A. Gopinathan v. State of Kerala and Others (WP(C).No.4744 of 2014)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 30TH DAY OF SEPTEMBER 2019 / 8TH ASWINA, 1941** ## **WP(C).No.4744 OF 2014(P)** ## **PETITIONER/S:** **A.GOPINATHAN S/O.ANDU,TEACHER EDUCATOR,A.S.M.M.TEACHER'S INSITUTE,ALATHUR PALAKKAD-678541,RESIDING AT VADAKKE VETTUKALAM,CHITHALI,KOYALMANNAM,PALAKKADDISTRICT.** **BY ADV. SRI.P.NANDAKUMAR** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,GENERALEDUCATION(A) DEPARTMENT,THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY,THIRUVANANTHAPURAM-695014.** - **3 TGHE DISTRICT EDUCATIONAL OFFICER ALATHUR,PALAKKAD DISTRICT-678541.** - **4 THE MANAGER (IN CHARGE OF THE DISTRICT EDUCATIONAL OFFICER,ALATHUR)A.S.M.M.TEACHER'S TRANINING INSTITUTE,ALATHUR,PALAKKAD-678541.** - **5 NATIOANL COUNCIL FOR TEACHER EDUCATION SOUTHERN REGIONAL COMMITTEE,JNANA BHARATHI CAMPUS ROAD,OPP.NATIONAL LAW SCHOOL,NAGARABHAVI,BANGALORE560072,REPRESENTED BY ITS REGIONAL DIRECTOR.** - **6 STATE COUNCIL OF ECUTION RESEARCH TRANINING VIDYA BHAVAN,POOJAPURA.P.O,THIRUVANANTHAPURAM695012,REPRESENTED BY ITS DIRECTOR.** _**WP(C).4744/14**_ 2 **7 SMT.A.J.GEETHA PROBATIONARY HEADMISTRESS,A.S.M.M.TEACHER'S TRAINING INSTITUTE,ALATHUR,PALAKKAD-678541. 8 A.MOHAMMED RAFI S/O LATE U.AHAMMED KABIR, PRESIDENT, ALATUR (EDUCATIONAL AGENCY OF ASMMHSS & ASMMTTI) OLD POST OFFICE ROAD, ALATHUR, PALAKKAD DISTRICT. ADDL.R8 IS IMPLEADED AS PER ORDER DATED 10.7.2017 IN I.A.NO.9234 OF 2017. R1, R8 BY ADV. SMT.N.DEEPA R1 BY ADV. SRI.K.JAJU BABU SR. R1 BY ADV. SRI.K.JAYESH MOHANKUMAR R1 BY ADV. SRI.K.A.MOHAMED HARIS R1 BY ADV. SRI.PUSHPARAJAN KODOTH R1, R5 BY SRI.V.M.KURIAN, SC, SRC-NCTE R1 BY ADV. SMT.M.U.VIJAYALAKSHMI R1 BY ADV. SMT.VANDANA MENON R7 BY ADV. SRI.K.JAJU BABU (SR.)** ## **OTHER PRESENT:** ## **GP. SMT.REKHA.C.NAIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-07-2019, THE COURT ON 30-09-2019 DELIVERED THE FOLLOWING:** ## **V.G.ARUN, J.** ----------------------------------------------- W.P.(C) No.4744 of 2014 ----------------------------------------------Dated this the 30[th] day of September, 2019 ## **JUDGMENT** The petitioner and the 7[th] respondent had, while they were in service at the ASSM Teachers Training Institute, vied with each other for appointment to the post of Headmistress. Though, petitioner and the 7[th] respondent have retired from service, the dispute persists. 2. The petitioner was appointed as Teacher Educator, Upper Primary School Assistant and High School Assistant at the ASSM Higher Secondary School (“the school”, for brevity) and the ASSM Teachers Training Institute (“the training institute”, for short), for different spells during the period from 3.6.1990 to June, 2005. From June, 2005 onwards, the petitioner was appointed as Teacher Educator in the Training Institute and continued as such. The 7[th] respondent was the senior-most graduate teacher in the School during that period. 3. On retirement of the incumbent Principal on 31.5.2013, a vacancy of Headmistress arose in the Training Institute. The _**WP(C).4744/14**_ 4 petitioner and the 7[th] respondent staked claim to the post of Headmaster/Headmistress. According to the petitioner, even though there were other senior teachers, including the 7[th] respondent, only the petitioner had the qualification prescribed by the National Council for Teacher Education, which was mandatory for appointment to the post of Headmaster/Headmistress. When his claim for appointment went unanswered, petitioner approached this Court by filing W.P(C).No.10779 of 2013, which was disposed of vide judgment dated 30.5.2013, directing the petitioner's claim to be considered. This resulted in Exhibit P5 order of the District Educational Officer, who, after hearing the petitioner and the 7[th] respondent, declared that the petitioner had the requisite qualification for appointment as Headmaster of the Training Institute. For arriving at Exhibit P5 decision, the District Educational Officer relied on a letter issued by the Director of Public Instructions dated 1.9.2009, directing that from the academic year 2009-2010 onwards, appointments to the post of Principal in Government and Aided Teachers Training Institutes should be effected from among persons having Post Graduation and M.Ed/B.Ed with 55% marks. On the basis of Exhibit P5 order, _**WP(C).4744/14**_ 5 the petitioner was appointed as Headmaster with effect from 31.5.2013, as evidenced by Exhibit P6. 4. The 7[th] respondent challenged the petitioner's appointment before this Court by filing W.P(C).No.18210 of 2013. That writ petition was disposed of directing consideration of the revision filed by the 7[th] respondent before the Government, challenging the appointment of the petitioner. The Government, by Exhibit P7 order, held that even though NCTE has prescribed the qualification for the post of Principal/Headmaster of TTIs, as Master's Degree and M.Ed/B.Ed with 55% marks, the said prescription has not been implemented in TTIs as yet by any executive order of the Government or by way of amendment to the KER. It was therefore held that, for the purpose of appointment as Headmaster in Training Schools, the qualification prescribed under Rule 44A(1) of Chapter XIVA KER, _viz._ 12 years of continuous service with pass in KER and Account Test (Lower) conducted by the KPSC, subject to the provisions of Rule 44(1) regarding seniority, would be sufficient. The Government found that the 7[th] respondent, who was admittedly senior to the petitioner, had the qualification prescribed under KER and set aside Ext.P5 order of the DEO and consequently, the appointment _**WP(C).4744/14**_ 6 of the petitioner and directed the DEO, who was officiating as the Manager, to take action to appoint the Headmaster following the existing practice in the School, based on seniority. Pursuant to Exhibit P7, the 7[th] respondent was appointed as Manager of the School with effect from 31.5.2013. 5. I heard Ms.Amrita Sanjeev, learned counsel for the petitioner, Sri.Brijesh Mohan, learned counsel for the 7[th] respondent, and Smt.Rekha C.Nair, learned Senior Government Pleader. 6. The learned counsel for the petitioner relied on Exhibits P3 and P4 judgments of this Court and the decision in _**University of Calicut v. N.C.T.E**_ [AIR 2004 Kerala 295] to drive home her contention that the qualification for appointment to the post of Principal/Headmaster having been prescribed under Exhibit P1 Regulations of the NCTE, the Government committed gross illegality in setting aside the petitioner's appointment and paving way for appointment of the 7[th] respondent as Headmistress, who admittedly did not have the qualifications prescribed by the NCTE. 7. Learned counsel for the 7[th] respondent submitted that in so far as an amendment in terms of the qualification prescribed _**WP(C).4744/14**_ 7 by the NCTE has not been brought about to the KER, the appointment of the 7[th] respondent in accordance with the qualification prescribed under the KER was in order. It is contended that the petitioner did not have any right to challenge the appointment of the 7[th] respondent, insofar as the petitioner did not have the requisite experience of twelve years of continuous graduate service prescribed in Rule 44A(1) of Chapter XIVA KER. It is further submitted that the 7[th] respondent had retired as Headmistress and her pay and pension was fixed accordingly and hence, no decision having an adverse effect on the quantum of pension being received by the 7[th] respondent could be passed at this distance of time. It is pointed out that the petitioner has also retired from service in the year 2014 and interference in the service of the petitioner and the 7[th] respondent at this point of time is unwarranted. 8. Learned counsel for the petitioner countered the contention that the petitioner did not have the requisite 12 years graduate service by producing the petitioner's service book. The learned counsel for the 7[th] respondent fairly submitted that he is not harping upon the contention regarding the petitioner's lack of requisite graduate service. Therefore, the only question _**WP(C).4744/14**_ 8 remaining for consideration is regarding the qualification required for appointment to the post of Principal/Headmaster in Teachers Training Institutes. This question is no longer _res integra_ in view of the decision in _**University of Calicut v. N.C.T.E**_ [AIR 2004 Ker. 295], followed in Exhibits P3 and P4 judgments. In _**University of Calicut v. N.C.T.E**_ , a Division Bench of this Court considered the power and authority of the National Council for Teacher Education constituted under the National Council for Teacher Education Act, 1993 in issuing various directions to institutions which offer B.Ed Degree Course and training in Teacher Education, especially with regard to recognition of Teachers Training Colleges and fixation of teacher-pupil ratio. For deciding the legislative competence in enacting the National Council for Teacher Education Act and power of NCTE to issue directions, the Division Bench relied on the decisions of the Honourable Supreme Court in _**Union of India v. Shah Goverdhan L.Kabra Teachers' College**_ [(2002) 8 SCC 228], wherein the Apex Court had unequivocally upheld the authority of the NCTE to decide upon the qualifications and standards in Teachers Training Institutes. The Division Bench thereafter referred to the NCTE (Norms and Standards for Teacher _**WP(C).4744/14**_ 9 Education Programmes) Regulations, 2001, which prescribed various standards for conducting B.Ed and M.Ed Courses including qualifications of Principal, Lecturer etc. of the teaching staff and held as follows: _“4.NCTE has given directions to all the institutions affiliated to maintain the standards prescribed in the norms including the pupil-teacher strength. The contention raised by the petitioners that the University Act and various other Acts and Rules framed by the State Government were existing before the NCTE came into force, and therefore, directions issued by NCTE to such institutions are not binding, cannot be accepted. To keep up the standards of teacher education centres, Act empowers NCTE to issue directions for teaching the teachers which is a higher professional and sensitive subject. With the new development in the world, concept of school education technology and teacher training institutes must have the facility and modern infrastructure to train the teachers to get optimum results. Therefore, one cannot be satisfied with old methods. Being a Central Legislation whenever there is conflict with State enactment, Central Act will prevail. This issue is clear from the decision of the Supreme Court in (2002)8 SCC 288: (AIR 2002 SC 36750 (supra). The matter is further made clear with regard to the application of Indian Medical Council Act, 1958 in Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State of Tamil Nadu (1996)3 SCC 15: (AIR 1996 SC 2384) and with regard to application of all India Council for Technical Education Act, 1987 in State of T.N. v. Adhiyaman Educational & Research Institute (1995) 4 SCC 104: (1995 AIR SCW 2179) and in Jaya Gokul Education_ _**WP(C).4744/14**_ 10 _Trust v. Commissioner & Secretary to Government Higher Education Department, Thiruvananthapuram, AIR 2000 SC 1614. In all these cases, with regard to identical Acts in relation to technical education, the Supreme Court held that Central Act will prevail. Further, the Act itself was introduced to improve Teacher Education system. As far as B.Ed. is concerned, it is to train the teachers who have to train our future generation. It is also submitted that NCTE Act was implemented in all India level. Challenges made in the Act and directions of NCTE were dismissed by various High Courts. The decision of the Madhya Pradesh High Court in National Council for Teachers Education v. Chouhan Education Society, AIR 1999 Madh. Prd.206 was cited as an example. It is also submitted that in Karnataka with regard to aided colleges where salary is paid under UGC Scheme, the Scheme was implemented. Therefore, we are of the opinion that the Act and its provisions and regulations framed by the NCTE cannot be interfered by this Court and the Teacher Education Institutions are bound to follow the NCTE Act. No value contention is raised to show that the regulations issued by the NCTE are unconstitutional or arbitrary.”_ 9. In Exhibit P3 judgment rendered in O.P.No.16111 of 1999 also, the contention of the petitioner was that NCTE being the supreme central authority competent to prescribe educational standards for Teachers Training Institutes, the qualifications prescribed by NCTE for appointment as Headmaster are mandatory and therefore, no person who does not possess such qualification could be appointed as Headmaster of a Teachers _**WP(C).4744/14**_ 11 Training Institute. This contention was countered by stating that the qualification for appointment as Headmaster of a Training School is prescribed in Rule 44A of Chapter XIVA KER. The learned Single Judge, placing reliance on the decision in _**University of Calicut v. NCTE (supra),**_ refused to countenance the argument that the qualification prescribed in Rule 44A of Chapter XIVA KER would suffice in so far as a training institute governed by the KER is concerned and went on to hold that the NCTE Act has been promulgated by the Parliament in exercise of power conferred by Entry 66 of List I of the 7[th] Schedule to the Constitution of India, whereas the Kerala Education Act and Rules thereunder trace their legislative competence to Entry 25 of List III and as between the legislations under the two entries, the Central Act would prevail over the State enactment. It was held that on a harmonious construction of the two enactments, Rule 44A can be safely construed as an additional or further qualification to those fixed by NCTE. It was held that for Headmasters of Teachers Training Institutions in Kerala, both the qualifications prescribed by the NCTE and under Rule 44A of Chapter XIVA KER are essential and appointments of persons who do not possess both qualifications would be invalid. By Exhibit P4 _**WP(C).4744/14**_ 12 judgment in W.A.No.1415 of 2009, the Division Bench Court affirmed Exhibit P3 judgment. In the above legal background, the contention that in the absence of amendment to the KER, the qualification prescribed under Rule 44A Chapter XIVA KER is sufficient for appointment to the post of Principal/Headmaster of a TTI, cannot be countenanced. Resultantly, Exhibit P7 rendered on the said wrong premise is quashed. 10. Considering the fact that the 7[th] respondent retired from service as Headmistress of the Training Institute and that her pay was fixed accordingly and pension computed and disbursed, it is made clear that the pension and other retirement benefits received by the 7[th] respondent shall not be adversely affected as a result of this judgment. At the same time, having found the petitioner to be the person eligible for appointment as Headmaster, to the vacancy which had arisen on 31.5.2013 and, as such, his appointment as Headmaster with effect from 17.7.2013 was in order, it is directed that the petitioner's pay should be refixed treating him to have continued in the post of Headmaster from 17.7.2013 till retirement. The retirement benefits of the petitioner should also be recomputed on the above basis and arrears disbursed within a period of four months from _**WP(C).4744/14**_ 13 the date of receipt of a copy of this judgment. No order as to costs. Sd/- **V.G.ARUN, JUDGE** _vgs_ _**WP(C).4744/14**_ 14 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 EXT.P1 COPY OF THE RELEVANT EXTRACT OF REGULATION 5 OF THE NATIONAL COUNCIL FOR TEACHER EDUCATION REGULATIONS,2002** - **EXHIBIT P2 EXT.P2 COPY OF THE ORDER DATED 19.2.2009 OF THE 2ND RESPONDENT** - **EXHIBIT P3 EXT.P3 COPY OF THE JUDGMENT IN O.P.16111 OF 1999** **EXHIBIT P4 EXT.P4 COPY OF THE JUDGMENT IN W.A.NO.1315 OF 2009** - **EXHIBIT P5 EXT.P5 COPY OF THE ORDER DATED 22.6.2013 OF THE 3RD RESPONDENT** |**EXHIBIT P5**|**EXT.P5 COPY OF THE ORDER DATED 22.6.2013 OF**<br>**THE 3RD RESPONDENT**| |---|---| |**EXHIBIT P6**|**EXT.P6 COPY OF THE APPOINTMENT ORDER DATED**| ||**17.7.2013 ISSUED TO THE PETITIONER.**| |**EXHIBIT P7**|**EXT.P7 COPY OF GOVERNMENT ORDER DATED**| ||**17.1.2014.**| |**EXHIBIT P8**|**EXT.P8 COPY OF THE ORDER OF THE 3RD**| ||**RESPONDENT APPOINTING THE 7TH RESPONDENT AS**| ||**HEADMISTRESS OF ASMM TEACHERS TRANINING**| ||**INSTITUTE.**| |**EXHIBIT P9**|**EXT.P9 COPY OF THE COMMUNICATION DATED**| ||**19.12.2013 OF THE PUBLIC INFORMATION**| ||**OFFICER OF THE NCTE ALONG WITH THE LIST OF**| ||**INSTITUTES.**| |**EXHIBIT P10**|**EXT.P10 COPY OF THE LETTER DATED 13.12.2013**| ||**ISSUED BY THE 5TH RESPONDENT.**| |**EXHIBIT P12**|**EXT.P12 TRUE COPY OF THE RELEVANT EXTRACT**| ||**OF THE SERVICE BOOK OF THE PETITIONER.**| ## RESPONDENTS' EXHIBITS: EXHIBIT R7(a): COPY OF JUDGMENT IN W.P(C).NO.18210 OF 2013 DATED 23.7.2013 OF THIS HON'BLE COURT. EXHIBIT R7(b): COPY OF STATEMENT OF FIXATION OF PAY SANCTIONED IN G.O.(P).85/2011 FIN DATED 26.2.2011 AND G.O(P).NO.143/11 FIN. DATED 30.3.2011 APPROVED ON 3.4.2014.