High Court of KeralaSingle Judge2021-11-26Writ petition disposed of with directions to re...

Sunitha Vasanth P. V. v State of Kerala & Others

Case / Petition Number:WP(C) NO. 14104 OF 2021

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Raja Vijayaraghavan V
Judgment Date: 2021-11-26
Court Decision / Holding: Writ petition disposed of with directions that the 4th respondent consider the petitioner’s representation (Exhibit P6) with notice to the petitioner and affected parties, and pass orders accordingly. It is observed that Exhibits P8 and P9 warrant interference; till a decision is taken on Exhibit P6, the person in charge of drawing and disbursing salary at the school shall continue to perform those duties to avoid disruption.
Final Disposition: Writ petition disposed of with directions to reconsider the petitioner’s representation (Exhibit P6) with notice and to pass orders; salary disbursement to continue by the current in-charge until decision.

Parties to the Case

Appellants / Petitioners

Sunitha Vasanth P. V.

Respondents

State of Kerala
Director of General Education
Deputy Director of Education
District Educational Officer
Manager, Gurudev Vocational Higher Secondary School
Sri. T.R. Maheshkumar

Legal Representation & Advocates

Counsels for Petitioners

• Rekha Vasudevan
• Elizabeth V. Joseph

Counsels for Respondents

• A. N. Rajan Babu
• P. Gopalakrishnan
• A. R. Easwar Lal
• Nisha Bose

Case Synopsis & Summary

Sunitha Vasanth P. V., a teacher, filed WP(C) No. 14104 of 2021 in the Kerala High Court seeking promotion to the post of Headmaster of the Sree Narayana Gurudev Vocational Higher Secondary School, Kuzhikalidavaka, Kottarakkara. The vacancy arose on 31 May 2021 following the retirement of Smt. Anitha Vasanth. According to the official seniority list, the petitioner is at Serial No. 6 while the 6th respondent stands at Serial No. 5. The petitioner contends that, under the second proviso to Rule 44A of Chapter XIVA of the Kerala Education Rules (KER), teachers aged 50 and above are exempted from the test qualification, but the third proviso requires preference for those who have acquired the test qualification. The 5th respondent appointed the 6th respondent as Headmaster-in-Charge; the 4th respondent refused the approval for the 6th’s appointment as Headmaster and granted approval only as Headmaster-in-Charge. Exhibits P5 and P6 representing the petitioner were not acted upon. The counter asserts that the 6th respondent appeared for the Departmental Test and passed three papers, but PSC postponement prevented completing the balance papers; the 6th respondent is over 50 and senior to the petitioner, hence exempt from qualification. The court cites Padmanabhan Nair v. Dy. Director (1991 KHC 108) to emphasize the necessity of qualified candidates and the vacancy-date rule. Ultimately, the court holds that P8 and P9 require interference, and directs the 4th respondent to consider P6 with notice to all parties, keeping salary disbursement by the current drawing official to avoid disruption pending decision.

Provisions of Law Cited

Rule 44A, Chapter XIVA, Kerala Education Rules (KER)Second proviso to Rule 44AThird proviso to Rule 44A

Legal Doctrines & Maxims

Only qualified hands should be appointed as Headmasters
Eligibility to appointment to a post is reckoned with reference to the date on which the vacancy arose (date of occurrence)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that, under the second proviso to Rule 44A, there is an exemption from the test for teachers aged 50 and above, but the third proviso requires preference for those who have the test qualification. She asserts that the vacancy arose on 31.05.2021 and her seniority justifies promotion to Headmaster, challenging the 5th respondent’s appointment of the 6th respondent and the 4th respondent’s approval as Headmaster-in-Charge. Exhibits P5 and P6 were not acted upon. She seeks a declaration of entitlement to promotion and to quash the challenged orders, or at least to have the matter reconsidered with notice to affected parties.

Contentions of Respondents

The respondents contend that the 6th respondent appeared for the Departmental Test and passed three papers; due to PSC postponement, the balance papers could not be completed; the 6th respondent has crossed 50 and is senior to the petitioner, hence exempt from acquiring the qualification; the 3rd proviso requires preference for those with the test qualification; the 4th respondent’s rejection of Headmaster approval and grant of Headmaster-in-Charge was in line with the rules and the status quo; the petition is thus misconceived and requires dismissal or substantial modification.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Padmanabhan Nair v. Dy. Director	1991 KHC 108	Positive	Cited to support Rule 44A’s requirement that only qualified hands be appointed to a Headmaster post and that eligibility is determined as of the vacancy date.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**WP(C) NO. 14104 OF 2021** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 26[TH] DAY OF NOVEMBER 2021 / 5TH AGRAHAYANA, 1943** ## **WP(C) NO. 14104 OF 2021** ## **PETITIONER/S:** SUNITHA VASANTH P. V., AGED 54 YEARS W/O. CHANDRAPRASAD K. HIGH SCHOOL TEACHER (PHYSICAL SCIENCE), SREE NARAYANA GURUDEV VOCATIONAL HIGHER SECONDARY SCHOOL, KUZHIKALIDAVAKA, KOTTARAKARA, KOLLAM-691506, RESIDING AT SOUPARNIKA, KAKKAKUNNU P.O., SHOORANAD SOUTH, KOLLAM-691552. BY ADVS. REKHA VASUDEVAN ELIZABETH V.JOSEPH ## **RESPONDENTS :** 1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE DIRECTOR OF GENERAL EDUCATION, DIRECTORATE OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695014. 3 THE DEPUTY DIRECTOR OF EDUCATION, PALACE NAGAR, THEVALLY, KOLLAM-691009. 4 THE DISTRICT EDUCATIONAL OFFICER, DEO OFFICE, KOTTARAKKARA, EDAKKIDOM-NEDUMANKAVU ROAD, CHANAMUKKU, KOTTARAKKARA, KOLLAM-691506. 5 THE MANAGER, GURUDEV VOCATIONAL HIGHER SECONDARY SCHOOL, KUZHIKALIDAVAKA, KOTTARAKARA, KOLLAM-691506. **WP(C) NO. 14104 OF 2021** **2** 6 SRI. T.R. MAHESHKUMAR, TEACHER-IN-CHARGE, GURUDEV VOCATIONAL HIGHER SECONDARY SCHOOL, KUZHIKALIDAVAKA, KOTTARAKARA, KOLLAM-691506. BY ADVS. A.N.RAJAN BABU P.GOPALAKRISHNAN A.R.EASWAR LAL SMT. NISHA BOSE, SR. GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 14104 OF 2021** **3** ## **JUDGMENT** The Sree Narayana Gurudev Vocational Higher Secondary School, Kuzhikalidavaka, is an aided School managed by the 5th respondent. The post of Headmaster in the School fell vacant on 31.05.2021 on account of the retirement of Smt. Anitha Vasanth. As per the seniority list approved by the official respondents, the 6th respondent is at Serial No.5 and the petitioner is at Serial No.6. 2. The petitioner contends that though as per the 2nd proviso to Rule 44A of Chapter XIVA of the KER, in the case of appointment to the post of Headmaster, teachers who have attained the age of 50 years have been permanently exempted from acquiring the test qualification, the 3rd proviso insists that preference shall be given to those teachers who have acquired the test qualification specified in the Rule. However, ignoring the relevant Rules, the 5th respondent has appointed the 6th respondent as the teacher in charge. Being aggrieved, the petitioner is stated to have approached respondents 3 and 4 and submitted Exhibits-P5 and P6 representations. However, those representations were not taken up and considered by the concerned respondents. In the said circumstances, the petitioner had approached this **WP(C) NO. 14104 OF 2021** **4** Court and has preferred the instant writ petition seeking a declaration that the petitioner is entitled to be granted promotion to the post of Headmaster in the School managed by the 5th respondent and for incidental reliefs. 3. While the writ petition was pending consideration, Exhibit-P8 order was issued by the 5th respondent appointing the 6th respondent as Headmaster of the School. The approval was forwarded to the 4th respondent. However, the 4th respondent, while rejecting the approval of the appointment of the 6th respondent for want of qualification, instead granted approval as Headmasterin-Charge. The writ petition was amended and the petitioner has sought a further prayer to quash Exhibit-P8 order issued by the 5th respondent and Exhibit-P9 order issued by the 4th respondent. 4. A counter affidavit has been filed by the 5th respondent wherein it is stated that the 6th respondent had appeared for the Departmental Test and had passed three papers. However, since the test was postponed by the PSC, the 6th respondent could not appear for the test and clear the balance papers. It is also stated that the 6th respondent has crossed the age of 50 years and is senior to the petitioner and hence, she is exempted from acquiring the qualification. 5. I have heard Sri. Rekha Vasudevan, the learned counsel appearing for the petitioner, Sri.Rajan Babu, the learned counsel appearing for respondents 5 and 6 and the learned Senior Government Pleader. **WP(C) NO. 14104 OF 2021** **5** 6. In **Padmanabhan Nair v. Dy. Director [ 1991 KHC 108 ],** their Lordships of the Full Bench of this Court had occasion to hold that the mandate of Rule 44A is that only qualified hands should be appointed as Headmasters. It was held that when qualifications are prescribed for a promotion post, eligibility to appointment to that post has to be reckoned with reference to the date on which such vacancies arose. If there is a qualified hand on that date in the feeder category, he is entitled to be considered for an appointment to the post in preference to unqualified seniors. The date on which the appointment is actually made is immaterial as the title to the appointment arises on the date of occurrence of the vacancy and is not defeated by the acquisition of qualifications by a senior thereafter. The 3rd proviso to Rule 44A leaves no manner of doubt that preference shall be given to those teachers who have acquired the test qualifications specified in the Rule. Having considered all the relevant facts, I am of the view that Exhibit P8 and P9 orders warrant interference. However, since it is brought to my notice that the petitioner has already approached the 4th respondent and has preferred Exhibit P6 representation, it would only be proper to direct the said respondent to consider the same and pass orders with notice to the petitioner and affected parties. While considering the representation, the concerned respondent shall take note of the observations made above. Till a decision is taken on Exhibit P6 representation, the person who is in charge of the drawing **WP(C) NO. 14104 OF 2021** **6** and disbursal of the salary in the School shall continue to do so in order to avoid any disruptions. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** NS **WP(C) NO. 14104 OF 2021** **7** ## **APPENDIX OF WP(C) 14104/2021** PETITIONER(S) EXHIBITS : - EXHIBIT P1 TRUE COPY OF THE CERTIFICATES DATED 29/11/2019 ISSUED TO THE PETITIONER BY THE KERALA PUBLIC SERVICE COMMISSIN. - EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED 16/05/2021 SUBMITTED BY THE PETITIONER TO THE 5TH RESPONDENT. - EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS NO.A4/APPT/2021 DATED 27/05/2021 ISSUED BY THE 5TH RESPONDENT. - EXHIBIT P4 TRUE COPY OF THE GO(MS) NO. 157/2015/G.EDN. DATED 10/06/2015 AS PUBLISHED IN SRO NO. 794/2017 ISSUED BY THE 1ST RESPONDENT. - EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 05/06/2021 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. - EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 05/06/2021 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT. - EXHIBIT P7 TRUE COPY OF THE LETTER NO.B7/3317/2021 DATED 15/9/2021 ISSUED BY THE PUBLIC INFORMATION OFFICER IN THE OFFICE OF THE 4TH RESPONDENT. - EXHIBIT P8 TRUE COPY OF THE ORDER NO.A4/APPT/TRM/2021 DATED 01/06/2021 ISSUED BY THE 5TH RESPONDENT. - EXHIBIT P9 TRUE COPY OF THE ORDER NO.B5/1929/2021 DATED 29/6/2021 ISSUED BY THE 4TH RESPONDENT. **WP(C) NO. 14104 OF 2021** **8** RESPONDENT(S) EXHIBITS : EXHIBIT R5(a) TRUE COPY OF THE VIDE LETTER NO.B5/4066/05/R DIS DATED 27/9/05 APPROVED BY THE DEO KOTTARAKARA.