Harifa Beevi Kallan v. The Manager, PPM Higher Secondary School & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 28TH DAY OF MARCH 2019 / 7TH CHAITHRA, 1941** **WA.No. 925 of 2019** **JUDGMENT IN WP(C) 225/2019 of HIGH COURT OF KERALA DATED 21-02-2019** **APPELLANT/6TH RESPONDENT:** **HARIFA BEEVI KALLAN AGED 56 YEARS W/O. VEERANKUTTY, HIGH SCHOOL ASSISTANT (SOCIAL SCIENCE), PPM HIGHER SECONDARY SCHOOL, P.O. KOTTUKARA, KONDOTTY, MALAPPURAM DISTRICT - 673 638.** **BY ADVS. SRI.K.A.MANZOOR ALI SMT.P.A.JENZIA** ## **RESPONDENTS/PETITIONERS AND RESPONDENTS 1 TO 5:** **1 THE MANAGER, PPM HIGHER SECONDARY SCHOOL, P.O. KOTTUKARA, KONDOTTY, MALAPPURAM DISTRICT - 673 638 2 SRI. ABDUL RAZAQUE T.K HEADMASTER, PPM HIGHER SECONDARY SCHOOL, P.O. KOTTUKARA, KONDOTTY, MALAPPURAM DISTRICT - 673 638. 3 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEXE - II, THIRUVANANTHAPURAM - 695 001. 4 THE DIRECTOR OF PUBLIC INSTRUCTIONS DIRECTORATE OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM - 695 014.** W.A.No.925 of 2019 2 - **5 THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTIONS, DIRECTORATE OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM - 695 014.** - **6 THE DEPUTY EDUCATIONAL OFFICER DOWN HILL, MALAPPURAM - 676 519** - **7 THE DISTRICT EDUCATIONAL OFFICER CIVIL STATION, MALAPPURAM DISTRICT - 676 001** **BY ADVS.** **SRI JAJU BABU SR COUNSEL SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.VENUGOPAL** ## **OTHER PRESENT:** ## **SRI A.J VARGHESE SR GP** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** W.A.No.925 of 2019 3 ## **JUDGMENT** ## **V.G.ARUN, J.** The writ appeal is filed by the 6[th] respondent in the writ petition. The writ petition was filed by respondents 1 and 2 herein. The first respondent is the Manager of PPM Higher Secondary School, an aided Higher Secondary School and the second respondent is the Headmaster of the High School. The school has been granted minority status, as evident from Ext.P1. The Headmaster of the PPM High School was due to retire on 31.3.2017 and therefore, a selection was conducted from among the teachers of the school, for filling up the post of Headmaster. The second respondent and the appellant submitted applications along with other teachers. On completion of the selection process, the second respondent was placed as rank No.1, while the appellant rank No.6. The second respondent did not have the test qualification as on the date of occurrence of the vacancy but had crossed the age of 50 years and therefore, stood permanently exempted from W.A.No.925 of 2019 4 acquiring the test qualification by virtue of the 2[nd] proviso to Rule 44A of Chapter XIVA KER. Hence, in spite of the appellant being senior to the second respondent, the Manager appointed the second respondent as Headmaster based on the selection and also on the strength of the minority status of the educational institution. Even though, the proposal for appointment of the second respondent was forwarded to the educational authorities, the same was kept pending and in the meanwhile, the appellant lodged a complaint against the appointment of the second respondent as Headmaster. By Ext.P6 order, the appointment of the second respondent was cancelled by the AEO and direction issued to the first respondent to forward the proposal of appointment of the appellant as Headmistress of the High School. Aggrieved by Ext.P6, respondents 1 and 2 preferred a revision petition before the Government, which culminated in Ext.P8 order whereby the Government ordered that in case, the second W.A.No.925 of 2019 **==> picture [7 x 9] intentionally omitted <==** respondent or the appellant are having test qualification, the qualified person should be appointed without considering the seniority and that in case, both of them do not have the qualification, the appointment could be effected without considering seniority in view of the fact that the school is having minority status. Immediately thereafter Ext.P9 order was issued, by which the Government specifically directed to appoint the appellant as Headmistress with effect from 1.4.2017, the date on which the vacancy had arisen. Thereupon, the writ petition was filed seeking to quash Exts.P6, P8 and P9 and to declare the appointment of the second respondent as Headmaster of the school to be valid and proper and consequently to direct grant of approval to the appointment of the second respondent with effect from 1.4.2017, with all consequential benefits. 2. In the writ petition, challenge was mounted against the impugned orders on the ground that, being a minority W.A.No.925 of 2019 **==> picture [7 x 10] intentionally omitted <==** educational institution, the school is entitled to appoint any qualified teacher of its choice, even by overlooking seniority, if so required. It was also contended that both the second respondent and the appellant did not have test qualification as on the date of arising of vacancy but were eligible to be appointed in view of the 2[nd] proviso to Rule 44 A of Chapter XIV A of KER, since both of them had attained 50 years. The further contention was that the vacancy of Headmaster in the school having arisen on 1.4.2017, the appointment of the second respondent prior to 31.12.2017 is valid and proper, since the amendment to Rule 44 A of Chapter XIV A of KER by incorporation of a 3[rd] proviso was only on 31.12.2017. 3. In the counter affidavit filed on behalf of the 6[th] respondent in the writ petition/the appellant herein, it was contended that she was duly qualified for being appointed as Headmistress with effect from 1.4.2017 and that the writ petitioners, having failed to challenge the newly introduced W.A.No.925 of 2019 **==> picture [7 x 9] intentionally omitted <==** proviso to Rule 44A of Chapter XIV A of KER, cannot justify the appointment of the second respondent, overlooking the claim of the appellant. 4. The learned Single Judge held that the Manager, in exercise of the power under Article 30 (1) of the Constitution of India, having chosen the second respondent as the competent person to head the institution, the educational authorities could not have interfered with the appointment of the second respondent. Reliance was placed on the decision of the Apex Court in **Co-operate Educational Agency v. James Mathew [2017 (3) KLT 713 (SC)]** , wherein it was held that conscious choice of a by the management minority educational institution to select and appoint the Headmaster is final and that it is a protected choice. The writ petition was hence disposed of directing the 5[th] respondent therein, to approve the appointment of the second respondent, provided he is having necessary qualification to be approved as the W.A.No.925 of 2019 8 Headmaster. 5. The main ground of challenge put forth by the learned counsel for the appellant is based on the 3[rd] proviso to Rule 44 A of Chapter XIV A of KER, incorporated as per Kerala Education (Amendment) Rules, 2017 with effect from 1.6.2015. The 3[rd] proviso to Rule 44 A of Chapter XIV A reads as follows: “Provided also that, notwithstanding anything contained in second proviso, in the case of appointment to the post of Headmaster, preference shall be given to those teachers who have acquired the test qualifications specified in the rule.” For a proper understanding of the effect of the 3[rd] proviso, it would be appropriate to quote the relevant portion of Rule 44A as it stood prior to the amendment, which reads as under: “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. W.A.No.925 of 2019 9 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 50 years shall stand exempted permanently from acquiring the test qualification specified in SubRule (1).” 6. Reading of the provision leaves no room for doubt that till the introduction of 3[rd] proviso, it was not mandatory to give preference to those teachers who had acquired the test qualifications specified in the Rule, while effecting appointment to the post of Headmaster. Admittedly, the second respondent was appointed as Headmaster on 1.4.2017. The 3[rd] proviso was incorporated by way of amendment to Rule 44 A of Chapter XIV A vide Government order dated 31.12.2017, with effect from 10.6.2015. The Government had initially issued G.O.(MS) No. 157/2015/GEdn. dated 10.6.2015 providing for preference to test qualified teachers in appointment to the post of Headmaster. That Government order was stayed by this court. In Ext.P11, the Government W.A.No.925 of 2019 **==> picture [13 x 10] intentionally omitted <==** clarified that till amendment is carried out to the KER, in accordance with the Government order, appointments to the post of Headmaster could be affected in accordance with the previous Rule. By virtue of the 2[nd] proviso to Rule 44A of Chapter XIV A of KER, teachers who had attained the age of 50 years stood permanently exempted from acquiring the test qualification specified in Sub-Rule (1). In the instant case, the second respondent was appointed as Headmaster on 1.4.2017, on the strength of the permanent exemption which he had, by virtue of the 2[nd] proviso to Rule 44A (1) of Chapter XIV A of KER. This benefit, which had already inured to the second respondent, and the consequential appointment which he had obtained, cannot be taken away by giving retrospectivity to the 3[rd] proviso. 7. The effect of the 2[nd] proviso and the impact of G.O. (MS) No. 157/2015/GEdn. dated 10 .6. 2015 had come up for consideration before this Court in **Pavandoor Higher** W.A.No.925 of 2019 11 . **Secondary School v. Sadanandan [2016 (4) KLT 207]** Therein, the Division Bench upheld the finding of the learned Single Judge, that by virtue of the 2[nd] proviso to Rule 44 A, the teachers who had attained 50 years stood exempted from acquiring the test qualification as on the date of arising of the vacancy and hence the only criteria for promotion to the post of Headmaster is seniority. The said finding of the learned Single Judge was affirmed by the Division Bench in the decision mentioned above, by observing as follows: “6. Going by the wordings of the statute, which according to us does not require any clarification, we are not persuaded to accept the above contention. As held by the learned single Judge, by virtue of the 2[nd] proviso the teachers who attained the age of 50 years stands permanently exempted and became eligible for promotion to the post of Headmaster if he/she is the senior most teacher under the management, provided the vacancy arose after he/she had crossed the age of 50 years.” 8. It was also contended before the Division Bench that the Government Order was valid, the learned Single Judge having failed to quash the Government order. Answering that W.A.No.925 of 2019 12 ## contention, the Division Bench held as follows: “7. Next contention raised is regarding the nonquashing of Ext.P3 Government Order. Learned counsel who entered appearance on behalf of respondents 1 and 2 (writ petitioners) contended that, the Government Order in question run contrary to the statutory provision. But according to the appellant there is no repugnancy with the Rule and it only clarifies about the manner in which the 2[nd] proviso need be applied. It remains well settled that the effect of a statutory provision cannot be nullified or diluted through an executive order of the Government. Therefore Ext.P3 cannot even be taken as clarificatory in nature, because the wordings of the statute does not suffer from any ambiguity. In that respect, Ext.P3 has no legal effect and the statutory provisions contained in Rule 44A will survive. When the learned Judge had quashed the impugned appointment order, after interpreting the proviso in accordance with the wordings contained in the statute book, it had an implied effect of nullifying the Government Order. Hence, despite the fact that the learned Judge had not specifically quashed Ext.P3, the effect of the judgment and the directions issued on the basis of the interpretation of the statute will stand perfectly valid and justified. Consequently the appeal deserves no merit and the same is accordingly dismissed.” As far as the instant case is concerned, the second respondent having attained the age of 50 years as on W.A.No.925 of 2019 **==> picture [13 x 10] intentionally omitted <==** 31.3.2017, the date on which the vacancy arose, and the 3[rd] proviso to Rule 44 A having been introduced only after the appointment of the second respondent on 1.4.2017, the right accrued on the second respondent based on his appointment cannot be taken by giving retrospective effect to the 3[rd] proviso from 1.6.2015. The position being unambiguous, the impugned judgment does not warrant interference. Consequently, the writ appeal is dismissed. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/JUDGE** **V.G.ARUN** Scl/