Disposed

K.G.Sarathchandran v. State of Kerala and Others

Kerala HC8 Sept 2016WP(C)/8141/2008

Case brief

AI extract

What is this about?

Petitioner challenged an order denying him permanent exemption from test qualification under Rule 45BB of the Kerala Education Rules, claiming 50 years of age. The Court held the order was illegal as it failed to consider the age condition and remanded the matter for fresh consideration with hearing.

What did the court decide?

Ext.P6 order set aside. Matter remanded to the Government to re-consider after hearing petitioner, 5th respondent, and Manager. Fresh orders to be passed within three months.

K.G.Sarathchandran Vs State of Kerala and… — Pension and Retirement Benefits | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE SMT. JUSTICE P.V.ASHA

¶4

THURSDAY, THE 8TH DAY OF SEPTEMBER 2016/17TH BHADRA, 1938

¶5

WP(C).No. 8141 of 2008 (T)

¶6

PETITIONER(S):

¶7

K.G.SARATHCHANDRAN

¶8

MELOOR P.O., CHALAKUDY, THRISSUR DISTRICT.

¶9

BY ADVS.SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN

¶10

RESPONDENT(S):

¶11

1. STATE OF KERALA AND OTHERS REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

¶12

2. THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKUDA.

¶13

3. THE ASSISTANT EDUCATIONAL OFFICER, CHALAKKUDY.

¶14

4. THE MANAGER, A.U.P.SCHOOL, MELOOR (VIA) CHALAKKUDY, THRISSUR DISTRICT.

¶15

5. SHRI.M.O.PAUL, HEADMASTER, A.U.P.SCHOOL, MELOOR (VIA), CHALAKKUDY, THRISSUR DISTRICT.

¶16

R1 TO R3 BY SENIOR GOVERNMENT PLEADER SRI.SANTHOSH PETER R5 BY ADV. SRI.M.V.MATHEW

¶17

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶18

msv/

¶19

WP(C).No. 8141 of 2008 (T)

¶20

--------------------------

¶21

APPENDIX

¶22

PETITIONER(S)' EXHIBITS

¶23

EXHIBIT P1:	TRUE COPY OF THE ORDER NO.D.2081/86/L.DIS. DTD.24.4.1986 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P2:	TRUE COPY OF THE JUDGMENT DTD.18.7.1996 IN OP.NO.3348/1996 OF THIS HON'BLE COURT.
EXHIBIT P3:	TRUE COPY OF THE PROCEEDINGS NO.B1-11939/96/L.DIS. DTD.10.3.1997 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P4;	TRUE COPY OF THE PROCEEDINGS NO.B2-5936/98/K.DIS. DTD.30.4.1998 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR.
EXHIBTI P5:	TRUE COPY OF THE REPRESENTATION DTD.21.11.2006 SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT.
EXHIBIT P6:	PHOTOGRAPH OF GO(R.T) NO.5774/07/G.EDN. DTD.18.12.2007.

¶24

RESPONDENT(S)' EXHIBITS

¶25

EXT.P5(a): TRUE COPY OF JUDGMENT DTD.3.9.1996 IN WA.NO.1085/1996 PASSED BY THIS HON'BLE COURT. EXT.R5(b): CIRCULAR DTD.22.7.1988 BEARING NO.H2 55837/88 ISSUED BY ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTION.

//TRUE COPY//

P.S.TO JUDGE

Msv/

P.V.ASHA, J.

--------------------------------------------

¶31

W.P.(C) No.8141 of 2008

¶32

--------------------------------------------- Dated this the 8^th day of September, 2016

¶33

J U D G M E N T

¶34

Petitioner is challenging Ext.P6 order claiming that he

¶35

did have 25 years of service and had attained 50 years of age as on 10.05.1988 and was entitled to get the benefit of Rule 45BB of Chapter XIVA of the Kerala Education Rules, 1958 (for short, “the Rules”) and hence was entitled to be retained and approved in the post of Headmaster.

¶36

The petitioner submits that he commenced his service as a Lower Primary School Assistant (LPSA) on 15.02.1962. He has got untrained service as teacher for the period from 15.02.1962 to 30.03.1962 and 07.08.1962 to 30.03.1963. He underwent training from 04.06.1963 to 31.03.1965 and his trained service commenced from 15.07.1965 in the AUP School, Meloor, which is an aided School, governed by the Rules. When the vacancy of Headmaster arose in that School, he, being the seniormost teacher, was appointed as teacher in charge from 01.12.1982 onwards. He was promoted as Headmaster

¶37

W.P.(C) No.8141 of 2008

¶38

¶39

with effect from 01.10.1983. From Ext.P1 order dated 24.04.1986, it is seen that the Assistant Educational Officer, Chalakudy approved his appointment as Headmaster from 10.01.1983 to 31.03.1988, simultaneously granting exemption from acquiring test qualification for the period from 01.04.1986 to 31.03.1988, in continuation of the exemption already granted from 10.01.1983 to 31.03.1986, in the light of the orders issued by Govt from time to time.

¶40

As per Rule 45B of Chapter XIVA of the Rules, Account Test (Lower) conducted by the Kerala Public Service Commission is an obligatory qualification for the teachers for promotion as Headmasters of Primary Schools. Exemption was granted to the Headmasters who were holding the post as on 19.12.1978 from acquiring the said qualification. By subsequent amendment temporary exemption was granted to the teachers who were awaiting promotion as Headmasters till 31.03.1988. By a subsequent amendment introduced from 24.02.1982, all the teachers who have attained the age of 50 years were

¶41

W.P.(C) No.8141 of 2008

¶42

¶43

permanently exempted from acquiring the qualification specified in sub-rule (1) of Rule 45B(4) of Chapter XIVA of he Rules, which reads as follows:

¶44

“Teachers who have attained the age of 50 years shall stand exempted permanently from acquiring the qualification specified in sub rule (1).”

¶45

Before that amendment the exemption was available only to those teachers who have attained the age of 50 years and who have completed 25 years of service. Rule 45BB of Chapter XIVA of the Rules was introduced as per G.O. (P).No.226/86/G Edn. Dated 28.11.1989, which reads as follows:

¶46

“ 45BB Notwithstanding anything contained in these rules, every person holding the post of Headmaster in a Lower Primary School or in an Upper Primary School as on the 10^th of May 1988 and who has completed 50 years of age or 25 years of service on that date shall be eligible for permanent exemption from acquiring the qualification specified in sub rule (1) of

¶47

W.P.(C) No.8141 of 2008

¶48

¶49

rule 45B.

¶50

Provided that this exemption shall not adversely affect the claim of a person fully qualified under the rules and eligible for promotion as on 10^th May 1988 on a regular basis”

¶51

Petitioner was reverted as teacher in charge

¶52

with effect from 01.04.1988 and he continued as such till 31.03.1989. Petitioner submits that even though the Supreme Court in SLP No.6535 of 1988 directed the State Govt not to revert the Headmasters who were holding the post as on 10.5.1988 till they get one more chance to acquire the test qualification, the 5^th respondent was appointed as Headmaster with effect from 01.04.1989. When Rule 45BB of Chapter XIVA of the Rules was introduced, he was continuing as teacher in charge. Petitioner submits that he completed 50 years of age as on 10.05.1988 and 25 years of service on 05.12.1987. Claiming the benefit of Rule 45BB of Chapter XIVA of the Rules, petitioner approached this Court in O.P. No.3348 of 1990 and this Court directed the District Educational

¶53

W.P.(C) No.8141 of 2008

¶54

¶55

Officer, Irinjalakuda to treat Ext.P3 petition therein as an appeal against the order of the Assistant Educational Officer approving the appointment of the 5^th respondent. This Court had held that the untrained service of petitioner was liable to be reckoned towards the 25 years' service for the purpose of enjoying the benefit of exemption under Rule 45 BB, holding that untrained service was not excluded from the purview of service. The DEO, however rejected the appeal saying that the appeal was already rejected well before the judgment and there was nothing to be considered further. Petitioner approached this Court again in O.P. No.4728 of 1998, after filing an appeal before the Deputy Director of Education. The Deputy Director of Education considered the appeal, on the basis of the direction issued by this Court in its judgment dated 11.03.1998 in O.P. No.4728 of 1998. The Deputy Director of Education found that the 5^th respondent Sri.M.O.Paul was qualified as on March, 1989 and he was accordingly promoted and posted as Headmaster with effect from 01.04.1989 reverting the

¶56

W.P.(C) No.8141 of 2008

¶57

¶58

petitioner. The Deputy Director of Education further found that the petitioner did not satisfy the conditions for exemption from acquiring test qualification, as provided in Rule 45BB of Chapter XIVA of the Rules. However, it was stated that there was no test qualified hands in the School as on 10.05.1988. The reason stated for denying the benefit of exemption was that the petitioner was not holding the post of Headmaster as on 10.05.1988 and he had not completed 25 years of service under the management as on 10.05.1988. But the 5^th respondentSri.M.O.Paul got qualified in March, 1989. Even though, the petitioner approached the Government, Government rejected his petition as per Ext.P6 stating that he was not holding the post of Headmaster as on 10.05.1988; but acted only as teacher in charge and he had not completed 25 years of service. Government found that the petitioner's service for a period of 1 year 9 months and 8 days was untrained service and training period and therefore that period cannot be considered for computing 25 years as stipulated in Rule 45BB of Chapter XIVA of the

¶59

W.P.(C) No.8141 of 2008

¶60

¶61

Rules. Hence it was found that the petitioner was not entitled to the benefit of Rule 45BB of Chapter XIVA of the Rules, since he did not possess 25 years qualified approved teaching service as on 10.05.1988.

¶62

The 5^th respondent filed a counter affidavit. According to the 5^th respondent, petitioner cannot have the benefit of any of the findings in Ext.P2 judgment because the 5^th respondent had already taken up the matter in writ appeal No.1085 of 1996 and seeing that the promotion of the 5^th respondent was already approved, this Court had held that 5^th respondent would not be aggrieved by any of the observations of the learned Single Judge. Therefore the 5^th respondent stated that the findings in Ext.P2 judgment regarding the reckoning of untrained service cannot be of any help to the petitioner. According to the 5^th respondent, the petitioner was not a Headmaster as on 10.05.1988 and he was also not having 25 years of service and hence he was not entitled to the benefit of Rule 45BB of Chapter XIVA of the Rules. The judgment in W.A. No.1085 of 1996 and the circular issued

¶63

W.P.(C) No.8141 of 2008

¶64

¶65

by the Director of Public Instructions on 22.07.1988 are

¶66

also produced as Ext R5(a) and R5(b), in support of his contention that the petitioner will not be entitled to exemption. Exhibit R5(b) is the Circular issued by the Director of Public Instructions in the light of the judgment of the Supreme Court in SLP(C).No.6535 of 1988 wherein the Apex Court had directed the State Government not to revert those Headmasters who had not passed the Account Test examination and who were then holding the post of Headmasters and that they should be given one more chance to appear in the Account Test examination to be held by the Kerala Administration. DPI therefore instructed that only those persons who were continuing as Headmasters on the basis of yearly exemption granted and were not reverted by virtue of judgment of the Division Bench of Kerala High Court would be allowed to continue as such for taking the next Test. Therefore, it is the contention of the 5^th respondent that petitioner who was already reverted as on 10.05.1988 was not entitled the benefit of exemption.

¶67

W.P.(C) No.8141 of 2008

¶68

¶69

The AEO has filed a counter affidavit stating that petitioner is not eligible for the benefit of Rule 45BB of Chapter XIVA KER. Petitioner was not holding the post of Headmaster as on 10.5.1988; he acted only as a teacher in charge and he had not attained 50 years of age or completed 25 years of service as on 10.05.1988. His training period for a period of 1 year, 9 months and 8 days cannot be treated as qualifying service for computing 25 years. It was stated that as per Rule 45BB of Chapter XIVA of the Rules every person holding the post of Headmaster in LP/UP as on 10.05.1988 and who has completed 50 years of age or having 25 years of service shall be eligible for permanent exemption from acquiring the test qualification.

¶70

I heard Smt.T.K.Sreekala learned Counsel appearing for the petitioner, Sri.Mathew appearing for the 5^th respondent and the learned Government Pleader.

¶71

It is seen that petitioner had completed 50 years well before 10.05.1988. Even though he had been working as Headmaster till 31.03.1988, consequent to

¶72

W.P.(C) No.8141 of 2008

¶73

¶74

reversion, he had been working as teacher in charge from 01.04.1988. His request for promotion as Headmaster is rejected saying that he was not holding the post of Headmaster and he did not complete 25 years of service as on 10.05.1988. It is relevant to note that Sub-rule (4) of Rule 45B of Chapter XIVA of the Rules provides that teachers who have attained the age of 50 years shall stand exempted permanently from acquiring the test qualification prescribed in sub-rule (1). Temporary exemption was available for all the teachers till 31.03.1988 by virtue of Sub-rule (3) of Rule 45B of Chapter XIVA of the Rules. Even though the petitioner's claim was only under Rule 45BB of Chapter XIVA of the Rules, the Educational Authorities were bound to look into the qualification of the petitioner and his entitlement for exemption under the provisions contained in Rule 45B of Chapter XIVA of the Rules as well as Rule 45BB of Chapter XIVA of he Rules. Moreover, it is pertinent to note that the Educational Authorities including the Government rejected the claim of the petitioner saying that he did not

¶75

W.P.(C) No.8141 of 2008

¶76

¶77

complete 25 years of service, since he was having untrained service/training period for a period of 1 year and 9 months and 8 days. But none of these authorities looked into the position whether he was not entitled to exemption on completion of 50 years of age at the relevant time while rejecting his claim on the ground of non-completion of 25 years of service. All the educational authorities including the Govt were particular to see the completion of 25 years of service alone when exemption is available on fulfillment of either 25 years of service or 50 years of age. As per the provisions contained in Rule 45B of Chapter XIVA of the Rules as well as Rule 45BB of Chapter XIVA of the Rules, either of the conditions alone need be satisfied for enjoying the benefit of exemption. Ext.P6 while denying his claim on the ground that he was not a Headmaster as on 10.05.1988, further finds another reason that he did not complete 25 years of service while the conditions required are either completion of 50 years of age or completion of 25 years of service.

¶78

It it relevant to note that the 5^th respondent

¶79

W.P.(C) No.8141 of 2008

¶80

¶81

became qualified only in March, 1989. It is only if the petitioner did not acquire the eligibility for permanent exemption as on 31.3.1989, that the claim of the 5^th respondent could have been looked into. But in this case petitioner's claim is not at all considered in accordance with the Rules. Therefore, I set aside Ext.P6.

¶82

The 5^th respondent has a grievance that Ext.P6 was issued without hearing him, though it was in his favour, and that the petitioner had not raised his claim for exemption under Rule 45B. It is settled law that there cannot be any estoppal or acquiescence against statutory rules. However, in order to give him an opportunity to raise his contentions, I relegate the matter to the Government and direct that Government shall re-consider the matter and pass orders afresh, after hearing the petitioner, the 5^th respondent and the Manager in accordance with the relevant rules. The petitioner as well as the 5^th respondent will be free to submit additional representations, if any, which shall be submitted along with the copy of the judgment. The orders shall be passed

¶83

W.P.(C) No.8141 of 2008

¶84

¶85

within a period of 'three moths' from the date of receipt of

¶86

copy of the judgment.

¶87

Writ petition is disposed of accordingly.

¶88

Sd/- P.V.ASHA, JUDGE.

¶89

K.G.Sarathchandran v. State of Kerala and Others

Case brief

What is this about?

What did the court decide?

K.G.Sarathchandran v. State of Kerala and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

B.Maneesh Kumar Vs Union of India

Bijukumar S. Vs Lt.Gen H.J.Sachdev, Avsm

M.Sebastian Vs K.Ramachandran IAS

E.K.Augustine Vs State of Kerala

Manjeswaram Dredging Workers Union Vs State of Kerala

Celine Paul Vs Union of India etc.