Writ Appeal Nos. 701 of 2016 & 707 of 2016 (Against Judgment in W.P(C) No.28409/2015), High Court of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2019 / 3RD ASWINA, 1941** **WA.No.701 OF 2016** **AGAINST THE JUDGMENT IN WPC 28409/2015 OF HIGH COURT OF KERALA** ## **APPELLANT/3RD RESPONDENT:** **MANAGER BJSM MADATHIL HIGH SCHOOL, THAZHAVA NORTH, KUTHIRAPANTHI P.O., KOLLAM, PIN-690523.** **BY ADVS. SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1,2&4:** **1 PUSHPAVATHY DEVI M.K. H.S.A. (PS), BJSM MADATHIL HIGH SCHOOL, THAZHAVA NORTH, KUTHIRAPANTHI P.O., KOLLAM, PIN-690523. 2 STATE OF KERALA REPRESENTED BY THE SECRETARY, EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001. 3 THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, KOLLAM, PIN-691001. 4 T.L.SABITHA H.S.A.(MATHS), BJSM MADATHIL HIGH SCHOOL, THAZHAVA NORTH, KUTHIRAPANTHI P.O., KOLLAM, PIN-690523. R1 BY ADV. SRI.M.V.BOSE R1 BY ADV. SMT.NISHA BOSE R1 BY ADV. SRI.VINOD MADHAVAN** R2 &R3 BY GOVT.PLEADER SMT.K.B.SONY R4 BY SRI.K.V.BHARATHAN **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25.09.2019, ALONG WITH WA.707/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.Nos.701/16 & 707/16 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2019 / 3RD ASWINA, 1941** ## **WA.No.707 OF 2016** **AGAINST THE JUDGMENT IN WPC 28409/2015 DATED 08-03-2016 OF HIGH COURT OF KERALA** ## **APPELLANT/4TH RESPONDENT:** **T.L.SABITHA H.S.A (MATHS),BJSM MADATHIL HIGH SCHOOL,THAZHAVA NORTH,KUTHIRAPANDI P.O.,KOLLAM-690523.** **BY ADVS. SRI.K.S.BHARATHAN SMT.S.ANJUSHA** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1,2&3:** - **1 PUSHPAVATHY DEVI M.K. H.S.A (PS),NJSM MADATHIL HIGH SCHOOL,THAZHAVA NORTH,KUTHIRAPANDHI P.O.,KOLLAM-690523.** - **2 STATE OF KERALA REPRESENTED BY SECRETARY,EDUCATION DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM.** - **3 THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, KOLLAM691001.** - **4 THE MANAGER BJSM MADATHIL HIGH SCHOOL,THAZHAVA NORTH,KUTHIRAPANDHI P.O.,KOLLAM-690523.** ## **OTHER PRESENT:** ## **G.P.-SMT. K.B. SONY** - R1 SRI.M.V.BOSE R4 SRI.JOHN JOSEPH VETTIKKAD W.A.Nos.701/16 & 707/16 3 **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25.09.2019, ALONG WITH WA.701/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.Nos.701/16 & 707/16 4 ## **JUDGMENT** ## **A.M.Shaffique,J.** Writ Appeal No.701 of 2016 is filed by the 3[rd] respondent and Writ Appeal No.707 of 2016 is filed by the 4[th] respondent, challenging the judgment passed by a learned single Judge of this Court in W.P(C) No.28409 of 2015. The 1[st] respondent in these Appeals had filed the Writ Petition challenging orders passed by the Manager appointing the 4[th] respondent as Headmistress of the school managed by the Manager. 2. The issue related to seniority as well as the question whether the writ petitioner had passed the test qualification. Though a contention had been raised based on Rule 37(2) of Chapter XIVA of KER, the issue is no longer _res integra_ in the light of the Full Bench judgment in **Valsamma P. v. State of Kerala and Others [2014 (4) KHC 361]** , wherein it was specifically held that in order to determine the seniority in terms of Rule 37(2), the date of commencement of continuous service refers to the date of commencement of actual service. It is rather clear that the writ petitioner had entered service as UPSA on 01.08.1984 whereas the 4[th] W.A.Nos.701/16 & 707/16 5 respondent had entered into service as HSA on 19.11.1987. Though seniority list (Ext.P3) had been prepared by the Manager indicating that the 4[th] respondent is senior, in the light of the aforesaid Full Bench judgment it is apparent that the writ petitioner was senior to the 4[th] respondent. In this case, the factual aspects would indicate that the post of Headmaster became vacant with effect from 01.04.2015. Though both parties raised claims, the Manager, based on the seniority, appointed the 4[th] respondent. This came to be challenged before this Court by the writ petitioner in the above Writ Petition. Though several contentions were raised, the learned single Judge upheld the view taken by the writ petitioner and allowed the Writ Petition directing that the petitioner shall be appointed as Headmistress with effect from 01.04.2015. That apart, it was observed that the Manager had committed serious error of law in appointing the 4[th] respondent as Headmistress and therefore direction had been issued to recover the salary paid to the said writ petitioner for the period from 01.04.2015 onwards, from the Manager under Rule 7 of Chapter III of KER. 3. The learned counsel for the 4[th] respondent/appellant W.A.Nos.701/16 & 707/16 6 in W.A.No.707 of 2016 would submit that test qualification was a mandatory requirement as per orders issued by the Government as well as a notification issued in terms of Annexure A1 issued by the Government of Kerala, General Education Department as G.O.(Ms.) No.157/2015/G.Edn. dated 10.06.2015. The notification was published in the Gazette on 13.12.2017 as per SRO No.794/2017. The writ petitioner had retired from service on 31.5.2016. As per the aforesaid notification, a proviso was incorporated in Rule 44A of Chapter XIVA after the second proviso, which reads as under: “Provided also that, notwithstanding anything contained in the second proviso, in the case of appointment to the post of Headmaster, preference shall be given to those teachers who have acquired the test qualifications specified in this rule.” In the Explanatory Note, it was further indicated that the Amendment to the rules has been given effect from 01.6.2015. i.e., the date of starting of the relevant academic year. The writ petitioner was appointed as Headmistress in the vacancy that had arisen with effect from 01.04.2015 and therefore the W.A.Nos.701/16 & 707/16 7 amendment to the proviso by itself will not help the appellants to contend that the test qualification was mandatory at the relevant time. 4. The learned counsel for the Manager however submitted that he had issued orders for appointing the 4[th] respondent as Headmistress based on the order issued by the Education Department on 16.5.2015. In fact, teachers who were aged more than 50 years were granted exemption from passing the test qualification for being promoted as Headmistress by a common order dated 04.02.2015, which stood extended by the aforesaid order for a period of six months from 01.03.2015 on condition that the test qualified teachers should be given preference. The learned counsel for the Manager submits that when this order had been issued by the Education Department, he had no option other than to appoint the 4[th] respondent as the Headmistress. Therefore, imposing on the Manager the liability to pay salary of the Headmistress cannot be sustained. 5. The learned single Judge while considering the aforesaid issue has taken note of the fact that a Division Bench of this Court in W.A.No.1900 of 2014 has clearly held that W.A.Nos.701/16 & 707/16 8 unless a notification prescribed by the Rules had been issued, orders issued by the Education Department may not have any validity as such. But, it is relevant to note that when the Education Department issues orders, the Manager may be inclined to issue appointment orders or promotion orders based on the same. Therefore the Manager cannot be found fault with, for not appointing the writ petitioner as the Headmistress at that point of time. Under such circumstances, when there was no clarity in the Government Orders and when a reasonable apprehension is expressed by the Manager, as to what stand he should have taken at the relevant point of time, it is only appropriate that the Manager should not be mulcted with the liability to pay salary of the teacher during the relevant period. To that extent, we are of the view that the judgment of the learned single Judge has to be interfered. 6. As far as the rights of the parties are concerned, the Government Order dated 16.5.2015 will not apply to the factual situation that has arisen in this case, as rightly observed by the learned single Judge. In the result, we do not think that any interference is called for with reference to the direction of the learned single W.A.Nos.701/16 & 707/16 9 Judge, allowing the Writ Petition and directing the writ petitioner to be appointed as Headmistress from 01.04.2015. However, the direction issued by the learned single Judge to recover the salary paid to the writ petitioner from 01.04.2015 from the Manager stands set aside. Writ Appeals are partly allowed as stated above. Sd/- **A.M.SHAFFIQUE,JUDGE** Sd/- **N.ANIL KUMAR,JUDGE** ## **okb** **//True copy// P.S. to Judge** W.A.Nos.701/16 & 707/16 10 ## **APPENDIX** **APPELLANT'S ANNEXURES (W.A.701/16):** **ANNEXURE A1: TRUE COPY OF SRO NO.794/2017 DATED 13.12.2017** **ANNEXURE A2: TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BEFORE THE 3RD RESPONDENT ON 26.8.2019** W.A.Nos.701/16 & 707/16 11 **APPELLANT'S ANNEXURES (W.A.707/16):** **ANNEXURE A1: TRUE COPY OF SRO NO.794/2017 DATED 13.12.2017** **ANNEXURE A2: TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BEFORE THE 2ND RESPONDENT ON 27.8.2019** **ANNEXURE A3: TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BEFORE THE 3RD RESPONDENT ON 26.8.2019**