Kerala High Court
P.Ibrahim Kutty vs Manager on 18 March, 2017
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 23RD DAY OF MAY 2017/2ND JYAISHTA, 1939
WP(C).No. 11707 of 2017 (K)
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PETITIONER(S) :
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P.IBRAHIM KUTTY,H.S.A (MATHEMATICS),
DR.K.B.MENON MEMORIAL HIGH SCHOOL,
TRITHALA, (VIA) OTTAPALAM,
PALAKKAD DISTRICT.
BY ADV. DR.GEORGE ABRAHAM
RESPONDENT(S) :
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1. MANAGER,
DR.K.B.MENON MEMORIAL HIGH SCHOOL,
TRITHALA, (VIA) OTTAPALAM,
PALAKKAD DISTRICT- 679 534.
2. K.P.MEMOJ, H.S.A,
DR.K.B.MENON MEMORIAL HIGH SCHOOL,
TRITHALA, (VIA) OTTAPALAM,
PALAKKAD DISTRICT- 679 534.
3. DISTRICT EDUCATIONAL OFFICER,
OTTAPALAM, PALAKKAD- 679 001.
4. DEPUTY DIRECTOR OF EDUCATION,
PALAKKAD- 678 001.
5. STATE OF KERALA,
REPRESENTED BY THE SECRETARYTO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM- 695 001.
R1 BY ADV. SRI.BINOY VASUDEVAN
R2 BY ADVS. SRI.BENNY ANTONY PAREL
SRI.K.ANAND
R3 TO R5 BY SR. GOVERNMENT PLEADER SMT. MARY BEENA JOSEPH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 23-05-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Msd.
WP(C).No. 11707 of 2017 (K)
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APPENDIX
PETITIONER(S)' EXHIBITS :
EXHIBIT P1 TRUE COPY OF THE SENIORITY LIST OF TEACHERS WORKING AT
DR.K.B.MENON MEMORIAL HIGH SCHOOL, TRITHALA.
EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS ISSUED BY THE DISTRICT
EDUCATIONAL OFFICER, DATED 18/03/2017.
EXHIBIT P3 TRUE COPY OF THE COMMUNICATION ISSUED BY THE MANAGER
DATED 29/03/2017.
EXHIBIT P4 TRUE COPY OF THE GOVERNMENT ORDER DATED 10/01/2015.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN W.P(C).NO. 41320/2016.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN C.C.NO. 565/2003.
RESPONDENT(S)' EXHIBITS :
EXHIBIT R1(A): TRUE COPY OF THE CERTIFICATE ISSUED BY
THE COMMISSION CERTIFYING THAT
THE 2ND RESPONDENT HAS PASSED ACCOUNT TEST
(LOWER) CONDUCTED BY THE KERALA PUBLIC SERVICE
COMMISSION
EXHIBIT R1(B): TRUE COPY OF THE CERTIFICATE ISSUED BY
THE COMMISSION CERTIFYING THAT
THE 2ND RESPONDENT HAD PASSED BY THE RELEVANT
TEST UNDER THE KERALA EDUCATION ACT AND RULES.
EXHIBIT R1(C): TRUE COPY OF THE RELEVANT PAGES OF
THE ATTENDANCE REGISTER IN THE SCHOOL.
EXHIBIT R1(D): TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME
COURT IN INDIA IN SPECIAL LEAVE TO APPEAL (C)
NOS. 31332-31333/2016 DATED 07.11.2016.
EXHIBIT R1(E): TRUE COPY OF THE COMPLAINT DATED 01.04.2017
PREFERRED BY THE 2ND RESPONDENT BEFORE
THE SUB INSPECTOR OF POLICE.
EXHIBIT R2(A): TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME
COURT IN SLP NOS. 31332-31333/2016 DATED 07.11.2016.
//TRUE COPY//
P.A.TO JUDGE.
Msd.
P.V.ASHA J.
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W.P.(C).No.11707 of 2017
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Dated this the 23rd day of May, 2017
J U D G M E N T
The petitioner, who is due to retire from service on 31.05.2017, is aggrieved by the denial of promotion as Headmaster against the vacancy which arose on 1.04.2007 and he is challenging Ext.P3 order based on which the 2nd respondent who is far junior to him was given charge as Headmaster.
2. A vacancy of Headmaster arose in the Dr.K.B.Menon Memorial High School, Trithala, which is an aided School, governed by Kerala Education Rules, 1958 (KER), with effect from 01.04.2017, consequent to the retirement of Smt. M.K.Parvathy on 31.03.2017. Petitioner is rank no.2 in Ext.P1 seniority list of High School Assistants in the first respondent School. Rank no.1 retired on 31.03.2017. The 2nd respondent is rank no.12. The qualification for appointment to the post of Headmaster in aided High School is governed by Rule 44 of Chapter 14 A of Kerala Educational W.P.(C).No.11707 of 2017 2 Rules (KER). As per the second proviso to Rule 44 A, an HSA who has completed the age of 50 years is entitled to permanent exemption from acquiring the test qualification prescribed under Sub Rule 1 to Rule 44 A. As on the date of occurrence of vacancy, the petitioner has completed the age of 55 years and therefore he is entitled to the benefit of the exemption provided under second proviso to Rule 44 A of Chapter 14 A of KER. The 2nd respondent is aged 46; but he has acquired the test qualification. Despite the statutory provision providing for exemption, Government issued Ext.P4 order on 10.06.2015 according to which exemption can be made available only in the absence of test qualified hands for promotion as Headmasters. It provides for preference to the test qualified hands over those without test qualification even if they have crossed the age of 50 years. In other words, when there is a test qualified High School Assistant with the prescribed educational qualifications and requisite experience, a senior hand who has crossed the age of 50 years will not get the benefit of exemption provided under Rule 44 A of Chapter 14 A of KER for appointment as Headmaster.
W.P.(C).No.11707 of 2017 3
3. In the light of Ext.P4 order, the second respondent was given charge of the post of Headmaster with effect from 01.04.2017, ignoring the seniority of or statutory exemption available to the petitioner. In the said circumstances the petitioner has approached this Court relying on the Division Bench judgment of this Court reported in Pavandoor Higher Secondary School v. Sadanandan [2016 (4) KLT 207], challenging Ext.P3 order and for a direction to the first respondent to appoint him as Headmaster with effect from 01.04.2017 onwards.
4. The second respondent as well as the first respondent Manager have filed separate counter affidavits. Both of them are relying on Ext P4 order, which was set aside by this court. They have also produced the orders passed by Supreme Court as per Exts.R1(d) and R2(a) by which the Apex Court directed the status quo in the civil appeals filed against the Division Bench judgment (supra).
5. The case of the respondents 1 and 2 is that petitioner who is not test qualified is not entitled to be promoted as Headmaster in the light of Ext.P4 order and in the light of the orders passed by the Apex Court, directing W.P.(C).No.11707 of 2017 4 status quo in the appeals.
6. Apart from the judgment in Pavandoor Higher Secondary School's case (supra), the learned Counsel for the petitioner relied on the judgment of the Apex Court in Commissioner of Central Excise, Bolpur v. M/s. Ratan Melting & Wire Industries [2008 (4) KHC 877] and judgment of this Court in Unni Narayanan K. and Others v. State of Kerala and Others [2009 (2) KHC 550]. In both these cases this Court considered the effect of executive orders issued by Government and held that executive orders cannot supersede statutory provisions. Therefore it is pointed out that the exemption provided under second proviso to Rule 44 A of Chapter 14 A of KER cannot be superseded by way of Ext.P4 Government Order.
7. I have considered the contentions on either side. I have also disposed of several writ petitions, following the dictum laid down in in Pavandoor Higher Secondary School's case (supra).
8. It is pertinent to note that the petitioner is due to retire from service on 31.05.2017. The vacancy arose on 01.04.2017. The second respondent who is Rank No.12 in W.P.(C).No.11707 of 2017 5 Ext.P1 seniority list is aged only 46. Statutory provision is in favour of the petitioner. The petitioner would have been able to retire from service as a Headmaster after rendering service in that post for a period of only two months i.e., from 01.04.2017 to 31.05.2017.
9. In the light of the above circumstances and in the light of the judgment of this Court in Pavandoor Higher Secondary School's case (supra). I declare that the petitioner was the teacher entitled to promotion as Headmaster against the vacancy which arose on 01.04.2017 and the action of the manager in Ext.P3 was unsustainable and illegal. Accordingly, Ext.P3 is set aside. There shall be a direction to appoint the petitioner as Headmaster, at any rate before his retirement on 31.05.2017. The petitioner shall also be granted all benefits of the post of Headmaster for the period from 01.04.2017 onwards.
The writ petition is allowed accordingly.
P.V.ASHA, JUDGE.
AS