IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 12TH OCTOBER 2009 / 20TH ASWINA 1931 WA.No. 1901 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN RP.665/2009 Dated 03/08/2009 .................... APPELLANT(S): -------------- MANAGER, SREE NARAYANA TEACHER'S TRAINING INSTITUTE, NEELESWAR, PATTANAKKAD P.O., KASARAGOD DISTRICT. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE SRI.MILLU DANDAPANI RESPONDENT(S): --------------- 1. SHRI SASI P., TEACHER-IN-CHARGE OF HEADMASTER, SREE NARAYANA TEACHERS TRAINING INSTITUTE, NEELESWAR, PATTANAKKAD P.O., KASARAGOD DISTRICT. 2. THE DIRECTOR OF POUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, KANHANGAD. 4. SHRI K.RAVINDRAN, P.V.HOUSE, NEAR PAYANGADI RAILWAY STATION, PLAYANGADI, KANNUR DISTRICT. ADV. SRI.E.K.NANDAKUMAR FOR R4 SRI.A.K.JAYASANKAR NAMBIAR FOR R4 GOVERNMENT PLEADER SMT.R.BINDU FOR R2-3 SRI.ELVIN PETER P.J. FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ WA NO.1901 of 2009 ------------------------------------------------------------------ Dated 12th October 2009 Judgment Balakrishnan Nair, J. The third respondent in the Original Petition is the appellant and the writ petitioner is the first respondent. The brief facts of the case are the following : 2. The first respondent was a TSA, working in the appellant's school. He has continuous qualified service under the appellant from 04.06.1990. The post of Headmaster in the said school became vacant on 01.04.1998 as a result of retirement of the existing incumbent on 31.03.1998. The 1st respondent was appointed by the Manager as Teacher-in-Charge by Ext.P7 order dated 01.04.1998. Since the said respondent did not have 12 years' graduate service, he was not promoted as Headmaster/Principal. The fourth respondent was an HSA, working in another school. With the permission of the competent authority, he was appointed by transfer under Rule 11 of Chapter XIVA KER in the appellant's school, as Headmaster on 14.05.1999. The said appointment was approved by the District Educational Officer. The 1st respondent was having WA 1901/09 2 M.Sc., M.Ed. qualification. He has also cleared the Accounts Test Lower and KER test conducted by the Public Service Commission. Going by Ext.P21 NCTE Norms, the qualifications prescribed for the post of Headmaster/Principal were M.Ed./M.A.Education with 5 years' teaching experience. So, the 1st respondent felt that he was duly qualified as per the said norms and he also maintained the view that the 4th respondent was unqualified, as he did not have the M.Ed. qualification. Raising those contentions, the Original Petition was filed. The OP finally came up for hearing, after the lapse of about ten years. The learned Single Judge took the view that the qualifications prescribed under the KER for the post of Headmaster as also the qualifications prescribed under Ext.P21 Regulations are applicable for appointment to the post of Headmaster. The 4th respondent did not have the requisite qualification, in terms of Ext.P21. Therefore, his appointment was held to be illegal. It was also found that the 1st respondent completed 12 years' service on 03.06.2002 and therefore, he was eligible to be considered for promotion as Headmaster w.e.f. 04.06.2002. Based on those findings, the OP was allowed, issuing the following directions : WA 1901/09 3 “In the result, this Original Petition is allowed on the following terms : (a) The appointment of the 4th respondent as Headmaster of the 3rd respondent's Institute with effect from 14.5.1999 is hereby set aside. However, the salary and allowances received by the 4th respondent as Headmaster shall not be recovered from him. It shall be deemed that the 4th respondent has retired from service on 31.3.2009 as HSA (Maths) from the Karimbil High School, Kumbalappally, Nileswar and his retirement benefits shall be computed and disbursed accordingly. The same shall be done within two months from the date of receipt of a copy of this judgment. (b) The 2nd respondent shall pass orders, approving Ext.P7 appointment of the petitioner as Teacher-in-Charge of the 3rd respondent's Institute with effect from 1.4.1998, within one month from the date of receipt of a copy of this judgment. He shall also be paid allowance, if any, for such appointment for the period during which he actually held that appointment, namely, till 13.5.1999. For the period from 14.5.1999 to 3.6.2002, the appointment shall only be notional without monetary benefits. (c) The 3rd respondent shall forward an appointment order to the 2nd respondent, promoting the petitioner regularly as Headmaster of his Institute with effect from 4.6.2002, WA 1901/09 4 within two weeks from the date of receipt of a copy of this judgment. The 2nd respondent shall approve such appointment within one month from the date of receipt of the appointment order, notionally, without any monetary benefits upto 31.3.2009, but with monetary benefits also from 1.4.2009 onwards. (d) All arrears of monetary benefits arising from the above directions shall be disbursed to the petitioner within one month from the date of approval of the respective appointments.” 3. Feeling aggrieved by the above judgment, the 4th respondent filed WA No.1315/09. The said appeal was dismissed by this Court, affirming the findings of the learned Single Judge, concerning his qualification. The appeal filed by the Manager i.e, WA No.1320/09 was allowed to be withdrawn with liberty to move the learned Single Judge in review. Such an order was passed because the Manager brought to the notice of the Division Bench that disciplinary action was taken against the 1st respondent and he was punished, imposing the penalty of reduction in the seniority list. The said fact was not brought to the notice of the learned Single Judge and therefore, the Judgment under appeal was rendered in favour of WA 1901/09 5 the 1st respondent. Though RP No.665/09 was preferred before the learned Single Judge by the appellant herein, the said revision petition was dismissed, taking note of the judgment in WA No.1315/09. Therefore, the present Writ Appeal is filed, challenging the said order in review dated 3.8.2009 as also the Judgment in OP No.16111/99 dated 21.05.2009. The appellant brought to our notice that he served Ext.P9 notice dated 14.11.1998 on the 1st respondent, proposing to cancel Ext.P7(a) appointment. Thereafter, he was served with Ext.P10 memo of charges, proposing to take disciplinary action against him. The 1st respondent submitted Ext.P11 reply to Ext.P9 and Ext.P12 written statement to Ext.P10 memo of charges. Since the explanation was not found satisfactory, the matter was referred to the District Educational Officer for enquiry. The DEO submitted a report, finding the 1st respondent guilty. Based on that report, the Manager decided to impose a punishment of compulsory retirement on the 1st respondent. But, the Deputy Director did not approve the said proposal. Taking into account, the order of the Deputy Director, the Manager imposed the penalty of reducing him to a lower rank in the seniority list and he was made the junior-most TSA, as on the date of punishment, permanently. The said WA 1901/09 6 punishment was imposed on 03.09.2001. The appellant submitted that in view of the said punishment imposed on him, his claim for promotion could not have been considered on 4.6.2002. He is ineligible for promotion, even assuming the 4th respondent is not qualified. Therefore, the appellant prayed for vacating the directions issued by the learned Single Judge. 4. We heard the learned Senior Counsel Sri.K.P.Dandapani for the appellant, learned Government Pleader Smt.R.Bindu, appearing for respondents 2 and 3, learned Counsel Sri.Elvin Peter appearing for the 1st respondent and also the learned counsel Sri.E.K.Nandakumar appearing for the 4th respondent. The learned Senior Counsel Sri.K.P.Dandapani submitted that the appellant's school, being one governed by the KER, an appointee to the post of Headmaster need be qualified only in accordance with the said Rules and not as per the NCTE Norms. Even assuming the 4th respondent was not qualified, the 1st respondent cannot get automatic promotion. The only direction that could have been issued was to consider his claim. Rule 43 of Chapter XIVA specifically provides that promotion will be subject to consideration of efficiency also. So, the direction of the learned Single Judge is liable to be set aside, it is submitted. WA 1901/09 7 The learned counsel for the 1st respondent, on the other hand, supported the judgment under appeal. 5. First, we will consider whether the 4th respondent was qualified for appointment as Headmaster of a Teachers Training Institute. In the appeal filed by the 4th respondent, this Court has already held that he was not qualified. Normally, it is for the Teacher concerned and not the Manager, to canvass the point whether he is qualified or not. But, without relying on the technical ground, we are inclined to consider the contention of the appellant regarding the qualifications necessary for appointment to the post of Headmaster. The learned Single Judge has extracted the qualifications for the said post as per the KER as also as per Ext.P21 NCTE Norms in the judgment under appeal. The learned Single Judge found that every Teachers Training Institute, having NCTE affiliation, is bound to follow the norms prescribed by the said body, in the matter of appointment of Teachers etc. The State Government may be competent to prescribe additional qualifications. So, the qualifications prescribed as per the KER can be treated as only additional qualifications, over and above the qualifications prescribed under NCTE Norms. Going by the decisions of the Apex Court, referred to WA 1901/09 8 in the judgment under appeal, we fully agree with the view taken by the learned Single Judge. But, the learned Senior Counsel handed over the photocopy of a document dated 17.07.2000 and submitted that the Teachers, who were appointed without the requisite qualifications were given a chance to acquire the necessary qualifications within a period of two years from 17.7.2000. We notice that the appellant's institute has been granted provisional affiliation as per Ext.P19 statutory order published in the gazette of India. The said order dated 7.12.1998, granted provisional affiliation to the appellant's TTI, subject to the stipulation that qualified teaching and non-teaching staff should be appointed as per paragraph 5 of the NCTE Norms. The said order mentioned about several deficiencies of the appellant's TTI. One of those deficiencies was the absence of qualified teaching staff. When it was found that the stipulations in Ext.P19 were not complied with, the NCTE followed up the matter by addressing Ext.P20 communication dated 8.3.1999 to cure the deficiencies and report compliance. The NCTE Norms prevailing at the relevant time was Ext.P21, Clause 5.0 of which, contains the qualifications for the post of Headmaster/Principal as M.Ed./M.A. Education with 5 years' teaching experience as Lecturer/Teacher/ WA 1901/09 9 Educator. So, provisional affiliation was granted to the appellant's institute for 1998-99 subject to the stipulation of appointing qualified hands. Therefore, the appointment of the 4th respondent on 14.5.1999 was contrary to the NCTE Norms. So, the order issued in 2000, granting the institute of the appellant regular recognition, cannot be pressed into service to support the appointment made in 1999. The appellant also relied on Annexure D order of the DPI dated 28.1.2009, concerning approval of appointment of a TSA, wherein the DPI has observed that for approval of appointments, the Department is following the Rules under the KER and not the NCTE Norms. The appellant also brought to our notice Annexure E communication, concerning the holding of a meeting of the representatives of the Managers and Teachers to consider the enhancement of the qualifications of TTI Instructors. But, we are not impressed by the view of the Kerala Government or the Officers under it, concerning the qualifications for appointment to various posts in TTIs. Since the NCTE Act is a central legislation and the approval of the NCTE is mandatory for starting a TTI, the conditions subject to which, recognition has been granted, have to be strictly followed by the Manager. The prevarication, which is manifested from WA 1901/09 10 the aforementioned communications, of the Officers of the Education Department, will not save the appointment of the 4th respondent. In view of the above position, we uphold the view taken by the learned Single Judge that an incumbent for appointment to the post of Headmaster of a TTI, should possess the qualifications prescribed as per the NCTE Norms and also the KER. 6. The next question to be considered is whether the direction issued by the learned Single Judge to straight away promote the 1st respondent is valid or not. Rule 43 Chapter XIV (A) KER reads as follows : “Subject to Rules 44, 45 and 51A and consideration of efficiency, any general order that may be issued by the Government, vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority.” (emphasis supplied) Going by the above rule, consideration of efficiency, among other things, can also be taken into account by the manager, who is the appointing authority, while ordering promotions. In view of the above position, we are of the view that the direction issued by the learned Single Judge to straight away promote the 1st respondent as WA 1901/09 11 Headmaster of the appellant's TTI, cannot be sustained. So, we set aside the same. But, the Manager shall consider the claim of the 1st respondent for promotion as Headmaster of the TTI with effect from 4.6.2002 in accordance with law within one month from the date of receipt of a copy of this Judgment. The Writ Appeal is disposed of as above. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta WA 1901/09 12