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Only those who have passed the departmental examination shall be appointed as Headmaster. Others should be reverted:High court of kerala
Only those who have passed the departmental examination shall be appointed as Headmaster. Others should be reverted:High court of kerala
DOWNLOAD JUDGEMENT
See important para in judgement:
"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, 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."
DOWNLOAD JUDGEMENT
See important para in judgement:
"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, 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."
Hello, my name is Sakkir vallikunnu.education department. Kozhikode .