Suhasini M.P. v. State of Kerala

W.P.(C).No.24303 of 2018 1 ## **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.24303 OF 2018(K)** ## **PETITIONER:** **SUHASINI M.P. AGED 53 YEARS** **TEACHER,THIRUVAL UP SCHOOL,PANOOR,KANNUR DISTRICT679692.** **BY ADV. SRI.R.K.MURALEEDHARAN** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GENERAL EDUCATION DEPARTMENT,THIRUVANANTHAPURAM-695001. 2 DIRECTOR OF PUBLIC INSTRUCTION JAGATHI,THIRUVANANTHAPURAM-695014. 3 THE ASSISTANT EDUCATIONAL OFFICER PANOOR,KANNUR DISTRICT-670692. 4 THE MANAGER THIRUVAL UP SCHOOL,PANOOR,KANNUR DISTRICT-670692. 5 HAJARA.T TEACHER,THIRUVAL.UP SCHOOL,PANOOR,KANNUR DISTRICT670692. R1-3 BY GOVERNMENT PLEADER R4 BY ADV. BABU KARUKAPADATH R4 BY ADV. M.A.VAHEEDA BABU R4 BY ADV. K.M.FAISAL (KALAMASSERY) R4 BY ADV. P. U.VINODKUMAR R4 BY ADV. AMRIN FATHIMA R4 BY ADV. V.R.LAKSHMI R5 BY ADV. SRI.V.A.MUHAMMED R5 BY ADV. SRI.M.SAJJAD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-122020, THE COURT ON 21-12-2020 DELIVERED THE FOLLOWING:** W.P.(C).No.24303 of 2018 2 ## **ANU SIVARAMAN, J** **= = = = = = = = = = = = = = = = = W.P.(C).No.24303 of 2018 = = = = = = = = = = = = = = = = = = Dated this the 21st day of December, 2020** ## **JUDGMENT** ## This writ petition is filed seeking the following reliefs: “a)Issue a writ of mandamus or any other appropriate writ, order or direction directing the 4" respondent to recall the appointment order of the 5" respondent vide Ext. P6 and direct the 4" respondent to appoint the petitioner as Headmistress of Thiruval UP School with effect from 01.06.2018 with all consequential benefits, Or in the alternative; b) issue a writ of mandamus or any other appropriate writ, order or direction directing the 3[rd] respondent to consider Ext. P7 objection after hearing the petitioner and pass orders on it, till then the proposal for approval of the 5[th] respondent, if any forwarded shall not be acted upon.” 2. Heard the learned counsel for the petitioner, the learned Government Pleader and the learned counsel appearing for the 4[th] respondent. 3. The petitioner claims to be the senior-most test qualified teacher in the 4[th] respondent's school, who is eligible for W.P.(C).No.24303 of 2018 3 appointment to the post of Headmistress. The petitioner has passed the Account Test (Lower) and the test in Kerala Education Act and Rules. Exts.P3 and P3(a) are the certificates dated 23.07.2013. When a vacancy of Headteacher was due to arise in the school on 01.06.2018, the petitioner submitted Ext.P4 representation dated 14.05.2018. The 4[th] respondent conducted a selection for effecting promotion. The petitioner, the 5[th] respondent and two other teachers were called for an interview. By Ext.P6, the 5[th] respondent was appointed as Headteacher. The petitioner submitted Ext.P7 objection, but the same was not considered. 4. The learned counsel for the petitioner submits that the petitioner is the senior-most qualified teacher eligible for appointment in the vacancy which arose on 01.06.2018. Exts.P5 and P5(a) Government Orders dated 19.02.2018 and 09.07.2018 are produced and relied on to contend that a test qualified teacher is liable to be appointed in preference to a senior unqualified teacher, even if the senior has attained the age of 50 years as on the date of occurrence of vacancy. The decision of this Court in **Smitha Paul v. State of Kerala and others** [W.A.No.1472/2017], **Anitha John v. Eldhose Mathew** [2002 (3) KLT 974], judgment dated 8.12.2017 in W.P.(C).No.28679/2012 W.P.(C).No.24303 of 2018 4 and judgment dated 10.6.2020 in W.P.(C).No.12838/2019 are relied on among others. 5. The 3[rd] respondent has filed a counter affidavit stating that approval has not been granted to the appointment of the 5[th] respondent and Ext.P7 representation is still pending. It is submitted that Exts.P5 and P5(a) Government Orders provide that a pass in Account Test (Lower) and in the test in Kerala Education Act and Rules are obligatory qualification for promotion to the post of Headmaster in Lower Primary and Upper Primary Schools. It is stated that the petitioner is test qualified and the 5[th] respondent is not so qualified. The learned Government Pleader submits that the benefit of exemption from test qualification is not available to the 5[th] respondent in view of the clear provisions contained in Rule 18(1) of the Kerala. Right of Children to Free and Compulsory Education Rules, 2009. 6. A counter affidavit had been placed on record by the 4[th] respondent. It is submitted that the school is having minority status and Ext.R4(a) certificate issued by the National Commission for Minority Educational Institutions is produced in evidence thereof. It is stated that on the retirement of the Headteacher of the School, the Divisional Officer of the Kerala W.P.(C).No.24303 of 2018 5 State Wakf Board issued instructions to the Manager to conduct interview for effecting promotion. Four eligible teachers including the petitioner and the 5[th] respondent were called for an interview conducted on 27.06.2018. It is submitted that Rule 45(B)(4) of Chapter XIV A, KER provides that teachers who have attained the age of 50 years shall stand exempted permanently from acquiring the qualifications specified in sub-rule 1 thereof and that formal amendments have not been affected in the KER as is evident even from Exts.P5 and P5(a) Government Orders. It is further submitted that in view of the minority status of the school, the appointment of the Headteacher is the prerogative of the Manager and that the appointment made after due selection is liable to be approved. 7. A counter affidavit and an additional counter affidavit have been placed on record by the 5[th] respondent. It is the contention of the 5[th] respondent that Rule 45(B)(4) which provides for exemption from test qualification stands un-amended and that the executive orders cannot govern the field where there is a specific provision in the Rules. It is further contended that since the 4[th] respondent, which is a minority educational institution, has conducted a selection and appointed the 5[th] respondent as Headmistress, this Court would not be justified in upsetting the selection so conducted. W.P.(C).No.24303 of 2018 6 8. It is contended in the additional counter affidavit filed by the 5[th] respondent that Rule 18(1) of the RTE Kerala Rules does not stipulate that the Headteacher shall be a person possessing a pass in any particular departmental test. It is stated that since the tests had not been notified specifically by a separate notification by the State Government, there is still no prescription of such qualifications and the Government Orders of the subject would be inoperative until amendments are made to Rule 45(B) of Chapter XIV A, KER. Reliance is also placed on the decisions of this Court dated 24.06.2014 in W.P.(C).No.14971 of 2014 and of a Division Bench of this Court in W.A. No.775 of 2017 dated 11.04.2017. The learned counsel also relied on the decisions in **Life Insurance** **Corporation and others v. Krishna Murari Lal Asthana** [(2016) 6 SCC 515] and **Lok Prahari v. State of Uttar Pradesh** [(2016) 8 SCC 389] to contend that any instructions contained in executive orders which are contrary to the statutory provisions would be ineffective and the statutory provisions would prevail. It is further submitted that the judgment of the Division Bench in OP (KAT) No.105/2019 has been taken up before the Apex Court and there is a direction to the parties to maintain status quo. 9. I have considered the contentions advanced. It is not in dispute before me that Rule 18(1) of the RTE Rules provides that W.P.(C).No.24303 of 2018 7 Headteachers of all schools governed by the rules shall have minimum 12 years of teaching experience and possess pass in such departmental tests and test in Kerala Education Act and Rules as may be specified in that regard. By Ext.P5 order dated 19.02.2018, the pass in Account Test (Lower) and the pass in Kerala Education Act and Rules have been made obligatory for promotion as Headmasters in Lower Primary and Upper Primary Schools. The vacancy arose on 01.06.2018. On that date, the 5[th] respondent had crossed the age of 50 years, but did not possess the qualifications. After conduct of a selection, the 5[th] respondent was appointed as HM by the Manager. 10. A Division Bench of this Court in its judgment dated 27.01.2020 in O.P.(KAT) No.105 of 2019 had considered the issue and found that the order exempting persons above the age of 50 years from the test qualifications is unsustainable. It was held that promotion as Headteacher can be granted only to teachers who are qualified in terms of the provisions of the KER as well as the RTE Rules. Though the SLP against the judgment was admitted, the operation of the judgment was not stayed by the Apex Court. W.P.(C).No.24303 of 2018 8 11. In respect of aided schools, Ext.P5 Government Order dated 19.02.2018 provides for the qualification of Account Test (Lower) as well as the test in Kerala Education Act and Rules. The prescription is specifically made 'notwithstanding anything contained in Rule 45 and 45A of Chapter XIVA KER. The Government Orders specifically refers to Rule 18 (1) of the RTE Rules. By Ext.P5(a) Government Order dated 9.7.2018, the Government proposes to amend Rule 45B(1) of Chapter XIVA of the KER by prescribing the tests as qualification for promotion as Headmaster, notwithstanding anything contained in Rule 45 and 45A. The Division Bench of this Court held that the amendment to the rules is not required where the RTE Rules specified that Headteachers should have the specified qualifications and such qualifications have been specified by executive orders. Another Division Bench in W.A.No.1472 of 2017 specifically considered the provisions of Rule 18(1) of the RTE Rules and held that Rule 18(1) covers all Headteachers in all types of schools covered by the Act. When it was prescribed that they should possess a pass in such departmental tests as may be specified in that regard, necessarily the provisions of KER relating to qualification are also required to be considered while evaluating the rule. It was therefore held that in the absence of any specification as on the date of occurrence of vacancy, the Manager was liable to appoint W.P.(C).No.24303 of 2018 9 Headteachers who had the qualification as provided in the KER. It was in a similar factual situation where there was no specification of the qualification in terms of Rule 18(1) of the RTE Rules that Exts.R5(d)(e) and (f) judgments relied on by the 5[th] respondent were rendered. 12. In the instant case, when the vacancy arose on 01.06.2018, Ext.P5 Government Order, which specified the qualifications for appointment as Headteacher, had already been issued. In the light of the judgments of the Division Bench in the O.P.(KAT) as well as in the W.A.No.14721/2017, I am of the opinion that the Government Order issued specifying the qualification would satisfy the requirement of Rule 18(1). If that be so, only a qualified teacher is liable to be appointed as Headteacher and the provisions with regard to exemption of teachers who have crossed the age of 50 years cannot be pressed into service, even by a minority institution, to justify the appointment given to a teacher who is not qualified in accordance with the Rules. The argument of the learned counsel for the 5[th] respondent that the specification must be by a notification cannot survive in the light of the finding of the Division Bench in the O.P.(KAT). W.P.(C).No.24303 of 2018 10 13. In the above view of the matter, I am of the opinion that the reliefs sought for in the writ petition are liable to be allowed. The writ petition is, therefore, allowed. The 4[th] respondent is directed to appoint the petitioner as Headteacher with effect from 01.06.2018. The respondents shall approve the appointment, if it is otherwise in order. All attendant benefits shall be disbursed to the petitioner within three months from the date of receipt of a copy of this judgment. sd/- **ANU SIVARAMAN, JUDGE** sj W.P.(C).No.24303 of 2018 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE SENIORITY LIST OF THE SCHOOL 2017-18 EXHIBIT P2 A TRUE COPY OF THE COMMUNICATION OF THE PETITIONER TO THE 3RD RESPONDENT DATED 01.06.2018.** **EXHIBIT P3 A TRUE COPY OF THE CERTIFICATE OF PASS IN ACCOUNT TEST (LOWER)DATED 23.07.2013 EXHIBIT P3(A) A TRUE COPY OF THE CERTIFICATE OF PASS IN KERALA EDUCATION ACT AND RULES DATED 23.07.2013** **EXHIBIT P4 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 14.05.2018 EXHIBIT P5 A TRUE COPY OF THE GO(MS)NO.16/18/G.EDN DATED 19.02.2018. EXHIBIT P5(A) A TRUE COPY OF THE GO(P)NO.16/2018/G.EDN DATED 09.07.2018 EXHIBIT P6 A TRUE COPY OF THE APPOINTMENT ORDER DATED 13.07.2018 EXHIBIT P7 A TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER DATED 13.07.2018. RESPONDENT'S EXHIBITS EXHIBIT R5(a) A TRUE COPY OF THE MINORITY CERTIFICATE ISSUED BY THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS. EXHIBIT R5(B) A TRUE COPY OF THE DECISION REPORTED IN 2017 (15) SCC 595 EXHIBIT R5(C) TRUE COPY OF THE GO(RT) NO.1899/2018/G.EDN.DATED 23.5.2018. EXHIBIT R5(D) TRUE COPY OF THE JUDGMENT IN WP 14971/2014 .DATED 24.6.2014. EXHIBIT R5(E) TRUE COPY OF THE JUDGMENT IN WP 1900/2014 .DATED 25.6.2015.** |W.P.(C).No.24303 of 2018|12| |---|---| |**EXHIBIT R5(f)**|**TRUE COPY OF THE JUDGMENT IN WP 775/2017**| ||**.DATED 11.04.2017.**| |**EXHIBIT R5(g)**|**TRUE COPY OF THE GO(MS) NO.16/2018/.DATED**| ||**19.2.2018.**| |**EXHIBIT R5(H)**|**TRUE COPY OF THE GO(RT)**| ||**NO.511/2020/G.EDN.DATED 28.1.2020.**| |**EXHIBIT R4(a)**|**A TRUE COPY OF THE CERTIFICATE DATED**| ||**8/5/2013 ISSUED BY THE NATIONAL COMMISSION**| ||**FOR MINORITY EDUCATIONAL INSTITUTIONS**| ||**DECLARING THE SCHOOL AS MINORITY**| ||**EDUCATIONAL INSTITUTION.**| |**EXHIBIT R4(B)**|**A TRUE COPY OF THE PROCEEDINGS DATED**| ||**3/7/2018 OF THE 4TH RESPONDENT WHICH WAS**| ||**FORWARDED TO THE CHIEF EXECUTIVE OFFICER OF**| ||**THE KERALA STATE WAQF BOARD.**| True copy PS to Judge