K.K. GEORGE v. Manager, Aided UP School, IrumbuChola and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 21ST DAY OF DECEMBER 2020 / 30TH AGRAHAYANA, 1942** ## **WP(C).No.13534 OF 2020(N)** ## **- PETITIONER :** **K.K.GEORGE, AGED 55 YEARS S/O.KURIAKOSE, TEACHER (UPSA), AUP SCHOOL, IRUMBUCHOLA, RESIDING AT KARIMPEECHI PUTHEN PURAYIL HOUSE, CHELARI-PUTHERIVALAPPIL, P.O.VELIMUKKU, PIN - 676 317, MALAPPURAM DISTRICT.** **BY ADVS. SRI.R.SURENDRAN KUM.S.MAYUKHA** ## **- RESPONDENTS :** |**1**|**MANAGER, AIDED UP SCHOOL**| |---|---| ||**IRUMBUCHOLA, A.R.NAGAR P.O., PIN - 676 305,**| ||**MALAPPURAM DISTRICT.**| |**2**|**THE ASSISTANT EDUCATIONAL OFFICER**| ||**VENGARA P.O., MALAPPURAM DISTRICT, PIN - 676 304.**| |**3**|**REHIMA MUSALYARAKATH, AGED 52 YEARS,**| ||**TEACHER HEADMISTRESS, AIDED UP SCHOOL,**| ||**IRUMBUCHOLA, RESIDING AT AL-HASNATH,**| ||**KUTTOR NORTH, A.R.NAGAR P.O., PIN - 676 305,**| ||**MALAPPURAM DISTRICT.**| |**4**|**P.ABDUL AZEEZ, AGED 53 YEARS,**| ||**S/O.MOHAMMED BAPPU PULISSERY, TEACHER (UPSA),**| ||**AIDED UP SCHOOL, IRUMBUCHOLA, A.R.NAGAR P.O.,**| ||**PIN - 676 305, MALAPPURAM DISTRICT.**| |**5**|**R.SREELATHA, AGED 53 YEARS,**| ||**W/O.CHANDRABHANU, TEACHER (UPSA),**| ||**AIDED UP SCHOOL, IRUMBUCHOLA, A.R.NAGAR P.O.,**| ||**PIN - 676 305, MALAPPURAM DISTRICT.**| |**6**|**T.SHAHUL HAMEED, AGED 51 YEARS,**| ||**S/O.MAMMED MASTER THARAYIL, TEACHER (LPSA),**| ||**AIDED UP SCHOOL, IRUMBUCHOLA, A.R.NAGAR P.O.,**| ||**PIN - 676 305, MALAPPURAM DISTRICT.**| WP(C).No.13534 OF 2020(N) -: 2 :- **ADDL. 7 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695 001.** **ADDITIONAL R7 IS IMPLEADED AS PER ORDER DATED 21.12.2020 IN I.A.No.1/2020.** **BY ADV. SRI.K.K.SAIDALAVI BY ADV. SRI.I.J.AUGUSTINE BY ADV. SRI.K.K.NASRUL HAQUE BY ADV. SRI.AUGUSTINE JOSEPH BY ADV. SRI.K.S.ROCKEY BY ADV. SRI.TONY AUGUSTINE BY ADV. SRI.GEORGE RENOY BY SRI.P.M MANOJ, SR. GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-12-2020, THE COURT ON 21-12-2020 DELIVERED THE FOLLOWING:** WP(C).No.13534 OF 2020(N) -: 3 :- ## **JUDGMENT** ## **Dated this the 21st day of December 2020** This writ petition is filed seeking the following reliefs :- - “a) Issue a writ or other order in the nature of certiorari, quashing Exhibit P6 order of appointment of the third respondent as Headmaster and the order of approval of appointment of third respondent issued by the second respondent. - b) Issue a writ or other order in the nature of mandamus directing the first respondent to appoint the petitioner being the senior-most teacher holding the qualifications such as pass in “Account Test (Lower)” and a pass in “Test Kerala Education Act and Rules” conducted by Kerala Public Service Commission, as Headmaster of Aided UP School Irumbuchola, in Malappuram District.” 2. Heard the learned counsel for the petitioner, the learned Government Pleader as well as the learned counsel appearing for respondents 1 and 3. 3. The petitioner claims to be the senior most test qualified teacher in the 1[st] respondent's school, who is eligible for appointment to the post of Headmaster. The petitioner has passed Account Test (Lower) and the test conducted by the PSC in Kerala Education Act and Rules. Exts.P1 and P2 are the certificates dated 28.7.2008 and 1.6.2015 respectively. It is submitted that a vacancy of Headmaster arose in the school on 1.6.2018. It is submitted that WP(C).No.13534 OF 2020(N) -: 4 :- by Ext.P4, the qualification required under Rule 18(1) of the Kerala Right of Children to Free and Compulsory Education Rules (for short, 'RTE Rules'), 2011 have been prescribed. It is submitted that Ext.P4 order dated 19.2.2018 prescribes that Account Test (Lower) conducted by the Kerala Public Service Commission and a pass in the test in Kerala Education Act and Rules as obligatory qualifications for promotion as Headmaster of LP and UP schools. It is submitted that with effect from the date of Ext.P4, the qualification for appointment of teachers in all schools stands prescribed and only qualified teachers are eligible for appointment as head teachers. It is submitted that the 3[rd] respondent, who did not have the qualification, but, who had attained the age of 50 years had been promoted to the post of Headmaster, without considering the claim of the petitioner. The petitioner challenged the said appointment and the claim was directed to be considered by Ext.P5 judgment dated 19.9.2018. However, without considering the petitioner's objection, the 2[nd] respondent has approved the appointment of the 3[rd] respondent as Headmaster. The learned counsel for the petitioner submits that the petitioner is due to retire from service on 31.3.2021 and that the refusal to promote the petitioner as Headmaster is completely illegal and WP(C).No.13534 OF 2020(N) -: 5 :- unsustainable. It is stated that in the light of Ext.P4 Government Order, prescribing the qualification, the exemption granted in the KER has become inoperative and a test qualified teacher is liable to be appointed as Headmaster in preference to an unqualified teacher, even if the said incumbent has completed the age of 50 years as on the date of occurrence of vacancy. 4. The 2[nd] respondent has placed a counter affidavit on record. It is stated that the 3[rd] respondent is senior to the petitioner in service and had completed 50 years of age as on the date of occurrence of vacancy. It is stated that when the vacancy of head teacher arose on 1.6.2018, the 3[rd] respondent was the senior most teacher and had acquired the exemption from acquisition of qualification prescribed in the KER. 5. The 3[rd] respondent has also placed a counter affidavit on record. It is stated that the qualification referred to under Rule 18(1) of the RTE Rules, 2011 can only be the qualification as provided in the KER. It is stated that even in the light of Ext.P4, since no formal amendments have been made in the KER, the exemption granted to persons, who attained the age of 50, continues to be operated. It is stated that the judgment in O.P. (KAT) No.105/2019 is confined to appointment of Headmasters in WP(C).No.13534 OF 2020(N) -: 6 :- Government schools and has no application to aided schools. It is stated that the said judgment is under challenge in an SLP, which has been admitted and is pending with an interim order. It is contended that the question of retrospective operation of the amendment to Rule 44 has been referred to a larger Bench and that in the instant case, where there is no amendment effected, the 3[rd] respondent, who has completed 50 years, would be eligible for the benefit of the provisions in the KER. It is further contended in paragraph 8 of the counter affidavit as follows :- “8. It is also understood that the State of Kerala in the meantime have taken steps to incorporate the proviso, exemption to teachers crossed the age of 50 years like rule 45B(4), Chapter XIV A of the Kerala Education Rules in the Kerala Right of Children to Free and Compulsory Education Rules 2011. It is also verified and understood that the said proposal of the State of Kerala after circulation, confirmation and approval of law department and Advocate General now pending before the Election Commission for permission since election declared.” 6. I have considered the contentions advanced. Rule 45B of Chapter XIV A KER provides that Account Test (Lower) conducted by the Kerala Public Service Commission shall be an obligatory qualification for teachers for promotion as Headmasters in Lower Primary and Upper Primary schools. Sub rule (4) of Rule 45B provides that teachers who have attained the age of 50 years shall WP(C).No.13534 OF 2020(N) -: 7 :- stand exempted permanently from acquiring the qualifications prescribed in sub rule (1). It is an admitted fact that when the vacancy of Headmaster arose in the school on 1.6.2018, the 3[rd] respondent, who has admittedly senior, had crossed the age of 50 years but did not have the qualification provided in Ext.P4. A Division Bench of this Court in O.P.(KAT) No.105/2019 held that where there are junior qualified hands available for promotion, the promotion of the senior unqualified hands relying on the provision of exemption would be unsustainable. The import of the prescription of the qualification in terms of Rule 18(1) of the RTE Rules, 2011 was also considered and it was held that the prescription of the qualification could also be by an executive order. Though it is contended by the learned counsel appearing for the 3[rd] respondent that the judgment in the O.P.(KAT) is pending in the Apex Court, it is clear that the interim order in the SLP is for the concerned parties to maintain status quo. 7. Another Division Bench of this Court in W.A. No.1472/2017 considered the provision of Rule 18(1) of the RTE Rules and held that in the absence of the specification of the required qualifications under the said Rules, the provisions of the KER should be looked into. It is thereafter that Ext.P4 Government WP(C).No.13534 OF 2020(N) -: 8 :- Order was issued providing the qualifications required under Rule 18(1). 8. In the light of Rule 18(1) of the RTE Rules, 2011 and the law laid down by this Court in O.P.(KAT) No.105/2019 and in the judgment in W.A. No.1472/2017, I am of the opinion that the promotion granted to the 3[rd] respondent at a time when a qualified hand was available for promotion cannot be sustained. As on the date of occurrence of vacancy, that is, 1.6.2018, Ext.P4 order prescribing the qualification as provided in Rule 18(1) of the RTE Rules, 2011 had already been issued. The effect of the prescription of the qualification had been considered by two Division Benches of this Court. The contention raised by the petitioner that a formal amendment is not effected to Rule 45B(4) of Chapter XIV A KER cannot hold good in the light of the authoritative pronouncements of the Division Bench of this Court on several earlier occasions including in **Anitha John** v. **Eldhose Mathew** [2002 (3) KLT 974]. In the above view of the matter, I am of the opinion that the appointment of the 3[rd] respondent as Headmaster at a time when a qualified hand was available cannot be justified. In the result, the impugned orders are set aside. There will be a direction to the 1[st] respondent to appoint the petitioner as WP(C).No.13534 OF 2020(N) -: 9 :- Headmaster with effect from 1.6.2018. The 2[nd] respondent is directed to approve the appointment of the petitioner, if it is otherwise in order. Appropriate orders shall be passed by respondents 1 and 2 within a period of one month from the date of receipt of a copy of this judgment. The attendant benefits shall also be calculated and disbursed to the petitioner. This writ petition is ordered accordingly. **Sd/ANU SIVARAMAN JUDGE** Jvt/14.12.2020 WP(C).No.13534 OF 2020(N) -: 10 :- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF CERTIFICATE DATED 28/07/2008 IN ACCOUNT TEST (LOWER) CONDUCTED BY KERALA PUBLIC SERVICE COMMISSION RECEIVED BY THE PETITIONER.** - **EXHIBIT P2 TRUE COPY OF THE CERTIFICATE DATED 01/06/2015 IN "KERALA EDUCATION ACT AND RULES" CONDUCTED BY KERALA PUBLIC SERVICE COMMISSION RECEIVED BY THE PETITIONER.** - **EXHIBIT P3 TRUE COPY OF SENIORITY LIST DATED 01/05/2018 OF TEACHERS AND OTHER STAFF, IN AIDED UP SCHOOL, IRUMBUCHOLA.** - **EXHIBIT P4 TRUE COPY OF GOVERNMENT ORDER DATED 19/2/2018 ISSUED AS GO(MS) NO.16/18/G.EDN.** - **EXHIBIT P5 TRUE COPY OF JUDGMENT DATED 19/9/2018 IN WP(C) N.17027 OF 2018 OF HIGH COURT OF KERALA.** - **EXHIBIT P6 TRUE COPY OF APPOINTMENT ORDER DATED 1/6/2018 ISSUED BY FIRST RESPONDENT AND THE ORDER OF APPROVAL DATED 22/8/2019, ISSUED BY THE SECOND RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF JUDGMENT DATED 10/6/2020 IN WP(C) NO0.12838 OF 2019 OF HIGH COURT OF KERALA.** //TRUE COPY// P.A. TO JUDGE