IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1901 of 2009()
1. MANAGER, SREE NARAYANA TEACHER'S
... Petitioner
Vs
1. SHRI SASI P., TEACHER-IN-CHARGE
... Respondent
2. THE DIRECTOR OF POUBLIC INSTRUCTION,
3. THE DISTRICT EDUCATIONAL OFFICER,
4. SHRI K.RAVINDRAN,
For Petitioner :SRI.K.P.DANDAPANI (SR.)
For Respondent :SRI.E.K.NANDAKUMAR
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.BHAVADASAN
Dated :12/10/2009
O R D E R
K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ.
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WA NO.1901 of 2009
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Dated 12th October 2009
Judgment
Balakrishnan Nair, J.
The third respondent in the Original Petition is the appellant
and the writ petitioner is the first respondent. The brief facts of the
case are the following :
2. The first respondent was a TSA, working in the appellant’s
school. He has continuous qualified service under the appellant from
04.06.1990. The post of Headmaster in the said school became
vacant on 01.04.1998 as a result of retirement of the existing
incumbent on 31.03.1998. The 1st respondent was appointed by the
Manager as Teacher-in-Charge by Ext.P7 order dated 01.04.1998.
Since the said respondent did not have 12 years’ graduate service,
he was not promoted as Headmaster/Principal. The fourth
respondent was an HSA, working in another school. With the
permission of the competent authority, he was appointed by transfer
under Rule 11 of Chapter XIVA KER in the appellant’s school, as
Headmaster on 14.05.1999. The said appointment was approved by
the District Educational Officer. The 1st respondent was having
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M.Sc., M.Ed. qualification. He has also cleared the Accounts Test
Lower and KER test conducted by the Public Service Commission.
Going by Ext.P21 NCTE Norms, the qualifications prescribed for the
post of Headmaster/Principal were M.Ed./M.A.Education with 5
years’ teaching experience. So, the 1st respondent felt that he was
duly qualified as per the said norms and he also maintained the view
that the 4th respondent was unqualified, as he did not have the M.Ed.
qualification. Raising those contentions, the Original Petition was
filed. The OP finally came up for hearing, after the lapse of about ten
years. The learned Single Judge took the view that the qualifications
prescribed under the KER for the post of Headmaster as also the
qualifications prescribed under Ext.P21 Regulations are applicable
for appointment to the post of Headmaster. The 4th respondent did
not have the requisite qualification, in terms of Ext.P21. Therefore,
his appointment was held to be illegal. It was also found that the 1st
respondent completed 12 years’ service on 03.06.2002 and
therefore, he was eligible to be considered for promotion as
Headmaster w.e.f. 04.06.2002. Based on those findings, the OP was
allowed, issuing the following directions :
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“In the result, this Original Petition is allowed on the
following terms :
(a) The appointment of the 4th respondent as
Headmaster of the 3rd respondent’s Institute with effect from
14.5.1999 is hereby set aside. However, the salary and
allowances received by the 4th respondent as Headmaster shall
not be recovered from him. It shall be deemed that the 4th
respondent has retired from service on 31.3.2009 as HSA
(Maths) from the Karimbil High School, Kumbalappally, Nileswar
and his retirement benefits shall be computed and disbursed
accordingly. The same shall be done within two months from
the date of receipt of a copy of this judgment.
(b) The 2nd respondent shall pass orders, approving
Ext.P7 appointment of the petitioner as Teacher-in-Charge of
the 3rd respondent’s Institute with effect from 1.4.1998,
within one month from the date of receipt of a copy of this
judgment. He shall also be paid allowance, if any, for such
appointment for the period during which he actually held that
appointment, namely, till 13.5.1999. For the period from
14.5.1999 to 3.6.2002, the appointment shall only be notional
without monetary benefits.
(c) The 3rd respondent shall forward an appointment
order to the 2nd respondent, promoting the petitioner regularly
as Headmaster of his Institute with effect from 4.6.2002,
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within two weeks from the date of receipt of a copy of this
judgment. The 2nd respondent shall approve such appointment
within one month from the date of receipt of the appointment
order, notionally, without any monetary benefits upto
31.3.2009, but with monetary benefits also from 1.4.2009
onwards.
(d) All arrears of monetary benefits arising from the
above directions shall be disbursed to the petitioner within one
month from the date of approval of the respective
appointments.”
3. Feeling aggrieved by the above judgment, the 4th
respondent filed WA No.1315/09. The said appeal was dismissed by
this Court, affirming the findings of the learned Single Judge,
concerning his qualification. The appeal filed by the Manager i.e, WA
No.1320/09 was allowed to be withdrawn with liberty to move the
learned Single Judge in review. Such an order was passed because
the Manager brought to the notice of the Division Bench that
disciplinary action was taken against the 1st respondent and he was
punished, imposing the penalty of reduction in the seniority list. The
said fact was not brought to the notice of the learned Single Judge
and therefore, the Judgment under appeal was rendered in favour of
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the 1st respondent. Though RP No.665/09 was preferred before the
learned Single Judge by the appellant herein, the said revision
petition was dismissed, taking note of the judgment in WA
No.1315/09. Therefore, the present Writ Appeal is filed, challenging
the said order in review dated 3.8.2009 as also the Judgment in OP
No.16111/99 dated 21.05.2009. The appellant brought to our notice
that he served Ext.P9 notice dated 14.11.1998 on the 1st
respondent, proposing to cancel Ext.P7(a) appointment. Thereafter,
he was served with Ext.P10 memo of charges, proposing to take
disciplinary action against him. The 1st respondent submitted Ext.P11
reply to Ext.P9 and Ext.P12 written statement to Ext.P10 memo of
charges. Since the explanation was not found satisfactory, the matter
was referred to the District Educational Officer for enquiry. The DEO
submitted a report, finding the 1st respondent guilty. Based on that
report, the Manager decided to impose a punishment of compulsory
retirement on the 1st respondent. But, the Deputy Director did not
approve the said proposal. Taking into account, the order of the
Deputy Director, the Manager imposed the penalty of reducing him to
a lower rank in the seniority list and he was made the junior-most
TSA, as on the date of punishment, permanently. The said
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punishment was imposed on 03.09.2001. The appellant submitted
that in view of the said punishment imposed on him, his claim for
promotion could not have been considered on 4.6.2002. He is
ineligible for promotion, even assuming the 4th respondent is not
qualified. Therefore, the appellant prayed for vacating the directions
issued by the learned Single Judge.
4. We heard the learned Senior Counsel Sri.K.P.Dandapani for
the appellant, learned Government Pleader Smt.R.Bindu, appearing
for respondents 2 and 3, learned Counsel Sri.Elvin Peter appearing
for the 1st respondent and also the learned counsel
Sri.E.K.Nandakumar appearing for the 4th respondent. The learned
Senior Counsel Sri.K.P.Dandapani submitted that the appellant’s
school, being one governed by the KER, an appointee to the post of
Headmaster need be qualified only in accordance with the said Rules
and not as per the NCTE Norms. Even assuming the 4th respondent
was not qualified, the 1st respondent cannot get automatic promotion.
The only direction that could have been issued was to consider his
claim. Rule 43 of Chapter XIVA specifically provides that promotion
will be subject to consideration of efficiency also. So, the direction
of the learned Single Judge is liable to be set aside, it is submitted.
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The learned counsel for the 1st respondent, on the other hand,
supported the judgment under appeal.
5. First, we will consider whether the 4th respondent was
qualified for appointment as Headmaster of a Teachers Training
Institute. In the appeal filed by the 4th respondent, this Court has
already held that he was not qualified. Normally, it is for the Teacher
concerned and not the Manager, to canvass the point whether he is
qualified or not. But, without relying on the technical ground, we are
inclined to consider the contention of the appellant regarding the
qualifications necessary for appointment to the post of Headmaster.
The learned Single Judge has extracted the qualifications for the said
post as per the KER as also as per Ext.P21 NCTE Norms in the
judgment under appeal. The learned Single Judge found that every
Teachers Training Institute, having NCTE affiliation, is bound to
follow the norms prescribed by the said body, in the matter of
appointment of Teachers etc. The State Government may be
competent to prescribe additional qualifications. So, the qualifications
prescribed as per the KER can be treated as only additional
qualifications, over and above the qualifications prescribed under
NCTE Norms. Going by the decisions of the Apex Court, referred to
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in the judgment under appeal, we fully agree with the view taken by
the learned Single Judge. But, the learned Senior Counsel handed
over the photocopy of a document dated 17.07.2000 and submitted
that the Teachers, who were appointed without the requisite
qualifications were given a chance to acquire the necessary
qualifications within a period of two years from 17.7.2000. We notice
that the appellant’s institute has been granted provisional affiliation
as per Ext.P19 statutory order published in the gazette of India. The
said order dated 7.12.1998, granted provisional affiliation to the
appellant’s TTI, subject to the stipulation that qualified teaching and
non-teaching staff should be appointed as per paragraph 5 of the
NCTE Norms. The said order mentioned about several deficiencies
of the appellant’s TTI. One of those deficiencies was the absence of
qualified teaching staff. When it was found that the stipulations in
Ext.P19 were not complied with, the NCTE followed up the matter by
addressing Ext.P20 communication dated 8.3.1999 to cure the
deficiencies and report compliance. The NCTE Norms prevailing at
the relevant time was Ext.P21, Clause 5.0 of which, contains the
qualifications for the post of Headmaster/Principal as M.Ed./M.A.
Education with 5 years’ teaching experience as Lecturer/Teacher/
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Educator. So, provisional affiliation was granted to the appellant’s
institute for 1998-99 subject to the stipulation of appointing qualified
hands. Therefore, the appointment of the 4th respondent on
14.5.1999 was contrary to the NCTE Norms. So, the order issued in
2000, granting the institute of the appellant regular recognition,
cannot be pressed into service to support the appointment made in
1999. The appellant also relied on Annexure D order of the DPI
dated 28.1.2009, concerning approval of appointment of a TSA,
wherein the DPI has observed that for approval of appointments, the
Department is following the Rules under the KER and not the NCTE
Norms. The appellant also brought to our notice Annexure E
communication, concerning the holding of a meeting of the
representatives of the Managers and Teachers to consider the
enhancement of the qualifications of TTI Instructors. But, we are not
impressed by the view of the Kerala Government or the Officers
under it, concerning the qualifications for appointment to various
posts in TTIs. Since the NCTE Act is a central legislation and the
approval of the NCTE is mandatory for starting a TTI, the conditions
subject to which, recognition has been granted, have to be strictly
followed by the Manager. The prevarication, which is manifested from
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the aforementioned communications, of the Officers of the Education
Department, will not save the appointment of the 4th respondent. In
view of the above position, we uphold the view taken by the learned
Single Judge that an incumbent for appointment to the post of
Headmaster of a TTI, should possess the qualifications prescribed as
per the NCTE Norms and also the KER.
6. The next question to be considered is whether the direction
issued by the learned Single Judge to straight away promote the 1st
respondent is valid or not. Rule 43 Chapter XIV (A) KER reads as
follows :
“Subject to Rules 44, 45 and 51A and consideration of
efficiency, any general order that may be issued by the
Government, vacancies in any higher grade of pay shall be
filled up by promotion of qualified hands in the lower
grade according to seniority.” (emphasis supplied)
Going by the above rule, consideration of efficiency, among other
things, can also be taken into account by the manager, who is the
appointing authority, while ordering promotions. In view of the above
position, we are of the view that the direction issued by the learned
Single Judge to straight away promote the 1st respondent as
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Headmaster of the appellant’s TTI, cannot be sustained. So, we set
aside the same. But, the Manager shall consider the claim of the 1st
respondent for promotion as Headmaster of the TTI with effect from
4.6.2002 in accordance with law within one month from the date of
receipt of a copy of this Judgment.
The Writ Appeal is disposed of as above.
K.BALAKRISHNAN NAIR, JUDGE
P.BHAVADASAN, JUDGE
sta
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