IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 2342 of 2008()
1. M.K. LEELA, H.S.A., VMALA HRIDYA HIG
... Petitioner
Vs
1. GOVT OF KERALA REP. BY SECRETARY
... Respondent
2. DIRECTOR OF PUBLIC INSTRUCTIONS,
3. DISTRICT EDUCATIONAL OFFICER,
4. MANAGER, VIMALA HRIDYA HIGH SCHOOL,
5. SR. PHILOMINA P.S., HSA,
6. NESAMMAL M, H.S.A., VIMALA
For Petitioner :SRI.P.N.MOHANAN
For Respondent : No Appearance
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :10/07/2009
O R D E R
K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ.
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W.A. Nos.2342 and 2388 of 2008
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Dated this, the 10th day of July, 2009
JUDGMENT
Balakrishnan Nair, J.
W.A. Nos.2342 of 2008:
The appellant is the writ petitioner. The brief facts of
the case are the following:
The appellant is a High School Assistant working in
the 4th respondent’s school. Respondents 5 and 6 are also
working in the same school as High School Assistants. Among
them, 6th respondent is the senior most and the 4th respondent
the junior most. A vacancy in the post of Headmaster arose in
the school on 1.4.2001. On the said date, only the 6th
respondent was qualified. The appellant and the 5th respondent
were not having the requisite 12 years graduate service. The
appellant has also not cleared the obligatory tests. The manager
appointed the 5th respondent as teacher-in-charge. The District
Educational Officer approved the same. The appellant
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challenged that order of the D.E.O. before the Director of Public
Instructions. The Director of Public Instructions, by Ext.P5
order dated 5.10.2004, set aside the order of the D.E.O. and
directed the appointment of the appellant as teacher-in-charge
and also ordered to promote her when she completes 12 years
service as High School Assistant. The said decision was
rendered based on the finding that the educational institution is
not one entitled to get protection under Article 30(1) of the
Constitution of India. The matter was carried in revision by the
manager of the school. The Government by Ext.P6 order dated
7.6.2005, set aside the order of the Director of Public
Instructions and upheld the approval of appointment of the
5th respondent as teacher-in-charge. The petitioner filed review
petition before the Government. The said petition was
dismissed by Ext.P7 order dated 3.10.2005. The appellant
challenged Exts.P6 and P7 orders before this Court by filing
W.P.(C) No.30984/2005. The said writ petition was allowed,
quashing Exts.P6 and P7. It was held that the right under
Article 30(1) of the Constitution does not extend to appointing
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an unqualified person. So, it was held that, if the 6th
respondent is not entitled to be appointed as Headmistress, the
appellant would be eligible for appointment. The relevant
portion of the said judgment reads as follows:
“….When the vacancy arose, it was open
to a minority institution to appoint any qualified person
irrespective of seniority as HM. But the right under
Article 30 does not extend to appointing a person who
is not qualified. Certainly it is for the third respondent
to take note of the claim of sixth respondent also in
accordance with law. If the sixth respondent is not
found entitled to be appointed as HM, then certainly it
is the petitioner who would be eligible, as admittedly
the fourth respondent has become qualified only in the
year 2005. This is on the basis of the decision of the
Full Bench in Padmanabhan Nair’s case.
Accordingly, Exts.P6 and P7 are quashed.
There will be a direction to the third respondent to
reconsider the matter in accordance with law and take a
decision afresh after hearing all the parties, within a
period of two months from the date of receipt of a copy
of this Judgment.”.
(emphasis supplied)
Pursuant to the said judgment, the Government reconsidered
the matter and passed Ext.P9 order dated 4.8.2007. The
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operative portion of the said order reads as follows:
“In the light of the above facts and
circumstances, Government are pleaded to direct the
Manger, Vimalahridaya H.S., Virali to ascertain the
willingness of Smt.Nesammal to be posted as H.M. in
writing within 15 days after issuing notice and to appoint
her as H.M. with retrospective effect from 1/4/01, after
reverting the present H.M. Sr.Philomina, if the former
does not relinquish her claim for the post of HM.
Government also order that Sr.Philomina will continue
as HM, if Smt.Nesammal relinquishes her claim, as
contemplated in the KER.”.
(emphasis supplied)
By the above direction, the 5th respondent was able to continue
as Headmistress on the relinquishment of the claim by the 6th
respondent, Smt.Nessammal. Soon thereafter, the 6th
respondent, by Ext.P13 relinquished her claim for promotion as
Headmistress on 20.8.2007 with effect from 1.4.2001. The
appellant filed the writ petition challenging Ext.P9 and also
seeking consequential reliefs.
2. According to the appellant, in view of Ext.P8
judgment, once the 6th respondent relinquishes her claim, she
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has to be appointed as teacher-in-charge from 1.4.2001 and
thereafter as Headmistress from December 2001, the date on
which she became qualified. It is pointed out that the 5th
respondent acquired qualification only on 7.6.2005, whereas the
appellant completed 12 years graduate service on 15.7.2001
and became test qualified in December 2001. By virtue of
Rule 45C of Chapter XIV-A, of Kerala Education Rules
(hereinafter referred to as, “the K.E.R.”), the appellant being
the first person who became qualified, she is entitled to be
appointed as Headmistress. Only if there is a qualified teacher
in the school preferred by the Management, they can invoke the
minority right under Articled 30(1) of the Constitution, for
superseding the appellant and appointing that teacher. In this
case, in the absence of a qualified and willing hand, especially in
view of Ext.P8 judgment, which has become final, the appellant
should have been appointed. So, the finding of the Government
to the contrary in Ext.P9 is unsustainable, it is submitted. The
4th respondent has filed a counter affidavit resisting the prayers
in the writ petition. The appellant filed a reply affidavit. The
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learned Single Judge after hearing both sides, upheld the claim
of the management. The learned Single Judge found that
relinquishment made by the 6th respondent was to enable the
5th respondent to continue as teacher-in-charge and therefore,
the appellant cannot stake her claim based on the
relinquishment letter of 6th respondent. Feeling aggrieved by
the said judgment, this writ appeal is filed.
3. We heard Sri.P.N.Mohanan for the appellant,
learned Senior Government Pleader Sri.Benny Gervasis for the
official respondents and also the learned counsel for
respondents 4 and 5. The learned counsel for the appellant
reiterated the contentions raised in the writ petition, which we
have already noticed above. The learned counsel for the
manager submitted that the appellant even though qualified, is
unsuitable for appointment as Headmistress of a minority
educational institution. Therefore, even if she became qualified
for promotion earlier, she could not have been appointed.
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4. We have quoted the relevant portion of Ext.P8
judgment, which has became final. Everyone including us, are
bound by that. The learned Single Judge in Ext.P8 has held
that if the 6th respondent is not in the field, then the appellant is
entitled to be preferred for appointment to the post of
Headmistress, as the person who became qualified first, among
the unqualified hands. This is also the mandate of Rule 45C of
Chapter XIV-A, K.E.R. Rule 45C reads as follows:
“45C. Temporary Promotion:-(1) Where in any aided
school a qualified teacher is not available to be promoted as
Headmaster in accordance with the provisions contained in rule
44, 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,
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 45A.
(2) A teacher temporarily promoted under sub-rule (1)
shall be replaced as soon as possible by the member of the
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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 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 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 on the school or the schools under the
Educational Agency for temporary promotion as Headmaster
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under sub-rule(1) and the proviso thereunder, the seniormost
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) 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.”.
Going by the above rule, if nobody is qualified, the senior most
H.S.A. has to be posted as teacher-in-charge and the first
person, who gets qualified should be appointed as the
Headmistress of the school. As rightly held by the learned
Single Judge in Ext.P8, the right of the management of a
minority educational institution does not extend to appointing
an unqualified hand. In this case, we notice that the 6th
respondent relinquished her claim under Ext.P13 w.e.f.
1.4.2001, the date on which the vacancy arose. Thereafter,
only the appellant and the 5th respondent remained in the field.
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If the 5th respondent was qualified on 1.4.2001 or she became
qualified first, she could have been preferred by the
management. But, we notice that the appellant became
qualified in December, 2001 and the 5th respondent became
qualified only on 7.6.2005. So, the appellant was entitled to be
appointed as Headmistress with from December, 2001. In the
face of Ext.P13 relinquishment letter of the 5th respondent, the
Manager has no other option, but to appoint the appellant as
Headmistress. The order of the Government permitting a
contrary course of action is plainly untenable and also runs
counter to the mandate of Ext.P8 judgment. The reasons given
by the learned Single Judge to sustain the impugned order is
unsupportable in law. Once Ext.P8 has become final and the 6th
respondent relinquish her claim, the manager was bound to
appoint the appellant.
5. In the result, the writ appeal is allowed. The
judgment under appeal is reversed and the writ petition is
allowed by quashing Ext.P9 and also directing the 4th respondent
to appoint the appellant as Headmistress with retrospective
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effect from December 2001. The D.E.O. shall approve the
appointment. The appellant shall be entitled to all
consequential benefits except arrears of salary. But, she shall
be entitled to get arrears of salary from today. The Manager
shall pass orders appointing the appellant as directed above,
within one month and forward the same to the D.E.O. The
D.E.O. shall pass orders approving the appointment within one
month thereafter.
W.A. No.2388 of 2008:
In view of the judgment in W.A. No.2342 of 2008, this
appeal is dismissed.
Sd/-
K. Balakrishnan Nair,
Judge.
Sd/-
C.T. Ravikumar,
Judge.
DK.
(True copy)