Kerala High Court
K.P.Remadevi vs K.P.Remadevi on 20 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA, 1942
WA.No.11 OF 2021
AGAINST THE ORDER IN WP(C) 36877/2017(H) OF HIGH COURT OF
KERALA DATED 15/12/2020
APPELLANTS/RESPONDENTS 6 & 7 IN WRIT PETITION:
1 K.P.REMADEVI
AGED 57 YEARS
HEADMISTRESS(RETIRED),M S M HIGH SCHOOL,
KAYAMKULAM,KAYAMKULAM,
ALAPPUZHA DISTRICT-690 502.
2 K.M.BEENA
HEADMISTRESS,M S M HIGH SCHOOL,KAYAMKULAM,
KAYAMKULAM,
ALAPPUZHA DISTRICT-690 502.
BY ADVS.
SRI.V.A.MUHAMMED
SRI.V.RAJASEKHARAN NAIR
RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 5 IN THE WRIT
PETITION:
1 VEENA U. NAIR
HIGH SCHOOL ASSISTANT(MATHEMATICS),
M S M HIGH SCHOOL,KAYAMKULAM,
KAYAMKULAM,ALAPPUZHA DISTRICT-690 502.
WA No.11/2021
-:2:-
2 THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT,SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
3 THE DIRECTOR OF GENERAL EDUCATION,
JAGATHY,THIRUVANANTHAPURAM-695 014.
4 THE DEPUTY DIRECTOR OF EDUCATION,
ALAPPUZHA-688 001.
5 THE DISTRICT EDUCATIONAL OFFICER,
MAVELIKKARA,
ALAPPUZHA DISTRICT-690 101.
6 THE MANAGER,
M S M HIGH SCHOOL,KAYAMKULAM,KAYAMKULAM,
ALAPPUZHA DISTRICT-690 502.
R6 BY ADV. DR.GEORGE ABRAHAM
R1 BY SRI.K.P.DANDAPANI (SR)
OTHER PRESENT:
R2-R5 SRI. A.J. VARGHESE-SR. G.P.
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12-01-
2021, THE COURT ON 20-01-2021 DELIVERED THE FOLLOWING:
WA No.11/2021
-:3:-
JUDGMENT
Dated this the 20th day of January, 2021
Shaffique, J.
This appeal is filed by respondents 6 and 7 in WP(C) No.
36877/2017 challenging interim order dated 15/12/2020 by which
the learned Single Judge had issued the following directions;
"There will, accordingly, be an interim direction to the
Manager to appoint the petitioner in this writ petition as HM
with prospective effect. The appointment shall be made and
send up for approval by the Manager within a period of three
weeks from the date of receipt of a copy of this order. The
Educational Authority shall approve the said appointment as
made by the Manager as directed above within a period of
two weeks thereafter and the petitioner shall be eligible for
all the benefits of the appointment with prospective effect,
including the monetary benefits thereof. On the retirement of
the petitioner from service, the 7 th respondent who is
admittedly qualified will be eligible for appointment as HM."
2. The short facts of the case would disclose that the first
appellant Smt.K.P.Remadevi was appointed as Headmistress in a
vacancy that occurred in the school on 1/6/2015. She was
appointed based on an exemption clause provided under the
second proviso to Rule 44A(1) of Chapter XIVA KER to those
WA No.11/2021
teachers who had attained the age of 50 years.
3. On 10/6/2015, the Government issued GO(Ms)
No.157/2015/G.Edn providing preference to test qualified junior
teachers for promotion to the post of Headmaster than the senior
who claimed test exemption. The first appellant retired due to
superannuation on 31/3/2018 and a vacancy arose on 01/4/2018.
The 2nd appellant Smt.P.M.Beena was appointed as Headmistress
in the said vacancy.
4. The writ petition was filed by Smt.Veena U.Nair on
15/11/2017 challenging Ext.P14, an order dated 6/11/2017
passed by the Government rejecting her claim to be appointed as
Headmistress in the vacancy that had arisen on 1/6/2015. The
said order came to be passed when a claim was made by
Smt.Veena U.Nair staking a claim to the post of Headmistress in
the vacancy that had arisen on 1/6/2015. The Government in the
impugned order held that since Smt.Remadevi was appointed in
the vacancy that had arisen on 1/6/2015, the Government Order
dated 10/6/2015 will not apply and therefore the Government
sustained the appointment of Smt.Remadevi. While so,
Smt.P.M.Beena was impleaded as additional 7 th respondent in the
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writ petition as per order dated 5/4/2018. On retirement of
Smt.Remadevi on 31/3/2018, petitioner sought for a direction to
appoint her to the said post. She contended that she was the only
qualified person. In the meantime, new proviso was added to Rule
44A(1) of Chapter XIVA KER as per gazette notification dated
13/12/2017 with retrospective effect from 1/6/2015 stating that
preference shall be given to test qualified teachers for the post of
Headmaster than a teacher claiming exemption. It is based on
the aforesaid amendment that the writ petitioner contended that
she was eligible to be appointed to the post of Headmistress on
1/6/2015 and since Smt.Remadevi retired on 31/3/2018, she
should be permitted to occupy the said post. In fact, in
Manager, Pavandoor Higher Secondary School v.
Sadanandan [2016 (5) KHC 78], a Division Bench of this Court
had held that test qualified persons cannot have any preference
for appointment as against those persons who are senior most
HSA and above 50 years who are entitled for exemption as
provided under the 2nd proviso to Rule 44A. Needles to be stated,
as on the date of appointment of Smt.Remadevi, the Government
Order dated 10/6/2015 was not in force and even otherwise, in
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the light of the judgment in Pavandoor Higher Secondary
School's case (supra), she was entitled to continue. What would
be the effect of the 3rd proviso to Rule 44A was considered by
another Division Bench of this Court in Haneefa Beevi Kallan v.
Manager, P.P.M. Higher Secondary School and Others
(decided on 28/3/2019 in WA No. 925/2019), wherein it was held
that when the Headmaster is appointed on 1/04/2017 on the
strength of permanent exemption which he had by virtue of 2 nd
proviso to Rule 44A(1) and since the benefit had already inured to
him, it cannot be taken away by retrospective effect of the 3 rd
proviso. It was held that the 3rd proviso only had prospective
operation. While considering a reference order dated 29/5/2019,
in WP(C) No. 17344/2017 and connected cases, in which myself
(Shaffique, J) was a party, after taking note of the controversy
relating to retrospective operation of the amendment, this court
had formed an opinion that it may not take away any vested right
and to that extent we do not agree with the view expressed in
Pavandoor Higher Secondary School's case (supra) and
Haneefa Beevi Kallan's case (supra). However, in view of the
conflict of view expressed by this court with reference to the
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earlier cases, the matter has been referred for consideration by a
Larger Bench. Though we have expressed a different view from
what has been held in Pavandoor Higher Secondary School's
case (supra) and Haneefa Beevi Kallan's case (supra), the
said decision now holds the field until a different view is
expressed by a Larger Bench. Therefore, the reference order by
itself does not have any precedential value. Learned Single Judge
was therefore not justified in placing much reliance on the
reference order.
5. Now coming to the factual aspects involved in the
case, Smt.Remadevi was appointed as a teacher based on an
exemption in terms of the 2nd proviso to Rule 44A(1). She has
retired from service during the pendency of the writ petition.
Presently Smt.Veena U.Nair, the writ petitioner, seeks for being
appointed in the vacancy that had arisen on the retirement of
Smt.Remadevi on 31/3/2018 and the learned Single Judge had
also directed her to be appointed in the said vacancy. But the fact
remains that there are two claimants to the said vacancy which
has arisen on 1/04/2018, Smt.P.M.Beena and Smt.Veena U.Nair.
Both are test qualified. It is argued by the learned senior counsel
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for the writ petitioner that she is due to retire on 31/5/2021 and
thereafter Smt.P.M.Beena could be accommodated in the post of
Headmistress. But what is now directed to be complied with by
the learned Single Judge is regarding the vacancy that had arisen
on 01/04/2018. Admittedly Smt.P.M.Beena is senior to Smt.Veena
U.Nair and, therefore, as on the date when the vacancy had
arisen, Smt.P.M.Beena alone can be accommodated, and she,
being the senior most test qualified teacher, can be appointed as
Headmistress. The right of the petitioner to be absorbed as
Headmistress w.e.f. 1/6/2015 can arise only in the event of a final
adjudication in WP(C) No. 36877/2017, which of course depends
upon the validity of the amendment and its retrospectivity.
6. As matters stand now, the law laid down in
Pavandoor Higher Secondary School's case (supra) and
Haneefa Beevi Kallan's case (supra) shall hold the field until
a different view is taken by the Larger Bench in the pending
matters.
In the light of the aforesaid discussion, we are of the view
that the learned Single Judge was not justified in directing
Smt.Veena U.Nair to be appointed in the vacancy that had arisen
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w.e.f. 1/04/2018.
In the result, we set aside the interim order dated
15/12/2020 and the appeal stands allowed.
Sd/-
A.M.SHAFFIQUE
JUDGE
Sd/-
GOPINATH P.
Rp JUDGE
WA No.11/2021
APPENDIX
APPELLANTS' EXHIBITS:
ANNEXURE i TRUE COPY OF THE JUDGMENT IN W.P.
(C)NO.21029/2020 OF THIS HON'BLE COURT.
ANNEXURE II TRUE COPY OF THE JUDGMENT IN
W.A.NO.925/2019 DATED 28.03.2019 OF
THIS HON'BLE COURT.
ANNEXURE III TRUE COPY OF THE ORDER
NO.B2/19565/2020/D.DIS. DATED
18.12.2020 OF THE DEO, MAVELIKKARA.
ANNEXURE IV TRUE COPY OF THE CERTIFICATE OF
DEPARTMENTAL TESTS OF THE 2ND APPELLANT
(K.E.ACT AND RULES, KSR PAPER I, KERALA
FINANCIAL CODE (PAPER II, INTRODUCTION
TO THE INDIAN GOVERNMENT ACCOUNTS AND
AUDIT (PAPER III AND THE KERALA
TREASUREY CODE (PAPER IV)
