Kerala High Court
Mini Paul vs Central Board Of Secondary Education
Author: C.T. Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
MONDAY, THE 23RD DAY OF SEPTEMBER 2013/1ST ASWINA, 1935
WP(C).No. 12450 of 2013 (E)
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PETITIONER(S):
------------------
1. MINI PAUL, AGED 44 YEARS
W/O. R. JAYAKUMAR JOSEPH, BHARANETHU VEEDU
AYATHIL.P.O., KOLLAM DISTRICT.
2. APSARA.R., AGED 40 YEARS
W/O. K. SANTHOSH KUMAR, SARASWATHY VILASAM
SNEHANAGAR-141, ULIYAKOVIL.P.O., KOLLAM DISTRICT.
3. SHEENA.A.K., AGED 39 YEARS
W/O. R. ANIL KUMAR, LALITHA SADANAM, AKKOLICHERRY
VALATHUNGAL.P.O., KOLLAM DISTRICT.
4. MINI MOLLY.R.K., AGED 38 YEARS
W/O. V. JAYAKUMAR, VALIYA VEEDU, AKKOLICHERRY
KOOTTIKADA.P.O., KOLLAM DISTRICT.
5. SHEEBA.D., AGED 47 YEARS
D/O. DIVAKARAN, SUDARSANALAYAM, SREE SARAVANA NAGAR
ERAVIPURAM.P.O., KOLLAM DISTRICT. PIN-691011.
6. SHINY.S., AGED 32 YEARS
D/O. SHADEVAN.R., REJANI NIVAS, KARTIKKUZHI
MAYYANAD.P.O., KOLLAM DISTRICT. PIN-691303.
7. REKHA.R., AGED 45 YEARS
D/O. CHAKRAPANI, MULAVARAZHIKOM, MAYYANAD.P.O.
KOLLAM-691303.
8. JAMUNA.C., AGED 46 YEARS
D/O. CHELLAPPAN CHETTIYAR, KOLLENTAZHIKOM
MAYYANAD.P.O., KOLLAM-691303.
9. GEETHA.R., AGED 41 YEARS
D/O. V.R. NARAYANA PILLAI, KIZHAKKADATHU VEEDU
AYATHIL.P.O., KOLLAM DISTRICT.
10. SREELATHA.T., AGED 44 YEARS
D/O. RADHAKRISHNA PILLAI, CHAPLAZHIKKATHU VEEDU
SARAYOO NAGAR-122, ASRAMAM.P.O., KOLLAM DISTRICT.
11. SHOBHA NELSON, AGED 37 YEARS
D/O. BALAKRISHNAN.V.G., 'SONIYAS', VALATHUGAL.P.O.
KOLLAM-691018.
12. RAJINI.A.V., AGED 45 YEARS
D/O. K. VIDYADHARAN, RAJINI NIVAS, KARIKKUZHY
MAYYANAD.P.O., KOLLAM-691303.
13. SHEEJA.T., AGED 38 YEARS
D/O. KUNJUKRISHNAN.R., PRASAD MANDIRAM
THEKKEVILA.P.O., KOLLAM DISTRICT.
14. RENJINI.A., AGED 39 YEARS
D/O. SOMARAJAN.G., UTHRADAM, DEECAT JN.P.O.
MUKHATHALA, KOLLAM DISTRICT.
15. SHEEBAMOL.A., AGED 28 YEARS
D/O. SIVADASAN.S., CHEMBAKAZHIKOM, ERAVIPURAM.P.O.
KOLLAM DISTRICT.
16. SHYLAJA SURESH, AGED 46 YEARS
D/O. SARASAMMA, V.S. BHAVAN, VADAKKEVILA NAGAR
A-82, PATTATHANAM.P.O., KOLLAM DISTRICT.
17. EUGINE MICHAEL, AGED 54 YEARS
D/O. P. WILSON, WILSON VILLA, KAKKOTHUMOOLA
MAYYANAD.P.O., KOLLAM DISTRICT.
BY ADV. SRI.T.M.RAMAN KARTHA
RESPONDENT(S):
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1. CENTRAL BOARD OF SECONDARY EDUCATION
SHIKSHA KENDRA, 2ND FLOOR, COMMUNITY CENTRE
PREET VIHAR, NEW DELHI-110092
REPRESENTED BY ITS CHAIRMAN.
2. THE MANAGER
MAHATMA CENTRAL SCHOOL, ERAVIPURAM.P.O.
KOLLAM (CBSE AFFILIATION NO. 930226), PIN-691011.
3. THE PRINCIPAL
MAHATMA CENTRAL SCHOOL, ERAVIPURAM.P.O.
KOLLAM-691011.
R2-R3 BY ADV. SRI.CHERIAN GEE VARGHESE
R2-R3 BY ADV. SRI.P.HARIDAS
R1 BY SRI.DEVAN RAMACHANDRAN, SC, CBSE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-09-2013,
ALONG WITH WPC. 13819/2013, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WP(C).No. 12450 of 2013 (E)
APPENDIX
PETITIONER(S)' EXHIBITS :
EXT.P1: A TRUE COPY OF THE RELEVANT PORTION OF THE CBSE SCHOOL
DIRECTORY.
EXT.P2: A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 6-5-13. ISSUED TO
THE 1ST PETITIONER.
EXT.P2(A): A TRUE COPY OF THE IDENTICAL NOTICE DATED 6-5-2013.
EXT.P2(B): A TRUE COPY OF THE IDENTICAL NOTICE DATED 6-5-2013.
EXT.P2(C): A TRUE COPY OF THE IDENTICAL NOTICE DATED 6-5-2013.
EXT.P2(D): A TRUE COPY OF THE IDENTICAL NOTICE DATED 6-5-2013.
EXT.P2(E): A TRUE COPY OF THE IDENTICAL NOTICE DATED 6-5-2013.
EXT.P2(F): A TRUE COPY OF THE IDENTICAL NOTICE DATED 6-5-2013.
EXT.P2(G): A TRUE COPY OF THE IDENTICAL NOTICE DATED 6-5-2013.
EXT.P2(H): A TRUE COPY OF THE IDENTICAL NOTICE DATED 6-5-2013.
EXT.P2(I): A TRUE COPY OF THE IDENTICAL NOTICE DATED 6-5-2013.
EXT.P2(J): A TRUE COPY OF THE IDENTICAL NOTICE DATED 6-5-2013.
EXT.P2(K): A TRUE COPY OF THE IDENTICAL NOTICE DATED 6-5-2013.
EXT.P2(L): A TRUE COPY OF THE IDENTICAL NOTICE DATED 6-5-2013.
EXT.P2(M): A TRUE COPY OF THE IDENTICAL NOTICE DATED 6-5-2013.
EXT.P2(N): A TRUE COPY OF THE IDENTICAL NOTICE DATED 6-5-2013.
EXT.P2(O): A TRUE COPY OF THE IDENTICAL NOTICE DATED 6-5-2013.
EXT.P2(P): A TRUE COPY OF THE IDENTICAL NOTICE DATED 6-5-2013.
EXT.P3: A TRUE COPY OF THE CIRCULAR NO. 19 DATED 6-3-2012 ISSUED BY
THE 1ST RESPONDENT.
EXT.P4:TRUE COPY OF THE REPLY DATED 16.5.2013 GIVEN BY THE 1ST
PETITIONER.
EXT.P4(A):A TRUE COPY OF THE IDENTICAL REPLY DATED 16.5.2013.
EXT.P4(B): A TRUE COPY OF THE IDENTICAL REPLY DATED 16.5.2013.
EXT.P4(C): A TRUE COPY OF THE IDENTICAL REPLY DATED 16.5.2013.
EXT.P4(D): A TRUE COPY OF THE IDENTICAL REPLY DATED 16.5.2013.
EXT.P4(E): A TRUE COPY OF THE IDENTICAL REPLY DATED 16.5.2013.
EXT.P4(F): A TRUE COPY OF THE IDENTICAL REPLY DATED 16.5.2013.
EXT.P4(G): A TRUE COPY OF THE IDENTICAL REPLY DATED 16.5.2013.
EXT.P4(H): A TRUE COPY OF THE IDENTICAL REPLY DATED 16.5.2013.
EXT.P4(I): A TRUE COPY OF THE IDENTICAL REPLY DATED 16.5.2013.
EXT.P4(J): A TRUE COPY OF THE IDENTICAL REPLY DATED 16.5.2013.
EXT.P4(J): A TRUE COPY OF THE IDENTICAL REPLY DATED 16.5.2013.
EXT.P4(K): A TRUE COPY OF THE IDENTICAL REPLY DATED 16.5.2013.
EXT.P4(L): A TRUE COPY OF THE IDENTICAL REPLY DATED 16.5.2013.
EXT.P4(M): A TRUE COPY OF THE IDENTICAL REPLY DATED 16.5.2013.
EXT.P4(N): A TRUE COPY OF THE IDENTICAL REPLY DATED 16.5.2013.
EXT.P4(O): A TRUE COPY OF THE IDENTICAL REPLY DATED 16.5.2013.
EXT.P5:A TRUE COPY OF THE RELEVANT EXTRACTS OF CBSE BYE LAWS.
EXT.P6:A TRUE COPY OF THE MASS PETITION DATED 5.6.2013.
EXT.P7:A TRUE COPY OF THE REPLY RECEIVED FROM SENIOR SUPERINTENDENT
OF POST OFFICES DATED 6.6.2013.
RESPONDENT(S)' EXHIBITS:
R3(A):TRUE COPY OF THE CERTIFICATE ISSUED BY THE NATIONAL MINORITY
COMMISSION DATED 8.8.2012.
R3(B):TRUE COPY OF STAFF REGISTER.
R3(C):TRUE COPY OF THE RELEVANT PORTION OF CBSE BYE-LAW.
R3(D):TRUE COPY OF THE NOTICE DATED 15.6.2009.
R3(E):TRUE COPY OF THE MINUTES OF STAFF MEETING HELD ON 2.6.2010.
R3(F):TRUE COPY OF THE MINUTES OF STAFF MEETING HELD ON 28.4.2011.
R3(G):TRUE COPY OF ONE OF FEEDBACK FORMS SUBMITTED BY A PARENT
DATED 26.3.2013.
R3(H):TRUE COPY OF THE ORDER OF THE APPOINTMENT DATED 20.5.2013.
R3(I):TRUE COPY OF THE ORDER OF THE TERMINATION DATED 20.5.2013.
R3(J):TRUE COPY OF THE LETTER OF WITHDRAWING EXHIBIT R3(I) DATED
23.5.2013.
R3(K):THE LETTER ISSUED BY SRI.JOSE ANAND, A RETAINED TEACHER DATED
27.5.2013.
R3(K)(1):THE LETTER ISSUED BY SMT.KAVITHA, A RETAINED TEACHER DATED
27.5.2013.
R3(K)(2):THE LETTER ISSUED BY SMT.RENUKA BAI A RETAINED TEACHER DATED
27.5.2013.
//TRUE COPY//
P.A.TO JUDGE
C.T. RAVIKUMAR, J.
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W.P.(C). Nos.12450 & 13819 OF 2013
==========================
Dated this the 23rd day of September, 2013
JUDGMENT
The petitioners in the former writ petition are pre-primary school teachers in Mahatma Central School, Eravipuram. The first petitioner in the latter writ petition claims to be a Clerk in Mahatma Central School, Chavara and the second and third petitioners are pre- primary teachers in the same school. The main school under the management is at Eravipuram in Kollam and besides that it is having schools at Wayanad, Polayathodu and Chavara. These writ petitions are filed challenging Ext.P2 series of notices requiring them to produce the necessary certificates for teaching in primary school level within the period specified in such notices. The further prayer is for a declaration that Ext.P3 circular is not applicable to the petitioners and that it is having only prospective effect. Since the petitioners are all working under the same management and the issues involved in both W.P.(C).12450 & 13819/13 2 these writ petitions are one and the same and they are seeking identical reliefs, these writ petitions are taken up for joint hearing and disposal.
2. With respect to the first limb of the second prayer in these writ petitions, evidently, nobody got a case that Ext.P3 circular is having retrospective effect and indisputably, it is having only prospective effect. In fact, none of the respondents even attempted to canvass the position that Ext.P3 circular is having retrospective effect. In the said circumstances, no declaration as sought for, with respect to the aforesaid question, is called for. Regarding the first prayer which is a challenge against Ext.P2 notices, evidently, as per such notices, the petitioners were required to produce the required certificates for teaching in primary schools within the specified period from the date of receipt of the notices with a warning that failure to produce such certificates would constrain the management to terminate their services. As a matter of fact, the second limb of the second prayer is W.P.(C).12450 & 13819/13 3 interrelated to the first prayer and hence, I will consider them jointly.
3. It is evident from the pleadings in both the writ petitions that the very case of the petitioners sans the first petitioner in the latter writ petition is that they were appointed as pre-primary school teachers, on different dates, ranging from 1993 to 2009. The fact that the petitioners were appointed as pre-primary school teachers is not disputed by respondents 2 and 3 at the time of hearing. The contention of the first petitioner in the latter writ petition that he was appointed as a Clerk in the Believers Church Mahatma Public School, Chavara has been refuted by respondents 2 and 3 therein. In paragraph 3 of the counter affidavit filed by them, it is stated thus:-
"As for the contentions in paragraph No.(1), it is submitted that 1st petitioner is not a clerk of the school, but he was working as a primary school teacher. 1st petitioner was working as a class teacher of division '6C' of the above school"
4. To substantiate the said contention, they have produced Exts.R3(a) and R3(b) which are respectively the copies of a Report W.P.(C).12450 & 13819/13 4 Card signed by the first petitioner and the concerned tabulation sheet. According to them a show cause notice dated 7.5.2013 was sent to him and the explanation given by him dated 14.5.2013 was not satisfactory and therefore, on the ground of being under qualified as per the bye-law of CBSE for teaching in a CBSE school he was terminated from service as per Ext.R3(c). No reply affidavit has been filed by the first petitioner in the latter writ petition to contradict the said contention supported by Exts.R3(a), R3(b) and R3(c). Hence, it cannot be taken that he was not appointed as a primary school teacher. I will deal with his case separately later. In the writ petition itself, it is contended that though the petitioners were appointed as pre-primary school teachers, they were required to take classes in primary and high school levels. At the same time, in view of the rival contentions, it is evident that the common case is that the petitioners were appointed only as pre-primary school teachers. As noticed hereinbefore, through Ext.P2 series notices, the petitioners were informed that they were under qualified as per the bye-law of CBSE for teaching in primary W.P.(C).12450 & 13819/13 5 level and were required to produce the required certificates for teaching in primary level within 7 days from the date of receipt of such notices and cautioned them that in case of their failure the management would be forced to initiate termination proceedings against them. A close scrutiny of the contentions of respondents 2 and 3 would reveal that there is apparently some incongruity in their statements as referred above. If the petitioners were appointed only as pre-primary school teachers and if they are teaching only in pre- primary what was the necessity to intimate them that they are under qualified to teach in primary level as per the bye-law of the CBSE. In this context, it is apposite to refer to paragraph 5 of the counter affidavit filed by respondents 2 and 3 in the former writ petition. Paragraph 5 therein reads thus:-
"As for the contentions in paragraph No.3, it is submitted that all the petitioners except 2nd petitioner are presently working as primary teachers, not as pre-primary teachers as claimed by the petitioners".
5. At the same time, in the counter affidavit filed by them in W.P.(C).12450 & 13819/13 6 the latter writ petition it is stated that the petitioners 1 and 2 therein are not having PPTTC and hence, they are not qualified to be retained as pre-primary teachers. Paragraph 7 therein, in so far as it is relevant reads thus:-
"As for the contentions in paragraph No.(4), it is submitted that petitioners 1 & 2 are not having PPTTC. Hence they are not qualified to be retained as pre-primary school teachers. It is true that the 3rd petitioner is having qualification of PPTTC. However she left the service on 13.11.2012 after applying for leave on Maternity Grounds. Moreover, her performance as a teacher is not upto mark and several parents have complained that her proficiency in English is very poor. Now the school has to increase salary to the teachers in terms with the directions of this Honourable court and in conformity with the CBSE norms. Consequential hike in the tuition fee also has to be made. If under-qualified or incompetent teachers are retained in the service, the parents will not tolerate the same and many parents express their views with the school authorities. Only under such circumstances, termination notices were issued to them."
6. It is evident from the aforequoted statements from the counter affidavit filed in the latter writ petition by respondents 2 and 3 that they would admit that PPTTC is a sufficient qualification for W.P.(C).12450 & 13819/13 7 teaching at pre-primary level. In paragraph 5 therein, it was categorically admitted that CBSE has not prescribed any qualification for the pre-primary teachers and hence, principal is the sole authority to decide the required qualification of the pre-primary teachers. It is after making such a statement in paragraph 5 that the above extracted statements were made in paragraph 7. In this context, it is also pertinent to note that the said counter affidavit has been sworn in by the principal of the school viz., the 3rd respondent on her behalf as also on behalf of the second respondent-Manager. If that be so, how can the principal of Mahatma Central School, Eravipuram file a counter affidavit on her behalf and also on behalf of the very same second respondent-Manager that all the petitioners in the former writ petition are not qualified to teach at pre-primary level. Contextually the details regarding the educational qualifications and entry into service etc., given in tabulated columns under paragraph 3 would assume relevance. A perusal of the column would reveal that petitioners 1 to 7 and 11 to 16 are having PPTTC. Some of them are also graduates. W.P.(C).12450 & 13819/13 8 Hence, it cannot be stated that those petitioners are not qualified to teach at pre-primary level. As regards petitioners 8 to 10 and 17 are concerned, their qualification and year of entry in service as follows:-
Sl.No. And Name of Educational Qualification Year of Entry in Service Teacher
8.Jamuna C. Pre-Degree 2006 Hindi Praveen B.Ed (Shiksha Visharad)
9.Geetha R. SSLC 2003 Hindi Praveen TTC
10.Sreelatha T. MA (Hindi) 2007
17.Eugine Michael B.Com., PGDCA (Computer trainer) 2009
7. In the circumstances, it is apposite to note that in the show cause notices issued to the petitioners, it is not stated that they are not qualified to teach in pre-primary level whilst the specific reason stated therein is that they are not qualified for teaching at primary level in W.P.(C).12450 & 13819/13 9 terms of the bye-law of CBSE. Perhaps, it is realising these relevant and crucial aspects that the learned counsel for respondents 2 and 3 never pressed into service the contention that the petitioners are not qualified to teach in the pre-primary level. As stated earlier, the contention of the petitioners in both these writ petitions except the first petitioner in the latter writ petition, is that they were all appointed as pre-primary school teachers and they were required to take classes in primary and high school levels. It is noteworthy in this context that in the counter affidavit filed in the former writ petition what is stated is only that all the petitioners except the second petitioner are presently working as primary teachers. At the same time, it is admitted that all of them were appointed only as pre-primary school teachers. Learned counsel for respondents 2 and 3 submitted that there is a likelihood of terminating the services of excess pre-primary teachers and in such event, only those who are having the required qualification to continue as primary school teachers would be absorbed in the service. In fact, it is to consider such a question, W.P.(C).12450 & 13819/13 10 Ext.P2 series notices were issued. It is thus obvious that there is no case even for the petitioners that they were appointed as primary school teachers. Evidently, in the light of Ext.P3 circular, schools which are affiliated to the first respondent can effect appointment of primary school teachers taking into account the qualification prescribed therein. When the very case of the petitioners is that Ext.P3 is having only prospective effect and taking into account the contention that they were not appointed as primary school teachers, necessarily, if respondents 2 and 3 are to give any order of appointment in favour of the petitioners as primary school teachers, they can do so only taking into account Ext.P3. In such event, the persons who are possessing qualification prescribed under Ext.P3 alone can be considered for appointment as primary school teachers. It is in such circumstances that Ext.P2 series of notices were issued. Issuance of such notices for the purpose of considering the petitioners who are continuing in the service of the second respondent for appointment as primary school teachers and requiring them to produce W.P.(C).12450 & 13819/13 11 such certificates showing the possession of prescribed qualification cannot be said to be illegal. In such circumstances these writ petitions are disposed of as hereunder:-
The petitioners shall produce documents, if any, showing possession of qualification prescribed in Ext.P3 to enable respondents 2 and 3 to consider the eligibility or otherwise of the petitioners to get absorption into service as primary school teachers. This shall be done on or before 26.8.2013. At the same time in the case of the petitioners who are admittedly possessing the prescribed qualification for continuing as pre-primary school teachers on account of the possession of PPTTC they shall be permitted to continue. Since the first petitioner in the latter writ petition has not produced any documents to refute the contention based on Exts.R3(a), R3(b) and R3
(c) he cannot be heard to contend that he was appointed as a clerk. In such circumstances, taking into account the fact that the said petitioner was appointed as a primary school teacher his claim for continuance in the light of Ext.P3 circular has to be considered W.P.(C).12450 & 13819/13 12 separately. The question is whether, in the absence of retrospectivity to the prescription of qualifications as per Ext.P3, he shall be called upon to produce any fresh qualifying certificate for the purpose of continuance. That shall be considered with notice to the said petitioner, expeditiously. Till such a decision in terms of the judgment they shall be allowed to continue as pre-primary school teachers.
Sd/-
C.T. RAVIKUMAR
(JUDGE)
spc/
W.P.(C).12450 & 13819/13 13
C.T. RAVIKUMAR, J.
JUDGMENT
September,2010
W.P.(C).12450 & 13819/13 14