Sivaraman Nair, J.
1. These two Original Petitions are filed by the senior-most High School Assistant and the Manager of H.M. High School, Vakathanam. The issue involves the appointment of the Headmaster of the school. The post fell vacant on the retirement on 31st March 1984 of the erstwhile Headmaster Sri. V.I. Abraham. The vacancy had to be filled up under Rule 44 Chapter XIV-A of the Kerala Educational Rules (hereinafter to be referred to as 'the Rules'). The qualifications for appointment as Headmaster of High Schools are prescribed in Rule 44-A Chapter XIV-A of the Rules. A minimum service qualification of 12 years of continuous graduate service, a pass in the test in the Kerala Education Act and the Rules, and a pass in Account Test (Lower) conducted by the Kerala Public Service Commission are the qualifications prescribed for this purpose. Rule 44B(2) provides that, 'persons who attain the age of 50 years will be granted permanent exemption from passing the tests.'
2. The petitioner in O.P. 9564/86 was the senior-most High School Assistant in the school. He had not acquired the test qualifications. However, he attained the age of 50 years of age on 3rd August 1984, whereby he stood exempted from possession of test qualifications because of the provisions contained in Rule 44B(2) Chapter XIV-A of the Rules. The 6th respondent, who was one of the junior teachers, had acquired all the necessary qualifications prescribed in Rule 44A Chapter XIV-A of the Rules before the vacancy arose on 1st April 1984. There was another teacher junior to the petitioner and senior to the 6th respondent, who had completed 50 years of age before 1st April 1984 and who could, therefore, have claimed to be fully qualified in view of the exemption visualised by Rule 44B(2) Chapter XIV-A of the Rules. The 6th respondent filed a petition dated 23rd March 1984 claiming that he might be appointed as the Headmaster, since he was the only qualified person entitled for such appointment in terms of Rule 44A read with Rule 43 Chapter XIV-A of the Rules. However, the Manager appointed the petitioner as Teacher-in-charge with effect from 31st March 1984. The 6th respondent then filed O.P. 3068/84. That original petition was disposed of by judgment dated 13th December 1984 directing that the Manager would make the appointment strictly in accordance with the provisions of the Kerala Education Rules. The Manager thereafter appointed the petitioner as Headmaster on 20th December 1984 in view of the fact that he had earned exemption and had thus become qualified for appointment as Headmaster. That appointment was approved by the District Educational Officer on 4th January 1985. The 6th respondent filed an appeal before the Deputy Director of Education against the approval of the appointment of the petitioner. The Deputy Director of Education, Kottayam allowed the appeal by order dated 31st May 1985. He held that the only person who was qualified on the date of occurrence of the vacancy., viz. 1st April 1984, was the 6th respondent, and he ought to have been appointed as the Headmaster. He also held that the petitioner and the other teacher who was senior to the 6th respondent had not applied for exemption from test qualification on attaining the age of 50 years; and that being the position, neither of them was qualified for appointment by virtue of the exemption. He, therefore, set aside the order of the District Educational Officer, and directed the Manager to take immediate steps to appoint a fully qualified H.S. A. as Headmaster against the retirement vacancy as per the Kerala Educational Rules. The petitioners filed appeals before the Director of Public Instruction against Ext. R6(e)(in O.P. 9564/86) order issued by the Deputy Director of Education, Kottayam. The 6th respondent thereafter filed O.P. No. 10873/85 seeking the issue of a writ of mandamus directing the Director of Public Instruction to dispose of the appeals filed by the petitioners. That Original Petition was disposed of by Ext. R6(f) judgment directing that final orders on the appeals should be passed within a period not exceeding one month from 10th December 1985. The Director of Public Instruction passed Ext. R6(g) order dated 8th January 1986 holding that the District Educational Officer was right in approving the appointment of the senior-most teacher. He, therefore, set aside the order of the Deputy Director of Education. His reasoning was that Rule 44 did not contain any stipulation that the qualifications should be possed by the candidate for appointment as Headmaster as on the date of occurrence of the vacancy. He also held that there was no statutory provision to the effect that the vacancy should be filled up on the date of retirement of the previous incumbent. This naturally led to the next conclusion that the teacher who was qualified for promotion at the time when the vacancy arose could not be considered to have acquired any right or preference for appointment in that vacancy. The 6th respondent filed a revision petition before the Government against Ext. R6(g) order. The Government initially granted an interim stay on 10th February 1986. But that was vacated on 19th February 1986. The 6th respondent then filed O.P. 1629/86 against the order dated 19th February 1986. That Original Petition was disposed of by judgment dated 19th April 1986 directing the Government to dispose of the revision petition within a period not exceeding two months from the date of receipt of a copy of that judgment. Ext. P1 order was passed thereafter on 20th November 1986 after hearing the parties on 21st June 1986. Petitioners challenge that order, G.O. (Rt.)/4093/86/G. Edn. dated 20th November 1986 as illegal and unsustainable.
3. The only relevant facts which emerge from the details mentioned above are that the previous Headmaster retired on 31st March 1984 occasioning a vacancy with effect from 1st April 1984; the senior-most teacher was not qualified or exempted on that date; he acquired exemption only on 3rd August 1984; the next senior teacher had not acquired the qualifications, but he had admittedly attained the age of 50 years before 1st April 1984 and could have claimed to be entitled for exemption from possession of test qualifications under Rule 44B(2) Chapter XIV-A of the Rules; and the 6th respondent had no need for any exemption, since he had the necessary period of qualifying service and had acquired all the test qualifications well prior to 1st April 1984. Who among them was entitled to be appointed as Head-master is the question for determination in these two original petitions.
4. In the see-saw battle, the petitioner and the 6th respondent had won twice each before the statutory authorities. The petitioner, the senior-most teacher, won before the District Educational Officer and before the Director of Public Instruction. The 6th respondent, the junior-most among the qualified claimants, had succeeded before the Deputy Director of Education and the Government. The petitioner has got an additional advantage of the Management preferring him for appointment.
5. Appointment of Headmasters in aided High Schools is governed by the provisions of the Rules. Rule 44 Chapter XIV-A of the Rules enjoins that 'ordinarily' the appointment shall be according to seniority. That naturally visualises an area of discretion enabling the Management to deviate from the rule of seniority in extra-ordinary cases. The person chosen by the Management is admittedly the senior-most High School Assistant in the school. We need not therefore investigate the claim of the Management that the school is a minority institution, and therefore, Rule 44 Chapter IXV-A of the Rules does not apply to them. Since the 6th respondent also admits that the petitioner is the senior-most High School Assistant, the only question which need be examined relates to the qualifications of the contenders. Petitioners urge that the only relevant rules are Rules 44 and 44B(2) of Chapter XIV-A of the Rules, whereas the 6th respondent contends that Rule 43 and more particularly Note 2 to that rule is also relevant.
6. Rule 44 provides that:
44. (1) The appointment of Headmasters shall ordinarily be according to seniority from the seniority list prepared and maintained under Clause (a) and (b) as the case may be of Rule 34. The Manager will appoint the Headmaster subject to the Rules laid down in the matter. A teacher if he is aggrieved by such appointment will have the right of appeal to the Department.
Note:- Whenever the Manager intends to appoint a person as Headmaster other than the senior claimant, the Manager shall obtain a written consent from such senior claimant, renouncing his claim permanently. Such consent shall have the approval of the Educational Officer concerned.
We are not concerned with the other Sub-rules of this rule in these petitions. Rule 44A(1) is in the following terms:
44A. (1) Subject to the provisions contained in Sub-rule (1) of Rule 44, the minimum service qualification for appointment as Headmaster, in Aided Complete High School/Training Schools shall be twelve years of continuous graduate service with a pass in the test in the Kerala Education Act and the Kerala Education Rules and pass in Account Test (Lower) conducted by Kerala Public Service Commission.
Rule 44B(2) provides that 'persons who attain the age of 50 years will be granted permanent exemption from passing the tests'. Rule 43, which is the other relevant rule, is in the following terms:
43. Subject to Rules 44 and 45 and considerations of efficiency and any general order that may be issued by the Government, vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in. the lower grade according to seniority, if such hands are available.
Note:- (1) A teacher in a lower grade of pay in one category of post is eligible for promotion to a higher grade of pay in another category of post provided:
(i) he has the prescribed qualification; and
(ii) there is no teacher with the prescribed qualification in the lower grade of pay of the category of post to which promotions are to be made.
Note:- (2) Promotions under this rule shall be made from persons possessing the prescribed qualifications at the time of occurrence of vacancy.
The 6th respondent naturally relies heavily on note (2) to Rule 43 extracted above. The petitioner contends that, that rule applies only to promotions from a lower grade of pay to a higher grade of pay and not to appointment of Headmasters under Rule 44 Chapter XIV-A of the Rules. A further argument which the petitioner raises is that Rule 43 is subject to Rules 44 and 45 and not vice versa, and therefore, note (2) to Rule 43 cannot govern the appointment of Headmasters under Rule 44.
7. The question which is to be decided in this Original Petition is whether the qualifications for appointment of Headmaster shall be as on the date of occurrence of the vacancy or a subsequent date on which the Manager chooses to appoint the Headmaster. This question becomes relevant in this case, because there was some considerable delay between the date of occurrence of the vacancy and the date on which the Manager appointed the Headmaster. There is some dispute between parties as to whether the delay was intentional or unavoidable. I do not think it is necessary for me to enter into those regions in view of the position of law which seems to me to be absolutely clear.
8. Rule 44 is necessarily subject to Rule 44A prescribing qualifications, because the former rule itself provides that 'the Manager will appoint the Headmaster subject to the Rules laid down in the matter.' One of the rules visualised by that provision must necessarily be the rules prescribing qualifications. Rule 44B(2) which deals with exemption from possession of qualifications on attaining the IS age of 50 years must also be within the contemplation of Rule 44. So viewed, the requirements of Rule 44 are that 'ordinarily' the senior-most qualified (under Rule 44A) or exempted (under Rule 44B(2)) teacher shall be appointed as Headmaster. The next question is, qualified or exempted as on what date? It is true that Rule 44 does not contain any stipulation as to the relevant date to ascertain the qualifications or eligibility for exemption as between the eligible candidates. If that view is to be accepted, it may be as if the Manager can postpone the date of appointment arbitrarily so as to defeat the claim of a qualified teacher for appointment as Headmaster. There shall be some definite, ascertainable and unalterable standards which shall govern the entitlement of eligible High School Assistants for appointment as Headmasters. The only unalterable and absolutely certain date for ascertaining the entitlement of teachers on the basis of possession of qualifications or exemption from possession of such qualifications is the date of occurrence of the vacancy. Any other date may vary from school to school or from Management to Management or even from teacher to teacher. The Manager under the Kerala Education Act and the Rules is a statutory functionary. His order appointing a person as the Headmaster is subject to the statutory right of an aggrieved teacher to file an appeal and a second appeal. There is also a provision for a further revision to the Government. It is essential that such a statutory functionary adopts ascertainable standards and unalterable criterion for ascertaining the entitlement of teachers for appointment as Headmasters. A Full Bench of this Court in the decision reported in Varghese v. State of Kerala 1981-II-L.L.J.-454 held at p. 457 that
there is considerable force in the view that it is the time of occurence of vacancy that should be relevant for determining the question of promotion and not the time the order of promotion is passed. 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.
Rule 28(b) of the Kerala State and Subordinate Service Rules incorporates a wholesome principle. I have no doubt that the statutory functionary shall be bound to adopt such ascertainable standards and cannot claim a discertion to determine the entitlement for appointment covered by statutory provisions at its whim and fancy. The same view was taken by Narendran, J. in O.P. No. 4314/79. That view was upheld in appeal by a Division Bench of this Court in Writ Appeal No. 304 of 1981.1 have therefore no doubt in holding that the Government was right in taking the view that the relevant date to ascertain whether the senior-most teacher was qualified for appointment as Headmaster is the date of occurrence of the vacancy.
9. It is true that Rule 43 is subject to Rules 44 and 45. It is also true that Rule 44 uses the expression 'appointment of Headmaster' whereas Rule 43 deals with promotion to vacancies in higher grades of posts. Inspite of the difference in the expressions used in those two rules, I am of the opinion that Rules 43, 44, 44A and 44B(2) supplement each other and cannot be read in total isolation.
10. Headmaster is included in the definition of a teacher. If therefore, the appointment of a Headmaster is appointment pure and simple, the whole of the provisions of Rules 2 to 8 of Chapter XIV-A of the Rules may have to be observed in the case of appointment of Headmasters of schools. It cannot be disputed now that the post of Headmaster is in a higher grade of pay. If that be so, vacancies in such higher grade of pay have to be filled up by promotion of qualified hands in the lower grade as provided in Rule 43 Chapter XIV-A of the Rules, The terminology used in Rule 43 does not conflict with, but Is in consonance with, the scheme of Rules 44, 44A and 44B(2) of the Rules. If the appointment of the Headmaster is not an appointment pure and simple, but has ordinarily to be by promotion from teachers in the lower grade of pay according to seniority, it cannot be successfully contended that Rule 43 is totally irrelevant in the matter of appointment of Headmasters. A definite guideline is given in Note (2) to that Rule as to the date with reference to which qualifications of eligible candidates shall be determined. Even assuming that that Note does not control the provisions of Rule 44, am inclined to hold that that Note is relevant in determining the relevant date in all cases where vacancies in a higher grade of pay are to be filled up by qualified hands according to seniority. Call it appointment if we shall, or promotion if we wish, the principle contained in Note (2) to Rule 43 is the only guideline provided anywhere in Chapter XIV-A of the Rules as the certain, discernible, and unalterable criterion in the matter. I am therefore of able criterion in the matter. I am therefore of the opinion that on this alternative point also, the view taken by the Government in Ext. P1 has to be sustained.
11. Yet another controversy raised by the 6th respondent is that persons who attained the age of 50 years did not get permanent exemp tion automatically. Such exemption has to be granted and no such exemption was claimed by, or granted in favour of the two senior teachers even though they have attained the age of 50 years. The provision for exemption from test qualifications on attainment of a prescribed age simurates the provisions of Rule 13B of the Kerala State and Subordinate Service Rules. There is no controversy that such exemption under Rule 13B is automatic on the attainment of the prescribed age. The terms 'will be granted exemption from passing the tests' used in Rule 44B(2) is only an inartistic way of stating that as and when persons attain the age of 50 years, they will be exempted from passing the test. Grant of individual exemption in each case of teacher attaining the age of 50 years does not seem to be in the contemplation of the Rules. I have, therefore, no hesitation in holding that exemption from possession of test qualification on attainment of the age of 50 years is automatic and does not require specific orders in each individual case,
12. That, however, is not the end of the matter. Had there been no other person involved in the controversy, it would have been easy to hold that the only person who was entitled to be appointed as the Headmaster under Rule 44 Chapter XIV-A of the Rules aslo on 1st April 1984 was the 6th respondent. Admittedly, there was yet another person senior to the 6th respondent as High School Assistant. Admittedly, he attained the age of 50 years prior to 1st April 1984. He was there-fore emexpted from possession of test qualifications, and was, therefore, the senior-most eligible person who could have been appointed as the Headmaster. The claims of that senior teacher could not be, and was not, considered, because he was not impleaded in the appeals before the departmental authorities or in these two Original Petitions. If 1st April 1984 was the relevant date as I have found, the Manager was bound to consider the claims of all eligible persons who were qualified or exempted as on that date in effecting appointment of the Headmaster for the school. It is now for the Manager to consider such claims with reference to 1st April 1984. Such consideration will naturally exclude the petitioner in O.P. No. 9564 of 1986-L, because he was not qualified or exempted as on the date of occurrence of the vacancy. The Government refused to consider claims of the other senior teacher for the reason that 'the Advocate of Sri. Punnose pointed out that Shri. N.T. George is not interested in the appointment. But there is no formal relinquishment'. The Note to Rule 44(1) makes it absolutely clear that 'whenever the Manager intends to appoint a person as Headmaster other than the senior claimant, the Manager shall obtain a written consent from such claimant, renouncing his claim permanently. Such consent shall have the approval of the Educational Officer concerned.' I am of the opinion that the imperative of this Note binds the Government as well when it functioned as the revisional authority in the matter of appointment of Headmaster effected under Rule 44 Chapter X1V-A of the Rules. The submission made by counsel for a junior teacher that the senior was not interested cannot do duty for a written relinquishment approved by the Educational Officer. It is therefore now for the Manager to consider the question of appointment afresh as between the 6th respondent and the other senior teacher. The operative direc tions contained in Ext. R6(e) order passed by the Deputy Director of Education and which the Government upheld in Ext. P1 order reads as follows:
In the above circumstances, the approval given by the Dist. Educational Officer, Kottayam as per her order No. K. Dis. 8375/85 dated 4th January 1985 for the appointment of Sri. K.J. Varkey as Headmaster from 20th December 1984 was not in order and so it is cancelled. The Manager, HMHS, Vakathanam is directed to take immediate steps to appoint the fully qualified HSA as Headmaster against the retirement vacancy as per the Kerala Education Rules.
The observations contained in Ext. P1 order based entirely on the submissions made by counsel for the 6th respondent that the other senior teacher was not interested, will stand vacated. The Manager has now to effect appointment of Headmaster with reference to the qualification/exemption, as between the senior teachers as on 1st April 1984.
The Original Petitions are dismissed subject to the above observations. There will be no order as to costs.