IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 23RD MARCH 2011 / 2ND CHAITHRA 1933 WP(C).No. 8851 of 2009(B) ------------------------- PETITIONER(S): --------------- C.S. SREEKUMARI, U.P.S.A., S.K.V.U.P.SCHOOL, EVOOR NORTH, ALAPPUZHA DIST. BY ADV. SRI.LIJU. M.P SRI.K.S.MANU (PUNUKKONNOOR) RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA 4. ASSISTANT EDUCATIONAL OFFICER, HARIPAD, ALAPPUZHA DIST. 5. THE MANAGER, S.K.V.U.P.SCHOOL, EVOOR NORTH. 6. O.SANTHAMMA, HEADMISTRESS, SKV U.P.SCHOOL, EVOOR NORTH, ALAPPUZHA. ADV. SRI.P.SREEKUMAR FOR R5-R6 GOVERNMENT PLEADER SMT.SMITHA SUKUMAR FOR R1-4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 8851/09 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE GRADUATION CERTIFICATE. P2. COPY OF THE B.ED. CERTIFICATE. P3. COPY OF THE ACCOUNT TEST CERTIFICATE. P4. COPY OF THE CERTIFICATE OF DEPARTMENTAL TEST. P5. COPY OF THE ORDER DTD.2.7.05. P6. COPY OF THE ORDER DTD.4.10.06 BY R4. P7. COPY OF THE ORDER DTD.8.3.07 BY R3. P8. COPY OF THE APPEAL DTD.15.3.07 BEFORE R2. P9. COPY OF THE ORDER DTD.27.11.07 OF R2. P10. COPY OF THE PETITION DTD.17.12.07 BEFORE R1. P11. COPY OF THE ORDER DTD.26.2.09 BY R1. P12. COPY OF THE LETTER DTD.6.8.09. P13. COPY OF THE LETTER DTD.19.8.09. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 8851 of 2009 ================== Dated this the 23rd day of March, 2011 J U D G M E N T In this writ petition, the petitioner on the one hand and the 6th respondent on the other, vie with each other for the post of headmistress of the S.K.V. U.P. School, of which, the 5th respondent herein is the manager. The petitioner is a graduate teacher and the 6th respondent is an under-graduate teacher. The petitioner after joining the school in 1988, was retrenched several times for want of vacancy, for some time she worked as a protected teacher and ultimately, rejoined the school on 19.7.2005, from which date onwards she is continuing as as regular teacher of the school. The 6th respondent was retrenched at some point of time and she re-joined the school on 1.11.2004 and she is also continuing in the school since then. A vacancy of Headmaster arose in the school on 1.6.2006. The manager preferred the 6th respondent for appointment as the headmistress. The petitioner challenged the same before the Assistant Educational Officer, who by Ext.P6 order dated 4.10.2006, upheld the claim of the petitioner on the ground that the petitioner has 11 years, one month and 24 days of service as against 17 years, 11 months and 23 days of service of the 6th respondent and therefore, the petitioner having 5 years of service and more than half the service of the 6th respondent, the petitioner is entitled to be preferred for appointment as the w.p.c.8851/09 2 headmistress by virtue of the provisions of Rule 45 of Chapter XIV-A of the KER. The 6th respondent appealed to the D.E.O, Alappuzha, who, by Ext.P7 order, reversed the decision of the A.E.O., on the ground that as per the seniority list prepared by the manager under Rule 37, the 6th respondent is senior to the petitioner. The petitioner's appeal to the Additional Director of Public Instruction was rejected by Ext.P9 order. A further revision to the Government was also rejected by Ext.P11 order. The petitioner has filed this writ petition challenging Exts.P7, P9 and P11 orders seeking the following reliefs: “i) Call for the records relating to Exhibits P7, P9 and P11; ii) Issue a writ of certiorari or any other appropriate writ or order on direction, quashing Exhibits P7, P9 and P11 orders; iii) Issue a writ of mandamus or any other appropriate writ or order or direction, declaring that the petitioner is entitled to be promoted to the post of Headmaster in the vacancy arisen on 1.6.2006 in SKV U.P.School, Evoor North, Alappuzha District and direct the respondents No.1 to 5 to see that the petitioner is promoted to the above post with effect from 1.6.2006 and disburse all service benefits to the petitioner, therefrom, at the earliest; iv) Issue a writ of mandamus or any other appropriate writ or order or direction, directing the 5th respondent to give promotion to the petitioner to the post of Headmistress in SKV U.P.School, Evoor North, w.e.f. 1.6.2006.” 2. The contention of the petitioner is that the seniority has no place in the matter of considering for promotion to the post of headmaster/headmistress under Rule 45 of Chapter XIV-A of the KER. Rule 45 specifically stipulates that where a graduate teacher is available having five years' service and service of more than half the service of the senior-most under-graduate senior teacher, the w.p.c.8851/09 3 graduate teacher has to be appointed as the headmaster/ headmistress. The petitioner also relies on the Full Bench decision of this Court in Pushparaj v. Manoharan [2006 (2) KLT 951 (F.B.)], wherein this Court has categorically held that for the purpose of Rule 45, what is relevant is not the continuous service of a teacher, but the total service of a teacher even if part of such service is in another school or schools. The petitioner, therefore, submits that the impugned orders passed in violation of the Full Bench decision and the specific provision in Rule 45 of Chapter XIV-A of the KER, are liable to be interfered with by this Court . 3. The learned counsel for the 6th respondent, in addition to the grounds in the impugned orders, would further contend that in view of the language used in Rule 45, it is for the manager to decide as to who, as between the senior under-graduate teacher and the junior graduate teacher who has more than half the service of the undergraduate teacher, has to be appointed as the headmaster. He particularly refers to the use of the word, “may” in Rule 45 and contends that in view of the language in the Rule, it was the discretion of the manager to select between the two. The 3rd respondent has also filed a counter affidavit supporting the impugned orders. 4. The counsel for the petitioner would contend that in the decision in Prasad v. Philiose Mar Dilshus U.P.School [2005 (3) w.p.c.8851/09 4 KLT 487], a Division Bench of this Court has held that the word, “may” used in Rule 45 means “shall” and if there is a graduate teacher with five years teaching experience and more than 50% percent of the service of the senior-most non-graduate teacher, he will be appointed as the headmaster. 5. I have considered the rival contentions in detail. 6. I am of opinion that in view of the Full Bench decision in Pushaparaj's case (supra) and the Division Bench decision in Prasad's case (supra), the petitioner is bound to succeed. It is not disputed before me that the petitioner does have five years' service and more than half the service of the 6th respondent. Such service need not be in the same school. It can be service as a teacher in any school as held in Pushparaj's case (supra) by the Full Bench. I may refer to paragraph 16 of that decision, which reads thus: “16. We are of the opinion that even otherwise the question of seniority is totally irrelevant even in the context of R.45, for deciding the question as to whether the past service in another school can be reckoned to decide whether the graduate teacher has half of the period of service of the senior-most undergraduate teacher. Admittedly, the 1st respondent is senior to the appellant in the same school even without taking into account the past service of the 1st respondent in the other school. Further, if a graduate teacher is expected to have only half of the service of the non-graduate teacher for being preferred for promotion, the non-graduate teacher has to be necessarily senior to the graduate teacher. Therefore, the principles for reckoning seniority in the same school with reference to Rules 11, 13 and 37 cannot be imported into R.45 also for deciding whether the graduate teacher has half the period of service of the senior-most under-graduate teacher. As such, the stipulation in R.45, under discussion, is essentially one of qualification for eligibility for consideration to the post of Headmaster meaning thereby that graduate service equivalent to half of the service of the under-graduate teacher is considered as one of the eligibility conditions of the graduate teacher for getting preference over the senior under-graduate teacher. Since the stipulation is an eligibility w.p.c.8851/09 5 condition, there cannot be any doubt that for deciding the eligibility condition, as in the case of R.44A, in R.45 also service in another school of both teachers also can be reckoned to decide such eligibility.” In view of the Full Bench decision, seniority is not relevant for the purpose of deciding the question as to as between the senior-most undergraduate teacher and the graduate teacher having 5 years of service and more than half the service of the senior-most undergraduate teacher, who should be preferred. The reasons for the same have been stated in paragraph 16 of the decision in the Pushparaj's case (supra). As rightly pointed out by the learned counsel for the petitioner, in Prasad's case (supra), the a Division Bench of this Court categorically held that the word, “may” used in Rule 45 shall be construed as “shall” and if there is a graduate teacher with five years teaching experience and more than half the service of senior most undergraduate teacher, he should be appointed as the headmaster. Therefore, the impugned orders are clearly unsustainable. Accordingly, Exts.P7, P9 and P11 orders are quashed. Ext.P6 order is restored. It is declared that in the vacancy, which arose on 1.6.2006, the petitioner is entitled to be appointed as the headmistress. The 5th respondent shall issue an order appointing the petitioner as the headmistress with effect from 1.6.2006 within two weeks from the date of receipt of a certified copy of this judgment. The 4th respondent shall thereupon approve the said appointment within two weeks thereafter and see that the petitioner is paid all monetary benefits w.p.c.8851/09 6 arising therefrom immediately thereafter. It would be open to the 1st respondent to decide how and from whom as among respondents 2, 3, 5 and 6, the excess salary paid to the 6th respondent should be recovered. The same shall be done in accordance with law. However, if it is sought to be recovered, such recovery shall be by adjustment from the future salary of respondents 2, 3, 5 and 6, in easy installments and if before the retirement of the person/s from whom the amount is sought to be recovered, the entire amount cannot be recovered, it shall be recovered from the DCRG due to them. The writ petition is disposed of as above. Before parting with this case, I am constrained to make some observations regarding the conduct of respondents 2 and 3 in the matter. The Full Bench decision in Pushparaj''s case (supra) which squarely covers the issue involved in this case, was pronounced prior to Ext.P7 order of the DEO, Ext.P9 order of the Additional Director of Public Instructions and Ext.P11 order of the Government. It is surprising to note that despite that decision, respondents 1 to 3 have chosen to pass those orders, which are directly in conflict with the Full Bench decision. That shows their scant respect to the decisions of this Court. When this Court lays down law under the Kerala Education Rules, the officers dealing with the subject are bound to take note of such decisions and follow those decisions while passing orders under w.p.c.8851/09 7 the Rules. They cannot pass orders contrary to such decisions on the ground of sympathy or on the basis of their particular sense of justice. If they continue to do so, that amounts to refusal to abide by the rule of law, by which this country swears, which cannot be permitted by this Court. Therefore, this Court would like to remind the educational officers of the State that if they continue to pass such orders contrary to the binding judgments of this Court, this Court will have to take a serious view of the same to see that the rule of law prevails in the State. In fact, originally I was inclined to impose heavy costs on the officers who have passed the impugned orders. But exercising judicial restraint, I am refraining from doing so. But next time, such leniency may not be shown by this Court to such officers and they are likely to be mulcted with exemplary costs, which they may have to pay from their on pockets. Forward a copy of this judgment to the Secretary, General Education Department, Government of Kerala, who shall bring this judgment to the attention of all the educational officers of the State and report to this Court within one month. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge