IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 18TH NOVEMBER 2008 / 27TH KARTHIKA 1930 WP(C).No. 30800 of 2008(N) ------------------------------------------ PETITIONER(S): ------------------------- SINY GEORGE, UPPER PRIMARY SCHOOL ASSISTANT, PULLAMKODE UPPER PRIMARY SCHOOL, ANCHAL, KOLLAM DISTRICT. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVT. DEPARTMENT OF GENERAL EDUCATION, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. ASST. EDUCATIONAL OFFICER, ANCHAL (P0), KOLLAM DISTRICT. 3. THE DISTRICT EDUCATIONAL OFFICER,PUNALUR. 4. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 5. N.SOMACHOODAN PILLAI, TEACHER-IN-CHARGE PULLAMKODE UPPER PRIMARY SCHOOL, ANCHAL,KOLLAM DISTRICT. 6. THE MANAGER, PULLAMKODE UPPER PRIMARY SCHOOL, ANCHAL, KOLLAM DISTRICT. GOVERNMENT PLEADER SRI. A.J.VARGHESE FOR R1 TO R4 ADV. SRI.GEORGE POONTHOTTAM FOR R5 SRI.JOHN JOSEPH VETTIKAD FOR R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/11/2008 ALONG WITH WPC.NO.31344 OF 2008 AND WPC.NO.31934 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.30800/2008 N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE REPRESENTATION DTD. 16/05/2007 SUBMITTED BY THE PETITIONER BEFORE THE DEO. EXT.P2: COPY OF THE HEARING NOTE DTD. 14/12/2007. EXT.P3: COPY OF THE ORDER NO.R1-6551/07/K.DIS. DTD. 15/02/2008 ISSUED BY THE DEO. EXT.P4: COPY OF THE JUDGMENT DTD. 19/08/2008 IN WP(C) NO. 20082/2008. EXT.P5: COPY OF THE JUDGMENT DTD. 2/09/2008 IN W.A.NO.1808/2008. EXT.P6: COPY OF THE G.O(RT) NO.4340/08/G.EDN. DTD. 29/09/2008. EXT.P7: COPY OF THE REPRESENTATION DTD. 13/10/2008 SUBMITTED BY THE PETITIONER. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J. ============== W.P.(C) NOs. 30800, 31344 & 31934 OF 2008 ============================= Dated this the 18th day of November, 2008 J U D G M E N T In these writ petitions, the correctness of the appointment to the post of Headmaster in Pullamcode Upper Primary School, Edayam P.O, Anchal, Kollam District is the issue that arises for consideration. Since the dispute, parties and the documents being common, I shall dispose of these three cases by this common judgment. 2. For the sake of convenience, I shall be referring to the facts and documents as they are placed on record in WP(C) No.31934/08. 3. The petitioner herein is the Manager of Pullamcode U.P. School referred to above. Consequent on the retirement of the Headmaster of the school, there arose a vacancy w.e.f. 1/6/06. It is stated that Smt.Annie Thomas, the senior most teacher in the school was appointed as the Teacher-in-charge. She expired on 4/10/2006 and thereupon the 5th respondent was appointed as the Teacher-in-charge. However, by Ext.P2 order dated 12/6/07, the AEO declined to approve the appointment, but directed that the 5th respondent shall discharge the day to day functions in the school. 4. While so, the 4th respondent Smt.Siny George, who was WPC Nos. 30800, 31344 & 31934 /08 :2 : working as UPSA in the school, claimed that she was the only qualified UPSA in the school as on the date of occurrence of vacancy and therefore, should be promoted as Headmistress. Raising this claim, she filed a petition before the 2nd respondent. On that application, after hearing the concerned parties, DEO passed Ext.P7 order dated 15/2/2008 accepting that the 5th respondent was unqualified to the post of Headmaster as he had not passed the account test (lower or higher) and that the 4th respondent was the only fully qualified UPSA in the school for the post of Headmistress w.e.f. 1/6/06. On this basis, the 3rd respondent was directed to authorise the 4th respondent to hold the charge of Teacher-in-charge till a Headmaster is appointed on promotion. 5. It is stated that seeking implementation of Ext.P7, the 4th respondent filed a writ petition before this Court as WP(C) No.20082/08. During the pendency of that writ petition, by Ext.P1 order dated 23/6/08, the petitioner was approved as the Manager. Thereafter, by Ext.P3 order dated 1/7/08, the petitioner appointed the 5th respondent as Headmaster of the School and soon thereafter by Ext.P4 order dated 17/7/08, the AEO also approved the appointment of the 5th respondent. Meanwhile, the 5th respondent had also filed a revision before the Government against Ext.P7 WPC Nos. 30800, 31344 & 31934 /08 :3 : order and obtained an interim order for his continuance as Teacher-in- charge. 6. WP(C) No.20082/08 was disposed of by Ext.P5 judgment dated 19/8/08. Para 12 and the directions issued in that judgment are extracted below for easy reference. 12. At the same time, against Ext.P4 order an appeal lies. The remedy of the petitioner is to file an appeal against that order. Ext.P4 order cannot be straight away challenged, ordinarily in a writ petition. I do not propose to resolve the rival claims of the petitioner and 5 th respondent for the post of Headmaster in this Writ petition, particularly, when the matter is pending before the Government in revision filed by the 5 th respondent. It is submitted that the parties were heard in May, 2008 and orders are to be passed by the Government. In the facts and circumstances of the case, the writ petition is disposed of with the following directions: (1) If the Government does not dispose of the revision filed by the 5th respondent challenging Ext.P3 order within a period of one month from today, Ext.R5(b) stay order will stand automatically vacated without further orders and thereafter Ext.P3 order shall be implemented by the Assistant Educational Officer, irrespective of the existence of Ext.P4 which was passed subsequent to the filing of the writ petition. (2) The petitioner is free to challenge Ext.P4 order appropriately. (3) All the contentions of the parties are left open. WPC Nos. 30800, 31344 & 31934 /08 :4 : 7. The 5th respondent challenged Ext.P5 judgment before the Division Bench by filing WA 1808/08 and that appeal was disposed of by Ext.P6 judgment dated 2nd September, 2008. In para 2 of the judgment, it has been held by this Court as follows: We are not going into the merits of the matter or regarding the seniority of the appellant or the first respondent in this proceedings. It is an admitted case that a revision was filed against Ext.P3 order and it was heard also. If Ext.P3 is correct, the appellant cannot be appointed as the Headmaster. So the question to be considered is as to the correctness of Ext.P3 order which is challenged in the revision. Since the matter is pending and the revision petition was heard, we direct the revisional authority to pass orders in the revision filed against Ext.P3 order as expeditiously as possible, at any rate, within one month from today untramelled by any of the observations contained in this judgment or in the impugned judgment and communicate the order. Till the order is communicated, status quo as on today shall be maintained. 8. In pursuance to Exts. P5 and P6, the Government heard the parties and passed Ext.P8 order dated 29/9/2008. In Ext.P8, on the basis that the 5th respondent was unqualified for promotion to the post of Headmaster, the Government ordered as follows: The case was examined in detail. As per Rule 45 B of Chapter XIV A KER a pass in Account Test (Lower) is an obligatory qualification to the teacher for promotion to the post of Headmaster in UP schools and LP schools and there is no stipulation of minimum length of service as teacher for promoting as HM of UP school/LP school. Sri.N.Somachoodan WPC Nos. 30800, 31344 & 31934 /08 :5 : Pillai, UPSA is not qualified to the post of HM on 1/6/2006 on the date of arising vacancy as he has not passed account test at that time. Smt.Siny George is a qualified UPSA in the school for the post of HM with effect from 1/6/2006 as she passed required departmental test. Management dispute is no way should affect the promotion of teachers. In the above circumstances mentioned above DEO, Punalur is directed to take necessary steps to promote Smt.Siny George as HM in the UPS, Pullamcode as on the date of occurrence of vacancy on 1/6/2006. 9. It is seeking to quash Ext.P8 and contending that the minimum length of service of 12 years prescribed under Rule 44 A Chapter XIV A KER has to be read into Rule 45 for appointment of a Headmaster in an aided UP or LP school and that the Government have no authority to direct the DEO to promote the teacher in an aided school and also for consequential reliefs, the writ petition is filed by the Manager. 10. WP(C) No.31344/08 is filed by the 5th respondent Sri.N.Somachoodan Pillai, in WP(C) No.31934/08, where he is also challenging the same order and also seeking directions which are identical in nature. 11. In so far as WP(C) No.30800/08 is concerned, that is filed by the 4th respondent in WP(C) No.31934/08, Smt.Siny George, in whose favour Exts.P7 and P8 orders have been passed by the DEO and the Government. She is seeking implementation of these orders. WPC Nos. 30800, 31344 & 31934 /08 :6 : 12. Thus what arises for consideration is the correctness or otherwise of Exts.P7 and P8 orders referred to above. Both the counsel for the petitioners in WP(C) Nos.31934 and 31344/08 contended that Ext.P7 order passed by the Government in the revision filed by the 5th respondent referred to above, the jurisdiction of the Government was to have upheld or set aside Ext.P7 order of the DEO. It is stated that going beyond the scope of revision, positive relief has been wrongly granted to the 4th respondent by directing the DEO to appoint the 4th respondent as Headmistress of the School. It is contended that as per the KER, appointment of staff is a power exclusively vested in the Manager of an aided school and that power could not have been preserved by the DEO. Yet another contention that is raised is that by Ext.P3, the 5th respondent was appointed as Headmaster and that the same was approved by the AEO by Ext.P4 order. It is stated that in the absence of any appeal or revision against Exts. P3 or P4 order, the same could not have been upsetted by the government while considering the revision against Ext.P7 order. It is also contended that the length of service prescribed for appointment as Headmaster in Rule 44 A should be read into Rule 45 of Chapter XIV A KER as it is a legislative omission and on that basis, it WPC Nos. 30800, 31344 & 31934 /08 :7 : should be held that the 4th respondent is unqualified. The Manager has raised yet another contention that as on the date of appointment, the 5th respondent was qualified and therefore, his appointment should have been upheld. These contentions are contradicted by the counsel for the 4th respondent 13. I have considered the submissions made. 14. First I shall deal with the contention that since the 5th respondent was qualified as on the date of appointment, the appointment is valid. At least three Full Benches of this Court in the decisions reported in James Thomas and others v. Chief Justice, High Court of Kerala and others (1977 KLT 622), Varghese and others v. State of Kerala and others (1981 KLT 458) and Padmanabhan Nair. v. Dy.Director (1991(1) KLT 337) held that the eligibility of person to be promoted to a post has to be reckoned with reference to the date of occurrence of vacancy. This position has been reiterated in the matter of appointment of Headmasters as well. The vacancy arose on 1/6/06 and if eligibility is reckoned with reference to that date, admittedly the 5th respondent is unqualified. Therefore, the argument of the Manager that since the 5th respondent was qualified when he was appointed by Ext.P3 WPC Nos. 30800, 31344 & 31934 /08 :8 : dated 1/7/08 therefore is valid one is only to be stated and rejected. 15. Next contention is that the Government have exceeded the scope of its revisional jurisdiction while considering the revision against Ext.P7. The correctness of the said submission will have to be appreciated referring to Ext.P4 and P5 judgments. As already noticed, WP(C) No.20082/08 was filed by the 4th respondent seeking implementation of Ext.P7 order passed by the DEO. It was during the pendency of that writ petition that the 5th respondent was appointed as Manager and as his appointment was approved, by Exts. P2 and P3 orders. Thereupon, the 4th respondent amended the writ petition incorporating challenge against Exts.P2 and P3 as well. It was considering these facts that this court passed Ext.P5 judgment, para 12 of which has already been extracted in the earlier portion of this judgment. A perusal of para 12 of the judgment shows that the learned Judge did not go into the rival claims of the respondents 4 and 5 herein, in view of the fact that the matter was pending before the Government in the revision filed by the 5th respondent against Ext.P7. 16. When WA No.1808/08, filed by the 5th respondent against Ext.P5 judgment was disposed of by Ext.P6 judgment, the Division Bench WPC Nos. 30800, 31344 & 31934 /08 :9 : in para 2 thereof held that “if Ext.P3 is correct, the 5th respondent cannot be appointed as the Headmaster.” Proceeding further, the Division Bench also directed the Government to consider the revision against Ext.P7. Therefore, the scope of enquiry was not confined to Ext.P7 alone, but the correctness or otherwise of Exts.P3 and P4 also was open before the Government. In any case, since the Division Bench has held that if Ext.P3, which is Ext.P7 in this writ petition, is correct, the 5th respondent could not be appointed as Headmaster. Therefore, once Ext.P7 is confirmed, as a necessary consequence, Exts. P3 and P4 orders of appointment and approval passed by the Manager and the AEO will stand invalidated. Therefore, I am not in a position to accept the case canvassed by the petitioners in WP(C) Nos.31934 and 31344/08 that the Government exceeded their powers while disposing of the revision against Ext.P7. 17. Coming to the question that the Government have taken over the powers of the Manager by directing the DEO to promote the 4th respondent as Headmistress, the learned counsel for the petitioner in WP (C) No.31934/08 relied on the judgment of this Court in Shamna B. v. Manager, Hemambika Sanskrit High School and Others (2008(4) KHC 275). True in that judgment, this Court held that the Manager WPC Nos. 30800, 31344 & 31934 /08 :10 : appointed under the KER is exercising statutory powers and that the same cannot be controlled or restricted by other authorities. But this is a case in which despite the settled position that as on the date of occurrence of vacancy, the person appointed as Headmaster should be qualified, the Manager chose to appoint the 5th respondent, who admittedly was unqualified. It is also to be borne in mind that Ext.P3 was issued on 1/7/2008, at a time when, by Ext.P7 order dated 15/2/2008 of the DEO, it was already held that the 5th respondent was unqualified. The fact that the Government had passed a stay of Ext.P7 in my view is no justification for the appointment made. Now that the DEO and the Government have held that the 5th respondent was unqualified to be promoted as Headmaster and as admittedly it was the 4th respondent, who alone was the qualified person available in the school, entitled to be appointed as Headmistress, I do not find any substance in the plea that the Government have exceeded their powers by directing the DEO to take steps for the promotion of the 4th respondent as Headmistress of the school. 18. The last contention raised by the counsel for the petitioners in WP(C) Nos.31934 and 31344/08 is that the length of service prescribed in Rule 44A of Chapter XIV A KER should be read into Rule 45 Chapter XIV A, WPC Nos. 30800, 31344 & 31934 /08 :11 : KER. 19. Having considered the respective rules, I am not in a position to accept the plea that it was a mere legislative omission to read something more in Rule 45A. If at all, there is an omission or lacuna in the rule, it is for the legislature to correct the same and it is not within the province of the Court to rewrite the rule. Even otherwise, Court will not be justified in assuming legislative omission and make additions to statutory rule. At best, such an exercise may be justified in a case, where it is concluded that, read as it is, the rule will result in absurd results, contrary to the intention of the rule makers. Rule 45 does not make out such a case. Going by the rule as it stands, Rule 45 does not prescribe any length of service and therefore, this contention also has to be rejected and I do so. 20. Accordingly WP(C) Nos. 31934 and 31344/08 will stand dismissed. In so far as WP(C) No.30800/08 is concerned, the prayer is to implement Exts. P7 and P8 orders. The Manager in WP(C) No.31934/08 has produced Ext.P11, an order passed by the DEO on 31/10/2008 in pursuance to Exts.P7 and P8. By this order, the 4th respondent, Smt.Siny WPC Nos. 30800, 31344 & 31934 /08 :12 : George has been promoted as Headmistress w.e.f. 1/6/06. Since the order has been implemented by the DEO as directed by the Government in Ext.P7, the prayer in this writ petition stands satisfied. Now that by Ext.P11 the 4th respondent is appointed as the Headmistress of the school, necessarily, she will be permitted to function in the promoted post. Therefore no further orders are called for in WP(C) No.30800/08. ANTONY DOMINIC, JUDGE Rp