Kerala High Court
V.P.Jayaraj vs State Of Kerala on 20 October, 2015
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
THURSDAY, THE 25TH DAY OF FEBRUARY 2016/6TH PHALGUNA, 1937
WP(C).No. 19948 of 2013 (P)
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PETITIONER:
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V.P.JAYARAJ
NOW WORKING AS HEADMASTER
DESABANDHU HIGHER SECONDARY SCHOOL, THACHAMPARA
PALAKKAD DISTRICT.
BY ADVS.SRI.BINOY THOMAS
SRI.PAULSON THOMAS
RESPONDENTS:
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1. STATE OF KERALA
REPRESENTED BY THE SECRETARY
GENERAL EDUCATION DEPARTMENT, SECRETARIAT
THIRUVANANTHAPURAM, PIN:695 001.
2. DIRECTOR OF HIGHER SECONDARY EDUCATION
HOUSING BOARD BUILDING, THIRUVANANTHAPURAM
PIN-695 001.
3. REGIONAL DEPUTY DIRECTOR,
HIGHER SECONDARY EDUCATION, EDAPPALLY, ERNAKULAM
PIN:682 024.
4. MANAGER,
DESABANDHU HIGHER SECONDARY SCHOOL, THACHAMPARA
PALAKKAD, PIN:678 051.
Addl.5. THE REGIONAL DEPUTY DIRECTOR
HIGHER SECONDARY EDUCATION, MALAPPURAM.
[ADDL.R5 IS SUO MOTU IMPLEADED AS PER ORDER DATED 20.10.2015.]
BY GOVERNMENT PLEADER SMT. M.J. RAJASREE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-02-2016,
ALONG WITH WP(C) NOS.6590/2014 & 8097/2014, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO.19948 OF 2013-P
APPENDIX
PETITIONER'S EXHIBITS :-
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EXT.P1 - COPY OF THE M.SC. DEGREE CERTIFICATE ISSUED BY THE
MADURAI KAMARAJ UNIVERSITY.
EXT.P2 - COPY OF THE EQUIVALENCY CERTIFICATE ISSUED BY THE
MAHATHMA GANDHI UNIVERSITY.
EXT.P3 - COPY OF THE B.SC. [MATHEMATICS] DEGREE CERTIFICATE.
EXT.P4 - COPY OF THE B.ED. DEGREE CERTIFICATE.
EXT.P5 - COPY OF THE APPOINTMENT CUM APPROVAL ORDER OF THE
PETITIONER AS HEADMASTER W.E.F.01.04.2010.
EXT.P6 - COPY OF THE REPRESENTATION TO THE MANAGER DATED
01.08.2012 SEEKING APPOINTMENT AS PRINCIPAL.
EXT.P7 - COPY OF THE JUDGMENT IN WP(C) NO.26055 OF 2012.
EXT.P8 - COPY OF THE ORDER NO.ACD.A2/53601/HSE/2013 DATED
29.01.2013.
EXT.P9 - COPY OF THE HEARING NOTICE DATED 09.05.2013.
EXT.P10 - COPY OF THE GO(RT) NO.2948/2013/G.EDN. DATED 16.07.2013.
EXT.P11 - COPY OF THE GO(MS) NO.43/2005/G.EDN. DATED 11.02.2005.
EXT.P12 - COPY OF THE GO(MS) NO.11/2006/G.EDN. DATED 06.01.2006.
EXT.P13 - COPY OF THE GO(MS) NO.211/2011/G.EDN. DATED 24.10.2011.
EXT.P14 - COPY OF THE GO(MS) NO.76/2013/G.EDN. DATED 23.02.2013.
EXT.P15 - COPY OF THE GO(MS) NO.211/2013/G.EDN. DATED 15.07.2013.
EXT.P16 - COPY OF THE REPRESENTATION DATED 29.07.2013.
EXT.P17 - COPY OF THE ADDENDUM GO(MS) NO.26/2014/G.EDN.
DATED 01.02.2014.
EXT.P18 - COPY OF THE REPRESENTATION GIVEN TO THE MANAGER
BY THE PETITIOINER DATED 06.02.2014.
EXT.P19 - COPY OF THE NEWS PAPER ADVERTISEMENT IN
JANMABHOOMY DATED 06.02.2014.
EXT.P20 - COPY OF THE JUDGMENT REPORTED IN 2013 (4) KLT 257.
[CONTD...]
WP(C).No. 19948 of 2013 (P) 2
EXT.P21 - COPY OF THE ORDER OF THE REGIONAL DEPUTY DIRECTOR
DATED 17.08.2012.
EXT.P22 - COPY OF THE ORDER ISSUED BY THE RDD GIVING CHARGE
OF PRINCIPAL W.E.F.16.07.2013.
EXT.P23 - COPY OF THE ORDER DATED 15.12.2014 IN SLP NO.31167 OF
2014 FILED BY MANAGER.
EXT.P24 - COPY OF THE STAFF FIXATION ORDER AS AVAILABLE IN 2014.
EXT.P25 - COPY OF THE ORDER GO(MS) NO.290 OF 2006
DATED 02.12.2016.
RESPONDENTS' EXHIBITS:-
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EXT.R1(A) - COPY OF THE ORDER NO.GB2/DISC. ACTION/18/03-04/4683
PBVR DATED 19.04.2004 ISSUED BY THE KSE BOARD.
//TRUE COPY//
P.A. TO JUDGE
sp
C.R.
K. VINOD CHANDRAN, J.
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W.P(C). Nos.19948 of 2013-P, 8097-J
&
6590 of 2014-W
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Dated this the 26th day of February, 2016
JUDGMENT
The three writ petitions more or less agitate the same cause, but on different aspects. For convenience, WP(C) No.19948 of 2013 is referred to unless otherwise specifically noticed. The petitioner is a Headmaster in the High School section under the 4th respondent. The 4th respondent was granted Higher Secondary Section in the academic year 2010-2011 by Ext.P13 dated 24.10.2011. Teaching posts were sanctioned in many aided Higher Secondary Schools, including the 4th respondent W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 2 School. 146 posts of Principals were also sanctioned. The sanction related back to the date 06.08.2011.
2. At the time when the Government Order was issued, there were none qualified in the Higher Secondary section to be posted as Principal, since the minimum experience required is 12 years as a Higher Secondary School Teacher (HSST) as per Chapter XXXII of the Kerala EducationRules,1959(KER). Though the petitioner was initially appointed as Principal, when HSSTs joined the School, the petitioner was reverted as Headmaster and one of the HSSST (Juniors) was appointed as Teacher-in-charge, on the senior HSST relinquishing her claim. The said teacher-in-charge, one Smitha P. has filed WP(C) No.8097 of 2014, claiming that she is W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 3 entitled to be continued for reason of the Headmaster of the High School not being qualified as on the date of arising of the vacancy of Principal. The apprehension of the said teacher is also that, if the HM of the High School is posted as Principal of the Higher Secondary Section, herself, a HSST (Junior) would be thrown out for want of sufficient periods.
3. The petitioner in WP(C) No.19948 of 2013, the Headmaster, took a Post Graduation in Maths as on 03.04.2012. It was at that point, the petitioner staked a claim for the Principal's post, especially since an HSST (Junior) was continued as in-charge. The claim was rejected and it was agitated before the Educational Authorities and eventually Ext.P10 order was W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 4 passed, rejecting the claim. The rejection at Ext.P10 was based on Exts.P11 & P12 orders, which mandated that the Headmaster appointed as Principal should teach at least 16 hours in the Higher Secondary section.
4. Ext.P11 G.O(MS) No.43/05/G.Edn. dated 11.02.2005 prescribed that the teaching hours of qualified Headmaster turned Principal would be 16 periods per week. Ext.P12 G.O.(MS) No.11/06/G.Edn. dated 06.01.2006, in implementation of Ext.P11, mandated that the post of Principal will be carved out from the existing strength of HSST's and there would be no new posts sanctioned. In the 4th respondent School, the post of HSST's as per the sanctioned strength is filled. If the petitioner is promoted as Principal, then the W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 5 Principal would have to be continued as an additional post without any teaching duties. The G.O.s at Exts.P11 & P12 would stand against the petitioner's claim, is the finding in Ext.P10.
5. This Court is unable to countenance such a finding, in view of the statutory rules made under Chapter XXXII. Rule 4 of Chapter XXXII prescribes the method of appointment. The feeder category for the post of Principal is 'by promotion' from Higher Secondary School Teachers or 'by transfer' from qualified Headmasters of aided High Schools under the respective educational agency. Note III of Serial No.1 of the Table under Rule 4 also prescribes that the post of Principal shall be filled up from the feeder category in the ratio W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 6 of 2:1, ie. when two successive vacancies of Principal are filled from the Higher Secondary section, the third vacancy should go to the Headmaster of the High School, if he or she is so qualified to be appointed as Principal. It is also specified in the said Note that if qualified hands are not available in either of the two methods, then the other method shall be resorted to.
6. Here, admittedly none are available under the HSST category for promotion to the category of Principal, since under Rule 6 of Chapter XXXII, such promotion would require minimum approved teaching experience of 12 years at Higher Secondary level under the same educational agency. Then, necessarily on a vacancy arising to the post of Principal, the W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 7 other method would have to be resorted to, if there is a qualified hand available. The other method is 'by transfer' from qualified Headmaster of the aided High School under the respective educational agency. The petitioner herein is continuing as a Headmaster in the aided High School under the educational agency and he is qualified to be appointed as Principal on 03.04.2012, the date on which he acquired Post Graduation.
7. The mere fact that the HM did not have a qualification on 06.08.2011, when the vacancy itself arose would not stand against him, since there is no other qualified Teacher appointed to that post. If there was a qualified HSST appointed to the post of Principal, then the mere fact that the Headmaster acquired W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 8 qualification later, making him eligible to be considered for the post of Principal in the Higher Secondary section, would not automatically enable him to be promoted. This is so since the HSST already promoted would have a vested right to continue, till superannuation.
8. But herein, an unqualified Teacher was continued as in-charge. Though the in-charge is continued, the vacancy remains as such and is not filled up, till a regular hand is appointed. The petitioner having subsequently qualified to be posted as Principal, could very well stake a claim to that vacant post, which is now occupied by an un-qualified hand, whose appointment is temporary. The said claim is also permissible under the statutory rules, W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 9 more specifically under Chapter XXXII KER.
9. Ext.P10 proceeds on the premise that Exts.P10 & P11 required a Headmaster transferred as Principal to teach 16 hours and in the circumstance of there being no posts available of HSST in the Higher Secondary section, wherein the petitioner could be accommodated so as to teach 16 hours, there could be no promotion granted to the petitioner. This would in fact result in the executive orders interdicting the claim under the statutory rules, which is not permissible.
10. A similar situation was considered by the Hon'ble Supreme Court in Ext.P23, wherein a Government Order of the year 2004 was relied on to frustrate the claim of an unqualified Teacher, continued as Principal-in-charge. The W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 10 Hon'ble Supreme Court directed that in the event of there being no qualified HSST's, then the second method of 'by transfer' appointment of Headmaster has to be resorted to. Therein also it was held that the G.O. relied on,is in conflict with the statutory rule and cannot be found to have validly substituted the substantive rule, which in no uncertain terms prescribed a procedure for promotion to the post of Principal. The said binding precedent squarely applies herein.
11. Apposite would be reference to paragraph 10 of a Division Bench decision in Thomas v. State of Kerala [2013 (4) KLT 257], which is extracted hereunder:
"10. The further contention based on the notifications cited above that a Principal would be W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 11 necessarily required to carry on the teaching duties, which a Headmaster of a High School would be disabled from, in the event of the candidate being not qualified to be appointed as a Higher Secondary School Teacher, also does not impress us, since such an interpretation would again render otiose the two methods of appointment clearly mentioned in the Rules. For one, the stipulation of a Principal being the academic head, does not necessarily contemplate teaching duties on the incumbent, since the academic matters in a School is not confined to teaching alone. In any event, the prescription of 16 hours teaching duty to a Principal is not as per the Rules and is as per the notifications cited above. The prescription in a notification cannot render ineffective or whittle down a statutory rule. It is also pertinent that the Government has thought it fit to bring out Exhibit P6 notification, which provides for retention of the junior-most teacher in a subject, in a supernumerary post, when a Headmaster, by transfer, is appointed as Principal. Such a prescription in a notification is intended with the object of the W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 12 smooth implementation of the provisions of the Rules and are strictly in order."
Ext.P6 referred to therein is G.O.(MS) No.290/06/G.Edn. dated 02.12.2006, the operative portion of which reads as follows:
"4. After examining the issue in detail, Government are pleased to order:
(i) for the Creation of
supernumerary posts of Higher
Secondary School Teacher (Jr.) to accommodate the Junior most Higher Secondary School Teacher (Jr.), who will be thrown out due to shortage of teaching periods consequent on a Headmaster turned Principal takes charges and handles 16 hours teaching period.
(ii) Exemption to Principals from teaching in cases where the Higher Secondary Section does not have the subject of the Headmaster turned Principal for teaching.
5. The Director of Higher Secondary Education will closely watch and take appropriate action in time to abolish the supernumerary posts of Higher Secondary School Teacher (Jr.) as and when the so-called Headmaster W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 13 turned Principal quits the office and he will also ensure that the 2:1 ratio between Higher Secondary School Teacher promotees and Headmasters turned principals are maintained strictly at the time of granting approval for the appointment of Principals in the Higher Secondary Schools."
This clears the air in so far as the promotion of qualified Headmaster's as Principals of Higher Secondary Schools.
12. The statutory rule prescribes that the method of appointment shall be either from the HSST or from qualified Headmasters of aided Schools, under the same educational agency. Preference at the first instance are to the HSST's and then to the HM in the ratio of 2:1. The petitioner, who is qualified to be appointed as Principal, is eligible to be so considered, especially since there are no W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 14 qualified HSST's available. The petitioner's eligibility under the statutory rule cannot be frustrated, merely for the reason that there are no posts available of HSST in the Higher Secondary section, so as to ensure compliance of the G.O.s produced at Exts.P11 & P12.
13. Exts.P11 & P12 in so far as it conflicts with the statutory rule has to be held to be of no consequence. The petitioner prays that the G.O.'s be set aside in toto. But if a harmonization of the executive order with the statutory rule is possible, this Court would only attempt that and steer clear of striking down the former. It is hence declared that in the circumstances in which the G.O. conflicts with the rule, the statutory rule would prevail and have precedence.
W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 15
14. A qualified Headmaster, in the absence of anybody eligible from the other feeder category, would have to be appointed, de hors the fact that the same would create an additional post in the Higher Secondary section. G.O.(MS) No.290/06/G.Edn. then would apply. When a Headmaster is promoted as Principal in the Higher Secondary Section then if there are HSST's available for all the subjects; then the junior most HSST in that subject would be continued as supernumerary. When the Higher Secondary Section does not have the subject of the Headmaster promoted, then he shall be exempted from teaching 16 hours.
15. When an additional batch is sanctioned, in which event, without appointing a fresh hand, the Headmaster promoted as Principal W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 16 could be assigned the duties in the additional batch, if he is so qualified. In such a situation the Manager would not be enabled to make a direct appointment since the HM promoted as Principal would have to be assigned such additional duties, conditioned only by the subject qualification. If the appointment of the Principal is made from a Headmaster, who is not qualified in that particular subject, then the Manager could resort to direct appointment and the Headmaster transferred as Principal will be continued as an additional post.
16. The petitioner's claim, on the above reasoning has to be accepted and the petitioner is directed to be promoted as Principal. The order at Ext.P10 is set aside and there shall be a direction to the Manager to appoint the W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 17 petitioner immediately to the post of Principal. WP(C) No.19948 of 2013 is allowed.
17. WP(C) No.6590 of 2014 raises an alternate prayer made by the Headmaster to be appointed as an HSST (Junior), which would have been alive for consideration, only if the claim for the post of Principal was rejected. The claim for the post of Principal having been upheld, WP(C) No.6590 of 2014 is closed, directing that if the vacancy of HSST (Junior) arise on sanctioning of an additional batch, then the petitioner shall be assigned the duties assigned to such post and no fresh recruitment shall be made, if the petitioner is qualified to teach as an HSST in that subject.
18. WP(C) No.8097 of 2014 is filed by the Teacher-in-charge, who admittedly is not W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 18 qualified for the post of Principal, for want of experience. The petitioner cannot seek continuance , when she is unqualified and there is another teacher so qualified to be appointed as Principal as provided under Chapter XXXII. In the context of the Headmaster's claim having been allowed, WP(C) No.8097 of 2014 would stand closed, only noticing that there is no provision by which a HSST can be thrown out to accommodate a HM promoted as Principal. The Principal so appointed 'by transfer' from HM's will have to be continued as an additional post, till a vacancy in the subject arises, when the Principal would have to be assigned such work.
WP(C) No.19948 of 2013 is allowed. WP(C) No.6590 of 2014 and WP(C) No.8097 of 2014 are W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 19 closed with the reservations and observations herein above.
Sd/-
K. VINOD CHANDRAN, JUDGE.
//True Copy// P.A. to Judge.
sp/27/02/16