IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 OP.No. 16111 of 1999(R) ----------------------- PETITIONER(S): --------------- SASI. P, TEACHER-IN-CHARGE OF HEADMASTER, SREE NARAYANA TEACHERS' TRAINING INSTITUTE, NEELESWAR, PATTANAKKAD P.O., KASARAGODE DIST. BY ADV. SRI.ELVIN PETER P.J. RESPONDENT(S): --------------- 1. THE DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM. 2. THE DISTRICT EDUCATIONAL OFFICER, KANHANGAD. 3. THE MANAGER, SREE NARAYANA TEACHERS' TRAINING INSTITUTE, NEELESWAR, PATTANAKKAD P.O., KASARAGOD DIST. 4. K. RAVINDRAN, P.V. HOUSE, NEAR PAYANGADI RLY. STN., PAYANGADI, KANNUR DIST. ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE APPEARING ALONG WITH SRI.A.K.JAYASANKAR NAMBIAR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON19/03/2009, , THE COURT ON 21/05/2009 DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P. 16111/1999. EXT.P1 TRUE COPY OF DEGREE CERTIFICATE. EXT.P2 TRUE COPY OF M.Ed. DEGREE CERTIFICATE. EXT.P3 APPOINTMENT ORDER DT. 11-10-1989 EXT.P4 APPOINTMENT ORDER DT. 4-6-1990. EXT.P5 CERTIFICATE DT. 1-12-1997. EXT.P6 CERTIFICATE DT. 24-3-1998. EXT.P7 ORDER DT. 30-3-1998. EXT.P7(a) APPOINTMENT ORDER ISSUED BY R3. EXT.P8 INTIMATION DT. 23-11-1998. EXT.P9 MEMO DT. 14-11-1998. EXT.P10 MEMO OF CHARGES DT. 16-11-1998. EXT.P11 REPLY DT. 20-11-1998. EXT.P12 STATEMENT OF DEFENCE DT. 24-11-1998. EXT.P13 REPRESENTATION DT. 15-3-1999. EXT.P14 JUDOGMENT IN O.P.11552/1999. EXT.P15 REPRESENTATION DT. 10-6-1999. EXT.P16 DO. DT. 16-6-1999. EXT.P17 LETTER DT. 3-6-1999. EXT.P18 NORMS AND STANDARDS. EXT.P19 ORDER DT. 7-12-1998. EXT.P20 COMMUNICATION DT. 8-3-1999. EXT.P21 NORMS AND STANDARDS. RESPONDENTS' EXHIBITS: EXT.R4(a) ORDER DT. 14-5-1999. EXT.R4(b) ORDER DT. 14-5-1999. EXT.R4(c) OFFICE ORDER DT. 14-5-1999. EXT.R4(d) LETTER DT. 20-4-1999. EXT.R4(e) TRUE COPY OF M.Ed CERTIFICATE. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 16111 of 1999 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 21st May, 2009. J U D G M E N T The petitioner in this original petition is a teacher in the Sree Narayana Teacher's Training Institute, Neeleswar, of which the 3rd respondent is the manager. He has acquired qualifications of M.Sc and M.Ed, as evidenced by Exts.P1 and P2 degree certificates. By Ext. P3 order dated 11-10-1989, he was appointed as a temporary teacher, in a leave vacancy, for the period from 11-10-1989 to 2-2- 1990. Later on, by Ext. P 4 order dated 4-6-1990, he was appointed permanently with effect from 4.6.1990. He passed Account Test (Lower) and test in Kerala Education Act and Rules conducted by the Public Service Commission as evidenced by Exts.P5 and P6 certificates. While so, the post of Headmaster of the Institute became vacant on 1-4-1998 on the incumbent retiring from service on 31-3- 1998. by Ext. P7 dated 30-3-1998, the 3rd respondent directed the retiring manager to handover charge of the post of Headmaster to the petitioner, who was the senior-most teacher of the school. By Ext. P7 (a) order dated 1-4-1998, the petitioner was appointed as teacher-in- charge and the petitioner took charge as such. However, the 2nd respondent-District Educational Officer, refused to approve the said appointment. In the meanwhile, difference of opinion arose between the 3rd respondent and the petitioner and by Ext. P9 show cause memo dated 14-11-1998, the 3rd respondent directed the petitioner to show cause, why the appointment of the petitioner as teacher-in-charge should not be reviewed. Ext. P10 memo of charges dated 16-11-1998 was also issued to the petitioner, to which the petitioner had submitted Ext. P11 reply as also Ext. P12 statement of defence. However, the disciplinary action was not proceeded with by the 3rd respondent. Since the petitioner's appointment as teacher-in-charge was not approved by the D.E.O, the petitioner submitted Ext. P13 O.P. No. 16111/99 -: 2 :- representation dated 15-3-1999 before the D.E.O. By Ext. P14 judgment dated 11-5-1999, this Court directed the D.E.O to pass orders on Ext. P 13 within three months. While so, the petitioner had to take medical leave. While the petitioner was on leave, the 3rd respondent appointed the 4th respondent as Headmaster of the school by transfer from an aided school under another educational agency, where he was working as a H.S.A (Maths), replacing the petitioner, although the 4th respondent did not have the minimum qualification of M.Ed prescribed by the National Council for Teacher Education for holding the post of Headmaster/Principal. Since Exts.P15 and P16 representations of the petitioner against such appointment did not evoke any response from the 2nd and 1st respondents, the petitioner has filed this original petition seeking the following reliefs: “i) Issue a writ of mandamus or any other appropriate writ, order or direction calling for the records leading to the case. ii) issue a writ of certiorari or any other appropriate writ, order or direction quashing the appointment of 4th respondent to the post of Headmaster of the Sree Narayana Teachers' Training Institute, Neeleswar; iii) issue any appropriate writ, order or direction declaring that the petitioner is entitled to continue in the post of teacher-in- charge of Headmaster of Sree Narayana Teachers' Training Institute, Neeleswar; iv) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1st and 2nd respondents to issue all the service benefits to the petitioner by restituting the petitioner as the Headmaster of the school managed by the 3rd respondent; v) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1st and 2nd respondents to consider and dispose of Ext. P14 & P15 in accordance with law; vi) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1st and 2nd respondents to initiate appropriate legal actions against the 3rd respondent for appointing the 4th respondent as headmaster of the school, in violation of the binding provisions of Kerala Education Act and O.P. No. 16111/99 -: 3 :- Kerala Education Rules.” 2. The contention of the petitioner is that the NCTE being the supreme central authority competent to prescribe educational standards for Teacher's Training Institutes, the qualifications prescribed by NCTE for appointment as Headmaster in Teacher's Training Institutes are mandatory and therefore no person who does not process the qualifications prescribed by the NCTE can be appointed as Headmaster of a Teacher's Training Institute. By Ext. P20, the NCTE has prescribed norms and standards for Teacher Education Institutes in 1995, as per which M.Ed. is an essential qualification for appointment to the post of Headmaster in a Teacher's Training Institute. The 4th respondent, at the time of his appointment, did not possess the qualification of M.Ed. and therefore was not qualified to be appointed as Headmaster of the Institute. Once it is found that the 4th respondent was not qualified at the time of appointment, then the petitioner who is the senior-most teacher of the school is entitled to be approved as the teacher-in-charge of the school as per Rule 45C(6) of Chapter XIVA of the Kerala Education Rules and on his acquiring 12 years' service prescribed in Rule 44A of Chapter XIVA of the KER, the petitioner is entitled to be promoted as Headmaster of the Institute, since the petitioner does possess the qualifications prescribed by the NCTE also. According to the petitioner, the petitioner obtained 12 years' service qualification on 3- 6-2002 and since no other teacher of the Institute became qualified for promotion as Headmaster by that time, and the vacancy is deemed to have continued till then, the petitioner is entitled to be promoted as Headmaster with effect from 4-6-2002. 3. Counter affidavits have been filed by the 1st respondent- Director of Public Instruction, the 4th respondent and the 3rd respondent-manager. The 1st respondent states that the petitioner's O.P. No. 16111/99 -: 4 :- appointment as teacher-in-charge could not be approved since the manager had not forwarded the approved seniority list of teachers of the Institute. The 1st respondent supports the appointment of the 4th respondent as Headmaster. According to the 1st respondent, the 4th respondent having more than 20 years of service as HSA (Maths) in another aided school, and passed Account Test (Lower) and KER test submitted an application for inter-management transfer as Headmaster of the 3rd respondent's school with consent from both managers as per Rule 11 of Chapter XIVA of KER. The 3rd respondent approached the 1st respondent for sanction of appointment of the 4th respondent as Headmaster by transfer and on the recommendation of the Dy. Director of Education, the 1st respondent sanctioned the inter-management transfer by order No. B1-2298/99 dated 14-5-1999. Accordingly, the 3rd respondent appointed the 4th respondent as headmaster which was approved by order No. K. Dis. 2298/99 dated 20-5-1999 of the 2nd respondent. The 1st respondent contends that such appointment being in accordance with the provisions of the KER, is perfectly valid and proper. 4. The 4th respondent would contend that the qualifications for appointment as Headmaster of a Training school is prescribed in Rule 44A of Chapter XIVA, which the 4th respondent possesses. Rule 11 thereof permits inter-management transfer of teachers of two educational agencies and the term 'teacher' includes Headmaster also. Therefore, according to the 4th respondent, the appointment of the 4th respondent as Headmaster of the 3rd respondent's school by transfer is perfectly valid. He would further submit that the petitioner, who admittedly did not possess the minimum 12 years' service prescribed by Rule 44A, at the relevant time, is not entitled to challenge the 4th respondent's appointment. It is further contended that for the purpose of Headmasters in Teachers Training Schools, the Rules applicable is the Kerala Education Rules and therefore the O.P. No. 16111/99 -: 5 :- qualifications prescribed by the NCTE are not applicable to such appointments. In addition, he would submit that as evidenced by Ext. R4(e), he has acquired M.Ed. qualification also in April, 2001. The 3rd respondent 's counter affidavit is also on the same lines. 5. In reply, the petitioner would contend that the 3rd respondent's school has no existence without recognition from NCTE and Ext. P19 provisional recognition dated 7-12-1998 has been issued with the specific condition that NCTE norms shall be strictly followed. He points out that one of the specific conditions therein is that qualified teaching and non-teaching staff should be appointed as per para 5 of NCTE norms. According to the petitioner, Ext. P20 contains the norms prescribed by the NCTE, and since para 5 thereof, which is what is referred to in Ext. P19, stipulates that M.Ed. with 5 years' teaching experience is an essential qualification for Headmaster/Principal of Teacher Education Institutions, the 3rd respondent could not have validly appointed the 4th respondent, who did not possess the qualification so prescribed. He further contends that at best the qualification prescribed in Rule 44A of Chapter XIVA of KER can only be treated as an additional qualification prescribed by the State Government. He also submits that the norms prescribed by the NCTE overrides the qualifications prescribed by the State and that it has been settled by the decisions of this Court and the Supreme Court that in the event of conflict between the two, the qualifications prescribed by the statutory authority under the Central Act would prevail over the prescriptions in the State Rules, although the State can prescribe higher or additional qualifications. Since the 4th respondent did not possess M.Ed. Degree at the time of his appointment as Headmaster of the 3rd respondent's school in 1999, his appointment is liable to be set aside on the ground that he did not posses the essential qualification for appointment as Headmaster of a Teacher's Training Institute, is the contention of the petitioner. O.P. No. 16111/99 -: 6 :- 6. I have considered the rival contentions in detail. 7. It cannot be disputed that in order that degrees or diplomas issued by institutions offering courses in teacher education should be recognised for employment in any State, Central, University or aided establishment engaged in teaching students, such institutions have to be recognised by NCTE and the courses offered by the Institutions are conducted as per NCTE norms. This has been made amply clear by a Division Bench of this Court in University of Calicut v. N.C.T.E., [AIR 2004 Kerala 295], thus: “NCTE has given directions to all the institutions affiliated to maintain the standards prescribed in the norms including the pupil-teacher strength. The contention raised by the petitioners that the University Act and various other Acts and Rules framed by the State Government were existing before the NCTE came into force, and therefore, directions issued by NCTE to such institutions are not binding, cannot be accepted. To keep up the standards of teacher education centres, Act empowers NCTE to issue directions for teaching the teachers which is a higher professional and sensitive subject. With the new development in the world, concept of school education technology and teacher training institutes must have the facility and modern infrastructure to train the teachers to get optimum results. Therefore, one cannot be satisfied with old methods. Being a Central Legislation whenever there is conflict with State enactment, Central Act will prevail. This issue is clear from the decision of the Supreme Court in (2002) 8 SCC 288: (AIR 2002 SC 36750 (supra). The matter is further made clear with regard to the application of Indian Medical Council Act, 1958 in Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Meduical Education & Charitable Trust v. State of Tamil Nadu (1996) 3 SCC 15: (AIR 1996 SC 2384) and with regard to application of all India Council for Technical Education Act, 1987 in State of T.N. v. Adhiyaman Educational & Research Institute (1995) 4 SCC 104: (1995 AIR SCW 2179) and in Jaya Gokul Education Trust v. Commissioner & Secretary to Government Higher Education Department, Thiruvananthapuram, AIR 2000 S C 1614. In all these cases, with regard to identical Acts in relation to technical education, the Supreme Court held that Central Act will prevail. Further, the Act itself was introduced to improve Teacher Education system. As far as B.Ed. Is concerned, it is to train the teachers who have to train our future generation. It is also submitted that NCTE Act was implemented in all India level. Challenges made in the Act and directions of NCTE were dismissed by various High Courts. The decision of the Madhya Pradesh High Court in National Council for Teachers O.P. No. 16111/99 -: 7 :- Education v. Chouhan Educaton Society, AIR 1999 Madh. Prd. 206 was cited as an example. It is also submitted that in Karnataka with regard to aided colleges where salary is paid under UGC Scheme, the Scheme was implemented. Therefore, we are of the opinion that the Act and its provisions and regulations framed by the NCTE cannot be interfered by this Court and the Teacher Education Institutions are bound to follow the NCTE Act. No value contention is raised to show that the regulations issued by the NCTE are unconstitutional or arbitrary.” (U nderlining supplied) The 3rd respondent's institute admittedly being an aided institution governed by the Kerala Education Rules, there cannot be any doubt that being an institution aided by the State of Kerala, they are bound to obtain recognition from the N.C.T.E, in so far as diplomas to students of the institute are issued by the Government. It is also clear from Exts.P.19 and P20 that they have sought and obtained recognition from the NCTE, which was specifically on condition that they shall comply with the norms prescribed by the N.C.T.E . One of the conditions stipulated in Ext. P19 is that “qualified teaching and non-teaching staff should be appointed as per para 5 of N.C.T.C norms.” The N.C.T.E norms prevailing at the time of arising of the vacancy of Headmaster in the 3rd respondent's institute, namely, 1-4- 1998, was Ext. P21 (produced along with I.A. No. 3668/2009 and wrongly numbered as Ext. P20 by the petitioner) issued in the year 1995, which was replaced from 11-9-1998 by Ext. P18. In both Exts. P21 and P18, for the post of Principal/Headmaster, M.Ed/M.A Education with 5 years' teaching experience as lecturer/teacher/educator are prescribed as essential qualifications. Para 5 of Ext. P21 reads thus: “5.0 NORMS FOR STAFF 5.1 Teaching Staff: Suggested teacher-student ratio is 1:12. The Principal O.P. No. 16111/99 -: 8 :- is counted as an additional teacher. For an intake of 100 students (50 in first year class and 50 in second year) the teaching staff required would be 1 Principal and 8 teachers. If students' intake is more, the number of teachers should be increased on the basis of the teacher-student ratio 1:12. Part-time teachers will not be counter for this purpose. Teachers should be so selected that there should be at least one teacher with knowledge of the subject-content and its methodology in each of the following: English, mother Tongue (or State language), Mathematics, Science, Social Studies. There should be one or more teachers to teach Foundations of Education. In addition, there should be one teacher for each of the following areas: Health and Physical Education, Art, Work-experience. The number of teachers required will depend on subject wise theory work-load, and work-load of supervision of practice teaching and other practical work. The rank and qualifications of the Principal and teachers will be as follows: Designation Essential Desirable Headmaster/ Principal One. Rank: Lecturer Qualification : M.Ed./M.A Education with 5 years teaching experience as lecturer teacher educator Rank – Reader Master's Degree in school foundation subject plus Master's Degree in Education with five years teaching experience in the rank of lecturer or as teacher educator. S. 12(d) of the National Council for Teacher Education Act, 1993 reads thus: “S.12(d). Functions of Council:- It shall be the duty of the Council to take all such steps as it may think fit for ensuring planned and co-ordinated development of teacher education and for purpose of performing its functions under this Act, the Council O.P. No. 16111/99 -: 9 :- may- (a) xx xx xx (b) xx xx xx (c) xx xx xx (d) lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognised institutions; xx xx xx xx xx xx” Exts. P21 and P18 norms and standards have been prescribed by the NCTE in exercise of powers under Section 12 of Act. In fact, later on such norms and standards have been incorporated in the NCTE Regulations 2002, Regulation 5 of which reads thus: “5. Qualifications of Teaching Staff:- (a) Principal/Head- (i) Academic and professional qualifications will be as prescribed for the post of Lecturer. (ii) At least five years' experience of teaching in elementary teacher education institutions. (b) Lecturer- Good Academic record with M.Ed/M.A. (Education) with 55% marks, preferably with specialisation in elementary education; or Good academic record with Master's Degree with 55% marks in the relevant school subject and Bachelor of Elementary Education (B.El.Ed.) or B.Ed. preferably with specialisation in elementary education, and with five years' teaching experience in recognised elementary schools. (c) A relaxation of 5% may be provided, from 55% to 50% of the marks, at the Master's level for SC/ST/Category. (d) Qualifications for other academic staff for teaching physical education, art, work experience, information technology literacy, etc. shall be as prescribed by the concerned State Government.” O.P. No. 16111/99 -: 10 :- Therefore, it cannot now be disputed that the said norms are binding on the 3rd respondent and respondents 1 and 2 can approve appointments made by the 3rd respondent only if the said appointments are in accordance with the said norms. 7. Respondents 3 and 4 raise a contention that the 3rd respondent's institute is governed by the Kerala Education Rules and therefore is bound only by the qualifications prescribed in Rule 44A of Chapter XIVA of the KER. This argument cannot be countenanced since the N.C.T.E. Act has been promulgated by the Parliament in exercise of powers conferred by Entry 66 of List I of the Seventh Schedule to the Constitution of India, whereas the Kerala Education Act and Rules thereunder trace their legislative competence to Entry 25 of List III and as between legislations under the two entries, the Central Act would prevail over the State Enactment. The Supreme Court has, in para 10 of its decision in State of Tamilnadu and another v. S.V. Bratheep (minor) and others, reported in AIR 2004 SC 1861 = 2004(2) KLT (SC) (SN) 38 held thus: “10. Entry 25 of List III and Entry 66 of List I have to be read together and it cannot be read in such a manner as to form an exclusivity in the matter of admission, but if certain prescription of standards have been made pursuant to Entry 66 of List I, then those standards will prevail over the standards fixed by the State in exercise of powers under Entry 25 of List III in so far as they adversely affect the standards laid down by the Union of India or any other authority functioning under it. Therefore, what is to be seen in the present case is whether the prescription of the standards made by the State Government is in any way adverse to or lower than the standards fixed by the AICTE . . . . .” That judgment had been rendered in the context of norms fixed for technical education under the All India Council for Technical Education Act, 1987, an Act similar to the NCTE Act. Therefore, the ratio of that decision squarely applies to the present case. O.P. No. 16111/99 -: 11 :- 8. Then, what is the effect of Rule 44A of Chapter XIVA of K.E.R.? In the decision of University of Calicut v. N.C.T.E (supra), the Division Bench had repelled the contention that since the Act and Rules framed by the State of Kerala came into force prior to the NCTE Act, the directions issued by NCTE are not binding on institutions governed by such Act and Rules. Further, in paragraph 11 of S.V. Bratheep's case (supra), referring to the earlier decision in Dr. Preeti Srivastava & another v. State of Madhya Pradesh and another, [AIR 1999 SC 2894], the Supreme Court held thus: “11. Arguments advanced on behalf of the respondents is that the purpose of fixing norms by the AICTE is to ensure uniformity with extended access of educational opportunity and such norms should not be tinkered with by the State in any manner. We are afraid, this argument ignores the view taken by this Court in several decisions including Dr. Preeti Srivastava's case that the State can always fix a further qualification or additional qualification to what has been prescribed by the AICTE and the proposition is indisputable. The mere fact that there are vacancies in the colleges would be a matter, which would go into the question of fixing the standard of education. Therefore, it is difficult to subscribe to the view that once they are qualified under the criteria fixed by the AICTE, they should be admitted even if they fall short of the criteria prescribed by the State. The scope of the relative entries in Seventh Schedule to the Constitution have to be understood in the manner as stated in the Dr. Preeti Srivastava's case and therefore, we need not further elaborate in this case or consider arguments to the contrary such as application of occupied theory no power could be exercised under Entry 25 of List III as they would not arise for consideration.” Rule 44A of Chapter XIVA of KER reads thus: “44A.(1) Subject to the provisions contained in sub-rule (1) of rule 44, the minimum service qualification for appointment as Headmaster in Aided Complete High Schools/Training schools shall be twelve years of continuous graduate service with a pass in the test in Kerala Education Act and the Kerala Education Rules and a pass in account Test (Lower) conducted by Kerala Public Service Commission. Provided that Headmasters of High and Training Schools, who were actually holding the said post on the eleventh day of June, 1974 shall stand exempted from passing the Account Test O.P. No. 16111/99 -: 12 :- (Lower) Provided further that Teachers who have attained the age of 50 years shall stand exempted permanently from acquiring the test qualification specified in Sub rule (1) x