S.Rajalakshmy vs The State Of Kerala
2021 Latest Caselaw 15496 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
        FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943
                         WP(C) NO. 24301 OF 2020
PETITIONER :-

           S.RAJALAKSHMY, AGED 53 YEARS
           W/O.B.MOHANKUMAR, LAKSHI VILAS BUNGLOW,
           CHAKKUMKANDAM P.O., PALUVAI VIA.,
           THRISSUR DISTRICT - 680 522.

           BY ADV SAJEEV KUMAR K.GOPAL


RESPONDENTS :-

    1      THE STATE OF KERALA
           REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
           GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
           THIRUVANANTHAPURAM - 695 004.

    2      THE SECRETARY TO THE GOVERNMENT
           GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
           THIRUVANANTHAPURAM - 695 004.

    3      THE DISTRICT EDUCATIONAL OFFICER
           CHAVAKKAD, THRISSUR DISTRICT - 680 506.

    4      THE MANAGER,
           SREE KRISHNA HIGHER SECONDARY SCHOOL AND ADMINISTRATOR,
           GURUVAYUR DEVASWOM, GURUVAYUR,
           THRISSUR DISTRICT - 680 305.

    5      SASIDHARAN K.V., AGED 52 YEARS,
           S/O.SANKARAN NAIR, HSA (MALAYALAM),
           SREE KRISHNA HIGHER SECONDARY SCHOOL, GURUVAYUR,
           THRISSUR DISTRICT - 680 101.

           R5 BY ADV SRI.R.K.MURALEEDHARAN
           R4 BY ADV SRI.T.K.VIPINDAS
           R1-R3 BY SMT.NISHA BOSE, SR.G.P.

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
5.7.2021, THE COURT ON 23.7.2021 DELIVERED THE FOLLOWING:
 WP(C) NO. 24301 OF 2020

                                    -: 2 :-


                               JUDGMENT

Dated this the 23rd day of July, 2021

This writ petition is filed seeking the following reliefs :-

"i) Issue a writ of certiorari or any other appropriate writ or direction orders calling for the records leading to Exhibit P10 and quash the same.

ii) Issue a writ of Mandamus or any other appropriate writ or direction orders directing the 4th respondent to appoint the petitioner as Headmistress in-charge of the Sree Krishna Higher Secondary School, Guruvayur.

iii) Declare that Exhibit P10 is against the directions of this Hon'ble Court in Exhibit P9 and hence it is vitiated.

iv) Declare that the amendment brought to Rule 44A of Chapter 14A of the KER through Exhibit P12 is illegal and is against the provisions and object of the Kerala Education Act and Rules."

2. Heard Sri.Sajeev Kumar K. Gopal, the learned counsel

for the petitioner, Smt.Nisha Bose, the learned Senior Government

Pleader, Sri.T.K.Vipindas, the learned counsel for the 4 th

respondent and Sri.R.K.Muraleedharan, the learned counsel for the

5th respondent.

3. It is contended that the petitioner is the senior most HSA

available under the 4th respondent. She was given the charge of

Headmistress on 8.7.2020. The Headmistress of the school was WP(C) NO. 24301 OF 2020

promoted to the post of Principal of the Higher Secondary School

and in the said vacancy, the petitioner was put in charge by Ext.P1

order. The approval for appointment of Smt.Latha T. M. as

Principal was rejected by Ext.P3 order dated 7.8.2020. Smt.Latha

T. M. was directed to handover charge of Principal of the Higher

Secondary School to Smt.Jayasree M. and to assume charge as

Headmistress in the school. The petitioner was required to

handover charge to Smt.Latha T. M. The said order was

challenged by Smt.Latha T. M. in W.P.(C) No.17014/2020 and

Ext.P4 order came to be passed by this Court. The operative

portion of Ext.P4 reads as follows :-

".......... Hence I direct the 4 th respondent to maintain status quo as on the date of Ext.P4 i.e. 21.7.2020, permitting the petitioner to work as Principal till a decision is taken on Ext.P5 revision petition by the 1st respondent."

It is submitted that Smt.Latha T. M. continued as Principal in the

Higher Secondary School. However, though a request was made

to retain the petitioner as Headmistress of the school, that was not

considered. It is contended that the petitioner has crossed the age

of 50 years and is entitled for exemption from acquiring the WP(C) NO. 24301 OF 2020

departmental test qualifications. The petitioner, therefore,

preferred Ext.P6 request for promotion to the post of

Headmistress. The petitioner had applied for appearing in the

departmental test to be held in January, 2020 as early as on

22.12.2019, but the examination was cancelled by the Public

Service Commission. Thereafter also, the petitioner submitted

application for appearing for the examination and appeared in the

examination, the last paper of which was held on 30.11.2020. It is

contended that the result of the examination has also now been

declared and the petitioner has acquired the test qualification. It

is submitted that the petitioner could not clear the departmental

test in time only due to the fact that the test was not conducted

because of the Covid-19 pandemic and that the said fact cannot be

held against her.

4. The 5th respondent had, in the meanwhile, approached

this Court by filing W.P.(C) No.18401/2020 seeking promotion as

Headmaster without making the petitioner a party to the writ

petition. This Court, by Ext.P8 judgment, directed the Manager to

handover charge of Headmaster to the 5th respondent pending the WP(C) NO. 24301 OF 2020

outcome of the revision petition. The petitioner on coming to know

of the fact, filed W.A.No.1308/2020 which was disposed of by

Ext.P9 judgment. It is contended that the Division Bench has held

that when an order of status quo was passed in favour of

Smt.Latha T. M., which resulted in her not being reverted to the

post of Headmistress, the normal procedure should have been that

the petitioner continues to be Headmistress in charge. However,

the Division Bench directed the reconsideration of the issue by the

Manager. A hearing was conducted and the 5 th respondent was

posted as Headmaster in charge in preference to the petitioner by

Ext.P10 order. The said order is under challenge here.

5. The learned counsel for the petitioner submits that the

petitioner is admittedly the senior most HSA in the school. It is

contended that she is entitled to permanent exemption from test

qualification. However, it is the specific case of the petitioner that

she had made application for appearing in the Account Test and

the KER Test, but the examinations could not be conducted due to

the lockdown. It is, therefore, contended that the factual situation

has to be taken note of and the petitioner who had made all efforts WP(C) NO. 24301 OF 2020

to acquire the qualification as early as in 2019 should at least have

been considered for posting as teacher-in-charge. It is submitted

that no vacancy of Headmistress has actually arisen in the school

as of now. It is submitted that it is only when the challenge raised

to Smt.Latha T. M.'s appointment as Principal of the Higher

Secondary School is decided that the question whether a vacancy

of Headmaster is arising in the school or not could be decided. It

is submitted that it is only when a regular appointment is being

made that the issue of qualification can be considered, that too,

with reference to the date of arising of the regular vacancy. It is

submitted that as of now, the best that can be done is a charge

arrangement and if that be so, the petitioner who is the senior

claimant is entitled to be so appointed. It is further contended that

Ext.P4 specifically ordered status quo in respect of the continuance

of Smt.Latha T. M. as Principal. In Ext.P9 judgment, the Division

Bench specifically found that the resultant situation should have

been that the petitioner, who had been holding the charge of

Headmistress, should continue to do so. It is, therefore, contended

that the findings in Ext.P10 to the effect that the status quo was WP(C) NO. 24301 OF 2020

ordered by this Court only in favour of Smt.Latha T. M. and that

the petitioner cannot claim any benefit thereof is completely

misconceived. It is further contended that the petitioner who is

senior to the 5th respondent and who has all the essential

qualifications is liable to be posted as Headmistress in preference

to the 5th respondent.

6. Detailed counter affidavit has been placed on record by

the 5th respondent. It is contended that the charge given to the

petitioner with effect from 8.7.2020 without taking note of the

better claims of the 5th respondent was itself erroneous. The 5 th

respondent, therefore, approached the 2nd respondent with

Ext.R5(a) objection. It is stated that the benefit of Ext.P4 order is

clearly available only to Smt.Latha T. M. and not to the petitioner.

Thereafter, the 4th respondent had issued an order on 20.8.2020

retaining Smt.Latha T. M. as Principal of the Higher Secondary

School. However, there was no order passed retaining the

petitioner herein as teacher-in-charge of the Higher Secondary

School. Therefore, in view of the fact that the post of

Headmistress was vacant, the 5th respondent approached this WP(C) NO. 24301 OF 2020

Court and obtained a judgment dated 16.9.2020. Thereafter, by

Ext.R5(c) order dated 24.9.2020, the 5 th respondent was appointed

as Headmaster by the 4th respondent. It is further submitted that a

Division Bench of this Court in Narayanan v. Vijayalakshmi

[2020 (4) KLT 198] has considered the issue of qualification for

appointment as Headmaster and has held that the teachers who

are qualified as on the date of occurrence of vacancy are entitled

to appointment as Headmaster even if there are test exempted

teachers who have attained the age of 50 years in the school. It is

stated that in Shaju K.P. & another v. State of Kerala & others

[2019 (4) KHC 295] it was held that the qualification for regular

appointment to the post of Principal has to be followed even while

effecting placement in the post of Principal-in-charge. It is further

contended that the petitioner had acquired the qualification of pass

in Account Test and KER Test only as on the date of the certificate

issued to her. Relying on the decision in Balakrishnan v. AEO,

Vatakara [2005 (4) KLT 64], it is stated that Rule 28 (bbb) of the

Kerala State and Subordinate Service Rules has no application in

the instant situation and is not applicable to aided school service. WP(C) NO. 24301 OF 2020

It is, therefore, contended that Ext.P10 is perfectly legal and valid

and the contentions raised by the petitioner are totally untenable.

It is submitted that even if the date of declaration of result, that is,

on 1.3.2021 is taken note of, the petitioner can have no right to

claim appointment as teacher-in-charge in a vacancy which arose

on 8.7.2020.

7. I have considered the contentions advanced. It is clear

that the petitioner is the senior hand in the post of HSA.

However, it is also clear that she had acquired the departmental

test qualifications necessary for appointment as Headmistress only

in 2021, even if the date of declaration of result is taken into

account. The vacancy against which the petitioner claims posting

as teacher-in-charge occurred on 2.7.2020. It is the rival claims for

appointment as teacher-in-charge in the said vacancy that was

being considered by the Manager. The question whether Ext.P4

order of status quo was to have accrued to the petitioner's benefit

or not is no longer relevant since the Division Bench in Ext.P9

judgment had directed the Manager to consider the rival claims of

the petitioner as well as the 5th respondent for appointment as WP(C) NO. 24301 OF 2020

teacher-in-charge. The Manager in Ext.P10 found vacancy of

teacher-in-charge arose on 2.7.2020, it is the eligibility of the

parties to the dispute to be appointed as teacher-in-charge as on

2.7.2020 that has to be considered. As on the said date, the

petitioner had admittedly not acquired the qualification. She had

not even written the examination. The proviso to Rule 44A of

Chapter XIVA KER reads as follows :-

"44A. (1) Subject to the provisions contained in sub-rule (1) of rule 44, the minimum service qualification for appointment as Headmaster, Headmistress, Vice-Principal in Aided Complete High Schools/Training Schools shall be twelve years of continuous graduate service with a pass in the test in Kerala Education Act and the Kerala Education Rules and a pass in account Test (Lower) conducted by Kerala Public Service Commission.

Provided that Headmasters, Headmistresses, Vice-Principals of High and Training Schools, who were actually holding the said post on the eleventh day of June, 1974 shall stand exempted from passing the Account Test (Lower) Provided further that Teachers who have attained the age of 50 years shall stand exempted permanently from acquiring the test qualification specified in Sub rule (1) Provided also that, notwithstanding anything contained in the second proviso, in the case of appointment to the post of Headmaster, Headmistress, Vice-Principal, preference shall be given to those teachers who have acquired the test qualifications specified in this rule."

WP(C) NO. 24301 OF 2020

It is clear that if a qualified teacher is available for appointment,

then even if the post is being filled up by a charge arrangement,

the qualifications for the post have to be taken note of. Rule 45C

of Chapter XIVA KER reads as follows :-

"45C. Temporary Promotion:- (1) Where in any aided school, a qualified teacher is not available to be promoted as Headmaster, Headmistress or Vice-Principal in accordance with the provisions contained in rule 44 and 44A, 45, 45A and 45B the appointing authority shall promote, the senior most teacher on the staff of the school or the schools under the Educational Agency as Headmaster, Headmistress or Vice-Principal temporarily. Provided that in the case of High Schools and Training Schools the teacher so promoted shall be the senior most graduate teacher on the staff of the school or the schools under the Educational Agency who has put in at least 12 years of continuous graduate service as provided in sub-rule (1) of rule 44A of this Chapter and in the case of primary schools it shall be the senior most teacher possessing qualifications prescribed in rule 45 or, as the case may be rule 45 A.

(2) A teacher temporarily promoted under sub-rule (1) shall be replaced as soon as possible by the member of the service who becomes entitled to the promotion under the rules.

(3) A teacher temporarily promoted under sub-rule (1) shall not be regarded as a probationer in the higher category or be entitled by reason only of such promotion to any preferential claim to future promotion to such higher category.

(4) If such person is subsequently promoted to the higher WP(C) NO. 24301 OF 2020

category in accordance with the rules, he shall commence his probation, if any, in such category from the date of such subsequent promotion or from such earlier date as the appointing authority may determine without prejudice to the seniority of others.

(5) The pay of the promotee shall be fixed as provided in rule 43A.

[Provided that in the case of Headmaster of Aided primary school the promotee is entitled to draw the scale of pay applicable to the Headmaster of Government School only on completion of the period of service as specified in sub-rule (1) of rule 1, Chapter XXVI, and in the case of Headmaster, Headmistress and Vice- Principal of Aided High Schools and training schools, the promotee is entitled to draw the departmental Headmaster's scale of pay only on completion of the period of service as specified in rule 3, Chapter XXVI. Those who have not completed the prescribed service qualification for drawing the respective departmental Headmaster's scale of pay will be paid their grade pay and supervision allowance only].

(6) If no teacher with the prescribed service qualification is available on the staff of the school or the schools under the Educational Agency for temporary promotion as Headmaster under sub-rule (1) and the proviso thereunder, the senior most teacher on the staff of the school or the schools under the Educational Agency shall be appointed as Teacher-in-charge, provided that in the case of a High School, the teacher-in-charge should be the Senior most Graduate teacher on the staff of the school or the Unit, and he shall be replaced as soon as a fully qualified teacher as provided in the rules becomes available.

(7) The Teacher-in-charge so appointed under sub-rule (6) WP(C) NO. 24301 OF 2020

shall be eligible for his grade pay plus charge allowance fixed by Government. He shall be counted against the post of the Headmaster and the consequential vacancy shall also be filled]."

Note 2 to Rule 43 of Chapter XIVA KER specifically provides that

the eligibility and qualification have to be with reference to the

date of occurrence of vacancy. It is, therefore, abundantly clear

that it is only when there is no qualified teacher available for

promotion that the senior most teacher can be appointed as

teacher-in-charge.

8. In the instant case, it is not in dispute before me that the

5th respondent was qualified as on the date of occurrence of

vacancy. That was the specific contention raised by the 5 th

respondent before this Court as well. If that be so, then the

question of waiting for the petitioner, who is a senior hand to

acquire the qualification would not arise. The issue has to be

considered with reference to the date of occurrence of vacancy and

the teacher who was qualified as on the said date is liable to be

promoted or given charge as the case may be.

9. In the above factual situation, I find that the findings

rendered in Ext.P10 order of the 4 th respondent cannot be held to WP(C) NO. 24301 OF 2020

be illegal or arbitrary. The 5th respondent who was eligible and

qualified as on the date of occurrence of vacancy has now been

given charge as Head Teacher. I find no infirmity in Ext.P10 order

issued by the 4th respondent. The contention raised by the

petitioner that the delay in acquiring the qualification was only on

account of the Covid Pandemic also cannot be accepted in the light

of the clear provisions of the proviso to Rule 44A of Chapter XIVA

KER. The petitioner has raised a challenge to the proviso to Rule

44A of Chapter XIVA KER only as a collateral challenge and no

sustainable grounds are raised in support of the said challenge.

In the above view of the matter, the writ petition fails

and the same is, accordingly, dismissed.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/13.7.2021 WP(C) NO. 24301 OF 2020

APPENDIX OF WP(C) 24301/2020

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE ORDER DATED 08/07/2020 OF THE 1ST RESPONDENT VIDE EC1-1855/2020.

EXHIBIT P2 TRUE COPY OF THE COMMUNICATION FROM THE HEADMISTRESS TO THE DISTRICT EDUCATION OFFICER DATED NIL.

EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT DATED 07/08/2020.

EXHIBIT P4 TRUE COPY OF THE ORDER OF THIS HON'BLE COURT DATED 18/08/2020 IN W.P.(C) NO.17014/2020.

EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 26/08/2020 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 21/07/2020.

EXHIBIT P7 TRUE COPY OF THE NEWS ITEM APPEARED IN MADHYAMAM DAILY DATED 22/09/2020.

EXHIBIT P8 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO.18401/2020.

EXHIBIT P9 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.A.NO.1308/2020 DATED 08/10/2020.

EXHIBIT P9(a) TRUE COPY OF THE STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 02/11/2020.

EXHIBIT P10 TRUE COPY OF THE ORDER DATED 04/11/2020 VIDE ORDER NO.EC1-1855/2020 DATED 04/11/2020. WP(C) NO. 24301 OF 2020

EXHIBIT P11 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT REPORTED IN 2016(5) KHC 78.

EXHIBIT P12 TRUE COPY OF THE G.O.(MS) NO.187/2015/G.EDN.

DATED 10/06/2015.

EXHIBIT P13 TRUE COPY OF THE RESULT OF THE DEPARTMENTAL TEST CONDUCTED BY THE PUBLIC SERVICE COMMISSION FOR JULY 2020

EXHIBIT P14 TRUE COPY OF THE RESULT OF THE DEPARTMENTAL TEST RESULT CONDUCTED BY THE PUBLIC SERVICE COMMISSION DURING JANUARY 2020

EXHIBIT P15 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER ON 2.3.2021 BEFORE THE MANAGER OF THE SREE KRISHHNA HIGHER SECONDARY SCHOOL

EXHIBIT P16 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE DEO, CHAVAKKAD DATED 2.3.2021

RESPONDENT EXHIBITS

EXHIBIT R5(a): A TRUE COPY OF THE OBJECTION DATED 10/07/2020 SUBMITTED TO THE 2ND RESPONDENT.

EXHIBIT R5(b): A TRUE COPY OF THE ORDER DATED 20/08/2020 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT R5(c): A TRUE COPY OF THE ORDER DATED 24/09/2020 APPOINTING THE 5TH RESPONDENT AS HEDMASTER IN CHARGE

EXHIBIT R5(d): A TRUE COPY OF THE JUDGMENT IN NARAYANAN VS.

VIJAYALAKSHMI REPORTED IN 2020(4) KLT 198.

EXHIBIT R5(e): A TRUE COPY OF THE SHAJU.K.P & ANR VS. STATE OF KERALA & ORS RREPORTED IN 2019 (4) KHC 295.