Smitha Paul v. State of Kerala and others (W.P.(C) Nos.15688 of 2017-I & 18439 of 2017-D)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 28TH DAY OF JUNE 2017/7TH ASHADHA, 1939** **WP(C).No. 15688 of 2017 (I)** **----------------------------** ## **PETITIONER:** ## **----------** **SMITHA PAUL, AGED 44 YEARS, S/O.BAIJU, HEADMISTRESS, A.M.UPPER PRIMARY SCHOOL, PUNNATHALA, (VIA) THIRUR, MALAPPURAM DISTRICT.** **BY ADV. DR.GEORGE ABRAHAM** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM - 695 014.** **3. DISTRICT EDUCATIONAL OFFICER, THIRUR - 676 101.** **4. ASSISTANT EDUCATIONAL OFFICER, KUTTIPPURAM - 679 571.** **5. MANAGER,** - **A.M.UPPER PRIMARY SCHOOL, PUNNATHALA, (VIA) THIRUR, MALAPPURAM DISTRICT - 676 101.** **6. K.ALI,** - **LPSA, A.M.UPPER PRIMARY SCHOOL, PUNNATHALA, (VIA) THIRUR, MALAPPURAM DISTRICT - 676 101.** **R1 TO R4 BY SENIOR GOVERNMENT PLEADER SRI B UNNIKRISHNA KAIMAL R5,R6 BY ADVS. SRI.V.A.MUHAMMED SRI.T.V.VIJAYARAJAN SRI.M.SAJJAD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-06-2017, ALONG WITH WPC. 18439/2017, THE COURT ON 28-06-2017 DELIVERED THE FOLLOWING:** **K.V.** ## **WP(C).No. 15688 of 2017 (I)** ## **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT-P1: TRUE COPY OF THE SENIORITY LIST AS ON 1/1/2014.** **EXHIBIT-P2: TRUE COPY OF THE ORDER OF THE A.E.O., KUTTIPPURAM DATED 22/2/2015, REJECTING THE APPROVAL OF THE PETITIONER.** **EXHIBIT-P3: TRUE COPY OF THE ORDER OF THE D.E.O. THIRUR, DATED 2/12/2015.** **EXHIBIT-P4: TRUE COPY OF THE CERTIFICATE ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION WITH RESPECT TO ACCOUNTS TEST (LOWER) DATED 14/5/2015.** **EXHIBIT-P5: TRUE COPY OF THE CERTIFICATE ISSUED BY KERALA PUBLIC SERVICE COMMISSION WITH RESPECT TO TEST ON KERALA EDUCATION ACT AND RULES DATED 14/5/2015. EXHIBIT-P6: TRUE COPY OF THE ORDER ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER DATED 31/8/2015. EXHIBIT-P7: TRUE COPY OF THE ORDER OF THE D.P.I. DATED 24/6/2016. EXHIBIT-P8: TRUE COPY OF THE REVISION SUBMITTED BY THE PETITIONER. EXHIBIT-P9: TRUE COPY OF THE JUDGMENT IN W.P.(C) 34190/2016. EXHIBIT-P10: TRUE COPY OF THE GOVERNMENT ORDER GO(RT)NO.451/2017/G.EDN.DATED 18/2/2017. EXHIBIT-P11: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER.** **EXHIBIT-P12: TRUE COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT DATED 26/4/2017.** **EXHIBIT-P13: TRUE COPY OF THE ORDER DATED 2/5/2017 ISSUED BY THE MANAGER. RESPONDENT(S)' EXHIBITS ----------------------R5(A) TRUE COPY OF THE CERTIFICATE ISSUED BY KERALA PUBLIC SERVICE COMMISSION-DEPARTMENTAL TESTS DATED 22/3/2013. R5(B) TRUE COPY OF THE ORDER NO 1/2017 DATED 2/5/2017. R5(C) TRUE COPY OF THE JUDGMENT IN WPC NO 14971/2014 DATED 24/6/2014. R5(D) TRUE COPY OF THE ATTENDANCE REGISTER OF A.M U P SCHOOL PUNNATHALA FOR THE MONTHS OF MARCH-MAY 2017.** **-2-** **-2-** ## **WPC 15688 OF 2017:** ## **-----------------** **R5(E) TRUE COPY OF THE LETTER DATED 9/5/2017.** **R5(F) TRUE COPY OF THE ACKNOWLEDGMENT OF THE DEPARTMENT OF POST INDIA.** **/TRUE COPY/** **P.S.TO JUDGE** **K.V.** ## **P.V.ASHA, J.** ----------------------------------------------------- W.P(C) Nos.15688 of 2017-I, and 18439 of 2017-D ---------------------------------------------------------------------Dated this the 28[th] day of June, 2017 ## **JUDGMENT** The issue arising in both these cases relate to the promotion to the post of Headmaster in the 5[th] respondent's school, which is an aided Upper Primary School governed by Kerala Education Act and Kerala Education Rules, 1958 ('KER' for short) and hence these writ petitions are disposed of by this common judgment. Parties and documents referred to herein are as described in W.P(c).No.15688 of 2017 unless otherwise specified. 2. W.P(c).No.15688 of 2017 is filed by Smt.Smitha Paul claiming that she is the senior most UPSA entitled for promotion as Headmaster. She commenced her services as UPSA on 1.6.1994. She is a graduate with B.Ed and T.T.C. When a vacancy of Headmaster arose in the school on retirement of Sri K.P.Sreedharan on 21.4.2014, the Manager appointed the petitioner, who was the senior most UPSA as Headmistress w.e.f W.P(C) Nos.15688 of 2017-I & 18439 of 2017-D 2 1.5.2014. But the AEO rejected the proposal for approval of her promotion as per Ext.P2 order dated 22.02.2015 on the ground that she did not have the requisite test qualifications under the KER and the Right of Children for Free and Compulsory Education Rules. In an appeal filed by the Manager, the DEO upheld the order of the AEO as per Ext.P3 order dated 2.12.2015 on the ground that the petitioner did not have the test qualification as on 1.5.2014 and also on the ground that appeal was submitted beyond the time limit. The Director of Public Instructions, rejected the revision petition against it, as per Ext.P7 on the ground that the petitioner had not attained the age of 50 years and she did not have the test qualification as on the date of occurrence of vacancy. It was also found that teachers, who were juniors to the petitioner, had already acquired qualification and relinquishment was not obtained from them. It was also found that though relinquishment was obtained from 2 teachers subsequently, it was with retrospective effect. It was found that yet another qualified junior was available in the school who had not relinquished his claim over the post of Headmaster. The matter was taken up in revision before the W.P(C) Nos.15688 of 2017-I & 18439 of 2017-D 3 Government and in Ext.P10 order the Government found that the qualification required for promotion to the post of Headmaster was 12 years of teaching experience and pass in departmental tests and test in Kerala Education Act and Rules or else the teacher should have attained the age of 50 years. The petitioner was only aged 44 years. Though she had completed 12 years of service as on 1.5.2014, she did not have the test qualification or eligibility for exemption. It was further found that M/s.Abdurahim Valappath, who was fully qualified, and Safar Iqbal, who had passed Account Test and KER, had relinquished their claim for promotion. In the case of the 6[th] respondent it was found that though he had completed 12 years of service and passed Account Test, he did not have the test qualification in KER and the only person who was found qualified as on 1.5.2014, i.e Sri Abdurahim Valappath, had already relinquished his claim. Accordingly, the orders passed by the subordinate authorities were upheld. 3. While so the Manager, who promoted her and had been pursuing the matter before the educational authorities, issued Ext.P13 order on 02.05.2017, withdrawing the promotion W.P(C) Nos.15688 of 2017-I & 18439 of 2017-D 4 granted to the petitioner as Headmistress, saying that the petitioner, who did not have test qualification, was not qualified for promotion as Headmistress as on 01.05.2014; whereas the 6[th] respondent, who was the next senior hand, was fully qualified as on 01.05.2014, as test in Education Act and Rules is not yet made a qualification. 4. The petitioner has filed the writ petition in the above circumstances challenging Ext.P13 order as well as the orders rejecting approval to her promotion. She claims that since she passed Account Test (Lower) and Kerala Education Act and Rules as per Exts.P4 and P5 certificates issued on 14.5.2015 by the Kerala Public Service Commission, her promotion ought to have been approved at least from the date on which she acquired the test qualification on 14.05.2015. She therefore claims that her promotion should have been approved as Temporary Headmaster from 01.05.2014, the date of her original appointment and as Headmistress w.e.f 16.2.2015 onwards, the date on which she passed the Test qualifications. 5. At the same time, the 5[th] respondent Manager has filed a counter affidavit, on behalf of the 6[th] respondent also, W.P(C) Nos.15688 of 2017-I & 18439 of 2017-D 5 stating that the 6[th] respondent was the senior most qualified hand as on 01.05.2014. He states that he has withdrawn the promotion granted to the petitioner and promoted the 6[th] respondent as Headmaster as per Ext.P13 order, which is produced as Ext.R5(b) along with his counter affidavit. Producing the attendance register as Ext.R5(d), he stated that the 6[th] respondent has assumed charge as Headmaster and the petitioner is not handing over the key, though she was relieved from the post. According to the 5[th] respondent, the petitioner, who was not qualified as on the date of occurrence of vacancy, is not entitled to promotion when a fully qualified hand was there. 6. Though the promotion granted to the petitioner is withdrawn saying that the educational authorities have rejected her promotion and the Manager was fully satisfied that the 6[th] respondent was the fully qualified hand, since the test qualification in KER is not yet implemented, the 6[th] respondent was not promoted as per Ext.P13/R5(b) order. 7. The 6[th] respondent has filed W.P(c).No.18439 of 2017 challenging Ext.P10 order of the Government issued in the revision petition filed by the petitioner, to the extent it observed W.P(C) Nos.15688 of 2017-I & 18439 of 2017-D 6 that he was not qualified for promotion as Headmaster for want of KER test qualification, for a declaration that he is qualified for promotion and for a direction to the Assistant Educational Officer to approve his promotion as Headmaster with effect from '31.04.2014' the date of occurrence of vacancy. Though the Manager has stated that the order of promotion of the 6[th] respondent is Ext.R5(b)/Ext.P13 withdrawing the promotion of the petitioner, the 6[th] respondent has produced the order promoting him as Headmaster with effect from 02.05.2017 onwards against the vacancy caused by retirement of K.P.Sreedharan on 30.04.2014. 8. In this writ petition, the contention of the 6[th] respondent is that Ext.P10 order to the extent it observes that he is not having the test qualification for promotion, without hearing him, is illegal and liable to be set aside. He claims that the test in KER is not so far prescribed in accordance with Rules as provided in the Right of Children for Free and Compulsory Education Act, 2009. He also relies on the judgment dated 24.06.2014 in W.P(c).No.14971 of 2014 and a connected case in support of that contention. Therefore, according to him, he was W.P(C) Nos.15688 of 2017-I & 18439 of 2017-D 7 the senior most qualified hand at the time when the vacancy arose on the retirement, in May 2014. The Manager has appointed him on 02.05.2017, as per the order Ext.P5 produced in his case and therefore his promotion is liable to be approved. 9. The petitioner has filed the writ petition claiming that she is the only qualified hand with all test qualification and 6[th] respondent who is not having test qualification in KER is not qualified for promotion. The contention raised on behalf of the petitioner at the time of hearing is that the 6[th] respondent in the writ petition had never objected to her appointment as Headmaster till this time. Therefore, the 6[th] respondent, cannot have any claim for promotion as Headmaster at this stage after a period of 3 years and therefore the order granting him promotion and the order withdrawing promotion to her are illegal. It is also pointed out that promotion is granted to the 6[th] respondent from 02.05.2017, at a time when she was the senior most qualified teacher. 10. Heard the learned counsel appearing on either side. 11. The case of the petitioner is that her promotion was liable to be approved as Temporary Headmistress from 1.5.2014 W.P(C) Nos.15688 of 2017-I & 18439 of 2017-D 8 to 15.2.2015 and her request for the same was not considered while passing Ext.P10 order. She further claims that she became fully qualified for promotion as Headmistress as on 16.2.2015 on acquiring the test qualifications in Account Test as well as KER and therefore she is entitled to get her promotion approved from 16.02.2015 onwards. The petitioner submits that she has approached the Government with a representation and the Government has called for the details. Ext.P10 is an order passed against the orders passed by the subordinate educational authorities, against which no review is possible. 12. Exts.P2 and P3 orders would show that the proposal submitted by the Manager was for promotion of the petitioner as Headmistress. The revision petition Ext.P8 would also show that the petitioner's claim was for approval of her promotion as Headmistress. Therefore, it would appear that neither the petitioner nor any of the respondents have raised or considered the question of approval of promotion as Temporary Headmaster or as to the requirement of a temporary Headmaster. 13. The petitioner challenges the orders rejecting approval to her promotion. The first rejection in Exts.P2 and P3 W.P(C) Nos.15688 of 2017-I & 18439 of 2017-D 9 were for want of approved seniority list and the test qualifications. By Ext.P6 proceedings dated 31.08.2015, the 4[th] respondent has approved the permanent relinquishment of promotion submitted by M/s.Abdurahim Valappath and Safar Iqbal on 22.06.2015 with effect from 01.05.2014. However, the D.P.I, in Ext.P7 order issued on 24.06.2016, found that relinquishment was obtained from 2 of the juniors of the petitioner, who were test qualified, with retrospective effect and even thereafter there was one more junior who had not relinquished promotion. Therefore revision petition was rejected seeing that promotion was made when test qualified juniors were available. In the revision petition Ext.P8 also the petitioner sought for approval of her promotion as Headmistress w.e.f 1.5.2014, pointing out that she was the senior most as per the approved seniority list Ext.P1 as on 1.4.2014. She also claimed that the school has got minority status and the Manager is entitled to appoint any qualified teacher as head of the institution. Even though it was stated that she had become qualified in the Account Test and KER enclosing the certificates, it appears that no request was made for promotion w.e.f the date W.P(C) Nos.15688 of 2017-I & 18439 of 2017-D 10 on which she acquired qualification. In Ext.P10 order the Government has considered only the request for approval of her promotion as Headmistress w.e.f 1.5.2014. However in that order, the Government had found that the 6[th] respondent though was qualified otherwise did not have KER test qualification and hence he was not qualified and it was not necessary to obtain any relinquishment from him. Though the other relinquishments were found valid, as the petitioner did not have the test qualification as on 1.5.2014, the revision petition was rejected. The rejection of the revision petition cannot be said to be illegal inasmuch as the petitioner did not have the qualification as on that date when the vacancy arose. Now what the petitioner claims in this writ petition is that the Government did not consider her eligibility for promotion with effect from the date on which she got qualified. 14. The Manager, who was prosecuting the proceedings for getting the promotion of the petitioner approved, has now turned round and withdrew the promotion of the petitioner saying that he is convinced of the qualifications of the 6[th] respondent as on the date of occurrence of vacancy, when the W.P(C) Nos.15688 of 2017-I & 18439 of 2017-D 11 promotion granted to the petitioner was rejected by all the authorities. He has appointed the 6[th] respondent as Headmaster in the place of the petitioner with effect from 02.05.2017. The petitioner claims that such a promotion could not have been made at a time when the petitioner, a fully qualified senior, was available. 15. The petitioner challenges the order Ext.P13, by which her promotion is withdrawn, at a time when she became qualified, alleging that promotion granted to the 6[th] respondent is illegal as he does not have the test qualification in Kerala Education Act and rules, which is mandatory under Rule 18 of the Kerala Right of Children to Free and Compulsory Education Rules, 2011. Since she is the first teacher, who acquired both the qualifications, she claims approval from 2/2015 and claims that the action of the Manager is illegal. 16. Rule 18 of the RTE Rules 2011 provides that the Head teacher shall possess pass in such departmental tests and test on Kerala Education Act and Rules as may be specified in that regard. In the judgment in W.P.(C) No.14971 of 2014 (produced as Ext.P5 in the writ petition of 6[th] respondent), this issue W.P(C) Nos.15688 of 2017-I & 18439 of 2017-D 12 regarding test qualification to be acquired under Rule 18 was considered and it was held that such a test is not so far specified as provided in the Rules. Therefore, the finding of the Government, who is a party to that judgment that the 6[th] respondent is not qualified, cannot be right or correct and the 6[th] respondent is entitled to be treated as fully qualified, as he has already passed the account test lower. The order Ext.P10 to the extent it observed that the 6[th] respondent was not qualified for promotion for want of pass in KER test, is therefore liable to be expunged. 17. Therefore, it can be seen that the 6[th] respondent was fully qualified as on the date of occurrence of vacancy. Admittedly, the petitioner acquired the qualifications only in February 2015. 18. Then, the only question which arises is whether the inaction of the 6[th] respondent in raising any objection or in filing any appeal against petitioner's promotion despite the fact that he was the qualified hand as on the date of occurrence of vacancy on 1.5.2014 will stand in the way of his promotion. The 6[th] respondent has never raised any objection against the promotion W.P(C) Nos.15688 of 2017-I & 18439 of 2017-D 13 of the petitioner. Even in his writ petition he only says that the finding of the Government is not correct and he was having all the qualifications. The Manager who realises the mistake done by him, only after the Government rejected the revision petition in 2017, also does not state anything regarding the silence of the 6[th] respondent. Rules do not provide for obtaining relinquishment from juniors. 19. Sri George Abraham, the learned counsel for the petitioner relied on the judgments in **Padmanabhan Nair v. Dy.Director** [1991 (1) KLT 337(F.B)], **Geevarghese v. State of Kerala** [2000 (3) KLT SN 31 (C.No.37)], **D.M.Bharati v. L.M.Sud** [1991 Supp (2) SCC 162] etc. and argued that the 6[th] respondent, who never raised any objection and did not file any appeal, cannot have any claim for promotion as Headmaster. 20. It is settled law that the qualification should be reckoned as on the date of occurrence of vacancy. The question whether the 6[th] respondent will lose the right for promotion has to be considered in the light of the relevant provisions relating to the promotion to the post of Headmaster. Rule 43 of Chapter XIVA KER provides that subject to Rules 44 and 45, vacancies in W.P(C) Nos.15688 of 2017-I & 18439 of 2017-D 14 any higher grade shall be filled up by promotion of qualified hands made in the lower grade in the order of seniority, if such hands are available. As per the Note to Rule 43, promotion under that rule shall be made from persons possessing the prescribed qualification at the time of occurrence of vacancy. Rule 44 provides that the appointment of Headmasters shall be ordinarily be from the seniority list maintained under Rule 34 subject to the rules laid down in the matter. Note to that rule provides that relinquishment shall be obtained from the senior claimants before any junior is appointed as Headmaster. Admittedly, the petitioner did not have the qualification as on the date of occurrence of vacancy. 21. Clause (1) of Rule 44 itself provides that any teacher aggrieved by an appointment of Headmaster will have the right of appeal to the Department. In this case, even though the petitioner was appointed in the year 2014 as Headmistress, the 6[th] respondent or any other teacher in the school has not filed any appeal invoking clause 1 of Rule 44. The note to Rule 44 does not provide for any relinquishment from juniors. However, this is a case where the juniors were qualified when the W.P(C) Nos.15688 of 2017-I & 18439 of 2017-D 15 petitioner who is the senior hand was not qualified. The 6[th] respondent does not have a complaint that the appointment was made without getting relinquishment from him though it is found by respondents 2 to 4. The teachers aggrieved by the promotion are provided statutory remedy against the action of the Manager in appointing a Headmaster, by filing an appeal as provided under sub rule 1 and second appeal to the next higher authority under sub rule 3. Sub rule 4 provides that no appeal shall be entertained unless it is preferred within a period of one month from the date of receipt of the order appealed against. In this case the promotion of the petitioner is not approved. 22. The contention raised by the learned Counsel for the 5[th] and 6[th] respondents is that appeal or objection was required only if the promotion was approved. According to Dr. George Abraham the provisions for appeal under Rule 44 is against the appointment; whereas under Rule 8 it is against approval. 23. In this case, even in the absence of any appeal or objection, the Manager granted promotion to the 6[th] respondent, though he continued to be a silent spectator for the last 3 years when the petitioner was discharging the duties of a headmaster. W.P(C) Nos.15688 of 2017-I & 18439 of 2017-D 16 He has no explanation for his silence. Now I shall examine the judgments relied on by Dr. George Abraham, the learned Counsel for the petitioner. 24. In the judgment in **Geevarghese v. State of Kerala** [2000 (3) KLT SN 31 (C.NO.37)], this Court held that in the absence of a complaint against an appointment to the post of Headmaster, the promotion need not be varied on the basis of a complaint submitted subsequently. In that case a junior teacher was promoted as Headmaster. The senior teacher did not object to it and did not file any appeal against the appointment. It was held therein that merely because there was variation in the manner of relinquishment, approval cannot be declined to the promotion of the junior teacher as Headmaster. But it would appear that there was no question regarding qualification for the junior hand appointed as Headmaster. Therefore, the dictum in that judgment cannot be applied in this case. 25. In **D.M.Bharati v. L.M.Sud** (supra), the appellant had challenged an appointment made in 1963-64 by direct recruitment, in a writ petition filed in 1978 and claimed promotion. In that case the appellant had submitted certain W.P(C) Nos.15688 of 2017-I & 18439 of 2017-D 17 representations and he was kept out of service at the time when the appointments were made. But seeing that he did not take any effective steps at least when he was reinstated in the year 1971 and no steps were taken upto 1976, the Apex Court repelled his claim. The circumstances of that case are not comparable to this case. 26. The judgment in **1976 KLT SN 78** is only to the effect that an aggrieved teacher can invoke the appellate remedy under Rule 44. The judgment in **Padmanabhan Nair's** case (supra) is to the effect that if noone is qualified as on the date of occurrence of vacancy, the person who first becomes qualified should be considered for appointment. In the light of the judgment in W.P.(C) No.14971 of 2014, it cannot be said that there was nobody qualified at the time of occurrence of vacancy. The reliance on that part of the judgment does not apply to the facts of the case. On the other hand that Full Bench decision reiterates the position that eligibility shall be reckoned as on the date of occurrence of vacancy. Therefore that decision is against the petitioner. W.P(C) Nos.15688 of 2017-I & 18439 of 2017-D 18 27. Now the question to be considered is whether the withdrawal of the petitioner's promotion and grant of promotion to the 6[th] respondent are legal or not. Rule 43 as well as Rule 44 enjoin a duty on the Manager to make promotion to the post of Headmaster from among qualified hands, reckoning the qualification as on the date of occurrence of vacancy. The Manager has withdrawn the promotion of the petitioner and appointed the 6[th] respondent when he realised the mistake. The fact that the 6[th] respondent did not file any appeal will not stand in the way of making appointment in accordance with rules and in accordance with the Full Bench judgment in **Padmanabhan Nair** 's case (supra), though belatedly. 28. In the above circumstances, the action of the Manager cannot be said to be illegal. The 6[th] respondent, who was not interested in the promotion, will not have any right to get his promotion approved with effect from the date of occurrence of vacancy or from any date prior to the appointment on 2.05.2017. The Assistant Educational Officer shall pass orders on the proposal for his promotion as Headmaster from 02.05.2017. W.P(C) Nos.15688 of 2017-I & 18439 of 2017-D 19 In the above circumstances W.P.(C) No. 15688 of 2017 is dismissed and W.P.(C) No. 18439 of 2017 is allowed in part. Sd/- **(P.V.ASHA, JUDGE)** rtr/