IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 WP(C).No. 1129 of 2009(H) PETITIONER: --------------- K.MOHAMMEDALI, S/O. ALI, AGED 49, HEADMASTER, JMLP SCHOOL, KIZHAKKECHATHALLOOR, CHATHALLOOR P.O., AREACODE SUB - DISTRICT, MALAPPURAM DISTRICT. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENTS: --------------- 1. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 4. THE ASSISTANT EDUCATIONAL OFFICER, AREACODE. GOVERNMENT PLEADER SRI.A.J.VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 1129 OF 2009 H ------------------------------------------------------ Dated this the 12th January, 2009 JUDGMENT The petitioner was promoted as Headmaster of J.M.L.P.S., Kizhakkechathalloor with effect from 15.7.1986. At that time, he had not completed fifteen years of service. He had also not acquired the required test qualification. Exemption was being granted to acquire the test qualification as per Rule 45B of Chapter XIVA of the Kerala Education Rules. When the exemption was extended, it was challenged in O.P.No.2622 of 1986. This Court struck down the extension granted year after year. The decision of the learned single Judge was upheld in W.A.No.350 of 1987 (reported in 1987 (2) KLT 723). The matter was taken to the Honourable Supreme Court in S.L.P.(C) NO.6535 of 1988. It is stated that the Honourable Supreme Court directed the Government not to revert the existing Headmasters and to grant them one more chance to appear for the Account Test. On the basis of the direction issued by the Supreme Court, Ext.P2 Government Order, G.O.(Ms) NO.63/89/G.Edn. dated 8.6.1989, was passed. In Ext.P2 it was provided thus: W.P.(C) NO.1129 IF 2009 :: 2 :: (b) that those Headmasters who have not passed the Account Test (Lower) Examination yet and who are now holding the post of Headmaster on a temporary basis without being reverted as there were no test qualified juniors available for promotion as Headmaster; will not be reverted from the post of Headmaster. They will be given one more chance to get themselves fully qualified by appearing for the Account Test Examination when that examination that is conducted by the P.S.C. next time.” 2. The petitioner states that there was no test qualified teacher in the School and that the petitioner passed the Account Test (Lower) in November, 1989. The petitioner relies on the decision of the Full Bench in Indira v. State of Kerala (ILR 1998 (2) Kerala 771). As per Ext.P6 order dated 12.5.2006, the Government issued orders cancelling the reversion of the petitioner stating that the petitioner is entitled to get appointment in the post of Headmaster from 15.7.1986 in terms of G.O. (Ms)No.63/89/G.Edn. dated 8.6.1989. It is stated that Ext.P6 has become final and conclusive. 3. The grievance of the petitioner is that much later, based on the judgment in W.P.(C) No.4488 of 2004 to which the petitioner is not a party, the Deputy Director of Education objected to the pay of the petitioner and passed Ext.P15 order, which reads as follows: “2. K.Mohammed Ali, HM, JMLPS, Kizhekke Chathallur:- W.P.(C) NO.1129 IF 2009 :: 3 :: After his reversion as teacher in charge (because of non acquisition of departmental test qualification) from 8.5.87, he acquired the qualification during 11/89 and was appointed as HM from 7.12.89. Later, Government directed to treat his appointment as HM from 15.7.86 onwards and he continue as such. Since he had acquired the test qualification from 11/89 only, service as HM from 7.12.89 onwards alone will be reckoned for granting higher grade in the scale of pay. This is evident in the judgment dated 13.7.07 of Hon'ble High Court in W.A.No.4488/04. Therefore, fixation of pay in the higher grade of HM and subsequent fixation of pay are to be revised and excess pay drawn got refunded.” The petitioner contends that settled matters cannot be reopened in the manner in which it was done in Ext.P15. Aggrieved by Ext.P15, the petitioner has filed Ext.P16 Revision dated 15.12.2008 before the Government. Ext.P16 is pending disposal. 4. Learned counsel for the petitioner contends that Ext.P15 order is without jurisdiction and that it reopens settled matters. The counsel submits that the Deputy Director of Education has no jurisdiction to take a view as was taken by him in view of the earlier orders passed by the Government and the educational authorities. 5. The reliefs prayed for in the Writ Petition are the following: “a) Call for the records relating to Exhibit P15 and quash the original of the same by issue of a Writ of certiorari or other appropriate Writ or order. W.P.(C) NO.1129 IF 2009 :: 4 :: b) Declare that Exhibit P8, P9, P10, P11, P12, P13 & P14 fixations of pay of the petitioner are legal and valid. c) Direct the 1st respondent to effectively consider and pass appropriate orders upon Exhibit P16 after affording an opportunity of being heard to the petitioner within a time limit. d) Pass such other order or direction which this Hon'ble Court may deem fit and proper to grant in the circumstances of the case.” 6. Learned counsel for the petitioner submits that, for the present, the petitioner would be confining his relief to relief (c), reserving his right to the other reliefs at the appropriate stage. Learned Government Pleader submitted that the first respondent would dispose of Ext.P16 Revision expeditiously. In the facts and circumstances of the case, the Writ Petition is disposed of as follows: i) The first respondent shall consider and dispose of Ext.P16 Revision dated 15.12.2008 as expeditiously as possible and, at any rate, within a period of three months from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner and the affected parties, if any. W.P.(C) NO.1129 IF 2009 :: 5 :: ii) Till the disposal of Ext.P16 Revision, all further proceedings pursuant to Ext.P15 shall be kept in abeyance. iii) The petitioner shall produce a copy of the Writ Petition and certified copy of the judgment before the first respondent. (K.T.SANKARAN) Judge ahz/