Maidhily.M v State of Kerala represented by Secretary to Government, Department of General Education, Thiruvananthapuram, and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN`** ``` WEDNESDAY, THE 9[TH] DAY OF AUGUST 2023 / 18TH SRAVANA, 1945 ``` ## **`WP(C) NO. 16651 OF 2019`** ## **`PETITIONER:`** ``` MAIDHILY.M AGED 56 YEARS DEPUTY HEADMISTRESS (RETIRED), HIGHER SECONDARY SCHOOL, MUNDUR, MUNDUR P.O., PALAKKAD - 678 592, RESIDING AT 5/116, VISHNU BHADRA, GANESH NAGAR, KALPATHY P.O., PALAKKAD - 3. ``` ``` BY ADVS. KALEESWARAM RAJ VARUN C.VIJAY A.ARUNA THULASI K. RAJ RIYA RAYMOL IYPE MAITREYI SACHIDANANDA HEGDE ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.`** - **`2 DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM - 695 014.`** - **`3 DEPUTY DIRECTOR OF EDUCATION PALAKKAD - 678 001.`** - **`4 DISTRICT EDUCATIONAL OFFICER PALAKKAD - 678 001.`** - **`5 THE MANAGER HIGHER SECONDARY SCHOOL, MUNDUR, MUNDU P.O., PALAKKAD - 678 001.`** - **`6 ACCOUNT GENERAL (A AND E) OFFICE OF THE ACCOUNTANT GENERAL (A & E) THIRUVANANTHAPURAM - 695 001. SRI.SUNIL KUMAR KURIAKOSE, SR.GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.16651 OF 2019 ``` ``` 2 ``` ## **`JUDGMENT`** ## **Dated this the 9[th] day of August, 2023** This writ petition is filed seeking the following prayers: _“(i) To issue a writ of certiorari quashing Exts.P3, P4 and P8 as unjust, illegal and unsustainable;_ _(ii) To declare that as per Rule 44A of Chapter XIVA of Kerala Education Rules 1959 read with explanatory note in Ext.P5 the petitioner is entitled to get her appointment as Headmistress in the 5[th] respondent’s school approved with effect from 02.04.2018 and she is entitled to get all service benefits attached with the said post;_ _(iii) To issue a writ of mandamus directing the respondents 1 to 4 to approve the appointment of the petitioner with effect from 02.04.2018 as Headmistress of the 5[th] respondent’s school;_ _(iv) To issue a writ of mandamus directing the respondents 1 to 4 and 6 to authorize sanction and disburse all benefits attached to the post of Headmistress w.e.f. 2.4.2018 including arrears of salary, revised pensionary benefits etc”_ 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. It is submitted by the learned counsel for the petitioner that the petitioner was initially appointed as UPSA in the 5[th] respondent’s school on 01.10.1984 and the appointment was approved. She was thereafter promoted as HSA (Social Studies) on 20.06.1991. The said ``` WP(C) NO.16651 OF 2019 ``` ``` 3 ``` appointment was also approved. It is submitted that the petitioner retired from service on 31.05.2018. Her appointment as Headmistress had been approved only as Deputy Headmistress by Ext.P1 proceedings dated 14.02.2018 with effect from 01.06.2017. 4. The learned counsel for the petitioner submits that the petitioner was rank No.2 in Ext.P2 seniority list and the rank No.1 in the list had been appointed as Headmaster in 2015 and had retired from service on 02.04.2018. It is submitted that the petitioner had been appointed as Headmistress thereafter, but the approval was limited as Deputy Headmistress on account of the fact that there were other persons in the seniority list who had the qualifications prescribed under Rule 44A of Chapter XIV (A) of KER for appointment as Headmaster. The learned counsel for the petitioner submits that the third proviso introduced to Rule 44A of Chapter XIV (A) of KER specifically provides for a preference to teachers who have acquired test qualifications specified in the Rule. However, it is contended that the explanatory note makes it clear that it was on account of the fact that many teachers who had completed the age of 50 years had acquired ``` WP(C) NO.16651 OF 2019 ``` ``` 4 ``` the prescribed test qualification that the third proviso had been introduced in Rule 44A. It is therefore contended that the Rule is liable to be exercised only as a preference between those HSAs who have completed the age of 50 years and not otherwise. It is resultantly contended that the rejection of approval of the petitioner’s appointment as Headmistress on the ground that there were other test qualified juniors who had not acquired the age of 50 years in the seniority list was completely illegal and unsustainable. 5. The learned counsel for the petitioner has placed a judgment dated 30.08.2016 in W.P.(C) No.19425/2016 for reference. It is stated that the said judgment directed that, since the second proviso to Rule 44A provides for permanent exemption from acquiring the qualification from teachers who have completed the age of 50 years and since the persons who have permanent exemption are to be treated on par with persons who have the qualifications, the only question to be considered while appointing Headmasters is inter se seniority. It is submitted that the said decision has been doubted by a Division Bench of this Court in **Narayanan A. and others v. Vijayalakshmi P. and** ``` WP(C) NO.16651 OF 2019 ``` ``` 5 ``` **others** [2020 KHC 417] on the ground that the said judgment did not consider the impact of the amendment with retrospective effect from 01.06.2015. It is submitted that in view of the fact that another Division Bench of this Court in **Harifa Beevi Kalen v. Manager, PPM Higher Secondary School and others** (W.A. No.925/2019) had taken a contrary rule, the matter has been referred to a larger bench. 6. A counter affidavit has been placed on record by the respondents stating that the language of the Rule is clear and admits to no confusion with regard to the meaning of the proviso and therefore, there is absolutely no requirement to go into the explanatory note or what is stated therein. It is stated that the 5[th] respondent has promoted the petitioner as Headmistress with effect from 02.04.2018 against the retirement vacancy of Sri.Krishnadas who retired on 31.03.2018 which is rejected by the 4[th] respondent for the reason that on verification of seniority list and other documents, it was found that there were other teachers who had acquired the required test qualification who were seniors to the petitioner and they had not submitted relinquishment for promotion. It is submitted that the 5[th] respondent had preferred an ``` WP(C) NO.16651 OF 2019 ``` ``` 6 ``` appeal before the 3[rd] respondent and the same was rejected vide Ext.P4 order and as per the direction contained in Ext.P7 judgment, the 1[st] respondent conducted a hearing and issued Ext.P8 order dated 14.05.2019. It is submitted that the approval for appointment of the petitioner as Headmistress, High School, Mundur was rejected for want of requisite qualification and since there were test qualified teachers available in the school and therefore the issue was covered by the third proviso to Rule 44A. 7. The learned Government Pleader places reliance on a decision of the Apex Court in **Collector of Central Excise, Baroda v. L.M.P. Precision Engg. Co. Ltd.** [(2004) 9 SCC 703] in support of the contention that where the language of the Rule is clear and unambiguous, the constitutional court would not be justified in going to the explanatory note to find the meaning of the rule. The decision in **Rai Sudhir Prasad v. State of Bihar and others** [(2004) 13 SCC 25] is also relied on in support of the same proposition. It is further contended by the learned Government Pleader that even if the explanatory note is gone into, it would only show that it was on ``` WP(C) NO.16651 OF 2019 ``` ``` 7 ``` account of the representation submitted by persons who have crossed the age of 50 years that the Government had taken a decision to consider the necessity for introducing a further proviso to the Rule. However, when the further proviso was introduced, the language of the proviso was clear and unambiguous. The proviso starts with a non obstante clause specifically referring to the second proviso. It is stated that notwithstanding anything contained in the 2[nd] 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. It is therefore contended that since the language of the third proviso is clear and unambiguous, the preference given by the third proviso is specifically to persons who have acquired the qualification and who are otherwise eligible for appointment as Headmaster. In the above view of the matter, it is contended that there is absolutely no merit in the contention raised by the petitioner. 8. Having considered the contentions advanced on either side, I notice that the third proviso starts with a non obstante clause specifically referring to the second proviso. Therefore, it is ``` WP(C) NO.16651 OF 2019 ``` ``` 8 ``` notwithstanding the exemption granted to persons who have crossed the age of 50 years that the further preference is granted to persons who had acquired the qualification. Therefore, the only meaning that can be attributed to a plain reading of the main part of the Rule and the provisos is that, in a case where there is only an exempted teacher in terms of the second proviso and no test qualified teacher, the exempted teacher would be entitled to appointment as Headmaster. However, in a case where there are exempted teachers as well as qualified teachers, then, the preference has to be given to the qualified teacher regardless of the exemption available to persons who have crossed the age of 50 years. I am of the opinion that no other interpretation can be given to the Rule or the proviso on a plain reading of the third proviso. In the above view of the matter, I am of the opinion that the contention raised by the petitioner cannot be accepted. This writ petition thus fails and the same is, accordingly, dismissed. ``` Sd/- ``` ## **`ANU SIVARAMAN`** ## **`JUDGE`** ``` NP ``` ``` WP(C) NO.16651 OF 2019 ``` ``` 9 ``` ## **`APPENDIX OF WP(C) 16651/2019`** |**`PETITIONER’S EXHIBITS`**|| |---|---| |**`EXHIBIT P1`**|**`TRUE COPY OF THE ORDER NO.B6/3569/2017/K.DIS.`**| ||**`DATED 14.2.2018 ISSUED BY THE 4TH RESPONDENT.`**| |**`EXHIBIT P2`**|**`TRUE COPY OF THE SENIORITY LIST OF TEACHERS`**| ||**`BELONGING TO PRIMARY/UPPER PRIMARY/SECONDARY`**| ||**`SCHOOL OF HIGHER SECONDARY SCHOOL, MUNDUR AS`**| ||**`ON 1.1.2018.`**| |**`EXHIBIT P3`**|**`TRUE COPY OF THE ORDER NO.B6/1935/2018/K.DIS`**| ||**`DATED 4.5.2018 ISSUED BY THE 4TH RESPONDENT.`**| |**`EXHIBIT P4`**|**`TRUE COPY OF THE ORDER NO.K.DIS.B4/8964/18`**| ||**`DATED 14.9.2018 ISSUED BY THE 2ND RESPONDENT.`**| |**`EXHIBIT P5`**|**`TRUE COPY OF G.O(MS)NO.157/2015/G.ED DATED`**| ||**`10.6.2015.`**| |**`EXHIBIT P6`**|**`TRUE COPY OF THE REVISION PETITION DATED`**| ||**`14.1.2019 SUBMITTED BY THE PETITIONER BEFORE`**| ||**`THE IST RESPONDENT.`**| |**`EXHIBIT P7`**|**`TRUE COPY OF THE JUDGMENT DATED 21.1.2019 IN`**| ||**`WPC NO.1697/2019.`**| |**`EXHIBIT P8`**|**`TRUE COPY OF G.O(RT) NO.1704/2019/G.EDN DATED`**| ||**`14.5.2019.`**| |**`RESPONDENTS’ EXHIBITS: NIL`**||