BY AD v. B.MOHANLAL

SRI. T.R. MAHESHKUMAR, TEACHER-IN- CHARGE, W.P(C) No.7204/22 2 GURUDEV VOCATIONAL HIGHER SECONDARY SCHOOL, KUZHIKALIDAVAKA, KOTTARAKARA, KOLLAM 691 506. BY ADVS. B.MOHANLAL B.BIPIN ARUN BOSE N.SUNIL JOSEPH SUNEESH KUMAR R. SRI.PREMCHAND R NAIR SR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON

31.01.2024, THE COURT ON 12.02.2024 DELIVERED THE FOLLOWING: W.P(C) No.7204/22 3 MOHAMMED NIAS C.P., J ............................................................ W.P(C) No.7204 of 2022 ............................................................. Dated this the 12th day of February, 2024 JUDGMENT The petitioner claims to have acquired the test qualification prescribed under the Kerala Education Act and Rules and the Account Test (Lower) for being appointed as the Headmaster.  A vacancy arose on 16.5.2021 when the Manager directed the incumbent in the post of Headmaster to hand over the charge to one Mahesh Kumar, a teacher (sixth respondent) who was shown as serial No.5 in the seniority list when the petitioner was figured at serial No.6 as of 11.01.2005.  The petitioner submits that as per the amendment to Rule 44A of Chapter XIVA of the KER, preference shall be given to those teachers who have acquired the test qualification for being appointed as the Headmaster.  According to the petitioner, she is the only test-qualified to be appointed to the vacancy that arose on 1.6.2021.  The Manager issued Ext.P6 appointment order to Mahesh Kumar, the 6th respondent, appointing him as Headmaster. The petitioner submitted Ext.P7 representation on 05.06.2021 to the District Educational Officer.  The District Educational Officer, by Ext.P9 order dated 29.6.2021, rejected the approval to the appointment of the 6th respondent but approved the appointment as Headmaster in charge.  The W.P(C) No.7204/22 4 petitioner filed W.P(C) No.14104/2021, and the same was disposed of, directing the DEO to consider the representation and take note of the observations made in Ext.P10 judgment dated 26.11.2021.  The appeal preferred by the Manager against Ext.P9 order was rejected on 05.01.2022. As per Ext.P11, the DEO conducted a hearing, and the petitioner submitted a detailed hearing note.  In compliance with the directions of this Court, as stated above, the DEO passed orders on 21.2.2022 setting aside Ext.P6 order whereby the appointment of Mahesh Kumar as Headmaster in charge was granted approval and directed the 5th respondent Manager to appoint the test-qualified teacher, which was the petitioner, to the post of Headmaster in terms of Chapter 14A Rule 44A(1) KER.  It is seeking implementation of the said order, dated 21.2.2022 marked as Ext.P12, that W.P(C) No.7204/2022 was filed.

2.  The Manager had approached the Government under Rule 92 of Chapter 14A of the KER against the order of the DEO, Ext.P12.  The appeal filed by the 6th respondent, Mahesh Kumar, challenging Ext.P12 order, was rejected by the Deputy Director of Education, whereupon he filed a revision before the Government.  W.P(C) No.6994/2022 was filed by Mahesh Kumar challenging Ext.P12 order.  On 21.3.2022, an interim order was passed in W.P(C) No.7204/2022, clarifying that in the absence of any stay of the orders impugned before the revisional authority, the statutory authorities are bound to implement the orders issued by them.  The Deputy Director issued a show cause notice to the Manager on account of non-implementation of Ext.P12. W.P(C) No.13795/2022 was filed by the Manager assailing the show cause W.P(C) No.7204/22 5 notice.  By Ext.P11 judgment in W.P(C) No. 13795/2022 dated 12.4.2022, the Government was directed to consider the revision petition filed by the Manager within three months and also gave a direction to keep the coercive steps against the Manager in abeyance.  By order dated 20.8.2022, the Government rejected the revision petition and directed the Manager to appoint the petitioner in W.P(C) No.7204/2022 if she is otherwise eligible.  In view of the said order, an Interim order was passed by this Court on 1.9.2022 to implement the order dated 20.8.2022.

3.  W.P(C) No. 6994/2022 was filed by the 6th respondent Mahesh Kumar was dismissed as infructous. It is challenging the Government Order dated

20.8.2022, the Manager and Mahesh Kumar approached this Court by filing W.P(C) No.29763/2022 and 29023/2022, respectively.  They also challenge the amendment brought in Rule 44A Chapter 14A of the KER.  By Ext.R5(e) order in W.P(C) No. 7204/2022 dated 16.9.2022, the Deputy Director of Education directed the Manager to implement Ext.P12 order and to report the same. This Court again passed an order on 13.10.2022 directing to appoint the petitioner as Teacher in Charge.  Against the interim order, W.A. No.1521/2022 was preferred by the 6th respondent, Mahesh Kumar.  But the same was dismissed, holding that in the absence of any interim order in  W.P(C) No.29023/2022, the authorities are bound to give effect to Ext.P12 order. Ext.R5(a) in W.P(C) No. 7204/2022 is a hearing notice on the steps against the Manager for disqualification.  Thereafter, by orders dated 9.2.2023, as per the interim order in W.P(C) No.7204/2022, the order dated 13.10.2022 was modified, and there was a direction to the Manager to appoint the petitioner W.P(C) No.7204/22 6 as Headmistress of the school, subject to the result of the writ petition. Accordingly, on 10.2.2023, the petitioner was appointed as the Headmistress and continued as such till her retirement on 31.5.2023.

4.  As submitted above, W.P(C) No.7204/2022 is filed by the Headmistress, who was appointed while the orders of the Government are under challenge in the other two writ petitions at the instance of the Manager and the 6th respondent Mahesh Kumar.

5.  Heard, Smt. Rekha Vasudevan, the learned counsel for the petitioner in W.P(C) No.7204/2022, Sri.B.Bipin, the learned counsel for the petitioner in W.P(C) No. 29023/2022 and Sri. N.M. Mohanlal, the learned counsel for the petitioner in W.P(C) No.29763/2022.

6.  After hearing the learned counsel on all sides, it is clear that the petitioner in W.P(C) No.7204/2022 alone was qualified to be appointed as the Headmaster in terms of the provisions of the KER.  The 6th respondent could not have aspired to become the Headmaster given the existing provisions, particularly the third proviso to Rule 44A of Chapter 14A of the KER.

7.  Under such circumstances, the Government Order confirming the orders of the educational officers that directed to appoint the petitioner cannot be said to be illegal in any manner.  It is also seen that the Manager and the 6th respondent had challenged the orders appointing the petitioner in W.P(C) No. 7204/2022 as the Headmaster unsuccessfully, up to the government.  In terms of the qualification of the petitioner, she ought to have been appointed on 01.06.2021, when the vacancy arose.  The disputes sought to be raised by the 6th respondent were contrary to the terms of the KER, as W.P(C) No.7204/22 7 rightly found by the educational authorities.  The Manager also did not appoint the petitioner, who was qualified and chose to prefer the 6th respondent, who was admittedly not qualified in terms of the existing provisions of the KER.  Thus, the entitlement of the petitioner in W.P(C) No.7204/2022 for being appointed as the Headmaster on 01.06.2022 cannot be disputed.  Under such circumstances, the refusal on the part of the Manager in not appointing the petitioner as Headmaster and unsuccessfully challenging the same up to the level of the Government cannot be a reason for not granting the reliefs sought for in W.P(C) No.7204/2022. Accordingly, W.P(C) No.7204/2022 is allowed.  There will be a declaration that the 5th respondent was bound to appoint the petitioner as the Headmistress in the school with effect from 01.06.2021.  There will be a direction to the other respondents to issue orders and approve the same with effect from 01.06.2021 and also to pay all the consequential benefits within a period of three months from today.  It will be open to the Government to recover the same from the Manager and whoever is responsible, in terms of the provisions of the KER. It is made clear that these directions will be implemented, notwithstanding the pendency of W.P(C) Nos. 29023/2022 and 29763/2022 which are delinked by a separate order passed today. okb/ Sd/- MOHAMMED NIAS  C.P. JUDGE W.P(C) No.7204/22 8 APPENDIX OF WP(C) 7204/2022 PETITIONER’S EXHIBITS EXHIBIT P1 TRUE COPY OF THE LETTTER NO. B5/4066/05/R.DIS DATED 27.092005 ADDRESSED TO THE 5TH RESPONDENT ALONG WITH THE SENIORITY LIST. EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT P5 EXHIBIT P6 EXHIBIT P7 EXHIBIT P8 EXHIBIT P9 TRUE COPY OF THE G.O(MS) NO. 157/2015/G.EDN. DATED 10.06.2015 AS PUBLISHED IN SRO NO. 794/2017 ISSUED BY THE 1ST RESPONDENT. TRUE COPY OF THE CERTIFICATE DATED 26.11.2019 ISSUED TO THE PETITIONER BY THE KERALA PUBLIC SERVICE COMMISSION. TRUE COPY OF THE REPRESENTATION DATED 16.05.2021 SUBMITTED BY THE PETITIONER BY THE PETITIONER TO THE 5TH RESPONDENT. TRUE COPY OF THE PROCEEDINGS NO. A4/APPT/2021 DATED 27.05.2021 ISSUED BY THE 5TH RESPONDENT. TRUE COPY OF THE ORDER NO. A4/APPT/TRM/2021 DATED 01.06.2021 ISSUED BY THE 5TH RESPONDENT. TRUE COPY OF THE REPRESENTATION DATED 05.06.2021 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. TRUE COPY OF THE REPRESENTATION DATED 05.06.2021 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT. TRUE COPY OF THE ORDER NO. B5/1929/2021 DATED 29.06.2021 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 26.11.2021 IN W.P.C NO. 14104 OF 2021 OF THIS HON'BLE COURT. EXHIBIT P11 TRUE COPY OF THE HEARING NOTE SUBMITTED BY THE PETITIONER ON 01.02.2022 TO THE 4TH RESPONDENT. EXHIBIT P12 TRUE COPY OF THE ORDER NO. B5/1929/2021 DATED 21.02.2022 ISSUED BY THE 4TH RESPONDENT. RESPONDENTS EXHIBITS EXHIBIT R5A THE TRUE COPY OF THE MEMORANDUM OF REVISION DATED 03.03.2022 FILED BY THE 5TH RESPONDENT BEFORE THE W.P(C) No.7204/22 9 GOVERNMENT EXHIBIT R5B THE TRUE COPY OF THE MEMO DATED 19.03.2022 ISSUED BY THIS RESPONDENT TO THE PETITIONER. EXHIBIT R5C THE TRUE COPY OF THE NO.DDEKLM/1052/2022- B3 DATED 4.4.2022 ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT. EXHIBIT R5 D THE TRUE COPY OF THE ORDER NO.A4/APPT/SVPV/2022 DATED 18.10.2022 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. EXHIBIT R5(E) THE TRUE COPY OF THE NO. DDEKLM/1052/2022-B3 DATED 16.09.2022 ISSUED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT. EXHIBIT R5(F) THE TRUE COPY OF THE NO. DDEKLM/1052/2022-B3 DATED 05.11.2022 ISSUED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT.