P.V. Harikrishnan v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 10TH DAY OF OCTOBER 2019 / 18TH ASWINA, 1941** ## **WP(C).No.24402 OF 2012(A)** ## **PETITIONER/S:** **P.V.HARIKRISHNAN, AGED 35 YEARS, LOWER PRIMARY SCHOOL ASSISTANT, EDAYUR S.V.A. LOWER PRIMARY SCHOOL, EDAYUR NORTH P.O.,(VIA) KUTTIPURAM, PIN. 676 552, MALAPPURAM DISTRICT.** **BY ADV. DR.GEORGE ABRAHAM** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE ASSISTANT EDUCATIONAL OFFICER, KUTTIPURAM, PIN. 679 001.** - **3 THE DISTRICT EDUCATIONAL OFFICER, TIRUR - 676 505.** - **4 SMT. N.R. SAILAJA, HEADMISTRESS, EDAYUR S.V.A. LOWER PRIMARY SCHOOL, EDAYUR NORTH P.O., (VIA) KUTTIPURAM, PIN. 676 552, MALAPPURAM DISTRICT.** - **5 THE MANAGER, EDAYUR S.V.A. LOWER PRIMARY SCHOOL, EDAYUR NORTH P.O., (VIA) KUTTIPURAM, PIN. 676 552, MALAPPURAM DISTRICT. R1 TO R3 BY SRI. JESTIN MATHEW, GOVERNMENT PLEADER R4 & R5 BY ADV. SRI.V.A.MUHAMMED SRI.M.SAJJAD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-10-2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.24402 of 2012 2 ## **JUDGMENT** Petitioner joined service of the Edayur S.V.A Lower Primary School, Edayur North, Kuttipuram, Malappuram District as Lower Primary School Assistant with effect from 01.06.1998, which was approved from the date of his appointment. Petitioner has also passed the tests in Kerala Education Act and Rules as well as the Accounts Test Lower conducted by the Kerala Public Service Commission, on 21.01.2011. This writ petition is filed by the petitioner seeking to quash Ext.P11 order passed by the State Government dated 12.09.2012, whereby the order passed by the Manager of the school was upheld and the Revision filed by the petitioner was rejected, stating that petitioner is not entitled to be appointed as the Headmaster of the school, overlooking the seniority of the 4[th] respondent, Smt. N.R. Sailaja, and for other related and consequential reliefs. Brief material facts for the disposal of the writ petition are as follows: 2. According to the petitioner, on the retirement of the then Headmistress viz., Smt. Mariyamma on 30.04.2006, the Manager appointed the 4[th] respondent to the post on 01.05.2006. However, the 4[th] respondent relinquished the said post on 30.04.2009, and she was W.P.(C) No.24402 of 2012 3 continuing as L.P.S.A. The Manager then appointed one K. Hamza with effect from 01.05.2009 as the teacher in charge of the Headmaster, who, according to the petitioner, is not qualified. Case of the petitioner is that, petitioner became qualified on 21.01.2011, and thereupon, petitioner staked a claim to be appointed as Headmaster. However, the claim so raised by the petitioner to the authorities was declined up to the State Government. Anyhow, on 22.07.2015, petitioner secured Government employment. Therefore, now petitioner is confining the benefits entitled to be secured up to 21.07.2015. Anyhow, from 15.07.2011, the 4[th] respondent was again appointed as the Headmistress of the school. The said appointment was challenged by the petitioner before the educational authorities by filing appeals and revision, but the same were also dismissed by the statutory authorities including the State Government. These are the basic background facts put forth by the petitioner seeking interference with Ext.P11 order passed by the State Government in the revision filed by the petitioner. **==> picture [396 x 12] intentionally omitted <==** respondent, refuting the allegations and claims and demands raised by the petitioner, and justifying the ## W.P.(C) No.24402 of 2012 4 stand adopted by the State Government in view of Rule 44(1) of Chapter XIV-A of the Kerala Education Rules (K.E.R.), and it is also submitted that the stand adopted by the Managements is correct, since, even according to the petitioner, 4[th] respondent is the senior-most teacher available in the school for appointment. 4. The 4[th] and 5[th] respondents have jointly filed a counter affidavit, virtually supporting the stand adopted by the State Government and also producing a request made by the 4[th] respondent 07.12.2010, requesting to appoint her as the Headmistress of the school. Thereafter, yet another letter is submitted by the 4[th] respondent dated 03.02.2011, requesting to remove Sri. Hamza, the teacher in charge and appoint the 4[th] respondent as the Headmistress of the school. Therefore, according to the 5[th] respondent, since the 4[th] respondent was the seniormost L.P.S.A., she is entitled as of right to be appointed in the school in accordance with Note to Rule 44(1) of Chapter XIV-A of K.E.R., and therefore, seeks dismissal of the writ petition. W.P.(C) No.24402 of 2012 5 5. I have heard learned counsel for the petitioner, learned Government Pleader as well as the learned counsel appearing for respondents 4 and 5, and perused the pleadings and the documents on record. 6. The sole question emerges for consideration is, whether there is any patent illegality or arbitrariness in Ext.P11 order passed by the State Government. Learned counsel for the petitioner has invited my attention to the Full Bench judgment of this Court in ' _**Usha Thayyil v. State of Kerala**_ ' [2009 (4) KLT 1 (F.B.)], wherein the question with respect to the relinquishment of the post by a senior teacher was considered. Paragraph 12 of the said judgment is relevant to the context, which reads thus: _**“12** . A close reading of the Note to R.44(1) of Chap. XIV-A of the K.E.R., which we have already quoted above would show that whenever the Manager intends to appoint a person as Headmaster other than the senior claimant, he should obtain a written consent from the senior hand. The renouncement of his claim should be permanent. We feel that the use of the word “whenever” has some significance. Concise Oxford English Dictionary gives the meaning of “whenever” as “at whatever time, on whatever occasion, every time that”. Going by the plain meaning of the above word, we are of the view that on every occasion, when the Manager appoints a junior, overlooking a senior claimant, the consent of the latter has to be obtained. That is, consent obtained once will only apply to that particular appointment made at the relevant time. As far as that appointment is concerned, the relinquishment is permanent. In other words, the senior cannot retract from the relinquishment and stake claim for appointment,_ W.P.(C) No.24402 of 2012 6 _in the very same vacancy. But, when a subsequent vacancy arises, then also the Manager has to get consent of the senior claimant, if it is intended to overlook that claimant. We think, there is no ambiguity in the words used in the Note to R.44 (1) of Chap.XIV-A, K.E.R. Even assuming, there is some ambiguity, an interpretation which is favourable to the teacher should be adopted. The said Note was introduced to protect the interest of teachers. By the above interpretation, the interest of the incumbent who was promoted overlooking the seniority of another claimant and also the interest of latter are protected. We have gone through the decisions cited by the learned counsel for the petitioner and also noticed the relevant canons of interpretation. Having regard to the scheme of the Act, we notice that there are several provisions which are introduced as a check on the managers and to safeguard the interest of teachers. This is the view taken by this Court while interpreting R.51A of Chap.XIV-A and R.81-A of Chap.XIV-A of the K.E.R. The Note to R.44 is one such provision. So, we think, the view taken by this Court in George's case (supra) and Rajasree's case (supra) lays down the correct legal position.”_ 7. It is the case of learned counsel for the petitioner that, since the 4[th] respondent has relinquished the post after appointment, she is not entitled to stake claim again against the post of Headmistress. However, the said question was considered taking into account the Note to Rule 44(1) of Chapter XIV-A of K.E.R. by the Full Bench, and held that, when a senior is available for appointment to the post of Headmaster, unless and until the right held so is relinquished permanently by the seniormost teacher, no other persons are entitled to stake any claim. W.P.(C) No.24402 of 2012 7 Learned counsel for the petitioner has also a contention that since the petitioner became qualified on 21.01.2011, when the post was occupied by K. Hamza, a teacher in charge, the claim raised by the petitioner as soon as he became qualified is the rightful claim over and above the seniormost teacher available in the school who has already relinquished the claim after having appointed as Headmistress. 8. It is relevant to consider the issue taking into account the Note to Rule 44(1) of Chapter XIV-A K.E.R., which reads thus: _“_ _**Note** :- Whenever the Manager intends to appoint a person as Headmaster other than the senior claimant, the Manager shall obtain a written consent from such senior claimant renouncing his claim permanently. Such consent shall have the approval of the Educational Officer concerned.”_ 9. Learned Government Pleader as well as the learned counsel appearing for respondents 4 and 5 have addressed arguments relying upon the provisions of law discussed above, and the Full Bench judgment cited _supra_ , and submitted that, petitioner is not at all entitled to make any claim, since apart from the 4[th] respondent, there is yet another senior teacher available in the school viz., Smt. Alice Thomas. Learned counsel has also invited my attention to the W.P.(C) No.24402 of 2012 8 Full Bench judgment of this Court in ' _**Padmanabhan Nair v. Deputy Director**_ ' [1991 (1) KLT 337 (F.B.)] to canvass the proposition that, as soon as a qualified hand becomes available, he should be appointed replacing the teacher in charge. But, going through the facts and circumstances of the said case, it has no relevance to the facts and circumstances in the case on hand, and there, the question remaining was only with respect to a teacher in charge _vis-a-vis_ a qualified hand to occupy the post of Headmaster. So much so, even assuming for argument sake that the 4[th] respondent is not entitled to claim for the post, even then, petitioner is not entitled for the same due to the availability of a senior teacher, namely Alice Thomas. Therefore, there is no basis for the claim of the petitioner or rather the claim raised is against the provisions of law discussed above, and therefore, no writ of mandamus can be issued, as is prayed for. 10. Having evaluated the factual and legal situations, I am of the considered opinion that, the State Government has passed Ext.P11 order on finding that the appointment made by the Management is correct and is in accordance with law. Such a decision was taken by the State Government by providing full-fledged W.P.(C) No.24402 of 2012 9 opportunity of hearing to the petitioner and all others concerned. Therefore, I do not think petitioner has made out any case justifying interference of this Court under Article 226 of the Constitution of India, there being no illegality or arbitrariness or other legal infirmities, justifying to do so. Resultantly, writ petition fails, accordingly it is dismissed. **Sd/-** ## **SHAJI P.CHALY** **JUDGE** W.P.(C) No.24402 of 2012 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF CERTIFICATE OF PASSING OF TEST IN KERALA EDUCATION ACT ISSUED TO THE PETITIONER BY THE PUBLIC SERVICE COMMISSION. EXHIBIT P2 TRUE COPY OF CERTIFICATE OF PASSING OF ACCOUNT TEST LOWER ISSUED TO THE PETITIONER BY THE PUBLIC SERVICE COMMISSION. EXHIBIT P3 TRUE COPY OF REQUEST SUBMITTED BY THE PETITIONER DATED 02/05/2011 TO THE MANAGER.** - **EXHIBIT P4 TRUE COPY OF PETITIONER'S REQUEST DATED 03/06/2011 TO THE ASSISTANT EDUCATIONAL OFFICER.** - **EXHIBIT P5 TRUE COPY OF JUDGMENT DATED 20/06/2011 IN WPC 16439/11 OF THIS HON'BLE COURT.** - **EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS OF THE MANAGER DATED 15/07/2011.** - **EXHIBIT P7 TRUE COPY OF ORDER OF THE ASSISTANT EDUCATIONAL OFFICER DATED 12/08/2011.** - **EXHIBIT P8 TRUE COPY OF APPEAL DATED 25/08/2011 FILED BY THE PETITIONER TO THE DISTRICT EDUCATIONAL OFFICER.** - **EXHIBIT P9 TRUE COPY OF ORDER OF THE ASSISTANT EDUCATIONAL OFFICER DATED 12/12/2011.** - **EXHIBIT P10 TRUE COPY OF REVISION FILED BY THE PETITIONER WITH THE GOVERNMENT, DATED 20/01/2012.** - **EXHIBIT P11 TRUE COPY OF GO(RT) 4305/12/G.EDN. DATED 12/09/2012.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R5(A) TRUE COPY OF THE ORDER OF THE ASSISTANT EDUCATIONAL OFFICER DATED 06/04/2009.** **EXHIBIT R5(B) TRUE COPY OF THE SENIORITY LIST.** W.P.(C) No.24402 of 2012 11 **EXHIBIT R5(C) TRUE COPY OF THE REPRESENTATION OF SRI.HAMZA K. DATED 15/06/2011. EXHIBIT R5(D) TRUE COPY OF THE SUBMISSION OF SMT. SAILAJA DATED 07/12/2010. EXHIBIT R5(E) TRUE COPY OF THE SUBMISSION OF SMT. SAILAJA DATED 03/02/2011.**