Anitha Susan Alex v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** ## **THURSDAY, THE 12TH DAY OF DECEMBER 2019 / 21ST AGRAHAYANA, 1941** ## **WP(C).No.16312 OF 2019(L)** ## **PETITIONER:** **ANITHA SUSAN ALEX, AGED 48 YEARS, W/O. VARGHESE MATHEW, RESIDING AT VADAKEPARAMBIL HOUSE, NEDUNGADAPPALLY P.O., PATHANAMTHITTA DISTRICT - 686 545.** **BY ADVS. SRI.S.SUBHASH CHAND SRI.S.JAYAKRISHNAN** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM - 695 001** - **2 THE ASSISTANT EDUCATIONAL OFFICER, KARUKACHAL - 686 540** - **3 VELLAVOOR GRAMA PANCHAYAT MANIMALA P.O., KOTTAYAM DISTRICT 686 543, REPRESENTED BY ITS SECRETARY.** - **4 THE COMMITTEE OF THE VELLAVOOR GRAMA PANCHAYT, MANIMALA P.O., KOTTYAM DISTRICT - 686 543, REPRESENTED BY ITS PRESIDENT.** **R3-4 BY ADV. SRI.C.HARINDRAMOHAN NAIR SRI.RAJASEKHARAN NAIR, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.16312 OF 2019 2** ## **JUDGMENT** The petitioner, who is stated to be the Headmistress of the Government Lower Primary School, Manimala, has approached this Court against the orders issued by the 2[nd] respondent - The Assistant Educational Officer - appointing her as the "Implementing Officer" of the various Educational Projects undertaken by the 3[rd] respondent - Grama Panchayat for the year 2018-2019. 2. The petitioner says that the earlier Implementing Officer for the various projects was the Headmistress of the Government Lower Primary School, Thazhathuvadakara and that at her request, she was removed and the petitioner has been placed in her position, even though she had not given her concurrence or consent for being so appointed. 3. The petitioner submits that she is suffering from "acute severe Lower Back Ache and various ailments and it is difficult for her to undertake difficult task, still under medical supervision and treatment" (sic); and therefore, that the competent Authorities could not have appointed her as the Implementing Officer without first asking her and obtaining the consent. The petitioner, therefore, prays that Exts.P1, P5, ## **WP(C).No.16312 OF 2019 3** P6, P8, P9 and P10 be quashed and that she be relieved of her obligations as the Implementing Officer for the Educational Projects undertaken by the Panchayat. 4. Sri.Subhash Chand - learned counsel appearing for the petitioner, in addition to the above, submitted that, going by Section 27 of the Right of Children to Free Compulsory Education Act, 2009 (hereinafter referred as "RTE Act" for short), a teacher of a school cannot be burdened with non-educational duties and that the obligations cast upon an Implementing Officer, as is available from Ext.P2, would clearly show that those responsibilities are well beyond the ambit of Section 27 of the RTE Act. Sri.Subhash Chand, therefore, prays that the official respondents be directed to remove his client from the position of Implementing Officer and entrust such duties to a competent officer of the Panchayat, which is the Executing Agency as far as these projects are concerned. Sri. Subhash Chand relies on the judgment of the Hon'ble High Court of Delhi in **Akhil Delhi Prathmik Shikshak Sangh v. Govt of NCT of Delhi and Others** [W.P.(C) No.12133 of 2016] and prays that this writ petition be ordered, as prayed for by the petitioner. 5. In response, Sri.Harindra Mohan Nair, learned Standing Counsel appearing for the respondent - Grama Panchayat, submits that the ## **WP(C).No.16312 OF 2019 4** allegations and assertions of the petitioner as afore are wholly untenable because, as per Ext.R1 circular issued by the Government of Kerala, the Head Master of a school is obligated to act as the Implementing Officer only for the Educational Projects but not for any other projects of the Panchayat. He says that implementation of the Educational Projects, by its very nature, are within the educational duties of a teacher and therefore, that the appointment of the petitioner as an Implementing Officer will not fall fowl of the provisions of Section 27 of the RTE Act. He thus prays that this writ petition be dismissed, adding that the petitioner's assertion that she is not physically well has not been proved or corroborated through any cogent or reliable materials. 6. The learned Senior Government Pleader - Sri.R.Rajasekharan Nair appearing on behalf of the official respondents, submitted that a statement has been filed on behalf of the 2[nd] respondent, wherein the following have been stated:- _"2. It is submitted that all the averments put forth by the petitioner Head Mistress of GLPS Manimala is baseless and irrelevant. The Grama Panchayat/Local bodies in the State are functioning with the support of the primary Headmaster's as implementing Officer. It has never be construed as a deployment or appointment. The assignment of Primary Head Master as Implementing Officer provides opportunity to them to put forth_ ## **WP(C).No.16312 OF 2019 5** _the educational needs of every locality before the Local Self Government functionaries properly and to take remedial action. So all the schools in this Sub distrct should fruitfully exercise this prerogative additional powers conferred upon them effectively._ _3. It is further submitted that the total strength if pupils in Government LPS Manimala is only 28. The average strength insisted under rules is 25 in each standard. Thus 100 pupils are needed in a LP School. So the heaviness of the duty of the Teacher/Headmistress is not trust worthy. It can be treated as an argument only. So the averment of the petitioner in the WP(C) doesn't deserve any merit."_ The learned Senior Government Pleader, therefore, prays that this writ petition be dismissed. 7. I have considered the afore submissions and have also examined the materials available on record. 8. It is indubitable that various Educational Projects have been notified for being executed by the Panchayat and the Government, through Ext.R1 circular, ordering the Principal/Head Master of the school to be the Implementing Officer. The reason behind this obviously is because, it is the head of the institution who would be best suited to execute the Educational Projects, rather than any other officer of the Panchayat; and the Government, in its wisdom, appears to have, ## **WP(C).No.16312 OF 2019 6** therefore, thought it fit to entrust such obligations and duties to the Principal/Head master. 9. That said, however, in the case at hand, it is the specific contention of the petitioner that she is not physically capable or fit for carrying on the duties as an Implementing Officer and therefore, that she cannot be forcibly entrusted with such, without her consent or permission. She also specifically asserts, through her learned counsel - Sri.Subhash Chand, that she is not legally obligated to comply with these directions in the impugned orders, since she is only expected to act as a Headmistress and not as an Implementing Officer for the projects of the Panchayat. The petitioner further specifically asserts that these are projects that ought to be executed by the Panchayat using their own officers and that teachers cannot be used for this purpose, since this goes contrary to the Section 27 of the RTE Act. _10. Prima Facie,_ I am unable to fully accede to the afore contentions because as the Headmistress of the school, the petitioner is certainly enjoined to ensure the well being and quality of education to all the students. As an Implementing Officer of the various Educational Projects notified by the Panchayat, she is asked only to compliment her existing duties as a Headmistress and to co-ordinate and manage the logistics ## **WP(C).No.16312 OF 2019 7** with respect to execution of such projects. As long as the projects are educational in nature and as long as they are intended for the benefit of the students, I fail to understand how the petitioner can take refuge under Section 27 of the RTE Act and then contend that she cannot be burdened with such obligations. 11. That said, however, the real question in issue is whether a teacher can be forcibly asked to take up such responsibilities even if he/she is unwilling. Going by the nature of the projects sought to be executed by the Panchayat, it is perspicuous that they require full dedication and sincerity from the Implementing Officer; and consequently, if a teacher is compelled to do so, without volition and contrary to her objections to be so appointed, I am certain that the project would suffer and it would cast a shadow upon its final efficacy. I am, therefore, of the view that as far as it is practically possible, the competent Authorities must choose teachers who are ready to take up such responsibility, so that he/she will be then execute it with sincerity and necessary vigour. 12. From the above perspective, it is ineluctable from the averments in this writ petition and the submissions of Sri.Subhash Chand, that the petitioner is neither ready to take up the responsibility ## **WP(C).No.16312 OF 2019 8** nor capable of doing so, on account of her stated physical inabilities. Whether these inabilities are proven or otherwise, the fact remains that the petitioner specifically asserts that she is not ready to take up the responsibility of an Implementing Officer and execute the same. 13. In such circumstances, I am certain that if the petitioner is forced to do so, it would be an exercise which would invite trouble in future and that it will be, therefore, better for the Competent Authorities to seek a replacement, not because I have found any legal entitlement to the petitioner to be not so appointed affirmatively, but because she says that she is incapable of doing so, both physically and mentally. 14. In the afore circumstances and without entering into the merits of any of the legal contentions raised by the rival parties and hearing all of them open to be pursued in future, if so warranted, I order this writ petition and direct the the 2[nd] respondent - the Assistant Educational Officer, in consultation with the Secretary of the 3[rd] respondent Vellavoor Grama Panchayat, to find a replacement for the petitioner in such manner as he may deem fit and issue appropriate orders for such purpose, as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment. 15. Needless to say, until such time as fresh orders are issued, the ## **WP(C).No.16312 OF 2019 9** interim order granted by this Court on 24.06.2019 will continue to operate and the present arrangement as regards execution of the projects will be continued by the Panchayat. After I dictated this judgment, the learned Senior Government Pleader submitted that certain action has already been commenced against the petitioner by the competent Educational Authorities and prays that the directions or observations in this judgment may not tramel such proceedings. It goes without saying that since I have not considered any legal contentions urged by either side in this writ petition, it being not necessary in the nature of the afore directions, the observations herein will not be construed by any Authority or any person to impede any lawful action; but clarifying that in such event, the petitioner will be at liberty to resist it by pursuing all her contentions, including those impelled in this writ petition edified in Section 27 of the RTE Act. **Sd/-** ## **DEVAN RAMACHANDRAN** ## **JUDGE** sru **WP(C).No.16312 OF 2019 10** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1** - **TRUE COPY OF NOTICE NO. A2.1700/17 DATED 10.7.2018 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER** - **EXHIBIT P2 TRUE COPY OF THE DUTIES AND RESPONSIBILITIES OF THE HEAD MASTER.** - **EXHIBIT P3 TRUE COPY OF REPLY DATED 18.7.2018 OF THE 2ND RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF REPRESENTATION DATED NIL SUBMITTED BY THE PARENT- TEACHERS ASSOCIATION BEFORE THE 3RD RESPONDENT PANCHAYAT.** - **EXHIBIT P5 TRUE COPY OF DECISION NO. 1 (6) DATED 10.8.2018 OF THE 4TH RESPONDENT** - **EXHIBIT P6 TRUE COPY OF ORDER NO. A2.1700/17 DATED 14.8.2018 ISSUED BY THE 4TH RESPONDENT** - **EXHIBIT P7 TRUE COPY OF JUDGMENT IN WPC NO. 28427 OF 2018 DATED 28.9.2018 OF THE HOBLE COURT.** - **EXHIBIT P8 TRUE COPY OF G.O. ORDINARY NO. 930/2019 LOCAL SELF GOVERNMENT DEPARTMENT DATED 3.5.2019 PASSED BY THE 1ST RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF DECISION NO. 1/3 DATED 13.5.2019 OF THE 4TH RESPONDENT.** - **EXHIBIT P10 TRUE COPY OF ORDER NO. A2.1700/2019 DATED 24.5.2019 ISSUED BY THE 3RD RESPONDENT.** **RESPONDENT'S EXHIBITS:** **EXHIBIT R1 A TRUE COPY OF THE RELEVANT PORTION OF THE GUIDELINES DATED 29/01/2018 ISSUED BY LOCAL SELF GOVERNMENT DEPARTMENT.**