Kerala High Court
Thomas T.V vs Joint Secretary on 27 January, 2020
Author: K.Vinod Chandran
Bench: K.Vinod Chandran, V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 27TH DAY OF JANUARY 2020 / 7TH MAGHA, 1941
O.P(KAT).No.105 OF 2019
AGAINST THE ORDER IN O.A.NO.1018/2018 DATED 22-02-2019
OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
[ADDITIONAL BENCH, ERNAKULAM]
PETITIONER/ APPLICANT:
THOMAS T.V., AGED 55 YEARS,
P.D.TEACHER, GOVT.U.P.SCHOOL, THOTTUMUKKOM,
THOTTUKUKKOM POST, KOZHIKODE (DIST.), PIN - 673 639,
RESIDING AT THERUVATH HOUSE, S/O.VARKEY T.T.,
VETTILAPPARA P.O., AREACODE (VIA.),
MALAPPURAM DT.), PIN - 673 639.
BY ADVS.
SRI.PHILIP ANTONY CHACKO
SRI.P.M.SEBASTIAN
RESPONDENTS/ RESPONDENTS:
1 JOINT SECRETARY,
GENERAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM, KERALA, PIN - 691 001.
2 DEPUTY DIRECTOR OF EDUCATION,
KOZHIKODE, KOZHIKODE (DT.), PIN - 673 001.
* ADDL.R3 SIBY.J.ADAPPOOR, AGED 55 YEARS, S/O.A.M.JOSEPH,
P.D.TEACHER, GOVERNMENT L.P.SCHOOL, VENDUVAZHY,
KOTHAMANGALAM SUB DISTRICT, KARUKADAM P.O.,
KOTHAMANGALAM, ERNAKULAM-686691,
RESIDING AT ADAPPOOR HOUSE, KARUKADAM P.O.,
KOTHAMANGALAM, ERNAKULAM-686691.
* ADDL.R4 YELDHO K.V., AGED 51 YEARS, S/O.K.K.VARKEY,
P.D.TEACHER, GHSS KADAYIRUPPU,
ALUVA EDUCATION DISTRICT, ERNAKULAM-682311,
RESIDING AT KARIPPAL, THONNICKA, KOLENCHERY,
ERNAKULAM-682311.
OP(KAT).105/2019 & - 2 -
connected cases.
* ADDL.R5 RENJITH V., AGED 42 YEARS, S/O.VISWANATHA PRABHU,
P.D.TEACHER, GOVERNMENT U.P.SCHOOL,
PADINJATTINKARA, KOTTARAKKARA SUB DISTRICT,
KOLLAM-691506,
RESIDING AT VISWAM, AVANOOR, KOTTARAMMARA,
KOLLAM-691506.
* ADDITIONAL RESPONDENTS R3 TO R5 ARE IMPLEADED AS
PER THE ORDER DATED 22/08/19 IN I.A.NO.1/19 IN
OP(KAT)105/2019.
R1-R2 BY GOVERNMENT PLEADER
R3-R5 BY ADV. K.RAMAKUMAR (SR.)
R3-R5 BY ADV. SRI.T.RAMPRASAD UNNI
R3-R5 BY ADV. SRI.S.M.PRASANTH
R3-R5 BY ADV. SRI.G.RENJITH
R3-R5 BY ADV. SMT.R.S.ASWINI SANKAR
R3-R5 BY ADV. SRI.T.H.ARAVIND
OTHER PRESENT:
SR.GP SRI.ANTONY MUKKATH
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 27-01-2020, ALONG WITH OP(KAT).181/2019,
OP(KAT).184/2019, OP(KAT).259/2019, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
OP(KAT).105/2019 & - 3 -
connected cases.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 27TH DAY OF JANUARY 2020 / 7TH MAGHA, 1941
O.P(KAT).No.181 OF 2019
AGAINST THE ORDER IN O.A.1018/2018 DATED 22-02-2019
OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
[ADDITIONAL BENCH, ERNAKULAM]
PETITIONER/ 3RD PARTY REVIEW APPLICANTS:
1 C.V.GOVINDAN, AGED 52 YEARS, S/O PARANDI KANNAN (LATE),
P.D.TEACHER, GOVT.U.P.S PILICODE, PILICODE P.O.,
KASARAGOD DIST PIN 671 310,
RESIDING AT KANNANKAI, KODAKKAD, OLAT P.O.,
KASARAGOD, DIST PIN 671 310,
2 GANESAN P.V, AGED 49 YEARS, S/O GOVINDAN P.V.(LATE)
P.D.TEACHER, GLPS MADAKKAL, UDUMBUNTHALA P.O.
KASARAGOD DIST, PIN 671 311,
RESIDING AT PUTHIYAVEETIL, CHANDAPPURA,
KADANNAPPALLI P.O.PIN 670504.
3 RAMACHANDRAN K, AGED 53 YEARS, S/O SANKARAN VISWAKARMAN,
P.D.TEACHER, GUPS PADNE, PADNE P.O.
KASARAGOD DIST, PIN 671 312,
RESIDING AT KALATHERA HOUSE, ANNUR P.O.,PAYYANNUR VIA,
KANNUR DIST, PIN 670 307.
4 GOPINATHAN PURAVANKARA, AGED 50 YEARS
S/O K. KUNHAMBU NAIR (LATE),
P.D.TEACHER, GUPS OLAVARA SANKETHA, UDUMBUNTHALA P.O.,
KASARAGOD DIST, PIN 671 311,
RESIDING AT K.K.VALAPPU, MANIYAT P.O.
KASARAGOD DIST, PIN 671 310.
BY ADV. SRI.MURALI PALLATH.
OP(KAT).105/2019 & - 4 -
connected cases.
RESPONDENTS/ APPLICANT & RESPONDENTS IN O.A.:
1 THOMAS.T.V., S/O VARKEY, T.T.,
P.D.TEACHER, GOVT U.P.SCHOOL, THOTTUMUKKOM,
THOTTUMUKKOM P.O.KOZHIKODE DIST, PIN 673 639,
RESIDING AT THERUVATH HOUSE, VETTILAPPARA P.O.
AREACODE VIA, MALAPPURAM DIST, KERALA 673 639
2 JOINT SECRETARY,
GENERAL EDUCATION DEPARTMENT, GOVT OF KERALA,
THIRUVANANTHAPURAM PIN 695 001, KERALA
3 THE DEPUTY DIRECTOFR OF EDUCATION,
KOZHIKODE, PIN 670001.
R1 BY ADV. SRI.PHILIP ANTONY CHACKO
R1 BY ADV. SRI.N.V.PAUL
R2-R3 BY SR.GOVERNMENT PLEADER SRI.ANTONY MUKKATH.
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 27-01-2020, ALONG WITH OP(KAT).105/2019,
OP(KAT).184/2019, OP(KAT).259/2019, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
OP(KAT).105/2019 & - 5 -
connected cases.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 27TH DAY OF JANUARY 2020 / 7TH MAGHA, 1941
OP(KAT).No.184 OF 2019
AGAINST THE ORDER IN O.A.1024/2018 DATED 22.02.2019
OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
[ADDITIONAL BENCH, ERNAKULAM]
PETITIONERS/ 3RD PARTY REVIEW APPLICANTS IN O.A.:
1 C.V.GOVINDAN, AGED 52 YEARS,
S/O. PARANDI KANNAN (LATE),
P.D. TEACHER, GOVT. U.P.S. PILLICODE, PILLICODE P.O,
KASARAGOD DIST, PIN-671 310, CELL NO. 9400463708.
2 GANESAN P.V, AGED 49 YEARS,
S/O. GOVINDAN P.V (LATE),
P.D. TEACHER, GLPS MADAKKAL, UDUMBUNTHALA P.O,
KASARAGOD DIST, PIN-671 311,
RESIDING AT PUTHIYAVEETIL, CHANDAPPURA,
KADANNAPPALLI P.O, PIN-670 504, CELL NO. 9400470391.
3 RAMACHANDRAN K, AGED 53 YEARS,
S/O. SANKARAN VISWAKARMAN,
P.D. TEACHER, GUPS PADNE, PADNE P.O,
KASARAGOD DIST, PIN-671 312,
RESIDING AT PUTHIYAVEETIL, CHANDAPPURA,
KADANNAPPALLI P.O, PIN-670 307, CELL NO. 9497854434
4 GOPINATHAN PURAVANKARA, AGED 50 YEARS.
S/O. K. KUNJAMBU NAIR (LATE),
P.D. TEACHER, GUPS OLAVARA SANKETHA,
UDUMBUNTHALA P.O, KASARAGOD DISTRICT, PIN-671 311,
RESIDING AT K.K. VALAPPU, MANIYAT P.O,
KASARAGOD DIST, PIN-671 310, CELL NO. 9447490242.
BY ADV. SRI.MURALI PALLATH.
OP(KAT).105/2019 & - 6 -
connected cases.
RESPONDENTS/ APPLICANTS & RESPONDENTS IN O.A.:
1 BABY PAILY, AGED 55 YEARS, S/O. P.K. PAILY,
RESIDING AT PUNNACKAPADAVIL HOUSE, NIDUMBOYIL P.O,
KANNUR DISTRICT, PIN-670 650,
PRIMARY DIVISION TEACHER,
GOVERNMENT LOWER PRIMARY SCHOOL, KUNITHALA,
PERAVOOR P.O, KANNUR, KERALA, PIN-670 673
2 STATE OF KERALA,
REPRESENTED BY SPECIAL SECRETARY TO GOVT.,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695 001, KERALA.
3 THE DEPUTY DIRECTOR OF EDUCATION,
KANNUR, PIN-670 001.
4 THE DIRECTOR OF PUBLIC INSTRUCTION,
OFFICE OF THE DPI, DPI JUNCTION, JAGATHY P.O,
THIRUVANANTHAPURAM, KERALA, 695 014.
R2-R4 BY SR.GOVERNMENT PLEADER SRI.ANTONY MUKKATH
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 27-01-2020, ALONG WITH OP(KAT).105/2019,
OP(KAT).181/2019, OP(KAT).259/2019, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
OP(KAT).105/2019 & - 7 -
connected cases.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 27TH DAY OF JANUARY 2020 / 7TH MAGHA, 1941
OP(KAT).No.259 OF 2019
AGAINST THE ORDER IN O.A.1024/2018 DATED 22.2.2019
OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
[ADDITIONAL BENCH, ERNAKULAM]
PETITIONER/S:
1 SAJU CHERIAN, S/O.CHERIAN M.O.,
P.D.TEACHER, G.M.L.P.S., KUTTIPPALA, KUTTIPPALA P.O.,
EDARIKKODE (VIA), MALAPPURAM (DT.),
RESIDING AT ROOM NO.109, 'STANDARD HOUSE', AREEKKAL,
EDARIKKODE P.O., MALAPPURAM (DT.), PIN - 676 501.
2 P.K.PAUL, AGED 55 YEARS, S/O.LATE K.K.KURIAKOSE,
P.D.TEACHER, G.B.H.S.S.TIRUR, THEKKUMMURY P.O.,
TIRUR - 5, MALAPPURAM(DT),
RESIDING AT PUTHENPURAKKAL (H), PANCHAMI,
THEKKUMMURY P.O., TIRUR - 5,
MALAPPURAM (DT.), PIN - 676 105.
BY ADVS.
SRI.PHILIP ANTONY CHACKO
SRI.P.M.SEBASTIAN
SRI.N.V.PAUL
RESPONDENT/S:
1 BABY PAILY, AGED 55 YEARS, S/O.P.K.PAILY,
RESIDING AT PUNNACKAPADAVIL HOUSE,
NIDUMBOYIL P.O., PIN - 670 650,
PRIMARY DIVISION TEACHER,
GOVERNMENT LOWER PRIMARY SCHOOL, KUNITHALA,
PERAVOOR P.O., KANNUR, KERALA - 670 673.
OP(KAT).105/2019 & - 8 -
connected cases.
2 STATE OF KERALA,
REPRESENTED BY SPECIAL SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695 001.
3 DEPUTY DIRECTOR OF EDUCATION,
KANNUR, PIN - 670 001.
4 THE DIRECTOR OF PUBLIC INSTRUCTION,
OFFICE OF THE DPI, DPI JUNCTION, JAGATHY P.O.,
THIRUVANANTHAPURAM, PIN- 695 014.
*ADDL.R5 DEPUTY DIRECTOR OF EDUCATION,
MALAPPURAM, MALAPPURAM DISTRICT, PIN-676505.
*ADDL.R6 ABDUL JABBAR K.U.,
P.D. TEACHER, G.V.H.S.S., KONDOTTY,
G.M.U.P.S. KALIKKAVE BASSAR/VANDOOR,
MALAPPURAM DISTRICT, PIN-676525.
*ADDL.R7 BABU MATHEW,
P.D. TEACHER, G.M.U.P.S. KONDOTTY/KONDOTTY,
G.M.L.P.S., PARAPPOOTHADAM/THANUR,
MALAPPURAM DISTRICT, PIN-676505.
*ADDL.R8 ABDUL LATHEEF E.,
P.D. TEACHER, G.M.U.P.S. VAZHAKKAD/KONDOTTY,
G.L.P.S. PAYYANKKODE/VANDOOR,
MALAPPURAM DISTRICT, PIN-676525.
*ADDL.R9 SAINABA M.P.,
P.D. TEACHER, G.M.L.P.S.,
KATTUMUNDA EAST/NILAMPUR,
MALAPPURAM DISTRICT, PIN-679329.
*ADDL.R10 INDIRA K.,
P.D. TEACHER, G.H.S.S. PANDIKKAD/MANJERY,
MALAPPURAM DISTRICT, PIN-676521.
*(ADDITIONAL R5 TO R10 ARE IMPLEADED AS PER ORDER
DATED 25/09/2019 IN IA NO.2/2019 IN OP (KAT)
259/2019)
R2-R4 BY SR.GOVERNMENT PLEADER SRI.ANTONY MUKKATH.
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 27-01-2020, ALONG WITH OP(KAT).105/2019,
OP(KAT).181/2019, OP(KAT).184/2019, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
OP(KAT).105/2019 & - 9 -
connected cases.
"C.R."
K.Vinod Chandran & V.G.Arun, JJ.
-----------------------------------------
O.P (KAT) Nos.105, 181, 184 & 259 of 2019
-----------------------------------------
Dated, this the 27th day of January, 2020
JUDGMENT
K.Vinod Chandran,J.
Whether the test qualification specified in Rule 18(1) of the Kerala Right of Children to Free and Compulsory Education Rules 2011 [for brevity 'the Rules'] is mandatory even for the teachers who have crossed the age of 50 years is the issue arising in the Original Petitions.
2. The petitioners in O.P.(KAT) Nos.105 and 259 of 2019 are persons qualified in the mandatory tests prescribed. They canvassed for the position that after the Rules came into effect and the prescription made, there can be no Head Teacher appointed without the test qualification which has been specified by the Government. The petitioners in O.P.(KAT) Nos.181 and 184 of 2019, who were not originally impleaded in the Original Applications before the Tribunal, are persons who filed review before the Tribunal. They are teachers who crossed 50 years of age and are eligible to be posted as Head Teachers on the basis of their seniority, but are disabled for reason of they having not acquired the test qualification. They contend that they need only acquire such qualification within three years.
OP(KAT).105/2019 & - 10 - connected cases.
3. Before the Tribunal the challenge was against Annexure A6 dated 06.03.2018 as produced in O.A.No.1018 of 2018, which granted exemption from test qualification to teachers who have crossed 50 years of age. The said exemption granted by notification was alleged to be in conflict with Rule 18(1). Before looking at the controversy which can be resolved on interpretation of Rule 18(1) and its proviso, we have to look at the background facts to pin-point on the controversy arising here.
4. Annexure A2 order was earlier challenged in W.P.(C) No.14971 and 15011 of 2014, again on the ground that it is in conflict with Rule 18(1). This Court took the view that unless and until the test qualifications required for appointment as Head Teacher are specified by a notification, the exemption granted cannot be found, ultra vires the Rules. This view was followed by the Tribunal in an Original Application, which has been approved by a Division Bench of this Court in O.P.(KAT) No.131 of 2015. It is an admitted fact that by Annexure A6 dated 06.03.2018 the Government has prescribed that Account Test (Lower) conducted by the Kerala Public Service Commission ['PSC' for brevity] and a pass in the test in Kerala Education Act and Kerala Education Rules would be obligatory qualification for promotion of teachers as Head Masters of OP(KAT).105/2019 & - 11 -
connected cases.
LP and UP Schools. Hence, as of now there is a specification of the test qualifications required for promotion to the post of Head Teacher and the exemption granted is in conflict with the Rule. The Tribunal held so and we agree with the Tribunal.
5. However, the Tribunal on an interpretation of Rule 18(1) found that the proviso grants three years to a teacher for acquiring the test qualifications. The notification at Annexure 6 having been brought out on 06.03.2018, necessarily the teacher should be granted three years for the purpose of acquiring the said qualification, was the finding. Finding that the function of the proviso is to carve out an exception and the instant proviso having provided three years time for acquisition of test qualification, the exemption limited to three years was held to be not in conflict with Rule 18(1).
6. The specific direction sought for in the Original Applications was to exclude those teachers who do not have the prescribed qualification from the seniority list for the purpose of consideration for promotion to the post of Head Teacher. Again relying on proviso to Rule 18(1), it was found that such a direction cannot be issued. A review was filed by some of the petitioners as noticed above, who were not parties in the Original Application, on OP(KAT).105/2019 & - 12 -
connected cases.
the ground that, based on the order of the Tribunal, persons who have crossed the age of 50 years and who have not acquired the test qualification are sought to be excluded. The review applicants obviously did not have the test qualifications and apprehended that they would not be considered for promotion as Head Teacher. The Tribunal found that there is no error apparent from the record to invoke the remedy of review. It was found that if the authorities denied promotion to the review applicants, they could resort to appropriate remedies.
7. The Government was non-committal before this Court insofar as no appeal having been filed. The parties were heard and we are of the opinion that the proviso has to be pointedly noted. Rule 18(1) and its proviso reads as under:
"18. Duties to be performed by Head Teacher and Teachers:- (1) The Head Teacher shall be a person having a minimum of twelve years of teaching experience and possessing pass in such departmental tests and test on Kerala Education Act and Rules as may be specified in that regard.
Provided that teachers in service shall be given time upto three years to pass the above tests".
8. As of now there is no dispute with respect to the specification of tests, which have been made as per OP(KAT).105/2019 & - 13 -
connected cases.
Annexure A6. The Rule hence requires a Head Teacher to have a minimum of twelve years teaching experience and pass in Accounts Test (Lower) conducted by the PSC as also a pass in the test in KE Act and KE Rules. The proviso enables every teacher in service to acquire such test qualification within three years. Now the question arise, whether within the three year period an unqualified person can be appointed as a Head Teacher. The Tribunal has relied on various decisions of the Hon'ble Supreme Court insofar as the function of the proviso and harmonized the subject proviso to find that every teacher would have three years time to acquire such qualification. The observations made in the review would further indicate that those who are not qualified cannot be excluded from consideration within the three year period from Annexure A6.
9. We cannot have any quarrel with respect to the finding of time provided of three years, especially noticing that while the Rule uses the word 'Head Teacher', the proviso uses the word 'teachers'. We, however, cannot agree with the Tribunal's order that there could be no exclusion of persons above 50 years of age who have no test qualification. The Tribunal already held that Annexure A2 granting exemption to teachers above 50 years from test qualifications prescribed cannot be sustained in the teeth OP(KAT).105/2019 & - 14 -
connected cases.
of Rule 18(1). We cannot find the proviso having exempted such test qualification for a period of three years or permitted promotion of unqualified teachers as Head Teacher, subject to qualification within three years.
10. We notice the extract made by the Tribunal, from the decision in Union of India and Others v. Dilip Kumar Singh [AIR 2015 SC 1420], which is as below:
"20. Equally, it is settled law that a proviso does not travel beyond the provision to which it is a proviso. Therefore, the golden rule is to read the whole Section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction".
When a proviso cannot travel beyond the provision, then the principle of a proviso not being possible of running contrary to a provision has to be applied in the present case. Mere three years time granted by the proviso cannot result in appointment of persons who are unqualified to the post of Head Teacher.
11. Sub-Rule(1) of Rule 18 categorically provides the qualification for a Head Teacher, which is 12 years teaching experience and three test qualifications, which are to be specified. The Government by Annexure A6 has prescribed the specified test qualifications, as the three seen from Rule 18(1). Hence without the three test OP(KAT).105/2019 & - 15 -
connected cases.
qualifications, none could be appointed as Head Teacher which, if carried out, would be in violation of the Rule (provision) itself. However, the proviso cannot be rendered redundant and we have to look at the intention of the executive Government in providing three years time for every teacher to acquire the test qualification.
12. When three years time is provided for acquisition of test qualification, the proviso also has to be given due effect. Our interpretation would be that when the Rule specifically provides for test qualifications, there can be no appointment/promotion made of persons who are not qualified in accordance with the Rule. Hence, after the specification made at Annexure A6, only persons who are test qualified can be considered for promotion and be included for selection. The unqualified senior teachers would be entitled to appear for the test and acquire the test qualifications within three years. On acquiring such qualification if any junior has been promoted earlier, within the three year period, the senior who qualified within that period would be entitled to seek promotion as Head Teacher on the basis only of his/her subsequent qualification within the three year period. In that circumstance the junior has to be reverted and the senior promoted as Head Teacher. The pay drawn by the Junior in OP(KAT).105/2019 & - 16 -
connected cases.
the post of Head Teacher, in the interregnum would be his entitlement and the senior would be entitled to the higher pay and allowances, if at all there is any in the post of Head Teacher, only from his/her date of promotion.
13. Otherwise, when an unqualified person is posted as Head Teacher and he/she does not qualify within the three year period or before his retirement which may occur within the three year period, the junior qualified teacher would be prejudiced insofar as not being given the higher post or the benefits attached to that post despite his satisfying every qualification as provided in the Rule. The unqualified senior would also get an unfair advantage of retiring with the higher pay, which is not intended by the proviso. On the other hand, if the senior acquires the test qualifications within the period, the junior who is also qualified can raise no objection on his senior being then posted as Head Teacher on acquisition of qualification. The proviso only enables a teacher to acquire the qualification within three years and seek for the post of Head Teacher on acquiring the test qualification. It does not enable the State to make appointments in violation of the rule, by promoting a senior who is not qualified in accordance with the Rule. On such interpretation, we are of the opinion that the OP(KAT).105/2019 & - 17 -
connected cases.
Tribunal's order has to be set aside to the extent it permits inclusion of unqualified persons above 50 years for the purpose of promotion. The age of 50 years as provided in Annexure A2 has no significance, since the exemption has been set aside and the benefit now available is only of that provided in the proviso to the rule. Even senior teachers below 50 years who are not qualified would not be entitled to be promoted, but they will have the benefit of the proviso if they acquire the qualification within three years. This benefit, teachers under 50 did not have, but will now be conceded with, by virtue of the proviso to Rule 18(1). We make it clear that the proviso has application only for three years from Annexure A6. Necessarily the promotions already made are to be re-worked according to our interpretation.
O.P(KAT) Nos.105 and 259 of 2019 are partly allowed to the extent indicated above and O.P(KAT) Nos.181 and 184 of 2019 are dismissed. Parties are left to suffer their respective costs.
Sd/-
K.VINOD CHANDRAN JUDGE Sd/-
V.G.ARUN JUDGE Vku/-
OP(KAT).105/2019 & - 18 -
connected cases.
APPENDIX OF OP(KAT) 105/2019
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE O.A.(EKM) NO.1018 OF 2018
ALONG WITH THE ANNEXURES.
ANNEXURES
ANNEXURE A1 THE TRUE COPY OF THE FINAL SENIORITY LIST OF
PRIMARY SCHOOL TEACHERS FOR THE PERIOD FROM 01.01.1991 TO 31.12.1995 IN KOZHIKODE (DT.) DATED 4.5.2016 ISSUED BY THE D.D., EDUCATION DIRECTOR EDUCATION KOZHIKODE.
ANNEXURE A2 THE TRUE COPY OF THE GOVT. ORDER G.O.(MS) NO.92/2014/G.EDN. DATED 2.6.2014 ISSUED BY THE SPECIAL SECRETARY, GOVERNMENT OF KERALA. ANNEXURE A3 THE TRUE COPY OF THE ORDER G.O.(MS) NO.157/2015/G.EDN. DATED 10.06.2015 ISSUED BY THE ADDL. CHIEF SECRETARY, GOVERNMENT OF KERALA.
ANNEXURE A4 THE TRUE COPY OF THE CIRCULAR NO.A2/19741/2015, DATED 16.03.2017 ISSUED BY THE DEPUTY DIRECTOR, KOZHIKODE.
ANNEXURE A5 THE TRUE COPY OF THAT GOVT. ORDER, G.O.(MS) NO.16/18/G.EDN. DATED 19.2.2018 ISSUED BY THE JOINT SECRETARY, GOVERNMENT OF KERALA. ANNEXURE A6 THE TRUE COPY OF THE GOVT. ORDER, G.O.(MS) NO.27/18/G.EDN. DATED 6.3.2018 ISSUED BY THE JOINT SECRETARY, GOVERNMENT OF KERALA. ANNEXURE A7 THE TRUE COPY OF THE ORDER NO.A2/7000/2018 DATED 15.5.2018 GIVING THE LIST OF P.D.TEACHERS SELECTED AND APPOINTED AS HEADMASTERS IN KOZHIKODE (DT.) AS PER THE SENIORITY, ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. EXHIBIT P2 THE TRUE COPY OF THAT M.A.DATED 5/6/2018 ALONG WITH THE AFFIDAVIT AND ANN.A-8.
ANNEXURE A8 THE TRUE COPY OF THAT ORDER NO.A2/7000/2018 DATED 28.5.2018 GIVING THE LIST OF P.D.TEACHERS WHO ARE SELECTED AND APPOINTED AS HEADMASTERS IN KOZHIKODE (DT.) AS PER THE NEXT SENIORITY, ISSUED BY THE D.D.EDUCATION, KOZHIKODE.
OP(KAT).105/2019 & - 19 - connected cases. EXHIBIT P3 THE TRUE COPY OF THE REPLY STATEMENT DATED
27/7/2018 FILED BY THE 2ND RESPONDENT. EXHIBIT P4 THE TRUE COPY OF THAT ADDL.REPLY STATEMENT DATED 14/1/2019 FILED ON BEHALF OF THE 1ST RESPONDENT.
EXHIBIT P5 THE TRUE COPY OF THAT ORDER DATED 22/2/2019 IN O.A.(EKM) NO.1018 OF 2018 BY THE K.A.T.(EKM) BENCH.
EXHIBIT P6 THE TRUE COPY OF THE GAZETTE OF INDIA EXTRA ORDINARY NOTIFICATION DATED 5/4/2010, ISSUED BY THE JOINT SECRETARY GOVERNMENT OF INDIA. EXHIBIT P7 THE TRUE COPY OF THE KERALA GAZETTE NOTIFICATION DATED 13/12/2017 PUBLISHED BY THE SPECIAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION (J) DEPARTMENT, GOVERNMENT OF KERALA. EXHIBIT P8 THE TRUE COPY OF THE GAZETTEE OF INDIA EXTRA ORDINARY NOTIFICATION NO.34 DATED 10/8/2017 PUBLISHING THE RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION (AMENDMENT) ACT, 2017 (NO.24 OF 2017) ISSUED BY THE SECRETARY TO GOVT. OF INDIA MINISTRY OF LAW AND JUSTICE. EXHIBIT P9 THE TRUE COPY OF THAT ORDER G.O.(P) NO.16/2018/G.EDN DATD 9/7/2018 ISSUED BY THE JOINT SECRETARY GEN.EDUCATION (J) DEPARTMENT, GOVT. OF KERALA.
OP(KAT).105/2019 & - 20 -
connected cases.
APPENDIX OF OP(KAT) 181/2019
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE MEMORANDUM OF ORIGINAL
APPLICATION ALONG WITH ANNEXURES
EXHIBIT P1(A1) TRUE COPY OF THE FINAL SENIORITY LIST OF
PRIMARY SCHOOL TEACHERS FOR THE PERIOD FROM 1.1.1991 TO 31.12.1995 IN KOZHIKODE (DT) DATED 4.5.2016 ISSUED BY THE D.D EDUCATION KOZHIKODE ECXHIBIT P1(A2) TRUE COPY OF THE GO(MS) NO 92/2014/G.EDN DATED 2.6.2014 ISSUED BY THE SPECIAL SECRETARY, GOVERNMENT OF KERALA EXHIBIT P1(A3) TRUE COPY OF G.O.(MS) NO 157/2015/ G.EDN DATED 10.6.2015 ISSUED BY THE ADDL CHIEF SECRETAY, GOVERNMENT OF KERALA EXHIBIT P1(A4) TRUE COPY OF THE CIRCULAR NO A1/1974/2015 DATED 16.3.2017 ISSUED BY THE THE DEPUTY DIRECTOR, KOZHIKODE EXHIBIT P1(A5) TRUE COPY OF GO(MS) NO 16/2018/G.EDN DATED 19.2.2018 ISSUED BY THE JOINT SECRETARY, GOVERNMENT OF KERALA EXHIBIT P1(A6) TRUE COPY OF GO(MS) NO 27/2018/G.EDN DATED 6.3.2018 ISSUED BY THE JOINT, SECRETARY OF KERALA EXHIBIT P1(A7) TRUE COPY OF ORDER NO A1/7000/2018 DATED 15.5.2018 GIVING THE LIST OF P.D.TEACHERS SELECTED AND APPOINTED AS HEADMASTERS IN KOZHIKODE (DT) AS PER THE SENIORITY, ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE EXHIBIT P2 TRUE COPY MISCELLANEOUS APPLICATION FILED UNDER RULE 7(3) OF THE KERALA ADMINISTRATE (PROCEDURE) RULE, 2010 FOR PRODUCING ADDITIONAL DOCUMENT AND REMOVING 3RD RESPONDENT FROM PARTY ARRAY EXHIBIT P2(A8) TRUE COPY OF THAT ORDER NO A2/7000/2018 DATED 28.5.2018 GIVING THE LIST OF P.D.TEACHERS WHO ARE SELECTED AND APPOINTED AS HEADMASTERS IN KOZHIKODE (DT AS PER THE NEXT SENIORITY, ISSUED BY THE DD EDUCATION, KOZHIKODE REPLY STATEMENT BY THE SECOND RESPONDENT.
OP(KAT).105/2019 & - 21 - connected cases. EXHIBIT P3 TRUE COPY OF REPLY STATEMENT FILED BY THE
SECOND RESPONDENT AS PER RULE 11 OF THE KERALA ADMINISTRATIVE TRIBUNAL (PROCEDURE) RULES 2010 EXHIBIT P3(A) TRUE COPY OF ADDITIONAL REPLY STATEMENT FILED ON BEHALF OF THE 1ST RESPONDENT AS PER RULE 11 OF THE KERALA ADMINISTRATIVE TRIBUNAL (PROCEDURE)RULES 2010 EXHIBIT P4 TRUE COPY ORDER OF HON'BLE KERALA ADMINISTRATIVE TRIBUNAL DATED 22.2.2019 IN OA (EKM) 2018 OF 2018 EXHIBIT P5 TRUE COPY OF MEMORANDUM OF REVIEW APPLICATION (EKM) NO 19./2019 IN OA (EKM) 2018/2018 EXHIBIT P5(RA1) TRUE COPY OF ORDER OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL DATED 22.2.2019 IN OA (EKM) 1018 OF 1018 EXHIBIT P5 (RA2) TRUE COPY OF GO (MS) NO 92/2014/ G.EDN DATED 2.6.2014 EXHIBIT P5 (RA3) TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA DATED 24.6.2014 IN WPC NO 14971 OF 2014 EXHIBIT P5(RA4) TRUE COPY OF GO(MS) NO 27/2018 /G.EDN DATED 6.3.2018 EXHIBIT P5(RA5) TRUE COPY OF CIRCULAR NO A4/1974/2019 DATED 12.2.2019 EXHIBIT P5(RA6) TRUE COPY OF PROFORMA DATED 2.3.2019 SUBMITTED BY THE 1ST APPLICANT EXHIBIT P5(RA7) TRUE COPY OF PROFORMA DATED 1.2.2019 SUBMITTED BY THE 2ND APPLICANT EXHIBIT P5 (RA8) TRUE COPY OF PROFORMA DATED 5.2.2019 SUBMITTED BY THE 3RD APPLICANT EXHIBIT P5(RA9) TRUE COPY PROFORMA DATED 5.3.2019 SUBMITTED BY THE 4TH APPLICANT EXHIBIT P6 TRUE COPY MISCELLANEOUS APPLICATION FOR PERMISSION TO FILE THE RA JOINTLY EXHIBIT P7 TRUE COPY MISCELLANEOUS APPLICATION FILE FOR THE LEAVE OF THE HON'BLE TRIBUNAL TO FILE THE RA.
OP(KAT).105/2019 & - 22 - connected cases. EXHIBIT P8 TRUE COPY ORDER DATED 29.3.2019 OF THE HON'BLE
KERALA ADMINISTRATIVE TRIBUNAL IN RA (EKM) 19/2019 IN OA (EKM) 1018 OF 2018 OP(KAT).105/2019 & - 23 -
connected cases.
APPENDIX OF OP(KAT) 184/2019 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE MEMORANDUM OF ORIGINAL APPLICATION ALONG WITH ANNEXURES.
EXHIBIT P2 TRUE COPY MISCELLANEOUS APPLICATION FOR AMENDMENT/CORRECTION FILED UNDER RULE 7(3) OF THE KERALA ADMINISTRATIVE TRIBUNAL (PROCEDURE) RULES, 2010.
EXHIBIT P3 TRUE COPY REPLY STATEMENT BY THE SECOND RESPONDENT.
EXHIBIT P4 TRUE COPY ORDER OF HON'BLE KERALA ADMINISTRATIVE TRIBUNAL DATED 22.02.2019 IN OA (EKM) 1024 OF 2018.
EXHIBIT P5 TRUE COPY OF MEMORANDUM OF REVIEW APPLICATION (EKM) NO. 16/2019 IN OA (EKM) 1024/2018 EXHIBIT P6 TRUE COPY MISCELLANEOUS APPLICATION FOR PERMISSION TO FILE THE RA JOINTLY.
EXHIBIT P7 TRUE COPY MISCELLANEOUS APPLICATION FILED FOR THE LEAVE OF THE HON'BLE TRIBUNAL TO FILE THE RA.
EXHIBIT P8 TRUE COPY ORDER DATED 29.03.2019 OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL IN RA (EKM) 16/2019 IN OA(EKM) 1024/2018 EXHIBIT P1 (A1) TRUE COY OF GO(MS) NO.16/18/G.EDN.DATED 19.02.2018 EXHIBIT P1 (A2) TRUE COY OF GO(MS) NO.27/2018/GEDN.
DATED 06.03.2018 ISSUED BY THE FIRST RESPONDENT EXHIBIT P1 (A3) TRUE COPY OF THE PROVISIONAL SENIORITY LIST PUBLISHED BY THE SECOND RESPONDENT AS PER ORDER NO.A4/100/18 DATED 19.04.2018 EXHIBIT P1 (A4) TRUE COPY OF OBJECTION DATED 05.05.2018 SUBMITTED BY THE APPLICANT EXHIBIT P1 (A5) TRUE COPY OF FINAL SENIORITY LIST PUBLISHED BY THE SECOND RESPONDENT AS PER ORDER NO.A4/100/18 DATED 16.05.2018 OP(KAT).105/2019 & - 24 -
connected cases.
EXHIBIT P5 (RA1) TRUE COPY OF ORDER OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL DATED 22.02.2019 IN OA (EKM) 1024 OF2018 EXHIBIT P5 (RA2) TRUE COPY OF GO (MS) NO 92/2014/G.EDN DATED 02.06.2014 EXHIBIT P5 (RA3) TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA DATED 24.06.204 IN WP(C) NO.14971 OF 2014 EXHIBIT P5 (RA4) TRUE COPY OF GO(MS) NO.27/2018/G.EDN DATED 06.03.2018 EXHIBIT P5 (RA5) TRUE COPY OF CIRCULAR NO.A4/1974/2019 DATED 12.02.2019 EXHIBIT P5 (RA6) TRUE COPY OF PERFORMA DATED 02.03.2019 SUBMITTED BY THE 1ST APPLICANT EXHIBIT P5 (RA7) TRUE COPY OF PERFORMA DATED 01.02.2019 SUBMITTED BY THE 2ND APPLICANT EXHIBIT P5 (RA8) TRUE COPY OF PERFORMA DATED 05.02.2019 SUBMITTED BY THE 3RD APPLICANT EXHIBIT P5 (RA9) TRUE COPY OF PERFORMA DATED 05.03.2019 SUBMITTED BY THE 4TH APPLICANT OP(KAT).105/2019 & - 25 -
connected cases.
APPENDIX OF OP(KAT) 259/2019 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE O.A.(EKM) NO.1024 OF 2018 ALONG WITH THE ANNEXURES.
EXHIBIT P1(A1) THE TRUE COPY OF THE G.O.(MS) NO.16/18/GEDN. DATED 19/2/2018.
EXHIBIT P1(A2) THE TRUE COPY OF THE G.O.(MS) NO.27/2018/GEDN. DATED 6/3/2018 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P1(A3) THE TRUE COPY OF THE PROVISIONAL SENIORITY LIST PUBLISHED BY THE 2ND RESPONDENT AS PER ORDER NO.A4/100/18 DATED 19/4/2018.
EXHIBIT P1(A4) THE TRUE COPY OF THE ORDER DATED 22/2/2019 OF HON'BLE KERALA ADMINISTRATIVE TRIBUNAL IN O.A.(EKM) NO.1024 OF 2018.
EXHIBIT P1(A5) THE TRUE COPY OF THE FINAL SENIORITY LIST PUBLISHED BY THE 2ND RESPONDENT AS PER ORDER NO.A4/100/18 DATED 16/5/2018.
EXHIBIT P2 THE TRUE COPY OF THE MISLANEOUS APPLICATION FOR AMENDMENT/CORRECTION FILED UNDER RULE 7(3) OF THE KERALA ADMINISTRATIVE TRIBUNAL (PROCEDURE) RULES 2010.
EXHIBIT P3 THE TRUE COPY OF THE REPLY STATEMENT OF 2ND RESPONDENT IN THE OA.
EXHIBIT P4 THE TRUE COPY ORDER OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL DATED 22/02/2019 IN OA (EKM) NO.1024/2018.
EXHIBIT P5 THE TRUE COPY OF THE CERTIFICATE DATED 10/8/2005 WITH SERIAL NO.ACL 29415 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION TO SAJU CHERIAN (1ST PETITIONER) FOR PASSING THE ACCOUNT TEST LOWER.
EXHIBIT P5A THE TRUE COPY OF THE CERTIFICATE DATED 22/7/2006 WITH SERIAL NO.ACH 13244 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION TO SAJU CHERIAN (1ST PETITIONER) FOR PASSING THE ACCOUNT TEST HIGHER.
OP(KAT).105/2019 & - 26 - connected cases. EXHIBIT P5B THE TRUE COPY OF THE CERTIFICATE
DATED 22/7/2006 WITH SERIAL NO.KER 10404 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION TO SAJU CHERIAN (1ST PETITIONER) FOR PASSING THE TEST IN KERALA EDUCATION ACT & RULES.
EXHIBIT P6 THE TRUE COPY OF THE CERTIFICATE DATED 3/7/2006 WITH SERIAL NO.ACL 35831 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION TO P.K.PAUL (2ND PETITIONER) FOR PASSING THE ACCOUNT TEST LOWER.
EXHIBIT P6A THE TRUE COPY OF THE CERTIFICATE DATED 3/7/2006 WITH SERIAL NO.ACH 12790 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION TO P.K.PAUL (2ND PETITIONER) FOR PASSING THE ACCOUNT TEST HIGHER.
EXHIBIT P6B THE TRUE COPY OF THE CERTIFICATE DATED 3/7/2006 WITH SERIAL NO.KER 10192 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION TO P.K.PAUL (2ND PETITIONER) FOR PASSING THE TEST IN KERALA EDUCATION ACT & RULES.
EXHIBIT P7 THE TRUE COPY OF THE GOVT. ORDER G.O.(MS) NO.92/2014/G.EDN. DATED 2/6/2014 ISSUED BY THE SPECIAL SECRETARY, GOVERNMENT OF KERALA.
EXHIBIT P8 THE TRUE COPY OF THE ORDER G.O.(MS) NO.157/2015/G.EDN. DATED 10/6/2015 ISSUED BY THE ADDL.CHIEF SECRETARY, GOVERNMENT OF KERALA.
EXHIBIT P9 THE TRUE COPY OF THE RELEVANT PAGES OF THE PROVISIONAL SENIORITY LIST OF P.D.TEACHERS/JUNIOR LANGUAGE TEACHERS/SPECIAL TEACHERS FOR THE PERIOD FROM 01/01/1991 TO 31/12/1996 IN MALAPPURAM (DT.) DATED 10/2/2010 ISSUED BY THE DEPUTY DIRECTOR EDUCATION, MALAPPURAM.
EXHIBIT P10 THE TRUE COPY OF THE ORDER NO.A2/2350/2019 DATED 31/05/2019 ALONG WITH THE RELEVANT PAGES OF THE FINAL SENIORITY LIST OF QUALIFIED TEACHERS FOR PROMOTION AS PRIMARY HEADMASTERS 2019-2020 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM.
OP(KAT).105/2019 & - 27 - connected cases. EXHIBIT P11 THE TRUE COPY OF THE ORDER NO.A2/2350/2019
DATED 4/6/2019 PROMOTING 80 P.D.TEACHERS AS GOVT. PRIMARY SCHOOL HEADMASTERS FROM NO.63 TO NO.916 FROM THE EXT.P9 FINAL SENIORITY LIST.
EXHIBIT P12 THE TRUE COPY OF THE GAZETTE OF INDIA EXTRA ORDINARY NOTIFICATION DATED 5/4/2010, ISSUED BY THE JOINT SECRETARY GOVERNMENT OF INDIA.
EXHIBIT P13 THE TRUE COPY OF THE KERALA GAZETTE NOTIFICATION DATED 13/12/2017 PUBLISHED BY THE SPECIAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION (J) DEPARTMENT, GOVERNMENT OF KERALA.
EXHIBIT P14 THE TRUE COPY OF THE GAZETTE OF INDIA EXTRA ORDINARY NOTIFICATION NO.34 DATED 10.08.2017 PUBLISHING THE RIGHT TO CHILDREN TO FREE AND COMPULSORY EDUCATION (AMENDMENT) ACT, 2017 (NO.24 OF 2017) ISSUED BY THE SECRETARY TO GOVT. OF INDIA MINISTRY OF LAW AND JUSTICE.
EXHIBIT P15 THE TRUE COPY OF THE ORDER NO.A2/2350/2019 DATED 19.07.2019 PROMOTING 8(EIGHT) MORE P.D.TEACHERS AS GOVT. PRIMARY SCHOOL HEADMASTERS FROM THE EXHIBIT P-10 FINAL SENIORITY LIST.
[TRUE COPY]