State Of Kerala vs Anilkumar Raghupuram
2021 Latest Caselaw 22821 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT
         THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                               &
            THE HONOURABLE MR.JUSTICE VIJU ABRAHAM

TUESDAY,THE 23RD DAY OF NOVEMBER 2021/2ND AGRAHAYANA,1943

                   OP(KAT) NO. 319 OF 2021

 AGAINST THE ORDER IN OA(EKM).NO.1696/2021 OF THE KERALA
       ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

PETITIONERS/RESPONDETNS IN O.A.:

    1       STATE OF KERALA
            REPRESENTED BY ITS PRINCIPAL SECRETARY,
            DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT
            SECRETARIAT, THIRUVANANTHAPURAM - 695 001,
            KERALA.
    2       THE DIRECTOR OF GENERAL EDUCATION
            JAGATHY, THIRUVANANTHAPURAM - 695 014, KERALA.
    3       THE DEPUTY DIRECTOR OF EDUCATION
            DDE OFFICE, MANANCHIRA, KOZHIKODE 673 001,
            KERALA.
    4       THE DISTRICT EDUCATION OFFICER
            DEO OFFICE, MANANCHIRA, KOZHIKODE 673 001,
            KERALA.
             SRI.ANTONY MUKKATH, SR.GOVT.PLEADER

RESPONDENT/APPLICANT IN O.A.:

            ANILKUMAR RAGHUPURAM, AGED 51 YEARS,
            S/O.APPUKKUTTY KURUP T., P.D.TEACHER,
            GVHSS MEENCHANDA, ARTS COLLEGE P.O.,
            KOZHIKODE DISTRICT 673 018, RESIDING AT
            REGHUPURAM HOUSE, KANDUKULAM, VALAKKULAM P.O.,
            MALAPPURAM DISTRICT - 676 508, KERALA.
             ADV. SRI.K.A.MOHAMMED HARRIS

        THIS OP(KERALA ADMINISTRATIVE TRIBUNAL) HAVING COME
UP FOR ADMISSION ON 23.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 OP(KAT) No. 319 of 2021

                                    ..2..


      ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
=============================================
              OP(KAT) No. 319 of 2021
            [arising out of the impugned order dated 27.10.2021
   in O.A.(Ekm) No.1696/2021 on the file of the KAT, Ernakulam Bench]
=============================================
        Dated this the 23rd day of November, 2021

                            JUDGMENT

ALEXANDER THOMAS, J.

The prayer in the instant Original Petition (KAT) filed under

Articles 226 & 227 of the Constitution of India at the behest of the

State of Kerala and the General Education Department, are as

follows:

"....set aside Exhibit P2 order dated 27.10.2021 in O.A.(EKM) No.1696/2021 on the file of the Kerala Administrative Tribunal, Additional Bench, Ernakulam, by allowing this Original Petition."

2. Heard Sri.Antony Mukkath, learned Senior

Government Pleader appearing for the petitioners in the

O.P./respondents in the O.A. and Sri.K.A.Mohamed Haris,

learned counsel appearing for the respondent in the O.P./

sole applicant in the O.A.

3. The sole respondent herein has preferred the instant

Ext.P-1 Original Application O.A. (Ekm) No.1696/2021 with the

following prayers:

OP(KAT) No. 319 of 2021

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"

i. To issue appropriate order or direction, calling for the records leading to Annexure A 9 & A10 orders and to set aside the same.

ii. To declare that the Annexure A 9 & A10 Issued invoking the provisions contained in Rule 31 (a) () of the KS & SSR is inconsistent with the Rule 31 (a) (ii) of the KS & SSR. Further declare that the State Government brought these amendments without any Legislative Competence and the State Government lacks power to grant exemptions to the teachers only on the basis of their age disregarding the qualification and the seniority, as no such power is vested on the State Government under the RTE Act 2009 or the Kerala RTE Rules 2011, permitting the state to relax the mandatory qualifications.

iii. Declare that the applicant and other qualified hands in terms of Rule 18(1) of the Kerala RTE Rules are eligible for a preferential appointment to the post of Head Teacher in Primary section in parity with that granted to the High School teacher as reflected in Annexure A9 and A10.

iv. Issue appropriate orders or directions to the respondents 1 to 4 to give appointments to the applicant & other qualified hands as Head Teacher forthwith in any Government Primary School in Kozhikode District, wherein the post of Head Teacher has become vacant after 31.03.2019, in case of extreme emergency or public interest which necessitates the issuance of promotion orders before the final disposal of the OA (EKM) 77 of 2021 & other connected matters filed by the applicant and other similarly situated persons.

v. Grant such other reliefs which this Hon'ble Tribunal deems just an proper to be granted for the ends of justice."

4. The interim relief sought for in Ext.P-1 original

application is as follows:

"This Hon'ble Tribunal may be pleased to stay the Annexure A9 & A10 orders, directing to promote the unqualified hands in terms of Ru 18(1) of Kerala RTE Rules, 2011 and also direct the respondents 1 to to give preferential appointment to the applicant and other qualified hands as Head Teacher forthwith in Government Primary School in the State, wherein the post of Head Teacher has become vacant after 31.05.2019, if there is any extreme emergency and public interest necessitates the same; pending adjudication of the O.A"

OP(KAT) No. 319 of 2021

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5. The Tribunal has now rendered the impugned Ext.P-2

order at the admission stage that the O.A. will stand admitted and

further that the the operation and implementation of Anxs.A-9 &

A-10 and all consequential orders thereon are stayed for a period

of 3 weeks, and the matter has been ordered to be posted along

with connected matters.

6. Further, we are told by both sides that the abovesaid

Ext.P-2 interim order dated 27.10.2021 has been extended for a

further period of one month.

7. Sri.Antony Mukkath, learned Senior Government

Pleader appearing for the petitioners in the O.P./respondents in

the O.A. would submit that impugned Anx.A-9 is the Government

letter dated 21.10.2021 addressed to the Director of General

Education, instructing him that in view of the interim order earlier

passed by the Tribunal in O.A. Nos.2068/2020 & 2073/2020, no

further regular promotions can be effected at present to the cadre

of Headmaster of Lower Primary/Upper Primary Schools and

further, regular promotions can be effected only after vacating the

interim order or after disposal of the OAs, etc. Hence, it has been OP(KAT) No. 319 of 2021

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instructed by the Government as per Anx.A-9 that the

departmental authorities like the Director of General Education,

may invoke the specific provisions contained in Rule 31(a)(i) of the

KS &SSR Part II to ensure that temporary/provisional promotions

are made on account of the emergency which has arisen to fill

immediately the vacancy in the post of Headmaster of Lower

Primary/Upper Primary Schools. Further in that regard, it is

pointed out by the petitioners that it is well known fact that it is

only recently that the Government schools and the Aided schools

have reopened the schools since the declaration of National

Lockdown in the Country on 24.3.2020 in the wake of COVID-19

pandemic issues, and that therefore, the post of Headmaster of

Lower Primary/Upper Primary Schools have to be emergently

filled up, and in view of the interim stay order of the Tribunal,

which prohibits making of regular promotions, there is no other

order in need, but to make temporary/provisional promotions as

envisaged in Rule 31(a)(i) of the KS &SSR Part II.

8. Further, it is pointed out by Sri.Antony Mukkath,

learned Senior Government Pleader appearing for the petitioners OP(KAT) No. 319 of 2021

..6..

that various complaints have been raised from candidates seeking

public employment through the Kerala Public Service Commission

(PSC) that vacancies of various posts are not being reported in

time, and being alive to that concern, the Government has also

directed in Anx.A-9 that not only the abovesaid posts of

Headmaster of Lower Primary/Upper Primary Schools should be

filled up on the basis of temporary promotion, but the

consequential vacancies that arise in the feeder category of Lower

Primary/Upper Primary School Teachers should be reported to the

PSC for effectuating selection for direct recruitment in rank list for

those posts. It is pointed out by the learned Senior Government

Pleader that in the vacancies of the duration of 6 months or more,

then the same can be treated as substantive vacancies going by the

mandate contained in Note 2 to Rule 5 of KS &SSR Part II.

Therefore, Anx.A-9 order has been issued by the competent

authority of the State Government in the General Education

Department to meet the emergent need and to effectuate the twin

policy objectives of filling up the post of Headmaster on temporary

appointment basis and at the same time not to, in any manner, OP(KAT) No. 319 of 2021

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infringe the orders of the Tribunal which prohibits making of

regular promotions, and also at the same time to report vacancies

in the feeder category of Lower Primary/Upper Primary School

Teachers to the PSC, more particularly in view of the fact that

many of the rank lists for such feeder categories are to expire by

the end of December, 2021, etc. Further that, Anx.A-10 is issued on

25.10.2021 by the Director of General Education, instructing the

Deputy Director of Education of all the Districts concerned, that

the abovesaid policy directives given by the State Government as

per Anx.A-10 should be immediately complied with by the

authorities concerned by making temporary promotions under

Rule 31(a)(i) in the post of Headmaster, and also to report the

consequential vacancies in the post of Lower Primary/Upper

Primary School Teachers to the PSC, so that such reporting of

vacancies are duly made, and vacancy requisition report duly

reaches the office of the PSC, well before the deadline of the expiry

of rank list concerned.

9. in the light of these aspects, Sri.Antony Mukkath,

learned Senior Government Pleader appearing for the petitioners OP(KAT) No. 319 of 2021

..8..

would strongly urge that the interim stay now granted by the

Tribunal, even prohibiting the making of temporary promotion etc

in terms of Anxs.A-9 & A-10 is illegal, improper and unreasonable.

10. Per contra, Sri.K.A.Mohamed Haris, learned counsel

appearing for the sole respondent in the O.P./original applicant in

the O.A. would point out that the only substantial grievance of the

sole respondent is that it is seen that many of the incumbents are

now sought to be given temporary promotion under Rule 31(a)(i)

in terms of Anxs.A-9 & A-10, happens to be candidates who do not

have all the prescribed qualifications to hold the post of

Headmaster, inasmuch as many such incumbents are sought to be

given temporary promotion by the Department on the ground that

they stand exempted from the requisite test qualifications inasmuch

as, they have already attained the age of 50 years etc, and that when

qualified hands are available, then certainly only such qualified

hands should have been considered for temporary promotion, in

preference to unqualified hands, and that the argument that such

unqualified hands stand exempted from the qualifications

concerned is not tenable, etc. Further that, the respondents in the OP(KAT) No. 319 of 2021

..9..

O.A. have not duly reckoned impact of Clause ii of Rule 31(a).

11. To the abovesaid submission of the learned counsel for

the sole respondent in the O.P., Sri.Antony Mukkath, learned

Senior Government Pleader would respond on behalf of the

petitioners that as of now, no test qualifications are prescribed in

the rules framed by the State Government under the Central Right

to Education Act ["The RTE Act"], to hold the post of Headmaster of

the school concerned, and that the test qualification in question

has been prescribed by an executive order issued by the State

Government, and that according to Government, the said

prescription of test qualification on the basis of the executive order

will stand exempted by virtue of the statutory application of Rule

13B of the KS &SSR Part II as far as Government School teachers

are concerned, who are also regulated by provisions of KS &SSR.

12. Further that, a specific provision has been made in the

rules amended by the State Government under the RTE Act,

whereby the teachers who have attained the age of 50 years are

ordered to be exempted from such test qualifications, etc. Further,

it is pointed out that as indicated in Anx.A-9, litigation on those OP(KAT) No. 319 of 2021

..10..

issues are now pending before the Tribunal, and that this Court

has passed judgment dated 5.7.2021 in OP(KAT) Nos.16/2021 &

127/2021 directing that the main matter in those OAs shall be

disposed of by the Tribunal within 3 months or so, and that the

OAs are still pending disposal, etc.

13. We have heard the parties in extenso. We would bestow

our anxious consideration to only few crucial aspects of the matter.

The first is that the schools have reopened only recently, after the

COVID-19 pandemic issues and the children of the schools cannot

be left without Headmasters, and in other words, the schools

should necessarily have Headmasters, be it on the basis of atleast

temporary or provisional promotions. To have a stalemate to be

imposed by the wholesale stay of the entire temporary promotions

as conceived in Anxs.A-9 & A-10, and that too on the basis of an

interim order passed in the case of just one claimant, appears to be

not the right, reasonable and proper exercise of discretion in the

matter of consideration of interlocutory claims.

14. At the end of the day, it has to be borne in mind that

the sole respondent herein is the sole applicant in the O.A. The OP(KAT) No. 319 of 2021

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Government and the department and more particularly, the school

children and their parents, will be in great difficulty if the entire

temporary promotions are ordered to be stayed. The prime

requirement in such a case before us is that the needs and

requirements of the school children and their parents. So also, not

only the Government, but also the Courts should be alive to the

concerns of unemployed people waiting in the queue, especially of

candidates included in rank lists of the Kerala Public Service

Commission, which are to expire by the end of December, 2021,

or so. Unless a temporary promotions are made to the post of

Headmaster, there cannot be said to be arising of consequential

vacancies in the feeder categories of Lower Primary/Upper

Primary School Teachers. Therefore, the said ground urged by the

Government is also one crucial relevant aspect of the matter which

would impel us to consider the interdiction with the interim order

passed by the Tribunal.

15. The process of temporary promotion to the post of

Headmaster will have to be completed fast. Only then,

consequential vacancies will arise in the feeder categories of Lower OP(KAT) No. 319 of 2021

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Primary/Upper Primary School Teachers in various districts in the

State. After computing such vacancies, the competent appointing

authority will have to make a vacancy requisition report with due

care and caution, so that the correct vacancy requisition report is

made available to the PSC. The entire formalities in that regard will

have to be completed well before the expiry of rank list. This is all

the more necessary that, if in the last minute, any mistakes are

found out in the vacancy requisition report either in relation to the

numbers of vacancies differing or about the details regarding the

exact occurrence of vacancies, etc, then such vacancy requisition

report which may be suffering from defects, will also can be cured

to avoid further complications. So, taking into account the

paramount need that the school children in the State who are

attending to Government schools would require Headmasters,

we are inclined to interdict with the interim order passed

by the Tribunal. We are not now aware as to the reasons

for the Tribunal in not disposing OAs as in O.A.No.2068/2020,

O.A.(Ekm)No.77/2021, which were ordered to be disposed of

within 3 months or so, as per judgment rendered on 5.7.2021 in OP(KAT) No. 319 of 2021

..13..

OP(KAT) Nos.16 & 127 of 2021.

16. The abovesaid OAs mentioned hereinabove are the

cases referred to by the Government in Anx.A-9. Suffice to say, the

present impugned interim order rendered as per Ext.P-2 on

27.10.2021 in O.A.(Ekm) No.1696/2021 granting a wholesale stay

of the entire temporary promotion throughout the State of Kerala

would require interdiction.

17. Sri.K.A.Mohamed Haris, learned counsel appearing for

the original applicant had made detailed submissions by placing

reliance on rules as in Rule 18(1) of the Kerala Right of Children to

Free and Compulsory Education Rules, 2011, contend that even

though unqualified hands who may have attained the age of 50

years cannot be treated to be exempted from test qualification, and

that they should mandatorily possess such qualification.

18. The submissions of the respondent herein/original

applicant regarding possession of qualification, etc even in the case

of unqualified hands who may have attained the age of 50 years, etc

should also be duly reckoned by the Tribunal in the disposal of above

OAs.

19. Sri.Antony Mukkath, learned Senior Government OP(KAT) No. 319 of 2021

..14..

Pleader would make some contentions on the basis of the

judgment dated 25.6.2015 rendered by this Court in W.A. No.

1900/2014 (arising out of WP(C).No.16518/2014), etc.

20. In that view of the matter it is ordered that the Ext.P-2

order dated 27.10.2021 in O.A.(Ekm) No.1696/2021 ordering the

stay of operation and implementation of Anxs.A-9 & A-10 therein

and all consequential orders thereon, etc will stand set aside and

vacated. Needless to say, any temporary/provisional promotions

made in terms of Anxs.A-9 & A-10 will be subject to the final result

of the O.A. pending before the Tribunal.

21. The Tribunal may take all reasonable endeavours

possible in these circumstances to ensure the final disposal of the

main matters in O.A.No.2068/2020 & O.A.(Ekm)No.77/2021

without any further delay, since, the time limit stipulated by this

Court has expired some time ago. If, those main matters are

resolved after due adjudication, then the present issues raised in

this O.A. would also be easily resolved.

22. The respondents in the O.A. may file their

reply statement in the present O.A. (Ekm) No. 1696/2021 within OP(KAT) No. 319 of 2021

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4 weeks.

23. We make it clear that we have not entered into the

merits of the controversy in the main matters in the O.A., and our

main concern was to ensure that the school children should have

Headmasters in their respective schools.

With these observations and directions, the above Original

Petition (KAT) will stand finally disposed of.

Sd/-

ALEXANDER THOMAS, JUDGE

Sd/-

VIJU ABRAHAM, JUDGE

MMG OP(KAT) No. 319 of 2021

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APPENDIX OF OP(KAT).NO.319/2021

PETITIONERS' EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE OA (EKM) NO.1696/2021 ALONG WITH ANNEXURES.

ANNEXURE A1 TRUE COPY OF THE KER TEST CERTIFICATE ISSUED TO THE APPLICANT BY THE KPSC DATED 23/10/2010.

ANNEXURE A2 TRUE COPY OF THE ACCOUNT TEST (LOWER) CERTIFICATE ISSUED TO THE APPLICANT BY THE KPSC DATED 23/01/2020.

ANNEXURE A3 TRUE COPY OF THE RIGHT TO EDUCATION AMENDMENT ACT, 2017.

ANNEXURE A4 TRUE COPY OF THE G.O.(MS) NO.16/18/G.EDN.

DATED 19/02/2018.

ANNEXURE A5 TRUE COPY OF THE G.O.(MS) NO.27/2018/G.EDN. DATED 06/03/2018.

ANNEXURE A6 TRUE COPY OF THE RELEVANT PAGES OF THE AMENDMENT TO RULE 18(1) OF KERALA RTE RULES VIDE S.R.O.NO.898/2020 AND G.O.(P) NO.19/2020/G.EDN. DATED 23/12/2020 PUBLISHED IN THE GAZETTE.

ANNEXURE A7 TRUE COPY OF THE RELEVANT PAGES OF THE AMENDMENT TO RULE 18(1) OF KERALA RTE RULES VIDE S.R.O.NO.18/2021 AND G.O.

               (P)NO.1/2021/G.EDN.      DATED    05/01/2021
               PUBLISHED IN THE GAZETTE.
ANNEXURE A8    TRUE COPY OF THE RELEVANT PAGES OF ONE OF
               THE   NOTIFICATION    ISSUED    BY   CENTRAL
               GOVERNMENT GRANTING RELAXATION IN THE
               QUALIFICATION OF THE TEACHERS.
ANNEXURE A9    TRUE COPY OF THE CIRCULAR NO.U2/364/2021-
               GEDN DATED 21/10/2021, ISSUED BY THE 1ST
               RESPONDENT.
ANNEXURE A10   TRUE      COPY       OF       THE      ORDER
               NO.A2/1570/2020/DGE     DATED    25/10/2021,
               ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P2     TRUE COPY OF THE ORDER DATED 27/10/2021
               IN OA (EKM) NO.1696/2021.