H. NAZEENA v. THE STATE OF KERALA AND ORS.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 22 [ ND ] DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA, 1944 ``` ``` WP(C) NO. 7732 OF 2022 ``` ``` PETITIONER/S: ``` ``` H. NAZEENA AGED 50 YEARS THE MANAGER, KARUVAMALA HIGH SCHOOL, IVERKALA NADUVIL, PUTHANAMBALAM P.O, KOLLAM 691 553 BY ADVS. K.SASIKUMAR S.ARAVIND P.S.RAGHUKUMAR ARUN ANTONY (K/1053/2011) 1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001 2 THE DIRECTOR OF GENERAL EDUCATION, GENERAL EDUCATION DEPARTMENT, JAGATHI, THIRUVANANTHAPURAM 695 014 3 THE DEPUTY DIRECTOR OF EDUCATION OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM 691 009 4 THE DISTRICT EDUCATIONAL OFFICER KOTTARAKKARA, KOLLAM 691 506 BY ADV ADVOCATE GENERAL OFFICE KERALA SMT. NISHA BOSE, SR. G.P. ``` ``` RESPONDENT/S: ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 7732 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** The petitioner herein is the Manager of Karuvamala High School, an aided school falling into the category of a minority educational institution as declared and certified by the Government of India. He has approached this Court seeking to quash Exts. P8, P9, and P12 orders and also to grant approval for the appointment of Smt. Surya Prabha S. as HST (Malayalam) and to disburse the consequential benefits. ## 2. Brief facts are as under: The petitioner states that during the academic year 2018-2019, a vacancy to the post of HSA (Malayalam) arose, and in terms of the provisions of Rule 7(3) of Chapter XXI, a protected teacher was appointed. The aforesaid teacher attained superannuation on 31.05.2021. On the very same day, a vacancy for the post of Hindi teacher also arose. The petitioner states that in terms of the provisions of Chapter XXI, the petitioner was bound to appoint a protected teacher only in one of the vacancies that arose. The petitioner contends that no HSA (Malayalam) was available either at Kollam or in the nearby Districts. Being the Manager of a minority educational institution, the petitioner exercised her choice and appointed a protected Hindi teacher, who at the relevant point of time, was working as a Cluster Coordinator at BRC, Sasthamcotta. Rule 7(3) specifies that the managers of the schools have the right to choose protected teachers from the Teacher's ``` WP(C) NO. 7732 OF 2022 ``` ``` 3 ``` Bank of any Revenue District. The petitioner contends that she followed all these provisions and requested for deployment of a protected teacher to the post of HSA (Hindi). In the vacancy that arose consequent to the retirement of the protected Malayalam teacher, the petitioner appointed Smt.Surya Prabha S. from the open market with effect from 01.06.2021. 3. The petitioner states that she forwarded all the documents for the grant of approval. However, the 4th respondent, by Exhibit P8 order, rejected the proposal for approval of Smt. Surya Prabha on the ground that the appointment was made in a vacancy earmarked for the appointment of a protected teacher. According to the petitioner, the 4th respondent overlooked the fact that the petitioner had appointed a protected Hindi teacher and also that the petitioner was not obliged to appoint a protected Malayalam teacher. Being aggrieved, the petitioner submitted Exhibit P10 revision petition before the 1st respondent. Pursuant to orders passed by this court, the revision petition was considered and the same was rejected by Exhibit P12 order. While issuing the said order, the 1st respondent proceeded to take the view that the petitioner had failed in her duties as Manager. According to the petitioner, in terms of Rule 7(6), the petitioner has no liability to appoint another protected teacher from the Teacher's bank when a vacancy arises with the relief of a protected teacher. 4. It is on the above factual backdrop that the petitioner has approached this court seeking the following reliefs: ``` WP(C) NO. 7732 OF 2022 ``` ``` 4 ``` i) to call for the records leading to the issuance of exhibits P8, P9 and P 12 and quash the same by the issue of a writ in the nature of certiorari; ii) to issue a writ in the nature of mandamus directing the respondents to improve the appointment under exhibit P2 and release all consequential benefits to the incumbent iii) to issue a writ in the nature of mandamus directing respondents to accept exhibit P 7 proposal and deploy a protected teacher to the vacancy of head teacher which arose in the petitioner school with effect from 01/06/2021. 5. In the counter affidavit filed by the 3rd respondent, it is stated that Smt B. Kalavathy, HST (Malayalam), who was a protected teacher, was absorbed by the Manager in the school under Rule 7(3)(a) of Chapter XXI of KER. The said teacher attained superannuation on 31.05.2021. At this point of time, a vacancy to the post of part-time HST Hindi arose in the school, consequent to the retirement of a teacher. The petitioner proceeded to make a fresh appointment in the vacancy of HST (Malayalam) without observing the mandate of Rule 7(6) of Chapter XXI of the KER. According to the respondent, in terms of the statutory provisions, vacancy which has arisen consequent to the relief of a protected teacher can be filled up only by appointing another protected teacher from the Teacher's bank. It is further stated that though the institution has a minority status, the Manager does not have the right to choose the vacancies which have already been set apart for absorption of protected teachers which arose in the school. It is further stated that the Manager has not submitted any application before the competent respondent to appoint a protected teacher against the retirement vacancy of HST (Malayalam) in terms of Rule 7(6) of Chapter XXI of KER. It ``` WP(C) NO. 7732 OF 2022 ``` ``` 5 ``` is further stated that as per the statutory provisions, if a protected teacher in the same category is not available in the Teacher's bank of the revenue district in which the school is situated, as on the date of occurrence of the vacancy, the Manager is required to appoint a teacher from the Teacher's bank of any other District where such a protected teacher is available, with the permission of the Director. It is stated that the Manager has not taken any kind of steps for appointing a protected teacher in the vacancy of HST (Malayalam) that arose in the school, consequent to the retirement of the protected teacher on 31.05.2021. It is stated that the revision petition submitted by the petitioner was rejected, directing the manager to take appropriate steps to appoint a protected teacher in the category of HST Malayalam from the teacher's bank. The respondents have also placed on record Exhibit R3(a), giving the list of protected teachers available in Thiruvananthapuram, Kottayam, Ernakulam, and Alappuzha districts, falling under the category of HST Malayalam who have been temporarily deployed to substantiate their contention 6. I have heard Sri K. Sasikumar, the learned counsel appearing for the petitioner, and Smt. Nisha Bose, the learned Government Pleader. 7. Sri. K. Sasikumar urged that the petitioner had substantially complied with the provisions of Chapter XXI and being a minority educational institution, she was well within her rights to appoint a teacher of her choice. ``` WP(C) NO. 7732 OF 2022 ``` ``` 6 ``` According to the learned counsel, a minority educational institution cannot be compelled to settle upon a protected teacher in the very same subject, as in the instant case wherein the Manager has appointed a protected teacher, though in a different vacancy that has arisen. It is contended that it was after realizing that there was no protected Malayalam hand in the three adjacent revenue districts that the petitioner ventured to appoint a protected Hindi teacher. 8. Smt. Nisha Bose, the learned Senior Government Pleader, would controvert the submissions advanced by the learned counsel. Reiterating the contentions in the counter, it is submitted that Rule 6 and 8 of Chapter XXI would stand in the way of the petitioner in appointing a protected teacher of her choice. It is submitted that the amendment made to Chapter XXI substituting Rule 7 was challenged before this Court and a learned Single Judge of this Court in **Manager, AM Higher Secondary School, Vengoor v. State of Kerala and Ors.** [2017 ICO 1962] had repelled the challenge. It is further submitted that this Court had held that the eligibility for the protection of the teachers who are retrenched from minority and non-minority schools are the same and, therefore, the liability for accommodating them has to be thrust upon minority as well as non-minority schools without causing undue advantage or disadvantage to any of such institutions. ``` WP(C) NO. 7732 OF 2022 ``` ``` 7 ``` 9. I have carefully considered the submissions advanced and have gone through the records. 10. The aided schools in the State of Kerala are run with the aid of the Government, and they are governed by the provisions contained in the Kerala Education Act 1958 and the Rules framed thereunder. Chapter XXI of the Kerala Education Rules deals with the recruitment of teaching and non-teaching staff. Rule 1 says that candidates possessing the qualification prescribed by the Government from time to time shall be appointed by the Managers as teaching and non-teaching staff in aided schools against the vacancies as notified by the Government. Rule 7 provides that the post of Lower Primary School Assistant and Upper Primary School Assistant sanctioned as per the provisions shall be filled up by the Manager by appointing teachers among the list of protected teachers maintained under the Teacher’s Bank with the permission of the Deputy Director (Education concerned). Sub Rule 2 of Rule 7 provides that the additional posts, irrespective of category, on the staff fixation shall be filled up by the Manager by appointing teachers from among the list of protected teachers in the Teachers' bank with the permission of the Deputy Director (Education) concerned and by appointing teachers otherwise than from the Teacher’s Bank in the ratio of 1:1 respectively. Sub Rule 3 of Rule 7 provided that appointments in all the vacancies arising in the Schools upgraded/newly opened after 22.05.1979 should be made from the list of protected teachers ``` WP(C) NO. 7732 OF 2022 ``` ``` 8 ``` in the Teachers' bank, subject to Rules 43, 51A, and 51B of Chapter XIVA. Sub Rule 4 of Rule 7 provides for the filling up of short-term vacancies arising out of leave and deputation for training having a duration of one academic year and above by appointing protected teachers from Teachers' bank, with the permission of the Deputy Director of Education. It also provides for appointing teachers from the Teachers' bank of other revenue districts in the event of the non-availability of a teacher in the same category in the same revenue district. 11. Sub-Rule 5 starts with a non-obstante clause and it provides that the first among the 2 vacancies arises on account of the sanctioning of posts on the basis of exemption of class charges to head teacher (i.e., the appointments covered by sub-rule 1 of Rule 7) shall be filled up only by a protected teacher, notwithstanding anything contained in Rule 43, 51A and 51B of Chapter XIVA. Sub-rules 6 and 7 only provide that the vacancy caused by the relief of a protected teacher has to be filled up by another protected teacher from the Teachers' bank and that the protected teachers appointed from the Teachers' bank would not have any claim for appointment in any school in any future vacancies other than their parent school. Sub Rules 6 and 7 were challenged before this Court by the Managers contending that the above provisions would transgress over their right and that the compulsion to appoint protected teachers cannot be sustained. The said contention was repelled by this Court in **Rajan Pillai v. State of Kerala** ``` WP(C) NO. 7732 OF 2022 ``` ``` 9 ``` [1990 (1) KLT 544], which was affirmed by the Division Bench. Sub-rule 8 provides that in the absence of a protected teacher in the Teacher’s Bank of a particular Revenue District, the Managers shall appoint protected teachers of other districts, and in the absence of such teachers, even in other districts and in the absence of such teachers, the Manager would be entitled to fill up the vacancies with the permission of the Director. However, vacancies covered by sub-rule 1 and 2 cannot be filled up as stated above, and those vacancies are liable to be filled up only in accordance with the orders issued by the Government from time to time. This Court in **Manager, AM Higher Secondary School, Vengoor** (supra) has held that the provision to appoint protected teachers even from the list of other districts cannot be said to be illegal. In paragraph No. 20 of **Vengoor (supra),** it was observed as follows: 20. Sub rules 6 and 7 only provide that the vacancy caused by the relief of a protected teacher has to be filled up by another protected teacher from the Teachers' bank and that the protected teachers appointed from the Teachers' bank would not have any claim for appointment in any school in any future vacancies other than their parent school. Such a provision is already upheld in Rajan Pillai's case (supra) as upheld by the Division Bench. Once the provision for appointing protected teachers is sustained, the liability to fill up the vacancies on the relieving of protected teachers cannot be said to be illegal. 12. In view of the above, the contention of the petitioner that the statutory provisions do not mandate that the Manager should appoint a ``` WP(C) NO. 7732 OF 2022 ``` ``` 10 ``` protected teacher when a vacancy arises due to the relief of a protected teacher appointed under sub-rule 1 to 4 cannot be sustained under law. As a consequence, the contention advanced by the Manager that he has appointed a protected Hindi teacher when the protected Malayalam teacher attained superannuation and that he is well within his rights to appoint a Malayalam Teacher from the open market cannot be sustained under law. 13. The next contention advanced by the petitioner is that, being a minority educational institution, the petitioner is well within his rights to appoint a person of his choice. The above contention cannot be sustained under law. The same contention was advanced before this Court in **Vengoor (supra),** and in paragraph No. 43 of the judgment, it was observed thus: The provisions for appointment of protected teachers have been inserted in the rules, as a measure of social obligation in the interest of innumerable teachers who are facing retrenchment due to division fall from the aided educational institutions, whether it is run by minority or non-minority communities. Any exemption to minority educational institutions from appointing protected teachers will result in undue advantage to them and an unreasonable burden on the non-minority institutions. It will also amount to invidious discrimination, which is never intended by the makers of the Constitution. Minority institutions are given the opportunity to opt from the list of protected teachers, which is not available to others. The Teachers' bank would be having teachers from all communities and from all types of institutions. As the provisions in the Act, Rules and orders including Section 13 of the Act and Rule 5A and the ``` WP(C) NO. 7732 OF 2022 ``` ``` 11 ``` impugned amendment rules apply to all schools including minority institutions equally, there cannot be any exemption to the minority institutions from the application of the amendment rules 2016. The Teachers' bank envisages inclusion of all teachers coming under its parameters, irrespective of the Schools from which they were retrenched. In the counter affidavit it is stated that there are 2236 aided schools having minority status. The number of protected teachers from 146 of such schools is 386 after the 2015-16 staff fixation. The number of teachers being included in Teachers' bank is always on the ascending order, as long as the management does not take any action to protect the teachers, who happen to be retrenched from their schools, and the rules governing staff fixation, method of appointment under them are the same, they cannot have any special privilege and they cannot evade from their responsibility in appointing the teachers from Teachers' bank. No privileges can be granted to them by fastening liabilities on non-minority institutions. There is no difference in financial burden of Government on minority as well as non-minority schools. The eligibility for protection to the teachers, who are retrenched from minority as well as non-minority schools, is the same. Therefore, liability to accommodate them has to be thrust upon minority as well as non-minority schools, without causing undue advantages or disadvantages to any of such institutions. None of the Managers of minority schools have a case that their teachers need not be included in the teachers' bank, on retrenchment or that such teachers need not be deployed. At any rate, there cannot be any unequal treatment on the basis of the status of the institution. The freedom of the minority institutions to appoint the head of the schools who are administering their schools is not in any way interfered with. 14. In view of the observations above, the contention forcefully advanced by Sri. Sasikumar to overturn Ext.P12 cannot be sustained under law. The learned counsel had pointed out that there were no protected ``` WP(C) NO. 7732 OF 2022 ``` ``` 12 ``` teachers in the District concerned or the nearby districts. The respondent has placed on record the list of protected HST (Malayalam) teachers who have been temporarily deployed in terms of sub-rule 8 of Rule 7 of Chapter XXI. The Manager is required to appoint a teacher from the Teacher’s Bank of any other revenue district where such protected teacher is available, with the permission of the Director. Even in those cases, protected teachers are not available in the same category only those vacancies except the vacancies against the post mentioned in sub-rule 1 and 2 above can be filled up by the Manager otherwise with the permission of the Director. The petitioner has no case that before appointing the HST (Malayalam), permission from the Director was sought. In view of the discussion above, I am of the considered opinion that Ext.P8, P9, and P12 orders do not warrant any interference. This writ petition is dismissed. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** ``` ps ``` ``` WP(C) NO. 7732 OF 2022 ``` ``` 13 ``` ## **`APPENDIX OF WP(C) 7732/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 A TRUE COPY OF THE CERTIFICATE DATED 17-09-2012 Exhibit P2 A TRUE COPY OF THE APPOINTMENT ORDER DATED 1-6-2021 APPOINTING SMT SURYA PRABHA S AS HST MALAYALAM IN THE SCHOOL FROM 1-6-2021 Exhibit P3 A TRUE COPY OF THE LETTER DATED 1-6-2021 FORWARDED BY THE MANAGER TO THE DEO, KOTTARAKKARA Exhibit P4 A TRUE COPY OF THE STATEMENT OF CHANGE OF STAFF DATED 1-6-2021 FORWARDED TO THE 4TH RESPONDENT Exhibit P5 A TRUE COPY OF THE DECLARATION OF THE MANAGER ALONG WITH THE JOINING DUTY REPORT OF THE HEADMISTRESS DATED 1-6-2021 Exhibit P6 A TRUE COPY OF THE DECLARATION OF THE MANAGER ALONG WITH THE NEW APPOINTEE DATED 1-6-2021 Exhibit P7 A TRUE COPY OF THE LETTER DATED 1-6-2021 FORWARDED BY PETITIONER TO THE RESPONDENTS 3 AND 4 FOR DEPLOYMENT OF THE PROTECTED TEACHER. Exhibit P8 A TRUE COPY OF THE ORDER DATED 14-08-2021 ISSUED BY THE 4TH RESPONDENT. Exhibit P9 A TRUE COPY OF THE ORDER DATED 25-08-2021 ISSUED BY THE 3RD RESPONDENT. Exhibit P10 A TRUE COPY OF THE REVISION PETITION DATED 1-09-2021 PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. Exhibit P11 A TRUE COPY OF THE JUDGMENT DATED 22-09-2021 PASSED BY THIS HON'BLE COURT IN WPC NO. 19654/2021 Exhibit P12 A TRUE COPY OF THE GOVERNMENT ORDER DATED 1-1-2022 ISSUED BY THE 1ST RESPONDENT. Exhibit P13 A TRUE COPY OF THE GO (P) NO.3/2019/G.EDN DATED 28.2.2019 ``` ``` WP(C) NO. 7732 OF 2022 ``` ``` 14 ``` ## **`RESPONDENT EXHIBITS`** ``` Exhibit R3(a) True copy of list of protected teachers available in Thiruvananthapuram,Kottayam Ernakulam, and Alappuzha Districts under the category of HST Malayalam who are temporarily deployed is produced ```