Jeena A. Mathew v. State of Kerala and Others

**WP(C) NO. 18635 OF 2021** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 14[TH] DAY OF JULY 2022 / 23RD ASHADHA, 1944** ## **WP(C) NO. 18635 OF 2021** ## **PETITIONER:** JEENA A.MATHEW W/O A.P.SELVIN, ALACKAL HOUSE, ANICADU, AVOLI P.O, MUVATTUPUZHA686670. (RETD. HEAD MISTRESS, MARTHOMA LOWER PRIMARY SCHOOL (MTLPS), PANIPRA.) BY ADV S.SUBHASH CHAND ## **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE DIRECTOR OF GENERAL EDUCATION (FORMERLY THE DIRECTOR OF PUBLIC INSTRUCTIONS), OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, THIRUVANANTHAPURAM-695014. 3 THE DEPUTY DIRECTOR (EDUCATION) OFFICE OF THE DEPUTY DIRECTOR (EDUCATION), ERNAKULAM-682026. 4 THE ASSISTANT EDUCATIONAL OFFICER OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, KOTHAMANGALAM, ERNAKULAM DISTRICT. 5 THE CORPORATE MANAGER MAR THOMA & E.A.SCHOOLS, THIRUVALLA-689101. **WP(C) NO. 18635 OF 2021** **2** 6 THE SENIOR ACCOUNTS OFFICER THE INDIAN AUDIT AND ACCOUNTS DEPARTMENT, OFFICE OF THE ACCOUNTANT GENERAL (A & E), THIRUVANANTHAPURAM695039. 7 THE DISTRICT TREASURY OFFICER DISTRICT TREASURY, MUVATTUPUZHA-686673. 8 THE SUB TREASURY OFFICER SUB TREASURY, KOTHAMANGALAM-686691. BY ADVS. ADVOCATE GENERAL OFFICE KERALA V.A.MUHAMMED V.RAJASEKHARAN NAIR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 18635 OF 2021** **3** ## **JUDGMENT** The petitioner has approached this Court challenging Ext.P7 order issued by the 4th respondent by which, the request for approval of the appointment of the petitioner as Headmistress of the MT Lower Primary School, Parippra stands denied. 2. Brief facts are as under: The petitioner contends that she entered aided school service as an Upper Primary School Teacher in the AM Upper Primary School, Mampad on 30.07.1987. According to the petitioner, after having served in various schools under the management, she was finally promoted and appointed as Headmistress as per Ext.P1 order in the MT Lower Primary School, Panippra with effect from 01.06.2019 onwards in a regular vacancy. She contends that though the papers relating to the proposal for approval were initially rejected on the ground of delay, the 3rd respondent, by Ext.P3 order granted condonation. She contends that, owing to the delay in considering the proposal for approval, the petitioner worked without salary and allowances, and it was only by Ext.P4 order passed by the 4th respondent **WP(C) NO. 18635 OF 2021** **4** that she was granted lower scale salary. While so, the petitioner applied for voluntary retirement and the same was granted to her as per Ext.P5 order with effect from 31.03.2020. She contends that the respondents are bound to grant approval for the period of the service of the petitioner as Headmistress from 01.06.2019 to 31.03.2020. The petitioner asserts that she had attained 50 years of age as on 30.05.2018, and hence she is entitled to the benefit of exemption contained in Rule 45B(4) of Chapter XIV A of the KER. It is contended that, though under Section 18(1) of the Kerala Right of Children to Free and Compulsory Education Rules, 2011, a teacher is required to pass departmental tests and test on Kerala Education Act and Rules, by Ext.P8 amendment brought into the Rules, teachers, who are otherwise eligible for being promoted as Head teachers are exempted from passing such departmental test on or after attaining the age of 50 years. It is contended that in view of the exemption so granted, the respondents were bound to grant approval for the period from 01.06.2019 to 31.03.2020. It is in the above background that the petitioner is before this Court seeking the following reliefs: i) To issue a writ in the nature of certiorari or any other appropriate writ or order quashing Ext.P7 order issued by respondent No.4. ii) To issue a writ of mandamus or any other appropriate writ or order directing respondent No.4 to consider Ext.P1 appointment order for approval as HeadMistress for the period from 1/6/2019 to 31/3/2020 in M.T Lower Primary School, Panipra taking into account the statutory **WP(C) NO. 18635 OF 2021** **5** permanent exemption available to the petitioner under 45B(4) of Chapter XIVA KER and Ext.P6 amendment as in the case of similarly situated persons as evidenced by Ext.P8 order forthwith or within such time as this Hon’ble court may deem fit and proper in the interest of justice. iii)To issue a writ in the nature of mandamus or any other appropriate writ or order directing the respondents to disburse the entire amount of Death Cum Retirement Gratuity covered by Ext.P9 proceedings along with compensatory interest for the delay thus occurred in the light of the Ruling of the Hon’ble Apex Court in S.K.Dua Vs.State of Haryana and Another (2008 KHC 4047) forthwith or within such time as this Hon’ble Court may deem fit and proper in the interest of justice. iv) To issue a declaration that the petitioner is entitled to have her appointment approved for the period from 1/6/2019 to 31/3/2020 as Headmistress in M.T.Lower Primary School, Panipra along with salary and allowances as in the case of the similarly situated persons covered by Ext.P8 order and denial of the same by Ext.P7 order on the ground that she was not test qualified is absolutely unsustainable and untenable in law and ultravires of the provisions contained in Rule 45B(4) of Chapter XIVA KER and Ext.P6 amendment rendering the same liable to be struck down as arbitrary and unconstitutional. 3. A counter affidavit has been filed by the 4th respondent. In para 6 of the counter affidavit it has been stated that due to litigations pending before this Court, the request made by the petitioner for approval was returned. It is also stated that the petitioner is not qualified for promotion as Headmistress. 4. I have heard Sri.Subhash Chand.S, the learned counsel **WP(C) NO. 18635 OF 2021** **6** appearing for the petitioner and the learned Government Pleader. 5. The date of birth of the petitioner is 31.05.1968 and she attained the age of 50 years on 30.05.2018. This assertion in the writ petition is not disputed. It was by Ext.P1 order that the petitioner was appointed as Headmistress of the M.T. Lower Primary School, Vengoor with effect from 01.06.2019. Ext.P5 order issued by the 4th respondent would reveal that the petitioner had voluntarily retired from service with effect from 31.03.2020. Her grievance in this writ petition centers around Ext.P7 order by which, the request for approval was rejected on the ground that the petitioner has not passed the obligatory Account Test (lower) as insisted in 45B(1) in Chapter XIV A of the KER and the qualification as mandated under Rule 18(1) of the Kerala Right of Children to Free and Compulsory Education Rules 2011. Reference is also made to certain litigations pending before this Court. 6. I am afraid that the stand taken by the respondents cannot be sustained. 7. As per Rule 45B(4), the teachers who have attained the age of 50 years have been exempted permanently from acquiring the qualifications prescribed in Rule 45B(1). A learned Single Judge of this Court had occasion to consider the scope and ambit of the exemption under Rule 45B(4) in **WP(C) NO. 18635 OF 2021** **7** ## **Joly George K. v. Manager, SKGMA UP School and Others** [2015 (5) KHC 635] and it was held that going by the said provision, there is a permanent exemption to teachers who have attained the age of 50 years. It was also held that if the legislative intent was only to exclude the teachers who have completed 50 years of age as in 1978, the year in which Rule 45B was introduced, then the conscious act of removing the 25 years requirement in 1986 was redundant. In that view of the matter, the respondents cannot be heard to contend that the petitioner cannot avail the exemption granted under Rule 45B(4), she having crossed the age of 50 years on the date of appointment to the post of Headmistress. I also find that the Government has come out with Ext.P6 notification bringing in a proviso to Rule 18(1) of the Kerala Right of Children to Free and Compulsory Education Rules, 2011, as per which, teachers who are otherwise eligible for being promoted as Head teachers are exempted from passing such departmental test on Kerala Education Act and Rules on or after attaining the age of 50 years. The insertion of the proviso, as is evidenced from the Kerala Right of Children for Free and Compulsory Education (Amendment) Rules, 2020 is with retrospective effect. The proviso is to come into effect with effect from 30.04.2011. In that view of the matter, the refusal on the part of the respondents to approve the appointment cannot be sustained. In view of the discussion above, the **WP(C) NO. 18635 OF 2021** **8** petitioner is entitled to succeed. Resultantly Ext.P7 will stand quashed. There will be a direction to respondent No.4 to consider Ext.P1 and grant approval to the appointment of the petitioner as Headmistress for the period from 01.06.2019 to 31.03.2020 in the MT Lower Primary School, Panipra. There will be a further direction to disburse the entire amounts of DCRG covered by Ext.P9 proceedings expeditiously, in any event, within a period of eight weeks from the date of receipt of a copy of this judgment. The writ petition is disposed of. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** IAP **WP(C) NO. 18635 OF 2021** **9** ## **APPENDIX OF WP(C) 18635/2021** ## PETITIONER'S EXHIBITS: - Exhibit P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER AS HEAD MISTRESS WITH EFFECT FROM 1/6/2019 ONWARDS ISSUED BY RESPONDENT NO.5. - Exhibit P2 TRUE COPY OF THE ORDER DATED 26/08/2019 ISSUED BY RESPONDENT NO.4. - Exhibit P3 TRUE COPY OF THE ORDER BEARING NO.B4/22426/19/DDE/K.DIS DATED 11/12/2019 PASSED BY RESPONDENT NO.3. - Exhibit P4 TRUE COPY OF THE ORDER BEARING NO.G/672/2020/L.DIS DATED 16/03/2020 ISSUED BY RESPONDENT NO.4. - Exhibit P5 TRUE COPY OF THE ORDER BEARING NO.G/4428/19 DATED 28/02/2020 PASSED BY RESPONDENT NO.4. - Exhibit P6 TRUE COPY OF THE KERALA RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION (AMENDMENT) RULES, 2020 INTRODUCED BY SRO NO.898/2020 BY GO(P) NO.19/2020/G.EDN DATED 23.12.2020. - Exhibit P7 TRUE COPY OF THE ORDER DATED 25/8/2021 PASSED BY RESPONDENT NO.4. - Exhibit P8 TRUE COPY OF THE ORDER BEARING NO.C/7485/2021 DATED 30.04.2021 PASSED BY RESPONDENT NO.4. - Exhibit P9 TRUE COPY OF THE PROCEEDINGS DATED 22/7/2020 ISSUED BY RESPONDENT NO.6. RESPONDENTS' EXHIBITS: NIL