GOPINATH,J. - (1.) has been placed before the Division Bench on account of an order of reference dated 15.3.2018 of a learned Single Judge of this Court, noticing that there is a conflict of opinion in as much as the view taken by a learned Single Judge of this Court in Lalitha v. State of Kerala; 2008(1)KLT 416 was not followed in Meenakshikutty v. State of Kerala; 2011 (1) KLT 1032 on the premise that the view taken in Lalitha (supra) was contrary to the judgment of a Division Bench in Sreeramachandran v. State of Kerala; 2002 (2) KLT 428. The learned single Judge noticed the fact that Lalitha's case (supra) was affirmed (after Meenakshikutty (supra) was decided) by a Division Bench in W.A.No.2892/2007. The connected Writ Petition, namely, W.P.(C)No.18042/2010 was also ordered to be tagged along with It is accordingly that these cases are coming up before us for adjudication. is the lead case and the Exhibits referred to in this judgment, unless otherwise indicated, are referred to as they are marked therein.
(2.) The short question that arises for our consideration is whether a teacher who got the benefit of a Full-Time Teacher in terms of clause (vi) of G.O.(MS)No.62/73/S.Edn dated 2.5.1973 is also entitled to count the period of service when they enjoyed the benefits of a Full-Time Teacher for the purposes of seniority and length of service for promotion as Headmaster/Headmistress.
(3.) The writ petitioner is a Postgraduate in Sanskrit with 'Shiksha Sasthri' (B.Ed). By Ext.P5 order dated 16.11.1994, the petitioner was granted Full-Time benefits of High School Assistant following the stipulations contained in G.O.(MS)No.62/73/G.Edn dated 2.5.1973. On 31.3.2008, the then Headmaster of the School retired from service. Though the petitioner staked a claim for being appointed as the Headmistress, the Manager appointed the 6th respondent, who commenced regular service only from 5.6.1995. The District Educational Officer, as well as the Deputy Director of Education, held, at the instance of the petitioner, that the appointment of the 6th respondent was bad in law. By Ext.P11 order dated 15.6.2009, the Government, in revision, held as follows:- "The matter was examined in detail. As per explanation to Rule 44A Chapter XIVA KER, Graduate service means all service of a teacher as H.S.A., T.S.A, Headmaster of an incomplete H.S. H.M of a complete UPS/middle school or H.M 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 Educational Rules. This is not pertained to a part time teacher enjoying full time benefit but to a full time H.S.A The clause (vi) of G.O.(MS) 62/73/S.Edn dated 2/5/1973 does not enable conversion of a part time post to full time. Such a provision in the Government order is intended to support a part time teacher who would be continuing for a long period in service and drawing only the emoluments of a part time teacher or in the other words, the application of clause (vi) of the G.O said above is only on the basis of the teachers and not on the basis of the post. If G.O.(MS) No.62/73/S.Edn dated 2/5/1973 enables conversion of a part time post to full time it will become contrary to the statutory provision in Rule 6D Chapter XXIII KER. The G.O. Dated 2/5/1973 has no over riding effect on rule 6D Chapter XXIII KERs. In the circumstances stated above, Government find that the services of Smt. Santhakumari w.e.f. 1/8/1994 to 14/7/05 cannot be treated as "Graduate Service" for promotion as H.M. Hence the order of DDE, Kottayam is set aside and Sri. K.R. Vijayan Nair is eligible to be promoted to H.M of the school." The petitioner has, therefore, approached this Court through challenging Ext.P11 order. The connected Writ Petition namely, W.P.(C)No.18042/2010 was filed by the petitioner in challenging an order through which the Government directed that the appointment of the 6 th respondent as Principal shall be approved. ;