JUDGMENT J.B. Koshy, J.
1. All these Writ Petitions relate to the appointment of Principal in Higher Secondary Schools (Government and aided private) in Kerala. The Kerala Education Act, 1958 and the Rules, 1959 (hereinafter referred to as K.E.R.) are governing the Aided Private Schools. Special Rules are framed for Government Schools. At the time when the Kerala Education Act was passed, in the schools for general education there were two categories, primary, which consists of standard I to VII, and secondary, which consists of standards VIII to XI, as can be seen from Chapter II K.E.R. When National Education Policy was implemented making school education as 10+2, the 11th standard was taken away from the High School and Pre-Degree course of two years was started in colleges. However, as an experimental measure in 55 schools Higher Secondary section was started as standards XI and XII, commonly called Plus Two Course. When the Higher Secondary section was started there was no statutory rules framed for the qualification of teachers, Principal, etc. By Government Order dated 12.9.1991 when sanction was accorded to start Higher Secondary Course in 55 High Schools, the names of the schools were stated as Higher Secondary Schools and post of Headmaster was redesignated as Principal and they were given a special allowance of Rs. 250/-, considering their additional work. In Government Order, G.O. (Ms) No. 138/90/G.Edn. dated 27.6.1990, it is stated as follows:
Principal:.- The Headmasters of the schools selected will function as Principals for the time being. They will be given a special pay of Rs. 250 p.m. for the additional work. No scale of pay will be prescribed for the post of Principals till rules are framed for regular recruitment."
The above would show that it was only an arrangement on provisional and ad hoc basis for the time being. It is not disputed that the State Government has power to issue administrative orders governing service conditions of the employees, in the absence of any statutory provisions governing the field, especially to handle special situations. Later by Pre-Degree Course (Abolition) Act, 1997 it was decided to abolish Pre-Degree Act delinking the above Course from the colleges and start Higher Secondary Schools attached with High Schools in State. Accordingly, by S.R.O. No. 238/1997 dated 2.4.1997, applications were invited by the Government for starting Higher Secondary Schools from the Managers of the concerned High Schools and in the case of Government Schools from the Headmasters. Finally, Pre-degree Course was abolished and large number of Higher Secondary Schools were established. Appointment of teachers in the Higher Secondary Schools were also done on the basis of ad hoc orders. The ad hoc placement of Principals also continued by giving Headmasters an additional amount of Rs. 250/- per month, considering their additional responsibility.
2. The Supreme Court in M.M. Dolichan and Ors. v. State of Kerala and Ors. ((2001) 1 SCC 151) directed the Government to frame rules regarding qualification, method of appointment of teachers etc. in Higher Secondary Schools, within three months. The Supreme Court also directed that if for any unforeseen circumstances the statutory rules cannot be notified and recruitment of teachers is necessitated, they should get specific permission from the Supreme Court. Certain categories of teachers appointed already were protected by the Supreme Court. On the basis of the direction of the Apex Court, statutory rules were framed and incorporated as Chapter XXXII, which was published in the Gazette on 12.11.2001. Special Rules for the Kerala Higher Secondary Education State Service were already published by notification dated 16.4.2000. Therefore, after framing of the statutory rules, the ad hoc Government Orders came to an end.
3. As per the recruitment rules, a Higher Secondary School teacher should have Post Graduate Degree apart from B.Ed. Degree and S.E.T. qualification. A High School Headmaster need not possess Post Graduate Degree or S.E.T. qualification. Therefore, the minimum qualification required for even a junior Higher Secondary School teacher is higher than the minimum qualification prescribed for Headmasters. As per Rule 1 (f) of Chapter XXXII K.E.R., 'Principal' means the teacher who acts as the academic and administrative head of the Higher Secondary School. As per Rule 3 of Chapter XXXII K.E.R., there are three categories of teachers. Category 1 is Principal, Category 2 is Higher Secondary School Teacher and Category 3 is Higher Secondary School Teacher (Junior). Required qualifications for the post of Principal are mentioned in Rule 6 and method of appointment is mentioned in Rule 4. Method of appointment prescribed in Rule 4 reads as follows:
____________________________________________________________________________ Sl. Category Method of Qualification No. Appointment ____________________________________________________________________________ (1) (2) (3) ____________________________________________________________________________ (1) Principal (1) By promotion from category 2 under the respective educational agency. OR (2) By transfer from qualified Head- masters of Aided High Schools under the respective educational agency. Note--(i) The post of Principal will be a selection post and appointment to the post shall be made on the basis of the recommendation of a selection committee consisting of the Manager or his nominee as Chairman, a selection Grade Lecturer or Reader or Principal Of a college nominated by the Manager and Government representative as members. The Government representative shall be nominated by the Manager from among the Officers of Higher Secondary Education Department not below the rank of a Deputy Director or Officers of the Government not below the rank of a Deputy Collector. (ii) Preference shall be given to Aided Higher Secondary School Teachers having teaching experience at the Higher Secondary School level. (iii) The post shall be filled up by the methods specified in item (i) and (ii) above in the ratio 2:1. If qualified candidates are not available for appointment to a vacancy by any one of the methods specified above, such vacancies shall be filled up by the other method." ____________________________________________________________________________ The qualifications prescribed in Rule 6 are as follows: _______________________________________________________________________ Sl. Category Method of Qualifications No. Appointment _____________________________________________________________________________ (1) (2) (3) (4) _____________________________________________________________________________ 1 Principal By Promotion (1) Master's Degree with not less than 50% marks fromany Uni- versities in Kerala or a qualifi- cation recognised as equiva- lent thereto by any Univer- sity in Kerala. (2) B.Ed. Degree fromany Univer- sities in Kerala or a qualifica- tion recognised as equivalent thereto by any University in Kerala. (3) Minimum approved teaching experience of 12 years. Note:-- Preference shall be given based on the teaching experience at Higher Secondary Levels. By transfer (1) Master's Degree with not less than 50% marks from any of the Universities in Kerala or a qualification recognised as equivalent thereto by any University in Kerala. (2) B.Ed. Degree fromany of the Universities in Kerala or quali- fication recognised as equi- valent thereto by any Univer- sity in Kerala. (3) Minimum approved teaching experience of 12 years of Higher Secondary/High School Level."; _____________________________________________________________________________ Special Rules for the Government Higher Secondary Schools also provide similar qualifications. The method of appointment are as follows: "3. Appointment.-- Appointment to the categories shall be made as follows:-- __________________________________________________________________________ Sl. Category Method of Appointment No. ___________________________________________________________________________ (1) (2) (3) ___________________________________________________________________________ 1. Principal (1) By promotion from category 2: and (2) By transfer from qualified Head masters of High Schools in the Kerala General Education Services. Note -- The posts shall be filled up by the methods specified in item (1) and (2) above in the ratio 2:1. If qualified candidates are not available for appointment to a vacancy by any one of the methods specified above, such vacancies shall be filled up by the other method." _______________________________________________________________________________
The ratio for appointment as Principal from experienced Aided Higher Secondary School Teachers and Headmasters of Aided High Schools is fixed as 2:1. Several Government Orders were also issued after the framing of the rules to clarify the position. But in supercession of the earlier orders,- Government Order, G.O.(MS) No. 338/2003/G.Edn. dated 16.12.2003, was issued, which reads as follows;
"In supercession of all the orders in the matter of placement of Principals in Higher Secondary Schools in the State, Government order as follows:-
(i) Eligible Higher Secondary School Teachers/Headmaster of High Schools with qualifications and experience in teaching as prescribed in the Special Rules will be the Principal of Higher Secondary Schools in the ratio of 2:1.
(ii) The Principal will be administrative and academic Head of the Higher Secondary Schools,
(iii) Headmaster will continue as the Headmaster of the High School. He will render all assistance and co-operation to the Principal for the smooth conduct of the School administration,
(iv) The Higher Secondary School Teachers concerned on placement as Principal will continue to perform his duty as Higher Secondary School Teacher in the concerned subject but with a reduction1 of four periods per week. Excess periods consequent to such reduction in the periods of teaching will be distributed among the existing teachers in the Higher Secondary Section...................."
Thereafter, G.O.(MS) No. 134/2004/G.Edn. dated 14.5.2004 was issued in continuation of the earlier order stating that the Principal will be the Drawing and Disbursing Officer of the Higher Secondary Section of the School and the Headmaster will be entrusted with the powers as envisaged in the K.E.R. up to standard X. The Ministerial Staff, infrastructural facilities etc. will be shared by both the Principals and Headmasters. It was followed by order dated 14.6.2004 and the following clarification was issued:
"2. Government have subsequently noticed the situation in some Schools where there are no Higher Secondary School Teacher having 12 years teaching experience for being posted as Principal. Government having examined the situation in detail order that in the case of Schools where there are no Higher Secondary School Teacher having 12 years teaching experience for placement to the post of Principals, the senior most Higher Secondary School Teacher will be put in charge of the Higher Secondary Section."
Necessary orders were also issued declaring the Principals of Higher Secondary Schools as the Drawing and Disbursing Officers in respect of Plus One and Plus Two classes. There were earlier orders authorising the Headmasters as Disbursing Officers for the High Schools.
4. When the cases were argued, the following questions came up for consideration:
(1) Whether after the notification of the statutory rules prescribing the method of appointment of. Principal, the post of Principal can be filled up otherwise than in accordance with the rules?
(2) Whether Government Order dated 16.12.2003 and consequential orders like Government Order dated .14.5.2004, 11.8.2004 etc. will survive and whether those orders are repugnant to the Act and Rules contained in Chapter XXXII of K.E.R.?
(3) Whether on establishment of Higher Secondary Schools attached to the High Schools the post of Headmaster contemplated in Chapter XXIII K.E.R. survives?
(4) Whether two heads can be allowed in a Higher Secondary School which has got High School Section separately? and (5) Whether the Headmasters of High Schools who were redesignated as Principals and continuing as such even now can hold the post? .
5. A Division Bench of this Court in Shaji v. Ramachandran (2003 (2) KLT 814) was referred to. In that case, a High School Assistant, who was senior in the High School section claimed the post of Headmaster, (who in turn as per the then existing ad hoc orders can also act as Principal on special pay) approached this Court when his claim was not accepted. The Division Bench noticed that he does not possess the basic qualification as prescribed in the statutory rules. The Court also stated that he was undergoing trial for different offences including rash and negligent driving under the influence of alcohol and about six criminal cases are pending against him. The Division Bench held that such a person cannot be appointed as Headmaster or Principal. In paragraph 30 the Division Bench observed as follows:
"30. There is another aspect of the matter. It is the admitted position that the petitioner does not possess even the basic qualifications as prescribed under the statutory Rules. Still more, various cases are pending against him. It has been inter alia alleged that he is undergoing trial for different offences including rash and negligent driving under the influence of alcohol. Should such a person be really foisted by the Director on a Higher Secondary School as an Academic and Administrative Head? Should the Director force the School Manager to ignore the person who is duly qualified and has been selected by a duly constituted selection committee? Such a person cannot be a good example for the young students to emulate. The decision of the Director is apparently arbitrary and unfair. In fact, it appears that the procedure of appointing a Headmaster to perform, the duties of the Principal is a device to ignore the eligible. It cannot be sustained. It is academically improper, administratively unsound and legally untenable."
But in the course of discussion, in the judgment it is stated that Headmasters can only be the Academic Head in High Schools and not in Higher Secondary Schools and Higher Secondary Schools can have only one Academic and Administrative Head, viz. the Principal. Based on the above observation it is argued that in Higher Secondary Schools which are attached to High Schools, there can only be one Head and that is the Principal and Headmaster post is no more available in such Schools. But the question that was considered in the above case was only whether the petitioner in that case is entitled to be appointed as Headmaster or Principal. The Court held that because of the antecedents and lack of qualifications he can not become a Headmaster. Whether a Higher Secondary School which is having High School section can have a separate Headmaster was not a question in issue considered in that case and that is, therefore, only an obiter dictum.
6. We have seen that the applications invited for starting new Schools, etc. referred earlier would show that Managers of existing Aided High Schools and Headmasters of the Government High Schools have submitted applications for starting new Higher Secondary Schools attached to the above. A Full Bench of this Court in Varghese v. Deputy Director of Education (2000(2) KLT109(FB)) held that as per the provisions of K.E.R., upgradation of High Schools to Higher Secondary Schools is not possible. In that decision Mr. Justice Arijit Pasayat, C.J. (as he then was) held as follows:
"4. It is to be noted that Kerala Education Rules, 1959 (in short 'K.E.R.') deals with two grades, namely primary and secondary. Upgradation of Lower Primary Schools to Upper Primary Schools and Upper Primary Schools to High Schools is presently permissible. But upgradation from High Schools to Higher Secondary Schools is presently not permissible. Separate Rules prescribing service conditions and other connected matters have not yet been framed. It in not in dispute that Plus Two or Higher Secondary is a separate stage. That being the position, the absence of specific rules, executive orders govern the field..."
Therefore, it is not mere upgradation of the High Schools, but new Higher Secondary Schools were started, attached with the High Schools. That is in consonance with Chapter II as well as Chapter V K.E.R. Even otherwise, as pointed out by the Additional Advocate General, administration of all the twelve classes by the Principal may be difficult. The Headmasters were given administrative charge over the matters up to 10th standard and for the Higher Secondary Division, Principals were given full charge. The Government is bearing expenses for the Government Schools as well as for Aided Schools. Because of the financial difficulties, some infrastructural facilities and services of staff were allowed to be shared. With regard to such facilities, Principals and Headmasters were given equal charge. Therefore, we are of the Opinion that the administrative orders passed on 16.12.2003, 14.5.2004, 14.6.2004, 11.8.2004 etc. have no conflict with Chapter XXXII of K.E.R. or Special Rules. It is also pointed out that the Board of Examinations up to 10th standard and Plus Two are different. Up to 10th standard, for all schools in Kerala the Director of Public Instructions is the Administrative Head whereas for Plus Two Classes, it is the Director of Higher Secondary Education. In the District level also, for the Higher Secondary Schools, Regional Directors have to be appointed, but for the time being, that is entrusted to D.E.O. because of the financial difficulties. As far as Government Schools are concerned, Special Rules for Kerala Higher Secondary Education State service dated 16.4.2001 are different from High School service conditions. (See Government Order published in Kerala Gazette No. 46 dated 21.11.1967). Rule 44 Chapter XIV K.E.R. deals with appointment, qualification etc. of Headmasters in High Schools. This rule was amended when Higher Secondary Schools were formed. Feeder category for appointment of Principals in Higher Secondary Schools is Senior Higher Secondary School Teachers and qualified Headmasters. Therefore, statutory rules itself indicate that post of Headmaster is continuing even after the Higher Secondary School is attached to it though name of the School is changed as Higher Secondary School. As per the provisions of K.E.R. and Special Rules for Government Schools, there should be a Headmaster for the High School Section and there is no conflict or contradiction between the Government Orders passed and Statutory Rules. In view of the starting of Higher Secondary Schools in large number, to fill up the lacuna issue of clarificatory orders were necessary for smooth administration and running of the Schools. Administrative orders challenged in the Writ Petitions are also not in conflict with the provisions of K.E.R. or Special Rules. They are made to clarify the position and the matter is still in transitional stage. In the above circumstances, we see no reason to quash the Government Orders challenged in these petitions.
7. The last contention is regarding existing of Headmasters who were redesigriated as Principals with additional duties only on ad hoc basis. In C.C. Padmanabhan and Ors. v. Director of Public Instructions and Ors. (AIR 1981 SC 64) the Supreme Court considered a case of reversion of Assistant Educational Officers to the post of High School Assistants after six years of their promotion. The Supreme Court held that post of A.E.O. is a promotion post and their reversion after six years working is incorrect, even though salary difference between A.E.O. and H.S.A. was only grant of special pay to A.E.Os. But in this case, as an ad hoc measure till the framing of the rules, the Headmasters of the existing High Schools, though not qualified for becoming a junior teacher in the Higher Secondary School were allowed to hold additional charge of Principal. No permanent promotions were made. Now the rules are framed. In this connection we refer to the Apex Court decision in P.G. Joshi and Ors. v. The Director General, Posts and Telegraphs. The Constitutional Bench of the Supreme Court considered the effect of ad hoc appointments. There the appellants were postal clerks, some of them were selected and appointed as Wireless Licence Inspectors and the others as Town Inspectors. But, subsequently, Government abolished those posts. The Supreme Court held that such posts were not cadre posts though were only given a special pay considering the additional duties. In Rudra Kumar Sain and Ors. v. Union of India and Ors. ((2000) 8 SCC 25) the Supreme Court has given the meaning of the words "adhoc ", "fortuitous", "stopgap" etc. in detail and held that such ad hoc arrangements can have no effect after the framing of the statutory rules and after ceasing of the contingencies. The Supreme Court held that if the appointment was made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant, till then, and to meet this contingency an appointment is made then it can appropriately be called as stopgap arrangement. Till the rules were framed, what was done here was that ad hoc appointments were made by way of stopgap arrangement. Now when the rules are framed only qualified persons can continue in the post of Principal.
8. It is pointed out that some of the Headmasters who were qualified as on the date of coming into force of the Rules, though not appointed in the ratio prescribed as per the Rules, and are continuing even today should be given an equitable relief. It is true that Headmasters who were redesignated as Principals on the basis of ad hoc orders and are not educationally qualified, have to go back as Headmasters. They will continue as Headmasters of High School Division up to standard 10 and they cannot claim to be the Principals of Higher Secondary Schools. But those Headmasters who are educationally qualified when Special Rules framed and are continuing as Principal even today shall be allowed to continue, but their ratio has to be adjusted in the subsequent or other vacancies. But that benefit is not available to those Headmasters who are not continuing as oh today as Principals and those Headmasters who were not educationally qualified when relevant rules came into force. After framing of the rules recruitment has to be made strictly as per the statutory rules. Hence those persons appointed or placed as Principals after statutory rules came into force have to vacate the office. We also make it clear that the post of Principal is compulsory in the Higher Secondary Schools as without the head of the institution, it cannot function. Post of Principal is an essential pivotal post. Therefore, Government is directed to give sanction and approval to the post of Principal expeditiously so that no Higher Secondary School shall work without a regular Principal. That post is made compulsory as per the Rules and classified as category No. 1. We also direct the Managers to make appointment of Principal strictly on the basis of the rules framed as per Chapter XXXII and submit the matter for approval to the Government. It is for the Government to fix the scale of pay of Principal. It can be on a special scale of pay or special allowance to that of a Senior Higher Secondary School Teacher in category No. II. These are matters of policy and we are not making any direction regarding fixation of scale of pay. If the appointments are made as per the Rules, that should be approved, if not already approved. The services of Headmasters who are continuing without the requisite qualification as prescribed under Chapter XXXII on the date of coming into force of the Rules, should be terminated forthwith and they will go back as Headmasters. Management and Educational Authority are also directed to see that appointments are made strictly as per the Rules after enforcement of the Statutory Rules.
All the Writ Petitions are disposed of with the above directions.