WP(C).35914 of 2018 & WP(C).4006 of 2019 (Sreedharan P. v. District Educational Officer, Mannarkkad; BalaramANpoothiri v. State of Kerala and others)

## **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.35914 OF 2018(L)** ## **PETITIONER:** **SREEDHARAN P., AGED 50 YEARS** **H.S.A. KALLADY ABDUHAJI HIGH SCHOOL, KOTTOPPADAM, PALAKKAD DISTRICT.** **BY ADV. DR.GEORGE ABRAHAM** ## **RESPONDENTS:** - **1 DISTRICT EDUCATIONAL OFFICER, MANNARKKAD, PALAKKAD DISTRICT-678541.** - **2 DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.** - **3 SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM695001.** - **4 THE MANAGER, KALLADY ABDUHAJI HIGH SCHOOL, KOTTOPPADAM, PALAKKAD DISTRICT.** - **5 A.REMANI, HEADMISTRESS IN CHARGE, KALLADY ABDUHAJI HIGH SCHOOL, KOTTOPPADAM, PALAKKAD DISTRICT.** - **SRI.P.M MANOJ, SR. GOVERNMENT PLEADER R4 BY ADV. SRI.K.A.MANZOOR ALI R5 BY ADV. SRI.V.A.MUHAMMED R5 BY ADV. SRI.M.SAJJAD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-122020, ALONG WITH WP(C).4006/2019(A), THE COURT ON 21-12-2020 DELIVERED THE FOLLOWING:** **WP(C).Nos.35914 OF 2018 & 4006 of 2019** **2** ## **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.4006 OF 2019(A)** ## **PETITIONER:** **K.N.BALARAMAN NAMPOOTHIRI AGED 55 YEARS SON OF NARAYANAN NAMPOOTHIRI, HIGH SCHOOL ASSISTANT (MALAYALAM), KALLADI ABDU HAJI HIGH SCHOOL, KOTTOPPADAM, PALAKKAD DISTRICT 678 583.** **BY ADV. SRI.K.A.MANZOOR ALI** ## **RESPONDENTS:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL**| ||**EDUCATION DEPARTMENT, SECRETARIAT ANNEX-11,**| ||**THIRUVANANTHAPURAM 695 001.**| |**2**|**THE DIRECTOR OF PUBLIC INSTRUCTIONS,**| ||**JAGATHY, THIRUVANANTHAPURAM 695 014.**| |**3**|**THE DEPUTY DIRECTOR OF EDUCATION,**| ||**PALAKKAD 678 001.**| |**4**|**THE DISTRICT EDUCATIONAL OFFICER,**| ||**MANNARKAD, PALAKKAD DISTRICT 678 582.**| |**5**|**THE MANAGER,**| ||**KALLADI ABDU HAJI HIGH SCHOOL,**| ||**KOTTOPPADAM, PALAKKAD DISTRICT 678 583.**| |**6**|**SMT. A. REMANI,**| ||**HIGH SCHOOL ASSISTANT (MATHEMATICS),**| ||**KALLADI ABDU HAJI HIGH SCHOOL,**| ||**KOTTOPPADAM, PALAKKAD DISTRICT 678 583.**| **WP(C).Nos.35914 OF 2018 & 4006 of 2019** **3** **7 SRI. P. SREEDHARAN, HIGH SCHOOL ASSISTANT (SOCIAL SCIENCE), KALLADI ABDU HAJI HIGH SCHOOL, KOTTOPPADAM, PALAKKAD DISTRICT 678 583.** **R1-4 BY GOVERNMENT PLEADER R7 BY ADV. DR.GEORGE ABRAHAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 0412-2020, ALONG WITH WP(C).35914/2018(L), THE COURT ON 21-12-2020 DELIVERED THE FOLLOWING:** **WP(C).Nos.35914 OF 2018 & 4006 of 2019** **4** ## **JUDGMENT** **[ WP(C).35914/2018, WP(C).4006/2019 ]** **Dated this the 21st day of December 2020** - 1.The first of these writ petitions is filed challenging Exhibit P7 order of the District Education Officer rejecting approval of appointment of the petitioner as Headmaster of an aided High school on the ground that he did not have 12 years of continuous service as on the date of occurrence of vacancy. W.P(C).No.4006/2019 is filed by a rival claimant, who had retired from service seeking approval of his appointment as Headmaster w.e.f. 1.5.2016. - 2.Heard the learned counsel for the petitioners and the learned Government Pleader as well as the learned counsel appearing for the contesting respondents in W.P(C).No.35914/2018. - 3.The petitioner in W.P(C).No.35914/2018 was initially appointed as UPSA in the 4[th] respondent's school on 21.7.1992. He was appointed as Headmaster w.e.f. 26.9.2016. Approval for the **WP(C).Nos.35914 OF 2018 & 4006 of 2019** **5** said appointment was rejected on the ground that the petitioner did not have 12 years continuous service for appointment as Headmaster. It is submitted that the petitioner was appointed as HSA on 15.1.2001 in a long leave vacancy. The incumbent in whose leave vacancy the petitioner was appointed, submitted resignation on 1.10.2014. From the said date, the petitioner was appointed as permanent HSA. It ts contended that 12 years graduate service as required under Rule 44 of Chapter XIVA KER can include service rendered in leave vacancy as well, if the same is continuous and without break. It is submitted by the learned counsel for the petitioner that the Government had considered the revision petition filed by the petitioner and had passed an order dated 28.1.2019 holding that the petitioner's continuous service from 15.1.2001 is liable to be considered as continuous service for promotion to the post of Headmaster. The DEO was, therefore, directed to approve the appointment of the petitioner as Headmaster with effect from the date of the appointment. 4. The learned counsel for the petitioner submits that the vacancy of Headmaster arose on 1.5.2016. The petitioner **WP(C).Nos.35914 OF 2018 & 4006 of 2019** **6** being the senior-most qualified teacher was appointed against the post. Approval was rejected only on the ground that the petitioner was not substantially holding the post of HSA from 2001. It is submitted that by Government Order dated 28.01.2019, the Government has accepted the claim of the petitioner with regard to continuous service from 15.1.2001 and that therefore the petitioners appointment as Headmaster is liable to be approved. However, in the meanwhile, the 5[th] respondent, who became qualified much later was appointed as Headmistress-in-charge and she was permitted to continue. The learned counsel for the petitioner submits that since the petitioner was qualified as on the date of occurrence of the vacancy, he is to be appointed as Headmaster and the appointment is to be approved. 5. In WP(C).No.4006/2019, the challenge is against Exhibit P7 order dated 28.1.2019. The petitioner was an HSA (Malayalam) working in the school from 15.12.1987. He contends that he was serial No.1 in the seniority list and since he had attained the age of 50 years on 27.7.2013, he stood exempted from acquiring the departmental test qualifications. **WP(C).Nos.35914 OF 2018 & 4006 of 2019** **7** Going by the Division Bench decision of this Court in **Pavandoor Higher Secondary School v. Sadanandan** [2016 (4) KLT 207], he claims to be fully qualified for appointment as Headmaster. It is submitted that when vacancy of Headmaster arose on 1.5.2016, the petitioner in W.P.(C).No.4006/2019 was appointed as HM by Exhibit P3 appointment order but approval was rejected by Exhibit P4 on the ground that the petitioner did not have the test qualifications and that the petitioner in the other writ petition who was fully qualified was available for appointment. It is stated the the petitioner was under the impression that the Manager would take up the matter in appeal. Thereafter, when it was found that the appeal was not being filed by the Manager, a revision petition was filed, which was directed to be considered by Exhibit P6 judgment. It is contended that the Government has now passed Exhibit P7 order in the revision petition submitted by the petitioner in the other writ petition accepting the claim of Sreedharan P. However, the claim of the petitioner for appointment as Headmaster has not been considered. 6. The learned counsel for the petitioner in W.P.(C). **WP(C).Nos.35914 OF 2018 & 4006 of 2019** **8** No.35914/2018 submits that the Rule 44 A of Chapter XIVA KER specifically provides for appointment of qualified teachers to the post of HM. It is contended that the amendment of the Rule has retrospective effect and therefore, as on the date of arising of the vacancy, the petitioner was the only qualified hand and was eligible for appointment as Headmaster in preference to any exempted hand. It is further submitted that approval was declined only on the ground that his service of HSA from 15.1.2001 was not against a regular vacancy. It is submitted that there is no requirement that the approved qualified service should be in a regular vacancy. By the passing of the order by the Government in revision, the issue stands resolved and the petitioner would be entitled to appointment as HM from the date of appointment itself, that is, 26.9.2016. 7. The learned counsel for the contesting 5[th] respondent in W.P. (C).No.35914/2020 submits that Sri.K.N.Balaraman Nampoothiri had been appointed as HM when the vacancy arose. The said appointment was rejected on 1.7.2016. Thereafter, the 5[th] respondent, Smt.A.Remani became qualified in 2017. Though the approval of the appointment of the **WP(C).Nos.35914 OF 2018 & 4006 of 2019** **9** petitioner in WP. (C).No.35914/2019 was attempted by the Manager, the same was rejected by the DEO on the ground that the said incumbent did not have continuous service of 12 years in a regular vacancy. It is submitted that, therefore, the 5[th] respondent, who became qualified in 2017, was given appointment as Headmistress and she continues till date. It is contended that since Sri.Balaraman was entitled for appointment as HM from the date of occurrence of vacancy onwards and since he would be entitled to approval till his retirement on 30.3.2020, Remani, who is by then fully qualified and senior is eligible for appointment from 30.3.2020 in preference to Sreedharan, who is her junior in service. 8. I have considered the contentions advanced. The vacancy of Headmaster arose on 1.5.2016. The school being a complete High School, the appointment is to be made in terms of Rule 44A of Chapter XIVA KER. The 2[nd] proviso under Rule 44A provides for permanent exemption for teachers who have attained the age of 50 years from acquiring the test qualification. By Government Order dated 31.12.2017, a further proviso has been inserted providing that **WP(C).Nos.35914 OF 2018 & 4006 of 2019** **10** notwithstanding anything contained in the second proviso, preference shall be given to those teachers who have acquired the test qualification specified in the Rule. It is contended that the appointment of Balaraman as Headmaster was rejected on 1.07.2016 on the ground that he did not have the qualification and that there was a fully qualified teacher available for appointment. The said order was not challenged by Balaraman at the relevant time. By Exhibit P3, the petitioner in W.P(C).No.35914/2018 was appointed as HM, considering his qualification. The said appointment was rejected only on the ground that Sreedharan was not substantially holding the post of HSA for 12 years. However, Rule 44(A)(1) prescribes only 12 years of continuous graduate service with pass in test in Kerala Education Act and Rules and pass in Account Test (Lower) as qualification. The Government has considered this issue and has found that since Sreedharan's appointment stood regulated against the resignation vacancy of M.A.Elizabeth he had continuous approved service as HSA for more than 12 years. When the vacancy arose on 1.5.2016, he was therefore fully qualified for appointment as Headmaster. After the amendment of Rule 44A by adding the 3[rd] proviso the **WP(C).Nos.35914 OF 2018 & 4006 of 2019** **11** appointment of Headmaster is to be made by giving preference to a qualified teacher when there is one. 9. The learned counsel for the 5[th] respondent submits that the issue with regard to the retrospective operation of the amendment has been referred to a Full Bench by order dated 8.6.2020 in W.P(c).No.6001/2018, doubting the correctness of the decision in **Pavandoor Higher Secondary School v. Sadanandan** [2016 (4) KLT 207] and **Harifa Beevi Kallan v. Manager PPM Higher Secondary School and others** [in WA No.925 of 2019]. However, in view of the fact that the petitioner in W.P.(C).No.35914/2018 was a qualified hand and since Sri.Balaraman had not challenged the rejection of approval to his appointment on 1.7.2016 by filing an appeal as provided under Rule 44(1), I am of the opinion that the claim of Balaraman that he was entitled for appointment as HM taking note of the exemption granted under the 2[nd] proviso is not liable to be accepted at this distance of time. The revision petition by Balaraman before the Government was filed only on 1.11.2018. Exhibit R5(g) document produced by the 5[th] respondent in W.P(C).No.35914/2018 would show that the **WP(C).Nos.35914 OF 2018 & 4006 of 2019** **12** petitioner in W.P(C).No.4006/2019 had been given charge as H.M. in February 2017. However, he appears to have relinquished the said arrangement by a letter dated 7.7.2017. It is accepting his relinquishment that the 5[th] respondent was given charge of H.M. The petitioner in WP(C).No.4006/2019 retired from service on 31.3.2020. In the above view of the matter, I am of the opinion that the challenge against the order passed by the Government on the ground that Balaraman's claim has not been properly considered and the challenge raised to the amendment to Rule 44A of Chapter XIVA, KER at the instance of Balaraman cannot be a ground for denying the promotion to the post of Headmaster to Sreedharan P who was fully qualified as on the date of occurrence of the vacancy. The approval granted to Sreedharan's appointment by the Government cannot be faulted in the factual and legal situation existing at the moment. Sreedharan was the only qualified hand when the vacancy arose on 1.5.2016. Remani who is now holding the post of H.M, became qualified only in the year 2017. 10. In the above factual situation and in the light of the finding in **WP(C).Nos.35914 OF 2018 & 4006 of 2019** **==> picture [13 x 8] intentionally omitted <==** Exhibit P7 that Sreedharan had more than 13 years of approved graduate service and was fully qualified for appointment as on the date of occurrence of vacancy, I am of the opinion that Sreedharan is entitled and eligible for appointment as Headmaster in preference to both Balaraman and Remani. - 11.In the result, W.P(C).No.35914/2018 is allowed and W.P(C).No.4006/2019 is dismissed. The parties Shall be governed by the Government Order dated 28.1.2019. The 4[th] respondent shall approve the appointment of the petitioner in W.P(C).No.35914/2018 as Headmaster w.e.f. 26.9.2016. 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** **WP(C).Nos.35914 OF 2018 & 4006 of 2019** **14** ## **APPENDIX OF WP(C) 35914/2018** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 23.06.2015 ISSUED BY THE DISTRICT EDUCATIONAL OFFICER, MANNARKAD.** **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 01.07.2016 ISSUED BY THE DISTRICT EDUCATIONAL OFFICER.** **EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER DATED 26.09.2016 ISSUED TO THE PETITIONER.** - **EXHIBIT P4 TRUE COPY OF THE LETTER DATED 26.09.2016 ISSUED BY THE MANAGER.** - **EXHIBIT P5 TRUE COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER BY THE KERALA PUBLIC SERVICE COMMISSION DATED 25.06.2008.** **EXHIBIT P6 TRUE COPY OF THE CERTIFICATE ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION DATED 26.06.2008 TO THE PETITIONER.** - **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 24.10.2016 ISSUED BY THE DISTRICT EDUCATIONAL OFFICER.** - **EXHIBIT P8 TRUE COPY OF THE REVISION FILED BY THE PETITIONER BEFORE THE 3RED RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE JUDGMENT IN WP(C)NO.37901/2016 DATED 28.11.2016.** - **EXHIBIT P10 TRUE COPY OF THE HEARING NOTICE DATED 17.03.2017.** - **EXHIBIT P11 TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BEFORE THE 3RD RESPONDENT.** **EXHIBIT P12 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 04.07.2017.** **WP(C).Nos.35914 OF 2018 & 4006 of 2019** **15** ## **APPENDIX OF WP(C) 4006/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SENIORITY LIST OF TEACHERS BELONGING TO PRIMARY/UPPER PRIMARY SECONDARY SCHOOL OF KALLADI ABDU HAJI HIGH SCHOOL, KOTTOPPADAM AS ON 1.1.2017. EXHIBIT P2 TRUE COPY OF THE DECISION REPORTED IN 2016 (4) KLT 207. EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 2.5.2016. EXHIBIT P4 TRUE COPY OF THE ORDER NO.B3-1830/16/K.DIS DATED 1.7.2016 OF THE DEO, MANNARKKAD. EXHIBIT P5 TRUE COPY OF THE REVISION PETITIONER FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 1.11.2018. EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN WPC NO. 40789/2018 DATED 14.12.2018. EXHIBIT P7 TRUE COPY OF THE G.O. (RT) NO. 372/2019/G.EDN. DATED 28.1.2019. EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN WPC NO. 37901/2016 DATED 28.11.2016. EXHIBIT P9 TRUE COPY OF THE ORDER NO. B3/801/2017 DATED 22.2.2017 OF THE DEO, MANNARKKAD. EXHIBIT P10 TRUE COPY OF THE G.O (MS) NO.157/2015/G.EDN.DATED 10.06.2015.**