{"id":233942,"date":"2009-10-12T00:00:00","date_gmt":"2009-10-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/manager-vs-shri-sasi-p-on-12-october-2009"},"modified":"2017-11-23T01:12:06","modified_gmt":"2017-11-22T19:42:06","slug":"manager-vs-shri-sasi-p-on-12-october-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/manager-vs-shri-sasi-p-on-12-october-2009","title":{"rendered":"Manager vs Shri Sasi P. on 12 October, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Manager vs Shri Sasi P. on 12 October, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWA.No. 1901 of 2009()\n\n\n1. MANAGER, SREE NARAYANA TEACHER'S\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. SHRI SASI P., TEACHER-IN-CHARGE\n                       ...       Respondent\n\n2. THE DIRECTOR OF POUBLIC INSTRUCTION,\n\n3. THE DISTRICT EDUCATIONAL OFFICER,\n\n4. SHRI K.RAVINDRAN,\n\n                For Petitioner  :SRI.K.P.DANDAPANI (SR.)\n\n                For Respondent  :SRI.E.K.NANDAKUMAR\n\nThe Hon'ble MR. Justice K.BALAKRISHNAN NAIR\nThe Hon'ble MR. Justice P.BHAVADASAN\n\n Dated :12\/10\/2009\n\n O R D E R\n<\/pre>\n
           K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ.\n<\/p>\n
          ——————————————————————\n<\/p>\n
                             WA NO.1901 of 2009\n<\/p>\n
          ——————————————————————\n<\/p>\n
                          Dated 12th October 2009<\/p>\n
                                    Judgment<\/p>\n
Balakrishnan Nair, J.\n<\/p>\n
     The third respondent in the Original Petition is the appellant<\/p>\n
and the writ petitioner is the first respondent. The brief facts of the<\/p>\n
case are the following :\n<\/p>\n
     2. The first respondent was a TSA, working in the appellant’s<\/p>\n
school. He has continuous qualified service under the appellant from<\/p>\n
04.06.1990. The post of Headmaster in the said school became<\/p>\n
vacant on 01.04.1998 as a result of retirement of the existing<\/p>\n
incumbent on 31.03.1998. The 1st respondent was appointed by the<\/p>\n
Manager as Teacher-in-Charge by Ext.P7 order dated 01.04.1998.<\/p>\n
Since the said respondent did not have 12 years’ graduate service,<\/p>\n
he was not promoted as Headmaster\/Principal. The fourth<\/p>\n
respondent was an HSA, working in another school.                           With the<\/p>\n
permission of the competent authority, he was appointed by transfer<\/p>\n
under Rule 11 of Chapter XIVA KER in the appellant’s school, as<\/p>\n
Headmaster on 14.05.1999. The said appointment was approved by<\/p>\n
the District Educational Officer. The 1st respondent was having<\/p>\n
WA 1901\/09                         2<\/span><\/p>\n
M.Sc., M.Ed. qualification. He has also cleared the Accounts Test<\/p>\n
Lower and KER test conducted by the Public Service Commission.<\/p>\n
Going by Ext.P21 NCTE Norms, the qualifications prescribed for the<\/p>\n
post of Headmaster\/Principal were M.Ed.\/M.A.Education with 5<\/p>\n
years’ teaching experience. So, the 1st respondent felt that he was<\/p>\n
duly qualified as per the said norms and he also maintained the view<\/p>\n
that the 4th respondent was unqualified, as he did not have the M.Ed.<\/p>\n
qualification. Raising those contentions, the Original Petition was<\/p>\n
filed. The OP finally came up for hearing, after the lapse of about ten<\/p>\n
years. The learned Single Judge took the view that the qualifications<\/p>\n
prescribed under the KER for the post of Headmaster as also the<\/p>\n
qualifications prescribed under Ext.P21 Regulations are applicable<\/p>\n
for appointment to the post of Headmaster. The 4th respondent did<\/p>\n
not have the requisite qualification, in terms of Ext.P21. Therefore,<\/p>\n
his appointment was held to be illegal. It was also found that the 1st<\/p>\n
respondent completed 12 years’ service on 03.06.2002 and<\/p>\n
therefore, he was eligible to be considered for promotion as<\/p>\n
Headmaster w.e.f. 04.06.2002. Based on those findings, the OP was<\/p>\n
allowed, issuing the following directions :\n<\/p>\n
WA 1901\/09                         3<\/span><\/p>\n
                “In the result, this Original Petition is allowed on the<\/p>\n
          following terms :\n<\/p><\/blockquote>\n
                (a)  The   appointment    of    the 4th  respondent   as<\/p>\n
          Headmaster of the 3rd respondent’s Institute with effect from<\/p>\n
          14.5.1999 is hereby set aside. However, the salary and<\/p>\n
          allowances received by the 4th respondent as Headmaster shall<\/p>\n
          not be recovered from him. It shall be deemed that the 4th<\/p>\n
          respondent has retired from service on 31.3.2009 as HSA<\/p>\n
          (Maths) from the Karimbil High School, Kumbalappally, Nileswar<\/p>\n
          and his retirement benefits shall be computed and disbursed<\/p>\n
          accordingly. The same shall be done within two months from<\/p>\n
          the date of receipt of a copy of this judgment.<\/p>\n<\/blockquote>\n
                (b) The 2nd respondent shall pass orders, approving<\/p>\n
          Ext.P7 appointment of the petitioner as Teacher-in-Charge of<\/p>\n
          the 3rd respondent’s Institute with effect from 1.4.1998,<\/p>\n
          within one month from the date of receipt of a copy of this<\/p>\n
          judgment. He shall also be paid allowance, if any, for such<\/p>\n
          appointment for the period during which he actually held that<\/p>\n
          appointment, namely, till 13.5.1999. For the period from<\/p>\n
          14.5.1999 to 3.6.2002, the appointment shall only be notional<\/p>\n
          without monetary benefits.\n<\/p><\/blockquote>\n
                (c) The 3rd respondent shall forward an appointment<\/p>\n
          order to the 2nd respondent, promoting the petitioner regularly<\/p>\n
          as Headmaster of his Institute with effect from 4.6.2002,<\/p>\n
WA 1901\/09                           4<\/span><\/p>\n
            within two weeks from the date of receipt of a copy of this<\/p>\n
            judgment. The 2nd respondent shall approve such appointment<\/p>\n
            within one month from the date of receipt of the appointment<\/p>\n
            order,  notionally,  without   any  monetary     benefits  upto<\/p>\n
            31.3.2009, but with monetary benefits also from 1.4.2009<\/p>\n
            onwards.\n<\/p><\/blockquote>\n
                  (d) All arrears of monetary benefits arising from the<\/p>\n
            above directions shall be disbursed to the petitioner within one<\/p>\n
            month from the date of approval of the respective<\/p>\n
            appointments.”<\/p><\/blockquote>\n
      3. Feeling aggrieved by           the above judgment, the 4th<\/p>\n
respondent filed WA No.1315\/09. The said appeal was dismissed by<\/p>\n
this Court, affirming the findings of the learned Single Judge,<\/p>\n
concerning his qualification. The appeal filed by the Manager i.e, WA<\/p>\n
No.1320\/09 was allowed to be withdrawn with liberty to move the<\/p>\n
learned Single Judge in review. Such an order was passed because<\/p>\n
the Manager brought to the notice of the Division Bench that<\/p>\n
disciplinary action was taken against the 1st respondent and he was<\/p>\n
punished, imposing the penalty of reduction in the seniority list. The<\/p>\n
said fact was not brought to the notice of the learned Single Judge<\/p>\n
and therefore, the Judgment under appeal was rendered in favour of<\/p>\n
WA 1901\/09                         5<\/span><\/p>\n
the 1st respondent. Though RP No.665\/09 was preferred before the<\/p>\n
learned Single Judge by the appellant herein, the said revision<\/p>\n
petition was dismissed, taking note of the judgment in WA<\/p>\n
No.1315\/09. Therefore, the present Writ Appeal is filed, challenging<\/p>\n
the said order in review dated 3.8.2009 as also the Judgment in OP<\/p>\n
No.16111\/99 dated 21.05.2009. The appellant brought to our notice<\/p>\n
that he served       Ext.P9 notice dated 14.11.1998 on the 1st<\/p>\n
respondent, proposing to cancel Ext.P7(a) appointment. Thereafter,<\/p>\n
he was served with Ext.P10 memo of charges, proposing to take<\/p>\n
disciplinary action against him. The 1st respondent submitted Ext.P11<\/p>\n
reply to Ext.P9 and Ext.P12 written statement to Ext.P10 memo of<\/p>\n
charges. Since the explanation was not found satisfactory, the matter<\/p>\n
was referred to the District Educational Officer for enquiry. The DEO<\/p>\n
submitted a report, finding the 1st respondent guilty. Based on that<\/p>\n
report, the Manager decided to impose a punishment of compulsory<\/p>\n
retirement on the 1st respondent. But, the Deputy Director did not<\/p>\n
approve the said proposal. Taking into account, the order of the<\/p>\n
Deputy Director, the Manager imposed the penalty of reducing him to<\/p>\n
a lower rank in the seniority list and he was made the junior-most<\/p>\n
TSA, as on the date of punishment, permanently. The said<\/p>\n
WA 1901\/09                         6<\/span><\/p>\n
punishment was imposed on 03.09.2001. The appellant submitted<\/p>\n
that in view of the said punishment imposed on him, his claim for<\/p>\n
promotion could not have been considered on 4.6.2002. He is<\/p>\n
ineligible for promotion, even assuming the 4th respondent is not<\/p>\n
qualified. Therefore, the appellant prayed for vacating the directions<\/p>\n
issued by the learned Single Judge.\n<\/p>\n
      4. We heard the learned Senior Counsel Sri.K.P.Dandapani for<\/p>\n
the appellant, learned Government Pleader Smt.R.Bindu, appearing<\/p>\n
for respondents 2 and 3, learned Counsel Sri.Elvin Peter appearing<\/p>\n
for   the   1st  respondent     and    also   the   learned    counsel<\/p>\n
Sri.E.K.Nandakumar appearing for the 4th respondent. The learned<\/p>\n
Senior Counsel Sri.K.P.Dandapani submitted that the appellant’s<\/p>\n
school, being one governed by the KER, an appointee to the post of<\/p>\n
Headmaster need be qualified only in accordance with the said Rules<\/p>\n
and not as per the NCTE Norms. Even assuming the 4th respondent<\/p>\n
was not qualified, the 1st respondent cannot get automatic promotion.<\/p>\n
The only direction that could have been issued was to consider his<\/p>\n
claim. Rule 43 of Chapter XIVA specifically provides that promotion<\/p>\n
will be subject to consideration of efficiency also. So, the direction<\/p>\n
of the learned Single Judge is liable to be set aside, it is submitted.<\/p>\n
WA 1901\/09                          7<\/span><\/p>\n
The learned counsel for the 1st respondent, on the other hand,<\/p>\n
supported the judgment under appeal.\n<\/p>\n
      5. First, we will consider whether the 4th respondent was<\/p>\n
qualified for appointment as Headmaster of a Teachers Training<\/p>\n
Institute. In the appeal filed by the 4th respondent, this Court has<\/p>\n
already held that he was not qualified. Normally, it is for the Teacher<\/p>\n
concerned and not the Manager, to canvass the point whether he is<\/p>\n
qualified or not. But, without relying on the technical ground, we are<\/p>\n
inclined to consider the contention of the appellant regarding the<\/p>\n
qualifications necessary for appointment to the post of Headmaster.<\/p>\n
The learned Single Judge has extracted the qualifications for the said<\/p>\n
post as per the KER as also as per Ext.P21 NCTE Norms in the<\/p>\n
judgment under appeal. The learned Single Judge found that every<\/p>\n
Teachers Training Institute, having NCTE affiliation, is bound to<\/p>\n
follow the norms prescribed by the said body, in the matter of<\/p>\n
appointment of Teachers etc.         The State Government may be<\/p>\n
competent to prescribe additional qualifications. So, the qualifications<\/p>\n
prescribed as per the KER can be treated as only additional<\/p>\n
qualifications, over and above the qualifications prescribed under<\/p>\n
NCTE Norms. Going by the decisions of the Apex Court, referred to<\/p>\n
WA 1901\/09                         8<\/span><\/p>\n
in the judgment under appeal, we fully agree with the view taken by<\/p>\n
the learned Single Judge. But, the learned Senior Counsel handed<\/p>\n
over the photocopy of a document dated 17.07.2000 and submitted<\/p>\n
that the Teachers, who were appointed without the requisite<\/p>\n
qualifications were given a chance to acquire the necessary<\/p>\n
qualifications within a period of two years from 17.7.2000. We notice<\/p>\n
that the appellant’s institute has been granted provisional affiliation<\/p>\n
as per Ext.P19 statutory order published in the gazette of India. The<\/p>\n
said order dated 7.12.1998, granted provisional affiliation to the<\/p>\n
appellant’s TTI, subject to the stipulation that qualified teaching and<\/p>\n
non-teaching staff should be appointed as per paragraph 5 of the<\/p>\n
NCTE Norms. The said order mentioned about several deficiencies<\/p>\n
of the appellant’s TTI. One of those deficiencies was the absence of<\/p>\n
qualified teaching staff. When it was found that the stipulations in<\/p>\n
Ext.P19 were not complied with, the NCTE followed up the matter by<\/p>\n
addressing Ext.P20 communication dated 8.3.1999 to cure the<\/p>\n
deficiencies and report compliance. The NCTE Norms prevailing at<\/p>\n
the relevant time was Ext.P21, Clause 5.0 of which, contains the<\/p>\n
qualifications for the post of Headmaster\/Principal as M.Ed.\/M.A.<\/p>\n
Education with 5 years’ teaching experience as Lecturer\/Teacher\/<\/p>\n
WA 1901\/09                         9<\/span><\/p>\n
Educator. So, provisional affiliation was granted to the appellant’s<\/p>\n
institute for 1998-99 subject to the stipulation of appointing qualified<\/p>\n
hands. Therefore, the appointment of the 4th respondent on<\/p>\n
14.5.1999 was contrary to the NCTE Norms. So, the order issued in<\/p>\n
2000, granting the institute of the appellant regular recognition,<\/p>\n
cannot be pressed into service to support the appointment made in<\/p>\n
1999. The appellant also relied on Annexure D order of the DPI<\/p>\n
dated 28.1.2009, concerning approval of appointment of a TSA,<\/p>\n
wherein the DPI has observed that for approval of appointments, the<\/p>\n
Department is following the Rules under the KER and not the NCTE<\/p>\n
Norms.     The appellant also brought to our notice Annexure E<\/p>\n
communication, concerning        the holding of a meeting of the<\/p>\n
representatives of the Managers and Teachers to consider the<\/p>\n
enhancement of the qualifications of TTI Instructors. But, we are not<\/p>\n
impressed by the view of the Kerala Government or the Officers<\/p>\n
under it, concerning the qualifications for appointment to various<\/p>\n
posts in TTIs. Since the NCTE Act is a central legislation and the<\/p>\n
approval of the NCTE is mandatory for starting a TTI, the conditions<\/p>\n
subject to which, recognition has been granted, have to be strictly<\/p>\n
followed by the Manager. The prevarication, which is manifested from<\/p>\n
WA 1901\/09                         10<\/span><\/p>\n
the aforementioned communications, of the Officers of the Education<\/p>\n
Department, will not save the appointment of the 4th respondent. In<\/p>\n
view of the above position, we uphold the view taken by the learned<\/p>\n
Single Judge that an incumbent for appointment to the post of<\/p>\n
Headmaster of a TTI, should possess the qualifications prescribed as<\/p>\n
per the NCTE Norms and also the KER.\n<\/p>\n
      6. The next question to be considered is whether the direction<\/p>\n
issued by the learned Single Judge to straight away promote the 1st<\/p>\n
respondent is valid or not. Rule 43 Chapter XIV (A) KER reads as<\/p>\n
follows :\n<\/p>\n
           “Subject to Rules 44, 45 and 51A and consideration of<\/p>\n
           efficiency, any general order that may be issued by the<\/p>\n
           Government, vacancies in any higher grade of pay shall be<\/p>\n
           filled up by promotion of qualified hands in the lower<\/p>\n
           grade according to seniority.”       (emphasis supplied)<\/p>\n
Going by the above rule, consideration of efficiency, among other<\/p>\n
things, can also be taken into account by the manager, who is the<\/p>\n
appointing authority, while ordering promotions. In view of the above<\/p>\n
position, we are of the view that the direction issued by the learned<\/p>\n
Single Judge to straight away promote the 1st respondent as<\/p>\n
WA 1901\/09                       11<\/span><\/p>\n
Headmaster of the appellant’s TTI, cannot be sustained. So, we set<\/p>\n
aside the same. But, the Manager shall consider the claim of the 1st<\/p>\n
respondent for promotion as Headmaster of the TTI with effect from<\/p>\n
4.6.2002 in accordance with law within one month from the date of<\/p>\n
receipt of a copy of this Judgment.\n<\/p><\/blockquote>\n
     The Writ Appeal is disposed of as above.<\/p><\/blockquote>\n
                                  K.BALAKRISHNAN NAIR, JUDGE<\/p>\n
                                  P.BHAVADASAN, JUDGE<\/p>\n
sta<\/p>\n
WA 1901\/09    12<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Manager vs Shri Sasi P. on 12 October, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-233942","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nManager vs Shri Sasi P. on 12 October, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/manager-vs-shri-sasi-p-on-12-october-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Manager vs Shri Sasi P. on 12 October, 2009 - 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