Kerala High Court

Rajamohanan K vs State Of Kerala on 16 February, 2024

Author: P.B.Suresh Kumar

Bench: P.B.Suresh Kumar

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                                     &
                 THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
                                     &
                   THE HONOURABLE MRS. JUSTICE C.S. SUDHA
          Friday, the 16th day of February 2024 / 27th Magha, 1945
                         WP(C) NO. 1760 OF 2018 (T)
PETITIONER:

     RAJAMOHANAN K., AGED 55 YEARS, S/O.KUNHIKANNAN, HSA (MALAYALAM),
     (ORDERED TO BE PROMOTED AS HEAD MASTER), DURGA HIGHER SECONDARY
     SECHOOL, KANHANGAD, PIN-671315.

     BY ADVS.
     VIPINDAS.T.K.
     SREEVINAYAKAN.K.V.
     MUHAMMED HUSSAIN.K.M.
     GINEEB.K.C

RESPONDENTS:

  1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL
     EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
     PIN-695001.
  2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY.P.O,
     THIRUVANANTHAPURAM, PIN-695014.
  3. THE DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF
     EDUCATION, KASARAGOD, CIVIL STATION, VIDYANAGAR.P.O, KASARAGOD
     DISTRICT, PIN-671123.
  4. THE DISTRICT EDUCATIONAL OFFICER, KANHANGAD, PIN-671315. KASARAGOD
     DISTRICT.
  5. CHANDRAMATHI.M.V., HSA (SOCIAL STUDIES), DURGA HIGHER SECONDARY
     SCHOOL, KANHANGAD, PIN-671315.
  6. THE MANAGER, DURGA HSS, KANHANGAD, PIN-671315.

      GOVERNMENT PLEADER FOR R1 TO R4
      ADV.M.SASINDRAN FOR R5

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ORDERS ON 16.02.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                                             C.R.
      P.B.SURESH KUMAR, P.G.AJITHKUMAR & C.S.SUDHA JJ.
                  -----------------------------------------------
                          W.A.No.755 of 2018,
                W.P.(C) Nos.17344 & 40054 of 2017,
                W.P.(C) Nos.1121, 1760, 6001, 6944
                              & 7634 of 2018
                  -----------------------------------------------
           Dated this the 16th day of February, 2024


                                  ORDER

P.B.Suresh Kumar, J.

The above matters are placed before this Full

Bench on a reference by a Division Bench doubting the

correctness of the decisions of two other Division Benches,

one in Pavandoor Higher Secondary School v. Sadanandan,

2016 (4) KLT 207 and the other in Harifa Beevi Kallan v. The

Manager, PPM Higher Secondary School and Others

(W.A.No.925 of 2019).

2. The disputes in Sadanandan and Harifa Beevi

Kallan relate to the appointment of Headmasters of Aided High

Schools governed by Rule 44A(1) of Chapter XIVA of the Kerala

Education Rules, 1959 (Rules) framed under the Kerala

Education Act (Act), 1958. Rule 44A(1) as it stands now,

excluding the Explanations and Note to the same, reads thus:

"(1) Subject to the provisions contained in sub-rule (1) of rule

con. cases

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 the Kerala Education Act and the Kerala Education Rules and a pass in account Test (Lower) conducted by Kerala Public Service Commission.

Provided that Headmasters, Headmistress, Vice Principal 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.

Explanation I: xxx Note: xxx Explanation II: xxx "

As explicit from the extracted provision, the sub-rule prescribes

the minimum service qualification for appointment as

Headmaster in Aided Complete High Schools/Training Schools.

The qualifications prescribed are twelve years of continuous

graduate service and pass in two tests namely, the test in the

Act and Rules and Account Test (Lower), the latter conducted

con. cases

by the Kerala Public Service Commission. The second proviso

to the Rule, however, exempts permanently, teachers who

have attained the age of 50 years from acquiring the test

qualifications. The third proviso to the Rule was added on

13.12.2017 with retrospective effect from 01.06.2015.

3. Prior to the introduction of the third proviso to

the Rule, on 10.06.2015, the Government issued G.O.(MS)

No.157/2015/G.Edn., providing that even though teachers who

have attained the age of 50 years are exempted from acquiring

the test qualifications, if there are test qualified teachers under

the management, they shall be preferred over others for

appointment as Headmaster. In Sadanandan, the Division

Bench held that G.O.(MS) No.157/2015/G.Edn. has no legal

effect inasmuch as it dilutes the statutory provision contained

in the Rule that teachers who have attained the age of 50

years shall stand exempted permanently from acquiring the

test qualifications, for a statutory provision cannot be diluted

by an executive order. It is thereafter that the third proviso was

introduced with retrospective effect from 01.06.2015 providing

exactly the same stipulation as contained in G.O.(MS)

No.157/2015/G.Edn. dated 10.06.2015.

con. cases

4. Harifa Beevi Kallan was a case decided after

the introduction of the third proviso to the Rule. In the said

case, another Division Bench upheld the appointment of a

teacher who completed the age of 50 years, but who had not

qualified the tests as Headmaster, therefore, overlooking the

claim of a test qualified teacher despite the introduction of the

third proviso, taking the stand that by virtue of the second

proviso to the Rule, a right is accrued in favour of the teacher

who has completed the age of 50 years and the said right

cannot be taken away retrospectively. In other words, in terms

of the judgment in Harifa Beevi Kallan, this Court has virtually

nullified the retrospectivity given to the third proviso.

5. Rule 45B(1) of Chapter XIVA of the Rules

provides that Account Test (Lower) conducted by the Kerala

Public Service Commission shall be an obligatory qualification

for the teachers to claim promotion as Headmasters of Lower

Primary and Upper Primary Schools. Although the said

requirement was introduced with effect from 03.11.1978, it

was provided in Rule 45B(3) that in the case of teachers

awaiting promotion as Headmasters, there shall be a

temporary exemption from acquiring the test qualification for a

con. cases

period of one year. The said period of temporary exemption

was later extended from time to time by amending Rule

45B(3). The last amendment was one brought into force on

12.08.1986 in terms of G.O.(P) No.139/86/G.Edn., and as per

the said amendment, the period of temporary exemption was

extended for a further period of two years from 01.04.1986.

G.O.(P)No.139/86/G.Edn. was challenged before this Court, and

the learned Single Judge struck down the said amendment

accepting the challenge. The said decision was upheld by the

Division Bench in Pankajaksy and Others v. George Mathew and

Others, 1987 (2) KLT 723 holding that when a provision is made

imposing certain obligatory tests for appointment as

Headmaster to assure competency, efficiency and efficacy of

Headmasters as head of the institutions, the same cannot be

suspended beyond a reasonable period, and hence the said

amendment is arbitrary, unreasonable and even beyond the

powers conferred under the Act.

6. Some of the above writ petitions are instituted

challenging the retrospectivity given to the third proviso to

Rule 44A(1), and the others are instituted seeking directions

for enforcement of the said statutory provision with

con. cases

retrospective effect. When the writ petitions came up for

consideration, the learned Single Judge took the view that in

the light of the decision of the Division Bench in Pankajaksy

and the decision of the Division Bench in Harifa Beevi Kallan, it

is only appropriate that the writ petitions be heard by a Bench

of more Judges and accordingly, the matters were referred to

the Division Bench. But, on a consideration of the matters, the

Division Bench took the view that in the light of the decision of

this Court in Pankajaksy, G.O.(MS) No.157/2015/G.Edn. is in

order, and the same ought to have been given effect to in

Sadanandan. The Division Bench also took the view that the

exemption granted to teachers who completed the age of 50

years from acquiring test qualifications, cannot be treated as a

vested right and therefore, when the Government directs

preference to be given to teachers having test qualifications

with retrospective effect from 01.06.2015, the provision cannot

be styled as one taking away a vested right. It is in the light of

the views aforesaid, the Division Bench doubted the

correctness of the decisions in Sadanandan and Harifa Beevi

Kallan.

7.Adv.P.V.Mohanan and Adv.T.B.Ramani addressed

con. cases

arguments supporting the retrospectivity given to the third

proviso to the Rule and Adv.Murali Pallath addressed

arguments opposing the retrospectivity given to the said

provision. Sri.Antony Mukkath and Sri.A.J.Varghese, the learned

Government Pleaders also addressed arguments supporting

the retrospectivity given to the provision. None addressed

arguments supporting the view expressed by the Division

Bench for doubting the correctness of the decision in

Sadanandan.

8. Having noticed the basis on which the

decisions in Sadanandan and Harifa Beevi Kallan are doubted,

we are of the view that the following questions arise for

consideration in the reference:

(i) Is G.O.(MS) No.157/2015/G.Edn. invalid, as held in Sadanandan;

(ii) Can the benefit of permanent exemption granted to teachers from acquiring test qualifications in terms of the second proviso to Rule 44A(1), be taken away, by giving retrospectivity to the third proviso to the Rule as held in Harifa Beevi Kallan.

9. Before dealing with the questions aforesaid, it is

necessary to give an indication as to how Rule 44A(1)

introduced in the Rules as early as on 31.01.1968 transformed

con. cases

to its present form, from its original form. Rule 44A is a

provision intended to prescribe qualification for appointment as

Headmaster in Aided Complete High Schools/Training Schools

and when the same was introduced for the first time, it only

provided that twelve years of continuous graduate service is

necessary for appointment. The test qualification namely, a

pass in the test in the Act and Rules was added to the Rule by

way of an amendment only on 06.11.1968. Later, on

07.08.1976 the test qualification namely, a pass in Account

Test (Lower) conducted by Kerala Public Service Commission

was also added to the Rule by way of another amendment. The

second proviso to Rule 44A(1) was added to the Rule much

later with effect from 02.03.1982, exempting permanently, the

teachers who have attained the age of 50 years from acquiring

test qualifications. As noted, it is thereafter that the third

proviso was introduced to the Rule on 13.12.2017 with

retrospective effect from 01.06.2015 providing further that

notwithstanding anything contained in the second proviso,

preference shall be given to those teachers who have acquired

test qualifications.

10. Question (i): As already noticed, the view

con. cases

taken by the Division Bench in Sadanandan is that inasmuch as

a statutory provision cannot be nullified or diluted through an

executive order, G.O.(MS) No.157/2015/G.Edn. dated

10.06.2015 has no legal effect and that the second proviso will

therefore prevail over the executive order. As indicated, none

addressed arguments supporting the view expressed by the

Division Bench for doubting the correctness of the decision in

Sadanandan. On the other hand, the specific argument

advanced by Sri.Antony Mukkath, the learned Government

Pleader is that it is to cure the defect pointed out by this Court

in Sadanandan by introducing a provision in the nature of one

provided in the third proviso by an executive order, a statutory

amendment in the form of the third proviso was added with

retrospective effect. Having considered the matter in depth, we

are of the view that the decision of this Court in Sadanandan is

perfectly in order. Question (i), in the circumstances, is

answered in the affirmative.

11. Question (ii): The legislative power to make a

law with retrospective effect is well recognised. It is also well

settled that though the legislature has no power to sit over a

judgment of the court or usurp judicial power, the legislature

con. cases

has, subject to the competence to make law, power to remove

the basis which led to the decision of the court [See Virender

Singh Hooda v. State of Haryana, (2004) 12 SCC 588 ]. In the

light of the said propositions, the third proviso introduced to

the Rule can certainly be regarded as a permissible curative

legislation.

12. The specific contention taken by Adv.Murali

Pallath opposing the retrospectivity given to the third proviso is

that while introducing a retrospective amendment to a

statutory rule governing conditions of service, the vested

rights of the employees cannot be taken away. The learned

counsel has relied on the decision of the Apex Court in

K.Narayanan v. State of Karnataka, 1994 Supp (1) SCC 44, in

support of the said contention. The passage in the decision of

the Apex Court in K.Narayanan on which reliance was placed by

the learned counsel, reads thus:

"7. Rules operate prospectively. Retrospectivity is an exception. Even where the statute permits framing of rule with retrospective effect the exercise of power must not operate discriminately or in violation of any constitutional right so as to affect vested right. The rule-making authority should not be permitted normally to act in the past. The impugned rule made in 1985 permitting appointment by transfer and making it operative from 1976 subject to

con. cases

availability of vacancy in effect results in appointing a Junior Engineer in 1986 with effect from 1976. Retrospectivity of the rules is a camouflage for appointment of Junior Engineers from a back date. In our opinion the rule operates viciously against all those Assistant Engineers who were appointed between 1976 to 1985. In Ex-Capt. K.C. Arora v. State of Haryana and P.D. Aggarwal v. State of U.P. it was held by this Court that the President or Governor cannot make such retrospective rules under Article 309 of the Constitution as contravene Articles 14, 16 or 311 and affect vested right of an employee. Even in B.S. Yadav v. State of Haryana where the power to frame rules retrospectively was upheld it was observed: (SCC p. 557, para 76)

"Since the Governor exercises a legislative power under the proviso to Article 309 of the Constitution, it is open to him to give retrospective operation to the rules made under that provision. But the date from which the rules are made to operate must be shown to bear, either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case."

As seen earlier there is no nexus between framing a rule permitting appointment by transfer and making it retrospective with effect from 1976. Appointing a person to a higher post in a different cadre in which he has never worked is violative of constitutional guarantee of those who are working in the cadre. It is against basic principle of recruitment to any service. Even in Mohammad Shujat Ali where the Constitution Bench while reiterating that distinction in qualification was valid criterion for determining eligibility for promotion except where both held the same post and perform same duty did not strike down the rules as the differentiation in same class of persons was not brought about for the first time but existed from before and the two were

con. cases

treated as distinct and separate class. The retrospective operation of the impugned rule attempts to disturb a system which has been existing for more than twenty years. And that too without any rationale. Absence of nexus apart no rule can be made retrospectively to operate unjustly and unfairly against other (sic). In our opinion the retrospective operation of the rule with effect from January 1, 1976 is discriminatory and violative of Articles 14 and 16."

In Roshan Lal Tandon v. Union of India, AIR 1967 SC 1889, B.S.

Vadera v. Union of India, AIR 1969 SC 118 and State of Gujarat

v. Raman Lal Keshav Lal Soni, (1983) 2 SCC 33, the Constitution

Benches of the Apex Court have held in unison that a

Government servant has no vested right in the terms and

conditions of his service and the same can be altered with

retrospective effect by the rules made under the proviso to

Article 309 and that the retrospective operation of the rules

cannot be assailed on the ground that it takes away vested

rights. After referring to the decisions of the Constitution

Benches referred to above and the decision in K.Narayanan, in

Railway Board v. C.R. Rangadhamaiah, (1997) 6 SCC 623, the

Apex Court held that a rule which seeks to reverse from an

anterior date a benefit which has been granted or availed can

be assailed as being violative of Articles 14 and 16 of the

con. cases

Constitution to the extent it operates retrospectively.

Paragraph 20 of the said judgment reads thus:

"20. It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively."

13. In State of T.N. v. Arooran Sugars Ltd., (1997) 1

SCC 326, it was observed by the Apex Court that whenever any

amendment is brought in a Rule retrospectively, the rights of

some are bound to be affected in that process by one way or

another and in every such case, it cannot be urged that the

exercise by the legislature while introducing a new provision

with retrospective effect, shall be per se violative of Article 14

of the Constitution. Needless to say, when a retrospective

amendment is brought in force, the question whether the same

would violate any constitutional rights of the employees, needs

to be examined.

14. Keeping in mind the aforesaid principles, let us

now deal with the moot question, namely, whether the

con. cases

retrospectivity given to the third proviso to the Rule has

violated any of the constitutional rights of the teachers who

crossed the age of 50 years. As noted, the second proviso to

the Rule is carved out as an exemption to Rule 44A(1), the

latter stipulating the mandatory qualifications to be acquired

for claiming appointment as Headmaster. In the light of the

decision of the Division Bench in Pankajaksy, it is doubtful as to

whether, having regard to the purpose for which the Rule was

enacted, any teacher could be exempted permanently from

acquiring the test qualifications. We are, however, not

examining the said aspect, as it does not arise for

consideration in the referred matters. An "exemption" is

nothing but an immunity from a burden. In P Ramanatha

Aiyar's Advanced Law Lexicon (4 th Edition), "exemption" is

defined to be an immunity, freedom from any service, charge,

burden, taxes etc. In State of Haryana v. Mahabir Vegetable Oils

(P) Ltd., (2011) 3 SCC 778, in the context of tax exemption, the

Apex Court held that an exemption is only a concession and

the beneficiary of the concession has no legally enforceable

right, except to enjoy the benefits of the same. Paragraph 28 of

the judgment in the said case reads thus:

con. cases

"28.An exemption is nothing but a freedom from an obligation which an assessee is otherwise liable to discharge. In a fiscal statute, an exemption has been held to be a concession granted by the State so that the beneficiaries of such concession are not required to pay the tax or the duty they are otherwise liable to pay under such statute. The beneficiary of a concession has no legally enforceable right against the Government to grant a concession except to enjoy the benefits of the concession during the period of its grant. The right to exemption or concession is a right that can be taken away under the very power in exercise of which the exemption was granted."

There is absolutely no reason to understand the word

"exemption" differently in the context of the present case. If

an exemption granted to a teacher who completed the age of

50 years is understood as a concession extended to him,

according to us, even while we hold that such exemptions are

enforceable, depriving of the same retrospectively would not

violate any of his/her constitutional rights. If that be so,

retrospectivity given to the third proviso to Rule 44A(1), is

perfectly in order. We take this view also in the light of the

decision of the Division Bench in Pankajaksy, that suspension of

a provision in the nature of the second proviso to Rule 44A(1)

beyond a reasonable time, is not only arbitrary and