Kerala High Court
State Of Kerala vs C. Kunhikkamma on 16 February, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
Friday, the 16th day of February 2024 / 27th Magha, 1945
WA NO. 2230 OF 2019
AGAINST JUDGMENT DATED 26.09.2018 IN WP(C) 12564/2018 OF THIS COURT
APPELLANTS/RESPONDENTS 1 TO 3 IN WP(C):
1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL
EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -
695 001.
2. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD - 678 001.
3. THE DISTRICT EDUCATIONAL OFFICER, OTTAPPALAM, PALAKKAD - 679 101.
BY SENIOR GOVERNMENT PLEADER
RESPONDENT/PETITIONER IN WP(C):
C. KUNHIKKAMMA, HEADMASTER (RETIRED), P.T.M.Y. HIGHER SECONDARY
SCHOOL, EDAPPALAM, PALAKKAD DISTRICT, RESIDING AT CHIRATHODI HOUSE,
PERUMPARA, KUNNAKAVU P.O., CHERUKARA (VIA), MALAPPURAM - 679 340.
BY SENIOR ADVOCATE SRI. K. JAJU BABU AND
ADVS. M/S. BRIJESH MOHAN & NEETU VINOD
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay the operation and implementation of the judgment dated 26.09.2018
in WP(C) No.12564/2018, pending disposal of the Writ Appeal in the
interest of justice.
This Writ Appeal again coming on for orders on 16/02/2024 upon
perusing the appeal memorandum, and this Court's order dated 05.10.2020,
the Court on the same day passed the following:
EXT.P2:COPY OF THE OBJECTION VIDE NO.D1/13927/17
RAISED BY THE 2ND RESPONDENT ON 10.10.2017.
EXT.P3:COPY OF THE ORDER NO.KDS/B5/3309/17 DATED
03.02.2018 ISSUED BY THE 3RD RESPONDENT.
EXT.P7: COPY OF THE JUDGMENT DATED 05.07.2016
IN W.A.NO.1893/2015 (WA NO.1577/2010 AND
CONNECTED CASES) OF THIS HON'BLE COURT.
"C.R."
P.B.SURESH KUMAR, P.G.AJITHKUMAR & C.S.SUDHA, JJ.
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Writ Appeal No. 2230 of 2019
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Dated this the 16th day of February, 2024
ORDER
P.G.Ajithkumar, J.
The Headmasters in Aided Complete Secondary Schools
shall ordinarily be appointed according to the seniority from
among the graduate teachers having necessary test
qualifications (Rule 44A in Chapter XIV-A of the Kerala
Education Rules, 1959 (KER). Subject to that, teachers put in
12 years of continuous service are eligible to be appointed as
Headmasters (Rule 44A in Chapter XIV-A of the KER). Rule 3
of Chapter XXVI of KER provides that a Headmaster of an
Aided Complete Secondary School shall be given departmental
Headmaster's scale of pay only if he has put in minimum of 16
years of continuous service as graduate teacher. The
Government issued G.O.(Ms) No.88/83/G.Edn. dated
30.05.1983 and G.O.(Ms) No.50/ 2001/G.Edn. dated
13.02.2001 entitling Headmasters of secondary schools a
higher grade on their completing seven years of service. The
question that arose before the Division Bench was whether
service of seven years in the post of Headmaster is enough or
whether service in the pay scale of the Headmaster is
essential to get higher grade. It was noticed that a Division
Bench of this Court in W.A.No.1886 of 1997 held as per the
judgment dated 10.12.1999 that 7 year service in the scale of
pay of Headmaster is the eligibility requirement for higher
grade. Another Division Bench as per the judgment dated
05.07.2016 in W.A.Nos.1577 of 2010 and connected cases
took the view that service of seven years in the post of
Headmaster is enough to get the higher grade. Confronted
with those conflicting decisions, the Division Bench as per the
order dated 05.10.2020 referred to a larger Bench and
thereby this matter is placed before us.
2. This Writ Appeal was filed against the judgment
dated 26.09.2018 in W.P.(C) No.12564 of 2018. The challenge
in the Writ Petition was against Exts.P2 and P3 orders. Ext.P2
was issued by the 2nd appellant directing the 3rd appellant
asking to take curative action in regard to the order allowing
higher grade to the respondent on completing seven years of
service in the post of Headmaster. Ext.P3 is the order issued
by the 3rd appellant refixing the pay of the respondent
reckoning that she became eligible for the higher grade only
on completion of seven years in the scale of pay of the
Headmaster. Ext.P3 order also directed recovery of the excess
amount paid.
3. The Writ Petition was allowed as per the impugned
judgment by placing reliance on Ext.P7 judgment in
W.A.No.1577 of 2010 and connected cases, wherein it was
held that a graduate teacher who put in seven years of service
in the post of Headmaster is eligible for higher grade in the
scale of the Headmaster, notwithstanding the fact that he/she
has not been granted the scale of Headmaster. In the
Reference Order, it is pointed out that Ext.P7 judgment was in
direct conflict with the judgment in W.A.No.1886 of 1997,
which was disposed of along with W.A.No.826 of 1997 and a
few other cases. The Division Bench made the reference
observing as follows:
"12. Now the issue at hand appears to be very simple.
It is apparent from the aforesaid factual situation which
we have already narrated that the judgment in WA No.
1577/2010 had been decided without referring to the
earlier judgment in WA No. 826/1997 and connected
cases wherein it had been clearly held that teachers who
had completed 7 years service in the Headmasters scale
alone will be eligible for the next higher grade.
13. Rule 3 of Chapter XXVI of KER reads as under:
"3. The Headmaster of an Aided complete Secondary
School/Training School shall be given the
Departmental Headmaster's scale of pay only if he
has put in a minimum of 16 years of continuous
service as graduate teacher in schools recognised by
the department. Those Headmasters with a minimum
continuous qualifying service of 12 years as graduate
teachers shall be given such allowance as may be
fixed by Government:
Provided that the Head master appointed on a regular
basis prior to the coming into force of these Rules
shall be allowed to continue in their existing scale of
pay."
As per Rule 44A of chapter XIV-A of KER the minimum
service qualification for appointment as Headmaster of
Aided complete Secondary schools/Training Schools,
shall be 12 years of continuous graduate service and
other qualifications. Graduate service is explained as a
service of teacher as HS Assistant, Training School
Assistant, Headmaster of an incomplete High school etc.
There is no dispute about the fact that a person qualifies
to become Headmaster if he has a minimum service of
12 years and Headmasters are appointed based on
seniority. However, as per Rule 3 of Chapter XXVI, his
eligibility to receive the scale of pay of Headmaster will
only be on completion of 16 years of service as a
teacher. In the case on hand, petitioner was appointed
as HSA on 20/6/1991. He was given first time bound
Higher Grade on 23/12/2000 as he had an earlier
service of HSA from 1/10/1990 till 27/3/1991.
Therefore, he was eligible to get the first time bound
Higher Grade after completion of 10 years of service
which was granted to him. He was appointed as
Headmaster on 1/11/2003 but his pay scale remained
the same as that of HSA ie 5000-8150. The second time
bound higher grade was given to him on completion of
16 years of service on 23/12/2006 in the scale of pay
10790-18000 that of selection Grade of HSA (8th Pay
revision). He completed 16 years of service as teacher
and he was granted the pay scale of Headmaster w.e.f.
1/12/2007 as opted by him in the pay scale of 11070-
18450 on 1/12/2010. Contention urged by the appellant
is that petitioner was granted higher grade by a mistake
i.e., on completion of 7 years of service in the post of
Headmaster. This mistake was noticed later and was
sought to be corrected as per Ext.P2 order of the Deputy
Director of Education and consequential order was
issued by the DEO, Ottappalam as per Ext.P3. The
submission of the learned Government Pleader is that
the petitioner cannot claim higher grade in the post of
Headmaster w.e.f. 1/11/2003. He could claim a higher
grade only on reaching 7 years after getting the pay
scale of Headmaster effective from 1/12/2007.
14. The ambiguity in the case on hand had arisen on
account of the fact that the Headmaster in an aided
school has two scales of pay. HSAs are entitled to
become Headmaster on completion of 12 years of
service, but they remain in the same scale of pay of HSA
and they reach the scale of pay of Headmaster only on
completion of 16 years of service. Apparently in the pay
revision order, the word used is "post" and it is in that
manner that the Division Bench in WA No. 1577/2010
has decided the case. But the fact that the post of
Headmaster itself was under two separate scales was
not considered by the said Division Bench. This aspect of
the matter had been considered in Division Bench
judgment in WA No. 826/1997.
15. Having regard to the aforesaid conflict in the view
taken by two Division Bench judgments, we are of the
view that the matter requires a fresh consideration. It is
only appropriate that the issue be decided by a larger
Bench."
4. Heard the learned Senior Government Pleader and
the learned counsel appearing for the respondent.
5. The Rules are that a graduate teacher who puts in
12 years of service and has test qualifications is eligible for
appointment as Headmaster of an Aided Complete Secondary
School and that on completing service for a period of 16 years
alone he is entitled to get the scale of pay of the Headmaster.
The insistence of the Government Orders referred to above
that seven years of service is the criteria for a Headmaster to
be eligible to get the higher grade is also not in dispute or
under challenge. The question therefore is whether service of
seven years in the post of Headmaster is enough or whether
service in the pay scale of the Headmaster is essential to get
the higher grade.
6. The learned Senior Government Pleader would
submit that question before the Division Bench while
considering W.A.No.1886 of 1997 was exactly the same
inasmuch as the claim of the writ petitioners therein was
also entitlement of the Headmasters of Aided High Schools
to get higher grade. When the Division Bench, after referring
to the history of the rules and also the circumstances in
which the Government order allowing higher grades came
into being held that in order for a Headmaster to be eligible
for the higher grade, seven years of service in the
Headmaster's scale of pay has to be fulfilled. It is submitted
that the same should not have been overlooked by the
subsequent Division Bench. In that view of the matter, it is
argued that Ext. P7 judgment is per incuriam. It is also
submitted that when Rule 3 of Chapter XXVI of the KER
explicitly insists on 16 years of service in order to get the
scale of pay of the Headmaster, the Government order
cannot be interpreted to understand that service of seven
years in the post of Headmaster is enough to become eligible
for the higher grade.
7. The learned counsel for the respondent would
submit that once a teacher is promoted and posted as
Headmaster, he cannot be discriminated against on the basis
of length of service. From the date of appointment as
Headmaster, he discharges the duties of the Headmaster and
therefore, the benefit of grade promotion shall be extended
considering the length of service in the post. It is further
submitted that G.O.(P) No.145/2006/Fin. dated 25.03.2006
recognizes the length of service in the post as the eligibility
criteria and not the length of service in the scale of pay for
grade promotion. Accordingly, it is contended that the law laid
down by this Court in Ext.P7 is the correct proposition law.
8. The provisions relevant for consideration are Rule
44A of Chapter XIV-A and Rule 3 of Chapter XXVI of the KER.
Relevant parts of Rule 44A of Chapter XIV-A reads:
"44A. (1) Subject to the provisions contained in sub-rule
(1) of rule 44, the minimum service qualification for
appointment as Headmaster, Headmistress, Vice-Principal
in Aided Complete High Schools/Training schools shall be
twelve years of continuous graduate service with a pass
in the test in Kerala Education Act and the Kerala
Education Rules and a pass in Account Test (Lower)
conducted by Kerala Public Service Commission:
xxxxxx
Rule 3 of Chapter XXVI reads:
"3. The Headmaster/Headmistress/Vice-Principal as the
case may be of an Aided complete Secondary School/
Training School shall be given the Departmental
Headmaster's scale of pay only if he has put in a
minimum of 16 years of continuous service as graduate
teacher in schools recognised by the department. Those
Headmasters/Headmistresses/Vice-Principals as the case
may be with a minimum continuous qualifying service of
12 years as graduate teachers shall be given such
allowance as may be fixed by Government:
Provided that the Head master appointed on a regular
basis prior to the coming into force of these Rules shall
be allowed to continue in their existing scale of pay."
9. Higher grade to the Headmasters was allowed as
per G.O.(Ms) N.88/1983/G.Edn. dated 30.05.1983 and G.O.
(Ms) No.50/01/G.Edn. dated 13.02.2001 and the required
service is seven years as Headmaster. In Ext. P7 cases the
question was regarding entitlement criteria for higher grade to
the employees and Headmasters in the Education
Department. The said question was to be decided in terms of
the scheme for time bound grade promotion as contained in
the pay order issued as G.O(P) No.3000/98/Fin. dated
25.11.1998 for, the same was applicable to the employees
and Headmasters in the Education Department as well. The
scheme for the time bound grade promotion as per the
aforesaid Government order and also the subsequent pay
order, G.O.(P) No.145/2006/Fin. dated 25.03.2006 are similar.
Only change was the refixation of the span of service for
various grade promotions, which has no relevance to the
present case. Clause-10(3) in Annexure 3 attached to the pay
order explains that time bound higher grades to teachers
would be as allowed by the existing orders issued by the
General Education Department. However, the other conditions
were stipulated to be as indicated in Annexure 3. Going by
various clauses in the said Government Order, service in a
post is counted for one to be eligible for higher grade. That
view is apposite also for, the objective behind allowing grade
promotions is to mitigate stagnation in a particular post.
10. Be noticed, there are hierarchical differences in a
few departments. In such cases the aforesaid general rule is
deviated from. Clause-6 in Annexure 3 envisages such special
circumstances. It reads as follows:-
"6. If there is a regular promotion post in respect of the
categories of posts coming under pay scales ranging from
Rs.4400-6680 to Rs. 9590-16650 and if such scale of pay
is higher than the corresponding time bound higher grade
proposed in Tables A & B above, then the time bound
higher grade for such incumbent will be the scale of pay of
such regular promotion post, provided he is otherwise
qualified for such promotion. Even in cases where a
particular category of posts in the normal hierarchy of
promotion posts is not available in a Department, the scale
of pay of the normal promotion post only will be allowed as
the higher grade. (Thus, for example, in a Department
where there is no post of Head Clerk and UD Clerks get
promoted as Junior Superintendents, the time bound
higher grade for the Clerk grade, only qualified hands i.e.
those possessing the qualification, including approval of
the DPC (where necessary), prescribed for the promotion
post will get the scales of pay of regular promotion posts.
Unqualified hands will be allowed the next higher scale of
pay above that of the scale of pay of the post held at that
time, in the standard scales of pay at Annexure 1. The
competent authority sanctioning the time bound higher
grade should indicate in the order whether the official
possesses qualification for promotion (including approval of
DPC) and also specify the scale of pay admissible on time
bound higher grade."
11. There are departments where certain posts may be
absent in the normal hierarchy of promotion. How the grade
promotion shall be given in such cases is illustrated with an
example in Clause-6. In a general category, the promotion
posts of a U.D.Clerk are Head Clerk and Junior Superintendent.
The posts of Head Clerk are not available in some departments.
Then an incumbent U.D.Clerk would be promoted as Junior
Superintendent. In such a case, it is explained that the time
bound higher grade for him shall be the scale of pay of the
regular promotion post. He will not get the higher grade of the
Junior Superintendent. That makes the position explicit that it
is not the service in a particular post one holds is the eligibility
criteria for grade promotion always. In cases where the
hierarchical posts are different, in other words, the promotion
ladder is not as in the general category, the criteria for higher
grade has been differently enunciated.
12. As stated, Headmasters of an Aided Secondary
School, subject to seniority, are appointed as per Rule 44A of
Chapter XIV-A of the KER. Minimum service qualification is
12 years as Graduate Teacher. Despite appointment as
Headmaster, one cannot draw the pay of the Headmaster till
he puts in a minimum of 16 years of continuous service as
Graduate teacher in view of Rule 3 of Chapter XXVI of the
KER. Until such time he completes 16 years of service, he is
entitled to draw the pay as a teacher alone. He shall also be
given such allowance as may be fixed by the Government. It
is therefore explicit that holding the post of Headmaster
does not enable a teacher to draw the salary of a
Headmaster. He continues to draw the salary he is eligible as
a teacher till he completes 16 years of service.
13. Clause-6 in Annexure-3 Scheme for time bound
higher grade promotion covers similar situations. As in the
case of a U.D.Clerk getting promotion directly as a Junior
Superintendent, a Headmaster, who gets an appointment by
the application of the enabling provision in Rule 44A of
Chapter XIV-A of the KER, can draw the pay of a teacher
alone until he puts in 16 years of service. Drawing that
analogy, a Headmaster of an Aided Secondary School, who
gets the salary of teacher alone till he completes service of 16
years, cannot claim that service for higher grade in the post of
Headmaster. He needs to put in 7 years of service in the pay
scale of the Headmaster to be eligible for higher grade of the
Headmaster.
14. In a Government Secondary School, a Graduate
teacher having 16 years service alone is eligible to be
appointed as a Headmaster. Needless to say, he has to put in
7 years of service after his appointment as a Headmaster to
become eligible for the first grade promotion. That also is an
indicator that the grade promotion to a Headmaster in an
Aided Private School is allowed only after putting in 7 years of
service in the pay scale of the Headmaster. A contrary
interpretation results in discrimination against Headmasters of
Departmental Schools.
15. The Division Bench in Ext.P7 cases took the view
that the Government intended while framing the scheme for
grade promotions residency in the post alone and not
residency in the scale of pay as the eligibility criteria. It was
held that provisions of Rule 1 of Chapter XXVI of the KER
have no relevance insofar as the grant of time bound higher
grade promotions is concerned. Such a view was taken
without considering the provisions of Rule 44A of Chapter
XIV-A and Rule 3 of Chapter XXVI of the KER. Of Course, Rule
3 of Chapter XXVI governs the scale of pay of Headmaster/
Headmistress/ Vice Principals of Aided Complete Secondary
Schools/Training Schools; whereas Rule 1 of Chapter XXVI
governs the scale of pay including grade pay of teachers of all
levels of Aided Schools and Headmasters of Aided Primary
Schools. But when such a general proposition that the
residency in the post alone is the eligibility criteria for grant
of higher grade was laid down without considering the
provisions of Rule 44A of Chapter XIV-A and Rule 3 of
Chapter XXVI, the same becomes wrong.
16. The Kerala Education Rules were framed by the
Government in exercise of the powers conferred under Section
36 of the Kerala Education Act, 1958. It is the settled law that
rules, when validly framed, become part of the statute. Rule 3
of Chapter XXVI of the KER, which insists on completion of 16
years of service as graduate teacher for a Headmaster of an
Aided Secondary School to get the scale of the pay of
Departmental Headmaster, implies that he becomes eligible
for higher grade based on such a pay scale alone. Clause-6 of
Annexure 3 scheme for time bound higher grade promotion
makes that position further clear. It is trite that no executive
order can prevail over statutory rules. Reiterating that view
the Apex Court in Asok Ram Parshad and others v. State
of Maharashtra and others [AIR SC 2023 1591] held that
in service jurisprudence, Service Rules, which have a
statutory effect, will prevail and government resolutions
cannot be in conflict with the rules. There can be government
resolutions only in consonance with or expounding the rules,
but not in conflict with the same. That also is a reason
supporting the view that completion of 7 years service in the
pay scale of Headmaster is the requirement for getting the
first grade pay for Headmasters of Aided Complete Secondary
Schools.
17. In W.A. No.1886 of 1997, another Division Bench
after reckoning the history of the legislation particularly, Rule
3 of Chapter XXVI of the KER and the circumstances in which
Government Orders allowing grade promotions to the
Headmasters were allowed, held that the mandate of Rule 3
of Chapter XXVI of the KER could not be bypassed by the
Government Orders. The view taken therein is that
Headmasters of Aided Complete Secondary Schools are
eligible to get department Headmaster's scale of pay only if
he puts in a minimum of 16 years continuous service as
graduate teachers in schools recognised by the department
and only if 7 years of service in the Headmaster's scale of pay
is fulfilled, one is entitled to get the grade promotion, which
in our view, is the correct preposition of law. As indicated
above, the explanation contained in Clause-6 in Annexure 3
scheme for time bound higher grade promotions also
establishes that position. Accordingly, we hold that view taken
by the Division Bench in W.A. No.1886 of 1997 is the correct
preposition of law.
18. A Full Bench of this court in Indira v State of
Kerala [ILR 1998 (2) Ker.771] considered the contention
that Rule 3 of Chapter XXVI was discriminatory as violative of
Article 14 and 16 of the Constitution of India. The contention
was that Headmasters of both aided and departmental schools
are discharging the same duties and postponement of
allowing a Headmaster's scale of pay till an incumbent
completes 16 years of service despite his appointment as
Headmaster after he puts in 12 years of service is
discriminatory. The view taken by a Division Bench in
W.A.No.519 of 1988 and connected cases was quoted with
approval by the Full Bench, which is as follows:
"A higher scale of pay is granted only when the teacher
completes 15 years of service. Thus, it becomes clear that
lower emoluments are paid to a Headmaster who does not
have 15 years of service as a teacher and that the
Headmaster who has 15 years of service as a teacher is
entitled to higher emoluments. Though the Headmaster
with a lesser teaching experience and Headmaster with
longer teaching experience discharge the same functions
as Headmaster on his promotion to that cadre, there is
difference in the quality of service between the two classes
of Headmasters. The experience makes a person more
efficient and competent. That is also a reason why higher
emoluments are paid depending upon the number of years
a person puts in a particular service. It cannot, therefore,
be said that the length of service is not a relevant criteria
in the matter of fixing different emoluments."
Observing so, the Division Bench repelled the challenge to the
validity of Rule 3 of Chapter XXVI of the KER. The Full Bench
affirmed the said view. A Division Bench of this Court in
Shivadasan v. State of Kerala [2012 (2) KLT 121] followed
the said proposition. Therefore, the plea of the learned counsel
for the respondent that the denial of scale of Headmasters to
those who does not complete service of 16 years and denial of
higher grade unless completes 7 years of service in the scale of
pay of the Headmaster is discriminatory and violative of Article
14 and 16 of the Constitution of India cannot be accepted.
19. We held above that Ext. P7 judgment was rendered
without adverting to the provisions of Rule 3 of Chapter XXVI
of the KER and clause-6 in Annexure 3 scheme for time bound
higher grade promotion. Also, such a view was taken without
considering the judgment rendered by an earlier Division
Bench in W.A.No.1886 of 1997, which in our view laid down
the correct preposition of law.
20. In Sandeep Kumar Bafna v. State of
Maharashtra [(2014) 16 SCC 623] the Apex court held
that a decision or a judgment would be per incuriam if it is not
possible to reconcile its ratio with that of a previously
pronounced judgment of a co-equal or a larger Bench. A
Constitution Bench of the Hon'ble Supreme Court in National
Insurance Company Ltd. v. Pranay Sethi [(2017) 16
SCC 680] held that a later coordinate bench holding
differently from the earlier one cannot be taken as a binding
precedent. A Bench of coordinate strength is expected to
follow the view taken by an earlier Bench. It was further held
that a decision will be per incuriam when any provision in a
statute, rule or regulation was not brought to the notice of the
Court and also if it is not possible to reconcile its ratio with
that of a previously pronounced judgment of a coequal or
larger Bench.
21. Viewed so, Ext.P7 (judgment in W.A.No.1577 of
2010 and connected cases) is per incuriam and we declare so.
We affirm the view taken by the Division Bench in W.A.No.
1886 of 1997 dated 10.12.1999 that completion of 7 years
service in the pay scale of Headmaster is the requirement for
getting the first grade pay for Headmasters of Aided Complete
Secondary School. The reference is answered accordingly.
The Registry is directed to list the matter before the
Division Bench concerned.
Sd/-
P.B. SURESH KUMAR, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
Sd/-
C.S.SUDHA, JUDGE
dkr
16-02-2024 /True Copy/ Assistant Registrar
