualification within three years. Now the question arise, whether within the three year period an unqualified person can be appointed as a Head Teacher. The Tribunal has relied on various decisions of the Hon'ble Supreme Court insofar as the function of the proviso and harmonized the subject proviso to find that every teacher would have three years time to acquire such qualification. The observations made in the review would further indicate that those who are not qualified cannot be excluded from consideration within the three year period from Annexure A6.

9. We cannot have any quarrel with respect to the finding of time provided of three years, especially noticing that while the Rule uses the word 'Head Teacher', the proviso uses the word 'teachers'. We, however, cannot agree with the Tribunal's order that there could be no exclusion of persons above 50 years of age who have no test qualification. The Tribunal already held that Annexure A2 granting exemption to teachers above 50 years from test qualifications prescribed cannot be sustained in the teeth of Rule 18(1). We cannot find the proviso having exempted such test qualification for a period of three years or permitted promotion of unqualified teachers as Head Teacher, subject to qualification within three years.

10. We notice the extract made by the Tribunal, from the decision in Union of India and Others v. Dilip Kumar Singh [AIR 2015 SC 1420], which is as below:

“20. Equally, it is settled law that a proviso does not travel beyond the provision to which it is a proviso. Therefore, the golden rule is to read the whole Section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction”.

When a proviso cannot travel beyond the provision, then the principle of a proviso not being possible of running contrary to a provision has to be applied in the present case. Mere three years time granted by the proviso cannot result in appointment of persons who are unqualified to the post of Head Teacher.

11. Sub-Rule(1) of Rule 18 categorically provides the qualification for a Head Teacher, which is 12 years teaching experience and three test qualifications, which are to be specified. The Government by Annexure A6 has prescribed the specified test qualifications, as the three seen from Rule 18(1). Hence without the three test qualifications, none could be appointed as Head Teacher which, if carried out, would be in violation of the Rule (provision) itself. However, the proviso cannot be rendered redundant and we have to look at the intention of the executive Government in providing three years time for every teacher to acquire the test qualification.

12. When three years time is provided for acquisition of test qualification, the proviso also has to be given due effect. Our interpretation would be that when the Rule specifically provides for test qualifications, there can be no appointment/promotion made of persons who are not qualified in accordance with the Rule. Hence, after the specification made at Annexure A6, only persons who are test qualified can be considered for promotion and be included for selection. The unqualified senior teachers would be entitled to appear for the test and acquire the test qualifications within three years. On acquiring such qualification if any junior has been promoted earlier, within the three year period, the senior who qualified within that period would be entitled to seek promotion as Head Teacher on the basis only of his/her subsequent qualification within the three year period. In that circumstance the junior has to be reverted and the senior promoted as Head Teacher. The pay drawn by the Junior in the post of Head Teacher, in the interregnum would be his entitlement and the senior would be entitled to the higher pay and allowances, if at all there is any in the post of Head Teacher, only from his/her date of promotion.

13. Otherwise, when an unqualified person is posted as Head Teacher and he/she does not qualify within the three year period or before his retirement which may occur within the three year period, the junior qualified teacher would be prejudiced insofar as not being given the higher post or the benefits attached to that post despite his satisfying every qualification as provided in the Rule. The unqualified senior would also get an unfair advantage of retiring with the higher pay, which is not intended by the proviso. On the other hand, if the senior acquires the test qualifications within the period, the junior who is also qualified can raise no objection on his senior being then posted as Head Teacher on acquisition of qualification. The proviso only enables a teacher to acquire the qualification within three years and seek for the post of Head Teacher on acquiring the test qualification. It does not enable the State to make appointments in violation of the rule

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, by promoting a senior who is not qualified in accordance with the Rule. On such interpretation, we are of the opinion that the Tribunal's order has to be set aside to the extent it permits inclusion of unqualified persons above 50 years for the purpose of promotion. The age of 50 years as provided in Annexure A2 has no significance, since the exemption has been set aside and the benefit now available is only of that provided in the proviso to the rule. Even senior teachers below 50 years who are not qualified would not be entitled to be promoted, but they will have the benefit of the proviso if they acquire the qualification within three years. This benefit, teachers under 50 did not have, but will now be conceded with, by virtue of the proviso to Rule 18(1). We make it clear that the proviso has application only for three years from Annexure A6. Necessarily the promotions already made are to be re-worked according to our interpretation. O.P(KAT) Nos.105 and 259 of 2019 are partly allowed to the extent indicated above and O.P(KAT) Nos.181 and 184 of 2019 are dismissed. Parties are left to suffer their respective costs.
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