Consolidated writ petitions: M.C. Sushama v. State of Kerala and others; Indulekshmi v. State of Kerala and others; P. Jayalakshmi v. District Educational Officer and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY, THE 01ST DAY OF OCTOBER 2018 / 9TH ASWINA, 1940** ## **WP(C).No. 2558 of 2017** ## **PETITIONERS:** ## **M.C.SUSHAMA** **AGED 46 YEARS, D/O. CHANDRASEKHARAN NAIR, TEACHER EDUCATOR, SNV T.T.I, KAKKAZHAM, ALAPPUZHA - 688 005NOW REVERTED AS UPPER PRIMARY SCHOOL ASSISTANT, SNV T.T.I KAKKAZHAM, ALAPPUZHA - 688 005(RESIDING AT USHA MANDIRAM, PONGA P.O., NEDUMUDY, ALAPPUZHA DISTRICT)** **BY ADVS. SRI.E.JAYADEV SRI.C.HARIKUMAR SRI.N.ASHOK KUMAR** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. 2 THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM - 695 001. 3 THE MANAGER SNV T.T.I, KAKKAZHAM, ALAPPUZHA - 688 005. 4 THE DISTRICT EDUCATIONAL OFFICER ALAPPUZHA - 688 001.** **BY ADVS. SRI.S.GOPINATH, SR. GOVERNMENT PLEADER SRI.R.RAJASEKHARAN PILLAI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.10.2018, ALONG WITH WP(C).22859/2016, WP(C).21888/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.2558/17 & Con. Cases** **2** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY, THE 01ST DAY OF OCTOBER 2018 / 9TH ASWINA, 1940** ## **WP(C).No. 22859 of 2016** ## **PETITIONERS:** **INDULEKSHMI, UPSA (SOCIAL STUDIES), SNV TTI, KAKKAZHAM, ALAPPUZHA DISTRICT.** **BY ADVS. SMT.MINI.R.MENON SMT.K.R.KRISHNAKUMARI SMT.JISHAMOL CLEETUS** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVT., GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM-695 014.** - **3 DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA.** - **4 DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA. 5 MANAGER SNV TTI, KAKKAZHAM, ALAPPUZHA DISTRICT.** - **6 ANUSHA UNNI SNV TTI, KAKKAZHAM,ALAPPUZHA DISTRICT.** - **7 SREEJITH S SNV TTI, KAKKAZHAM,ALAPPUZHA DISTRICT.** **BY ADVS. SRI.S.GOPINATH, SR. GOVERNMENT PLEADER SRI.R.RAJASEKHARAN PILLAI DR.SHERINE JOSEPH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.10.2018, ALONG WITH WP(C).21888/2016, WP(C).2558/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.2558/17 & Con. Cases** **3** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY, THE 01ST DAY OF OCTOBER 2018 / 9TH ASWINA, 1940** ## **WP(C).No. 21888 of 2016** ## **PETITIONER:** ## **P.JAYALAKSHMI,** **UPPER PRIMARY SCHOOL ASSISTANT, SREE NARAYANA VILASOM TEACHERS TRAINING INSTITUTE (SNVTTI) KAKKAZHAM, ALAPPUZHA DISTRICT, PIN-688 005.** **BY ADVS.** **DR.K.P.SATHEESAN (SR.) SRI.ELIAS KURIAN SRI.K.SUDHINKUMAR SRI.P.MOHANDAS (ERNAKULAM) SRI.S.VIBHEESHANAN** ## **RESPONDENTS:** **1 THE DISTRICT EDUCATIONAL OFFICER ALAPPUZHA-688001.** - **2 THE MANAGER SREE NARAYANA VILASOM TEACHERS TRAINING INSTITUTE (SNVTTI) KAKKAZHAM, ALAPPUZHA DISTRICT, PIN-688005.** - **3 SREEJITH S, TEACHER EDUCATOR(MALAYALAM, SREE NARAYANA VILASOM TEACHERS TRAINING INSTITUTE (SNVTTI) KAKKAZHAM, ALAPPUZHA DISTRICT, PIN-688005.** - **4 C.K. SURESH BABU U.P.S.A., SREE NARAYANA VILASOM TEACHERS TRAINING INSTITUTE (SNVTTI) KAKKAZHAM, ALAPPUZHA DISTRICT, PIN-688005.** **BY ADVS.** **SRI.S.GOPINATH, SR. GOVERNMENT PLEADER SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.10.2018, ALONG WITH WP(C).22859/2016, WP(C).2558/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.2558/17 & Con. Cases** **4** ## **JUDGMENT** ## **[ WP(C) 2558/2017 ,WP(C).22859/2016 ,WP(C).21888/2016 ]** The petitioner in W.P.(C) No.2558/2017 was promoted as Teacher Educator while working as UPSA, in the vacancy arose due to the promotion of K.V.Chandini as Headmistress. Since there was audit objection in the matter of promotion of Smt.Chandini, her promotion was not approved. Consequently, the petitioiner's promotion also was not approved. The petitioner approached the educational authorities and ultimately approached this court by filing W.P.(C) No.15844/2016. As per Ext.P8 judgment this court directed the second respondent to dispose of the revision petition filed by the petitioiner. As per Ext.P10 order, the Government dismissed the revision petition filed by the petitioner. Hence, the petitioner has filed the instant writ petition. 2. The petitioner in W.P.(C) No.21888/2016 is presently working as UPSA in the second respondent school. She is fully qualified to be promoted as HSA/Teacher Educator. When a vacancy of Teacher Educator arose in the second respondent's school on 31.05.2016 due to the retirement of Smt.V.R.Ushakumari who was working as Teacher Educator, the petitioner staked a claim for promotion to that post. Smt.Ushakumari was also working as UPSA before her promotion to the post of Teacher Educator. But when the vacancy arose on 01.06.2016, instead of promoting the petitioner, the second respondent appointed the third respondent to the post of **WP(C).No.2558/17 & Con. Cases** **5** Teacher Educator by direct recruitment. The petitioner submitted Ext.P2 representation to the first respondent requesting not to approve the appointment of the third respondent, since she was the rightful claimant as per Rule 43 of Chapter XIV-A KER. Aggrieved by the inaction on the part of the first respondent, the petitioner has filed this writ petition. 3. In W.P.(C) No.22859/2016 the petitioner who was working as UPSA in fifth respondent's institution, got a promotion-cumappointment order as Teacher Educator on 01.06.2010 as she was the rightful claimant as per Rule 43 of Chapter XIV-A KER. Eventhough she was working as Teacher Educator with effect from 01.06.2010 her promotion was not approved by the fourth respondent and the approval was rejected as per Ext.P4 order. Anticipating the retirement vacancy of Smt.Ushakumari, Teacher Educator (Malayalam) in fifth respondent's institution the petitioner submitted another representation before the fifth respondent Manager. As per Ext.P11 proceedings of the fourth respondent the petitioner's appointment made by the fifth respondent Manager as per Ext.P3 order was rejected directing the manager to prefer an appeal within 15 days. But instead of filing statutory appeal or revision petition before the educational authorities, the manager promoted another UPSA as Teacher Educator in violation of Rule 43 of Chapter XIV-A KER. 4. A learned Single Judge of this Court in OP No.16111/1999 datd 21.05.2009 had considered the question whether N.C.T.E. Regulations 2002 or Rule 44 A of Chapter XIV-A of KER are to be **WP(C).No.2558/17 & Con. Cases** **6** followed. Therein, after elaborate discussions, this Court found that NCTE Regulations, 2002 would govern the matter as it is a prescription of higher standard and therefore central legislation would prevail. It is appropriate to refer to the relevant paragraphs of the judgment ; which reads as follows : _"8. Then, what is the effect of Rule 44A of Chapter XIVA of K.E.R.? In the decision of_ _**University of Calicut** v._ _**N.C.T.E** (supra), the Division Bench had repelled the contention that since the Act and Rules framed by the State of Kerala came into force prior to the NCTE Act, the directions issued by NCTE are not binding on institutions governed by such Act and Rules. Further, in paragraph 11 of_ _**S.V. Bratheep's case** (supra), referring to the earlier decision in_ _**Dr. Preeti Srivastava & another** v._ _**State of Madhya Pradesh and another** , [AIR 1999 SC 2894], the Supreme Court held thus:_ _“11. Arguments advanced on behalf of the respondents is that the purpose of fixing norms by the AICTE is to ensure uniformity with extended access of educational opportunity and such norms should not be tinkered with by the State in any manner. We are afraid, this argument ignores the view taken by this Court in several decisions including Dr. Preeti Srivastava's case that the State can always fix a further qualification or additional qualification to what has been prescribed by the AICTE and the proposition is indisputable. The mere fact that there are vacancies in the colleges would be a matter, which would go into the question of fixing the standard of education. Therefore, it is difficult to subscribe to the view that once they are qualified under the criteria fixed by the AICTE, they should be admitted even if they fall short of the criteria prescribed by the State. The scope of the relative entries in Seventh Schedule to the Constitution have to be understood in the manner as stated in the Dr. Preeti Srivastava's case and therefore, we need not further elaborate in this case or consider arguments to the contrary such as application of occupied theory no power could be exercised under Entry 25 of List III as they would not arise for consideration.”_ ## _Rule 44A of Chapter XIVA of KER reads thus:_ _“_ _**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 Kerala Education Act and the Kerala Education Rules and a 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_ **WP(C).No.2558/17 & Con. Cases** **7** _qualification specified in Sub rule (1)_ _x x x x_ _**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 Educational Rules._ _**Note** :- A period of 8 years from 6-11-1968 is given to Headmasters or Aided complete High and Training Schools for passing the test in the Act and Rules. All appointments to the posts of Headmasters of Aided complete 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. ”_ _Although Rule 44A was introduced in 1968, i.e prior to the NCTE Act, 1993 and Ext. P21 was issued in 1995, for a harmonious construction of the two, Rule 44A can be safely construed as an additional or further qualification to those fixed by NCTE, prescribed by the State, power to do which has been recognised in the abovesaid decision. In fact, for a Headmaster of a Teachers Training Institute, minimum 12 years service as a teacher and pass in Account Test and KER test would certainly be a most desirable qualification and can be accepted as additional or superior qualifications prescribed by the State, which would only help to enhance the standards of education in the State._ _9. In short, for Headmasters of Teachers Training Institutes in Kerala, both the qualifications prescribed by the NCTE and the qualifications prescribed in Rule 44A of Chapter XIVA of KER are essential qualifications and appointments made of persons not in possession of both the qualifications would be invalid and respondents 1 and 2 cannot validly approve such appointments. "_ Admittedly, the petitioners do not possess the qualifications prescribed in the N.C.T.E. Regulations, 2002. In such circumstances, the writ petitions are only to be dismissed and is dismissed accordingly. ## **Sd/-** ## **A.MUHAMED MUSTAQUE** **JUDGE** SKK/ **WP(C).No.2558/17 & Con. Cases** **8** ## **APPENDIX OF WP(C) 2558/2017** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE PROMOTION ORDER DATED 07.02.2011 ISSUED BY THE 3RD RESPONDENT.** - **P2 A COPY OF THE ORDER DATED 15.4.2013 PASSED BY THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTION (GENERAL).** - **P3 A COPY OF THE ORDER DATED 11.6.2013 PASSED BY THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTION (GENERAL).** - **P4 A COPY OF THE ORDER NO.EC(1) 59314/143DPI/KDIS DATED 30.5.2015.** - **P5 A COPY OF THE ORDER NO.B3/1547/15 DATED 12.10.2015 ISSUED BY THE DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA.** - **P6 A COPY OF THE REVISION PETITION NO.38973/13/2015/GE DATED 14.7.2015 SUBMITTED BY THE PETITIONER TO THE GOVERNMENT OF KERALA.** - **P7 A COPY OF THE ORDER DATED 24.3.2016 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **P8 A COPY OF THE JUDGMENT DATED 26.4.2016 IN WPC NO. 15844/2016.** - **P9 A COPY OF THE JUDGMENT DATED 27.5.2016 IN WRIT APPEAL NO.994/2016 OF THIS HON'BLE COURT.** - **P10 A COPY OF THE ORDER DATED 19.12.2016 WITH NUMBER GO(RT) NO. 4288/2016/G.EDN PASSED BY THE UNDER SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT.** **RESPONDENTS' EXHIBITS:** **NIL** **WP(C).No.2558/17 & Con. Cases** **9** ## **APPENDIX OF WP(C) 22859/2016** ## **PETITIONER'S EXHIBITS:** - **P1 TRUE COPY OF THE ORDER OF APPOINTMENT DATED 16.04.2007 ISSUED BY THE MANAGER.** - **P2 TRUE COPY OF THE PROMOTION ORDER DATED 01.06.2010 ISSUED BY THE THEN MANAGER.** - **P3 TRUE COPY OF THE PROMOTION ORDER DATED 01.06.2010.** - **P4 COPY OF THE REJECTION LETTER DATED 05.02.2011. P5 TRUE COPY OF THE REVISION PETITION DATED 05.02.2011. P6 COPY OF THE REJECTION LETTER DATED 24.07.2012. P7 TRUE COPY OF REPRESENTATION DATED 27.04.2016. P8 TRUE COPY OF THE GOVT. CIRCULAR DATED 20.07.1996.** **RESPONDENTS' EXHIBITS:** **NIL** **WP(C).No.2558/17 & Con. Cases** **10** ## **APPENDIX OF WP(C) 21888/2016** **PETITIONER'S EXHIBITS:** - **P1 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 01.04.2016.** - **P2 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA DATED 23.06.2016.** ## **RESPONDENTS' EXHIBITS:** **NIL**