P.V. Sujathan v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` MONDAY, THE 20[TH] DAY OF FEBRUARY 2023 / 1ST PHALGUNA, 1944 ``` ## **`WP(C) NO. 30668 OF 2019`** ## **`PETITIONER:`** ``` P.V.SUJATHAN, AGED 53 YEARS PRINCIPAL P.R MEMORIAL HIGHER SECONDARY SCHOOL, PANOOR, P.O PANOOR, KANNUR DISTRICT 670 692 BY ADV POOVAMULLE PARAMBIL ABDULKAREEM ``` ## **`RESPONDENTS:`** - `1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001` - `2 THE DIRECTOR GENERAL EDUCATION, GENERAL EDUCATION DEPRTMENT, JAGATHY, THIRUVANANTHAPURAM 695 001` - `3 THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, REGIONAL OFFICE, KANNUR 670 001` - `4 THE MANAGER, P.R MEMORIAL HIGHER SECONDARY SCHOOL, PANOOR, P.O PANOOR, KANNUR DISTRICT 670 692 BY ADV.NISHA BOSE, SR.GP ADVOCATE GENERAL OFFICE KERALA` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).No.30668/2019 **2** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.30668 of 2019** **---------------------------------------------Dated this the 20[th] day of February, 2023** ## **JUDGMENT** This writ petition is filed with following prayers: - i. To issue a writ of certiorari or any other appropriate writ or order quashing Exts. P5 & P10 orders as they are illegal, arbitrary and discriminatory. ii. To issue a writ of mandamus or any other appropriate writ or order or direction directing the 3[rd] respondent to ratify the declaration of probation of the petitioner and to sanction the increments withheld from 1/6/2017 to him forthwith. iii. To declare that the petitioner is entitled to get exemption from acquiring the test qualification as he has attained 50 years of age at time of promotion as Principal by applying the relevant rules in KER and KS & SSR. iv. To declare that the classification made by the 1[st] respondent by applying the Rule 13B of Part II, WP(C).No.30668/2019 **3** KS & SSR to the Government Higher Secondary School alone confines a class discrimination as the said benefit of the rule is not extended to the petitioner, Principal aided higher secondary school. v. To mould and grant such other reliefs, as this Hon'ble Court shall deem just and proper in the interest of justice, including costs. **==> picture [36 x 12] intentionally omitted <==** 2. Petitioner is the Principal of an aided higher secondary school. He was promoted as Principal of the P.R.Memorial Higher Secondary School, Panoor with effect from 01.06.2016 onwards by the 4[th] respondent. The said promotion as Principal was approved by the 3[rd] respondent by Ext.P1 order without specifying any condition on the declaration of probation is the submission. Thereby the 4[th] respondent declared the probation of the petitioner successfully in the cadre of Principal on 01.06.2017 by Ext.P2. Though Ext.P2 was submitted for ratification to the 3[rd] respondent, the 3[rd] respondent asked the petitioner to produce the test qualification certificates. Since the petitioner attained 50 years of age when he was promoted to the post of Principal, he did not acquire the said qualification as the WP(C).No.30668/2019 **4** benefit of Rule 13B of KS & SSR is applicable to him. According to the petitioner, he is exempted from the test qualification as he crossed 50 years of age as on the date of promotion as Principal, applying the Rule 13B of KS & SSR. It is submitted that the Headmaster of the Primary and High School Section of the aided and Government, are exempted from the test qualifications when they reach 50 years of age. Similarly the Principal of Government Higher Secondary School also would be benefited the said exemption under Rule 13B of KS & SSR is the submission. In such situation, it cannot be said that the benefit of Rule 13 B of KS & SSR or Rule 44 of Chapter XIVA KER cannot be extended to the Principal in Aided Higher Secondary School is the submission. According to the petitioner, when there is no specific provision in Chapter XXXII KER, as to the exemption from acquiring the test qualification, the Rule in KS & SSR will be made applicable as it is mutandis and mutatis. The request of the petitioner is rejected by the Government as per Ext.P10. The grievance of the petitioner is that the ground raised in paragraph 11 of the writ petition is not considered by the WP(C).No.30668/2019 **5** Government. Hence this writ petition. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. 4. The counsel for the petitioner reiterated the contentions raised in the writ petition. The Government Pleader, on the other hand, submitted that the rules applicable to aided school teachers are provided in Rule 9 of Chapter XXXII KER and in the light of the same, the petitioner is not entitled the relief. 5. This Court considered the contentions of the petitioner and the Government Pleader. The contention of the petitioner is that in the absence of any provision in Chapter XXXII KER, Rule 13B of KS & SSR is applicable. The petitioner took a specific contention in paragraph 11 of the writ petition, which is extracted hereunder: “11. It is true that there is no separate rule for exemption of test qualification in the special Rule for Kerala Higher Secondary Education State Service Rule and in Higher Secondary Education Subordinate Service Special Rule, 2001. However, the exemption of test qualification is granted to principal of Government Higher Secondary School by virtue of WP(C).No.30668/2019 **6** Rule 13B of KS & SSR (Supra) by the 1[st] respondent denying the said exemption to the principal of the Aided Secondary School. According to the 1[st] respondent the Principal of the aided Higher Secondary School is not entitled to benefit of exemption for the test qualification by virtue of Rule 13B of KS & SSR Part II as they do not come under the purview of Public Service Act KS & SSRs. This statement itself is arbitrary and discriminatory as the classification made by the 1[st] respondent is not reasonable classification for the following grounds; a) The Principal in both sector works under the same department and under the same Director. b) Posts and nature of duties are one and the same. c) Both are paid by the Government in the same time scale. d) Both services are considered as state service though there is separate rules for governing the same. e) There is no separate rules in both category of higher secondary section for exemption of test qualification on attaining the age of 50 years. f) The Rules in KSR and KS & SSR are Mutandis and WP(C).No.30668/2019 **7** Mutatis in the absence of rules in KER. g) There is no rational behind making a classification between the two especially when both categories were treated as one and the same in all aspects except selection and method of appointment.” 6. I think this point is not considered by the Government while passing Ext.P10 order. The Government has to take a decision first in these types of cases. If the Government reject it, this Court can consider whether there is any discrimination or not. Therefore, without expressing any opinion on merit, Ext.P10 can be set aside and there can be a direction to the Government to reconsider the matter in the light of the contentions raised in paragraph 11 of the writ petition. Therefore, this writ petition is disposed of in the following manner: 1. Ext.P10 is set aside. 2. The 1[st] respondent is directed to reconsider the matter adverting the contention raised by the petitioner in paragraph 11 of this writ petition, WP(C).No.30668/2019 **8** as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. 3. The petitioner will produce a certified copy of this judgment along with a copy of the writ petition before the 1[st] respondent for compliance. JV sd/- **P.V.KUNHIKRISHNAN JUDGE** WP(C).No.30668/2019 **9** ## **`APPENDIX OF WP(C) 30668/2019`** |`PETITIONER EXHIBITS`|`PETITIONER EXHIBITS`| |---|---| |`EXHIBIT P1`|`TRUE COPY OF THE ORDER NO.`| ||`A2/5741/2016 DATED 18/11/2016 ISSUED`| ||`BY THE 3RD RESPONDENT`| |`EXHIBIT P2`|`TRUE COPY OF THE DECLARATION OF`| ||`PROBLEM DATED 1/6/2017 ISSUED BY THE`| ||`4TH RESPONDENT`| |`EXHIBIT P3`|`TRUE COPY OF THE LETTER DATED`| ||`18/7/2017 ISSUED BY THE 3RD RESPONDENT`| |`EXHIBIT P4`|`TRUE COPY OF THE REPLY DATED`| ||`30/08/2017 SUBMITTED BY THE PETITIONER`| ||`BEFORE THE 3RD RESPONDENT`| |`EXHIBIT P5`|`TRUE COPY OF THE ORDER NO.`| ||`A2/3401/2017 DATED 21/10/2017 ISSUED`| ||`BY THE 3RD RESPONDENT`| |`EXHIBIT P6`|`TRUE COPY OF THE APPEAL DATED`| ||`4/12/2017 PREFERRED BY THE PETITIONER`| ||`BEFORE 1ST RESPONDENT`| |`EXHIBIT P7`|`TRUE COPY OF THE ORDER BEARING NO.`| ||`GO(RT) NO 670/2017/G.EDN DATED`| ||`9/3/2017 ISSUED BY THE 1ST RESPONDENT`| |`EXHIBIT P8`|`TRUE COPY OF THE JUDGMENT DATED`| ||`29/11/2018 IN W.P(C0 NO. 38811/2018`| |`EXHIBIT P9`|`TRUE COPY OF THE HEARING NOTICE DATED`| ||`12/6/2019 ISSUED BY THE 1ST RESPONDENT`| |`EXHIBIT P10`|`TRUE COPY OF THE GO(RT) NO.`| ||`3722/2019/G.EDN DATED 20/09/2019`| ||`ISSUED BY THE 1ST RESPONDENT`|