JUDGMENT Jawajar Lal Gupta, C.J.
1. Does a teacher who is transferred from the one school to another and is placed at the bottom of the seniority list in the new school, which is under a different management, lose the benefit of the service rendered by him in the previous school for determining his eligibility for promotion to the post of Headmaster? This is the short question that arises for consideration in this appeal. A few facts as relevant for the decision of the case may be briefly noticed.
2. On June 21, 1980, the appellant joined service as a High School Assistant in Mathematics at the I.O. High School, Edavanna. On February 1, 1986, he was transferred under Rule 11 of Chapter XIV-A, of the Kerala Education Rules to the P.T.M. High School, Maruthoorkonam. In pursuance to the order of transfer, the appellant was relieved of his duties on February 13, 1986. He joined the new school on February 14, 1986. On his transfer, the appellant was placed at the bottom of the seniority list in the cadre of High School Assistants.
3. The 6th Respondent had joined service at the P.T.M. High School, Maruthookonam on July 15, 1985. In the seniority list as maintained under Rules 34 and 37, the 6th respondent was admittedly shown senior to the appellant.
4. Sri. G.R. Bhaskaran Nair was the Headmaster of the P.T.M. High School till May 31, 1997. On that day, he retired. Thus the post of Headmaster had fallen vacant on June 1, 1997. The appellant claimed that he was the only eligible High School Assistant in the school. Thus, he had a right to be promoted to the post of Headmaster. His claim was not accepted. Instead, respondent No.6 who had not completed the prescribed period of 12 years of continuous service as a High School Assistant was ordered to be promoted. A copy of the order passed by the District Educational Officer is Ext. P2. The approval was granted to the appointment of the 6th respondent despite the fact that he did not fulfil the prescribed qualification of 12 years of continuous service as High School Assistant. The appellant filed an appeal. It was accepted by the third respondent, the Deputy Director of Public Instruction, vide order dated April 1, 1998. A copy of this order is Ext. P3. The school Manager, viz. respondent No.5 challenged the order. The Director of Public Instructions accepted the appeal vide order dated August 12, 1998. A copy of the order is Ext. P4. The appellant filed a revision petition. It was rejected by the Government vide order dated April 8, 1999. A copy of the order is at Ext. P5. Having lost before the Government, the appellant filed a petition under Article 226 of the Constitution of India.
5. The learned Single Judge considered the matter. In view of the decision of a Division Bench of this Court in W.A. No. 214 of 1998 decided on March 24, 1998, it was held that the period of service rendered in the previous school could not be counted as experience. Thus the Writ Petition was dismissed. Hence, the appeal.
6. The matter was placed before a Division Bench of this Court. Learned counsel for the parties were heard. On behalf of the respondents, reliance was placed on the decision of the Division Bench as referred to above. The correctness of the view as taken by the Bench in W.A. No. 214 of 1998 was doubted. It was observed that Rule 44A did not contemplate that the graduate service rendered by a High School Assistant in the previous school has to be 'discarded.' Thus, the matter was referred to a larger Bench.
7. We have heard the learned counsel for the parties. On behalf of the appellant, Mr. Sudhakara Prasad has contended that the view taken by the Division Bench in C.M. Molly v. D.E.O., Aluva (W.A. No. 214 of 1998) is not in conformity with the Rules. It does not embody a correct statement of law. Thus, the decision rendered by the learned Single Judge cannot be sustained. The learned counsel for the respondents controverted the claim made on behalf of the appellant. It has been contended that on transfer from a school under one management to a school under another management, the teacher does not get the benefit of past service for the purpose of seniority. that being so, the benefit cannot be given even for the purpose of eligibility of promotion. Learned counsel have referred to various decisions.
8. The short issue that arises for consideration is as to whether or not a teacher loses the benefit of past service on transfer from one school to another, which is under a different Management?
9. A brief reference to the Rules shall be apt. The rules relating to the conditions of service of teacher in aided schools are contained in Chapter XIV-A of the Kerala Education Rules. Rule 10 deals with transfer from one school to another under the same management. Rule 11 permits transfer from one school to another under different management "with the previous approval of the District Educational Officer". Rule 13 inter alia provides that "teachers who are transferred as per this Rule will continue to receive in the latter school, the pay and scale of pay they were receiving in the former school, provided they are transferred to a post carrying the same scale of pay.....?. Rule 34 makes it incumbent on the management to prepare and maintain a seniority list of teachers in the prescribed form. Rules 37, 44 and 44A of Chapter XIV-A embody the other relevant provisions. These may be noticed in extenso. These Rules provide as under.
"37. (1) Seniority of a teacher in any grade shall be decided with reference to the length of continuous service in that grade in that unit provided he is duly qualified for the post.
(2) In the case of teachers in the same grade in the same unit whose date of commencement of continuous services is the same, seniority shall be decided with reference to the date of first appointment. If the date of first appointment is also the same, seniority shall be decided with reference to age, the older being the senior."
"44. (1) The appointment of Headmasters shall ordinarily be according to seniority from the seniority list prepared and maintained under Clauses (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.
(2) An appeal under Sub-rule (1) shall lie to the Educational Officer.
(3) A second appeal shall lie to the District Educational Officer against the order of the Assistant Educational Officer passed on an appeal preferred under Sub-rule (2). In the case of an order passed by the District Educational Officer under Sub-rule (2), the second appeal shall lie to the Deputy Director (Education).
(4) No appeal or second appeal preferred under these rules shall be entertained unless it is preferred within one month of the date of receipt of the order appealed against."
"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 Schools/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.
Provided that Headmasters of High and Training Schools, who were actually holding the said post on the eleventh day of June 1974 shall stand exempted from passing the Account Test (Lower).
Provided further that teachers who have attained the age of 50 years shall stand exempted permanently from acquiring the test qualification specified in Sub-rule (1).
Explanation:- For the purpose of this rule, "Graduate Service" means all service of a teacher as High School Assistant, Training School Assistant, Headmaster of an incomplete High School, Headmaster of a complete Upper Primary School/Middle School or Headmaster of a Training School after acquisition of Collegiate training such as B.T., L.T. or B.Ed. But in the case of such teachers appointed prior to 15-10-1957 their untrained service after graduation shall also be reckoned as "Graduate Service", provided that their appointments were not in accordance with the Madras Education Rules.
Note:- A period of 8 years from 6-11-1968 is given to Headmasters of Aided complete High and Training Schools for passing the test in the Act the Rules. All appointments to the post of Headmasters of complete Aided High and Training Schools during the period of 8 years from 6-11- 1968 shall be provisional. If such persons do not secure the test qualification within the specified period they will be reverted".
10. A perusal of Rule 37 shows that the seniority of a teacher in a school is determined with reference to the length of continuous service in that school. Under Rule 44, the appointment of the post of Headmaster has to be 'ordinarily' made according to seniority in the rank of the High School Assistant. Rule 44A on which the basic controversy hinges lays down the condition of eligibility for promotion to the post of Headmaster. It inter alia provides that for appointment to the post of Headmaster; (1) the High School Assistant should have a minimum service of 12 years; (2) this should be continuous; (3) it should be as a graduate High School Assistant and (4) the candidate should have passed the prescribed test. On a perusal of the rule, it is clear that the service has to be continuous but it need not be in one unit or the same school. This position becomes further clear from the fact in the Explanation to Rule 44A, 'Graduate Service' has been defined to mean "all service of a teacher as High School Assistant." It is not confined to one school only. Thus, on a plain construction of the rule, it appears that the service rendered by a teacher in different schools can be combined for determining his eligibility for promotion to the post of Headmaster. However, the essential pre-condition is that it must be after acquisition of prescribed qualification. Still further, it has to be continuous. However, it is not necessary that the service should be in the same school.
11. Learned counsel for the respondents have pointed out that the provisions of Rule 44A are subject to those contained in Rule 44(1). Thus the rule of seniority has to be read into the conditions of eligibility. Is it so?
12. A perusal of Rule 44(1), as already noticed, shows that 'ordinarily' the post of Headmaster has to be filled up according to the seniority of High School Assistants. Not always. Still further, in a case where the senior person is not eligible, neither Rule 44 nor Rule 44A debars the manager from considering and promoting a junior person. In fact, the appointment has to be made by the manager in accordance with the rules. While doing so, he cannot lose sight of the condition of eligibility mentioned in Rule 44A. In fact, if Rule 44 and Rule 44A are harmoniously construed, it appears that the names of persons for promotion to the post of Headmaster shall be considered in the order of seniority and the senior most High School Assistant who fulfils the conditions of eligibility shall be promoted.
13. Learned counsel for the respondents have contended that in the seniority list prepared under Rule 37, the benefit of past services is not given to a teacher. Restultantly, he is not even entitled to count the past service even for the purpose of determination of eligibility for promotion.
14. The contention cannot be accepted. Firstly, it deserves notice that the seniority determined under Rule 37 does not make the person eligible for promotion. It only embodies the order in which the names are to be considered. While considering the names, the manager can promote only such person who fulfils the qualification. Secondly, the rules do not contemplate that the benefit of past services shall be completely wiped out on transfer. For example, under Rule 13 a specific provision has been made by which the pay of a teacher who is transferred from one school to another is duly protected. It has been clearly provided that a teacher who is transferred shall continue to receive the pay that he was drawing in the school from which he has been transferred. This condition has been laid down despite the provision that the "rank in the new school will be fixed next below the junior most teacher in that particular grade in that school..." Thus, it is clear that the rule permits a junior person in the seniority list to draw a higher pay than persons senior to him. Just as the benefit of service is not lost for the purpose of pay, it is also not wiped out for the purpose of promotion. Resultantly, on a harmonious construction of the rules, we find that the only loss that a teacher suffers on transfer from one school to another under a different management is that he is placed at the bottom of the list of teachers in the pay scale of the post held by him. In other words, his pay, scale of pay and qualifying service are not affected.
15. Counsel for the respondents referred to the decision of a Division Bench of this Court in Manager, A.U.P. School v. State of Kerala, 1988 (1) K.L.T.402. In this case, it was held that a teacher on transfer under Rule 11 of Chapter XIV-A of the Rules cannot count the service rendered by him before his transfer for the purpose of earning eligibility for being appointed as Headmaster under Rule 45 in the transferred school. In fact, the view taken by the Division Bench in the latter case of C.M. Molly (vide W.A. No. 214 of 1998) is on the same lines. The rationale of both these decisions is that if the benefit of previous service is given to a teacher for the purpose of promotion, it would cause heart burning to the persons who are senior to him in the new school.
16. It is undoubtedly correct, as observed by the Bench, that the benefit of service in the previous school in not given in the matter of seniority. However, on this basis it cannot be said that the service is completely wiped out. This is so, because, as already noticed, the benefit is granted even for the purpose of pay. Thus, despite being junior, a teacher who has been transferred from another school is given the advantage of previous service and is allowed to draw a higher pay. Still further, if the view taken by the Division Bench were to be upheld, Rule 44A of Chapter XIV-A shall have to be re-framed to provide that the twelve years of service 'should be in the same school.' It is a well- settled rule of interpretation that if the language of a provision is clear and unambiguous, the court shall not add words thereto. Thus, the plain words of the Rule have to be seen. There being no gap in the Rule, no words can be added.
17. Still more, in today's competitive world, the matters of seniority and promotion, are highly contentious. There is always heart burning when one is promoted instead of another. But that cannot be a ground for preferring an ineligible person to the one who is eligible. In the present case, it is the admitted position that the sixth respondent did not fulfil the prescribed condition of experience on the date of the occurrence of the vacancy or on the date on which the District Educational Officer had accorded approval vide order dated June 30, 1997 vide Exh. P2. As against this, the appellant had completed service of more than 16 years on the crucial date. The dissatisfaction and heart burning is greater when an ineligible person is preferred to an eligible person. Thus, the feelings cannot be the basis for excluding the eligible. Regretfully, though respectfully, we are unable to follow the view taken by their Lordships.
18. In this context, it may also be mentioned that Mr. Sudhakara Prasad, learned counsel for the appellant, has pointed out that under similar circumstances, their Lordships of the Supreme Court had upheld the claim of a person who had been transferred from one unit to another, in Union of India v. C.N. Ponnappan, AIR 1996 SC 764. In this behalf, the following observations are relevant.
"3. We have considered the appeals in the light of provisions contained in the relevant rules. For promotion of a Lower Division Clerk to the post of Upper Division Clerk, which is in issue in Civil Appeal Nos. 1221 of 1987 and 2320 of 1995, the relevant rules required "eight years regular service in the grade". Similarly, for promotion form the post of Scenographer Grade III to Scenographer Grade II, which is in issue in Civil Appeal No. 529 of 1989, "five years of regular service in the post of Scenographer Grade III" was required.
4. The service rendered by an employee at the place from where he was transferred on compassionate grounds is regular service. It is no different from the service rendered at the place where he is transferred. Both the periods are taken into account for the purpose of leave and retrial benefits. The fact that as a result of transfer he is placed at the bottom of the seniority list at the place of transfer does not wipe out his service at the place from where he was transferred. The said service, being regular service in the grade, has to be taken into account as part of his experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferred. In our opinion, the Tribunal has rightly held that the service held at the place from where the employee has been transferred has to be counted as experience for the purpose of eligibility for promotion at the place where he has been transferred".
These observations clearly show that regular service in a grade can be taken into account as part of experience for the purpose of eligibility for promotion. It cannot be ignored on the ground that it was not rendered at the place of transfer. This view was reiterated by the Supreme Court in Scientific Officer to Raksha Mantri v. V.M. Joseph, (1998) 5 SCC
305. The situation in the present case is similar.
19. Thus, on a consideration of the provisions of the statutory rules as well as binding precedents, we find that the benefit of the service rendered by a teacher in one school is not lost on his transfer to another school under a different management when his claim/eligibility for promotion has to be considered. The view as taken by the two Division Benches in 1988 (1) K.L.T. 402 and W.A. No. 214 of 1998 is not correct. It is, thus, overruled.
20. There is another aspect of the matter. In the present case, we have asked the counsel regarding the age of the two contenders for the post of Headmaster. We are informed that the appellant is about 50 years of age while the 6th respondent is about 43 years of age. The counsel are also agreed that even if the appellant is promoted he would retire on attaining the age of 55 years, in the year 208. Thereafter, the 6th respondent would have a sufficiently long tenure on the post. Thus, even in equity, the 6th respondent has no cause to have any heart burning.
21. No other point has been raised.
22. In view of the above, it is held that:-
i A teacher on his transfer from one school to another under a different management does not lose the benefit of the service rendered by him in the previous school for the purpose of determining his eligibility for promotion to the post of Headmaster.
ii. The rule as laid down by the two Division Benches in Manager, A.U.P. School v. State of Kerala, 1988 (1) K.L.T. 402 and W.A. No. 214 of 1998 is not correct. It is consequently over-ruled.
23. Resultantly, the Writ Appeal is allowed. The decision of the learned Single Judge in O.P. No. 19148 of 1999 is set aside. The impugned orders are quashed. The respondents are directed to appoint the appellant as the Headmaster of the school without any further delay. Since the Government has already paid the salary of the higher post to the 6th respondent and he has performed the duties of the higher post, he shall not be asked to refund any amount. Equally, the appellant who has not performed the duties of a Headmaster, shall not be entitled to the arrears of salary for that period. However, while fixing his pay and allowance in the rank of Headmaster, the benefit of the service for the complete period shall be given to him. His pay etc. shall be notionally fixed on the hypothesis that he had been promoted from the date the 6th respondent was appointed. The needful shall be done within one month from the date of receipt of a certified copy of this judgment.