Judgment:
Viswanatha Iyer, J.
1. The twopetitioners are the Manager and the Headmaster respectively of the Nava Mukunda High School, an aided school governed by the Kerala Education Act and the Rules (in short 'the Act and the Rules').
2. The post of Headmaster in the school fell vacant on April 1, 1979 consequent on the retirement of Sri P.M. Sethumadhavan Nair from service.
3. Rule 44A of Chapter XIV-A of the Rules prescribes the minimum service qualification for appointment as Headmaster of a High School as twelve years of continuous graduate service with a pass in the test in the Kerala Education Act and the Kerala Education Rules, and in Account Test (Lower) conducted by the Kerala Public Service Commission. There was however an exemption in favour of persons who have completed the age of fifty years as also twenty five years of service. Sub-rule (2) of the rule provided that if any teacher with the minimum service qualification was not available for appointment, the Manager may appoint any other qualified person selected through advertisement in papers, following the directions issued by the Director of Public Instruction from time to time. Sub-rule (3) further provided that if no teacher with the qualifications was available in spite of compliance with the directions referred to in Sub-rule (2), the senior most graduate teacher on the staff of the school shall be put in charge for a period not exceeding one year at a time with the approval of the District Educational Officer.
4. The second petitioner was the senior most High School Assistant in the school at the time the vacancy of Headmaster arose on April 1, 1979, but he did not possess theprescribed test qualifications for being appointed to the post; nor was he entitled to the exemption, as he would have completed twenty five years of service only on June 13, 1980. None of the other teachers in the school was also qualified to be appointed as Headmaster at that time. The first petitioner Manager applied to Government for relaxation of Sub-rules (2) and (3) of Rule 44A for appointing the second petitioner as teacher in charge for the period from April 1, 1979 to June 14, 1980. This was accorded by Government by the order Ext. P 1 dated August 2, 1979 subject to the condition that there was no qualified or senior claimants under the management for appointment to the post of Headmaster. Evidently this order was passed in exercise of the powers conferred on Government by Rule 3 of Chapter I of the Rules to dispense with or relax the requirement of any rule to such extent and subject to such conditions as they may consider necessary where Government was satisfied that the operation of any rule caused undue hardship in any particular case. The second petitioner was thus put in charge of the school, without following the procedure prescribed by Sub-rule (2), pursuant to the relaxation granted by the order Ext. P1.
5. The third respondent was also a High School Assistant in the school, but he was not test qualified on April 1, 1979, when the vacancy arose. He appeared subsequently for the prescribed tests, and it is not in controversy, that he passed the tests and became qualified by October 18, 1979. Soon after he appeared for the tests, in which he expected to pass, he wrote to the first petitioner Manager on September 13, 1979 intimating him about it and requesting that he may be appointed as the Headmaster on his becoming qualified. He also filed a writ petition O. P, No. 3487 of 1979 in this Court challenging the proceedings Ext. PI relaxing the rules and permitting the second petitioner to be the teacher in charge of the school up to June 14, 1980. This original petition was disposed of only on June 11, 1980, just on the eve of expiry of the period during which the second petitioner was permitted to be teacher in charge. This court did not therefore go into the merits of thecase. The original petition was disposed of with the observation that the period during which the second petitioner had acted as teacher in charge would not be reckoned to afford him any preferential claim over the third respondent for appointment to the post of Headmaster in future, namely in the academic year 1980-81.
6. In the meanwhile, and on June 10, 1980, the first petitioner Manager appointed the second petitioner as the Headmaster of the school with effect from June 14, 1980. He was treated as qualified with effect from that date, being entitled to the exemption from possessing the test qualifications as he was over 50 years of age and was completing 25 years of service as teacher on June 13, 1980. But the District Educational Officer refused to approve this appointment, on the ground that the second petitioner did not have 25 years of service. It was noted that he had undergone the B.T. course from July 12, 1956 to March 8, 1957. According to the District Educational Officer, this period spent on training could not be reckoned as qualifying service for computing the twenty five years of service. The first petitioner Manager challenged this order dated September 3, 1980 in appeal before the Deputy Director of Education, who concurred with the District Educational Officer by the proceedings Ext. P6 dated March 11, 1981. He held that the second petitioner was not qualified on June 14, 1980 as he did not have twenty five years of qualifying service on that day, to earn the exemption.
7. Petitioners have challenged these orders Exts. P4 and P6 with the plea that the time spent on training from July 12, 1956 to March 8, 1957 is liable to be reckoned for the purpose of computing the period of twenty five years of service to entitle the second petitioner to claim exemption from possessing the test qualifications.
8. The Division Bench before which thematter came on hearing felt that there wasconflict of opinion on this point and thereforereferred the matter for consideration by a FullBench.
9. Having heard counsel on both sides, we find that the original petition is liable to fail on another ground. The vacancy of Headmaster arose on April 1, 1979. The first teacher in the school to become qualified thereafter, to be appointed as Headmaster, was the third respondent who acquired the test qualifications admittedly by October 18, 1979. Anticipating such acquisition of qualifications, he had made request to be appointed as the Headmaster. Even going by the case of the petitioners, the second petitioner became qualified, if at all, only on June 14, 1980 and not earlier, that is after the third respodnent became qualified for the post.
10. The relaxation granted as per the Government order Ext. P1 was not from possessing the qualifications prescribed by Rule 44A(1), to enable the appointment of the second petitioner as Headmaster, but only for his being put in charge of the school without following the procedure prescribed by Sub-rule (2). The vacancy of Headmaster continued to remain unfilled despite the order Ext. P1, and the second petitioner being made the teacher in charge of the school. If this be the position, the third respondent who became qualified prior to the second petitioner was entitled to be appointed as Headmaster in preference to the latter, who even as per his own showing, became qualified only on June 14, 1980.
11. When qualifications are prescribed for a promotion post, eligibility for appointment to that post has to be reckoned with reference to the date on which the vacancy arose. If there was a qualified hand, on that date, in the feeder category, he is entitled to be considered for appointment to the post in preference to his unqualified seniors. The date on which the appointment is actually made is immaterial as the title to the appointment arises on the date of occurrence of the vacancy and is not defeated by the acquisition of qualifications by a senior thereafter. If however, none was qualified on that date, the person who first becomes qualified thereafter is entitled to be considered for appointment, if the vacancy continues to remain. That is the effect of the Full Bench decision of this Courtin Varghese v. State of Kerala, 1981 Ker LT 458 : (AIR 1981 NOC 192) as also of the decision of another Full Bench in James Thomas v. Chief Justice, 1977 Ker LT 622 ; (AIR 1977 Ker 166). It is sufficient to refer to the first of these cases as it refers to the other decision and follows it. In Varghese's case, the specific question as to what should happen in a situation where there was none qualified on the date of the occurrence of the vacancy, and a junior became qualified subsequently, arose for consideration. The Full Bench held that it made no difference whether the vacancy existed already or the vacancy occurred after the junior became qualified. If there was a vacancy as and when a person became qualified for being promoted to such vacancy, he would be entitled to be considered for promotion in that vacancy. If there was no vacancy when a person became qualified for promotion and vacancy arose while he was qualified, his case for promotion called for consideration as and when such vacancy arose. We extract below the relevant observations of the Full Bench :
'The relevant date must be definite and not depending upon the volition of the authorities as otherwise the determination would be arbitrary. If it were to be the date of promotion that is to be relevant for determining the title to such promotion the rule is capable of arbitrary exercise. Even if it is honest exercise that would be arbitrary because the fate of the service career will depend in each instance upon the time taken by the concerned authority in passing the order of promotion. On the other hand, there is definiteness in treating the date of occurrence of the vacancy as that which would determine the title of the person to be considered for promotion.....
Sri V. Sivaraman Nair, learned counsel appearing for the appellants in these cases submits that the rule of determining the right to promotion of the junior on the basis of qualifications on the date the vacancy occurs will have no application when vacancies are in existence even prior to the date the junior becomes qualified and should be confined to cases where vacancy occurs after the junior gets qualified and before the senior also getsqualified. The Division Bench in the decision adverted to consider the question of filling up of a block of vacancies. We agree with the view expressed therein that it would make no difference whether the vacancies already exist or the vacancies occur after the juniors become qualified. If there is vacancy as and when a person becomes qualified for being promoted to such vacancy he would be entitled to be considered for promotion in that vacancy. If there is no vacancy when a person becomes qualified for promotion and a vacancy arises while he remains qualified, as and when such vacancy arises his case for promotion calls for consideration. Therefore the fact that in these cases there were vacancies available even before respondents 2 to 4 completed their probation would make no difference at all.'
12. This being the position, the question for consideration is whether there was a vacancy of Headmaster on the date on which the third respondent became qualified, namely October 18, 1979. We have no hesitation in holding that there was such a vacancy. Sethumadhavan Nair retired from service on April 1, 1979 and the post of Headmaster fell vacant. That post was never filled up. The second petitioner was only appointed as teacher in charge on the basis of the relaxation of the provisions contained in Sub-rules (2) and (3) of Rule 44A enjoining advertisement for the post and the absence of suitable candidates even thereafter. The vacancy of Headmaster does not cease by there being a teacher in charge of the school. The teacher in charge is not the Headmaster, though he may perform the day to day duties of the Headmaster. All that it means is that he is in charge of the school, in the absence of a regular Headmaster. The vacancy continues and it is liable to be filled up by a qualified hand as and when one becomes available.
13. The mandate of Rule 44A is that only qualified hands should be appointed as Headmasters. It is only in exceptional cases when such hands are not available in the school, or otherwise even after advertisement, that the senior most graduate teacher is permitted to be made teacher in charge, andthat too for a period not exceeding one year at a time. The intent is obvious that only qualified hands should, as far as possible, occupy the post of Headmaster. It is also in the best interests of the school that the temporary teacher in charge is replaced as soon as possible by a qualified hand. Therefore, and as soon as a qualified hand becomes available in the school, he should be appointed to the post, replacing the teacher in charge. The view that we have taken that vacancy continues to exist despite the school being in charge of a teacher accords with this requirement of the rules.
14. The fact that Government relaxed sub-rules (2) and (3) of Rule 44A and accorded sanction for appointment of the second petitioner as teacher in charge up to June 14, 1980, does not entitle him to continue in office till that date. All that it means is he may continue till that date, subject to availability of qualified hands.
15. First petitioner Manager was therefore bound to fill up the post of Headmaster by a qualified hand as soon as such a person became available. At any rate, the third respondent was entitled to preference in the matter of appointment as Headmaster, as the vacancy continued to subsist, and he was the first person to become qualified during the subsistence of the vacancy. Approval of the appointment of the second petitioner as Headmaster was therefore rightly refused by the authorities, though for different reasons.
16. The fact that the third respondent filed writ petition earlier challenging Ext. P 1 does not stand in the way of his claiming preference over the second petitioner, for the reason that this court did not deal with the matter on merits, and had specifically observed that the second petitioner's service as teacher in charge will not entitle him to any preference for appointment to the post of Headmaster in the ensuing academic year 1980-81.
17. In the above view of the matter, we arenot considering the question which led to the reference whether the period spent on training is liable to be reckoned in computing twenty five years of service.
18. The orders Exts. P4 and P6 are not therefore liable to be interfered with. No other questions arise for consideration. The original petition has to fail and it is accordingly dismissed without however any order as to costs.