C.K. Valsarajan vs K. Bhagianathan And Ors

A.M. Shaffique, J

This appeal is filed against the judgment dated 10-06-2020 in W.P (C) No.12838/2019. The writ petitioner, Sri. K. Bhagianathan had approached

the learned Single Judge inter alia seeking for a direction to the 4th respondent, the Manager, MAM U.P. School to recall the appointment order

issued in favour of the 5th respondent, Sri. C.K. Valsarajan and to appoint the writ petitioner as Headmaster of the said school with effect from 01-

04-2019. The contention urged by the writ petitioner was that Sri. C.K. Valsarajan did not have the qualification in terms of Rule 18 (1) of the Right of

Children to Free and Compulsory Education Rules, 2011 (hereinafter referred to as '2011 Rules' for short). The learned Single Judge by the impugned

judgment, having observed that Sri. C.K. Valsarajan did not have the requisite qualification for appointment to the post of Headmaster as on 01-04-

2019, issued the following directions:

“7. The 4th respondent shall therefore issue orders appointing the petitioner in case she is the seniormost hand with pass in Account test (lower),

KE Act and KE Rules as on 01.04.2019, within a period of 'one week' from the date of receipt of a copy of the judgment. The AEO shall thereafter

issue orders on approval of such appointment in accordance with Ext.P4 order and the aforesaid judgments within a period of 'one month' from the

date of receipt of the proposal from the Manager and grant all consequential benefits with effect from 01.04.2019 within a further period of 'three

months'.“

The aforesaid direction had been issued on a finding that the petitioner was the senior most teacher with test qualification as provided under the

relevant Rules.

It is challenging the aforesaid judgment that Sri. C.K. Valsarajan had preferred this appeal. One of the contentions urged was that the appellant has

crossed 50 years of age and he is exempted from acquiring test qualification in terms of Rule 45B (4) of Chapter XIV-A of Kerala Education Rules.

Further it is brought to our notice that the Government had brought an amendment to Rule 18 (1) of the 2011 Rules adding a proviso stating that the

exemption granted to teachers under the Kerala Education Rules shall form part of the 2011 Rules and it is operative since 30-04-2011. The relevant

proviso reads as under:

“Provided that teachers, who are otherwise eligible for being promoted as Head teachers shall be exempted from passing such departmental tests

and test on Kerala Education Act and Rules on or after attaining the age of 50 years.â€​

The learned counsel for the appellant therefore submits that in view of the proviso to Rule 18 (1) of the 2011 Rules, the appellant was exempted from

passing the department tests on or after attaining the age of 50 years and therefore his appointment is valid. On the other hand, learned counsel

appearing for the writ petitioner would submit that the amendment had not come into effect as on the date of the judgment. It is also brought to our

notice that pursuant to the judgment of the learned Single Judge, the writ petitioner had been appointed as Headmaster with effect from 01-04-2019

and his appointment has been approved by the competent authority.

Today when the matter came up for hearing, it is brought to our notice that the writ petitioner had also filed W.P (C) No.1382/2021 challenging the

retrospectivity of the amendment. The appellant herein is also made a party to the said proceedings and the learned Single Judge in the said case

issued an interim order on 19-01-2021, which reads as under:

“Admit.

Learned Government Pleader takes notice for respondents 1 and 2. Issue notice to the 3rd respondent by speed post.

In view of the fact that the petitioner has been appointed as Headmaster with effect from 01-04-2019 on the basis of the law applicable at the

relevant time and in view of Ext.P10 judgment, there will be an interim order of status quo with regard to the appointment of the petitioner. The

petitioner shall not be reverted from the post of H.M.â€​

We also heard the learned Government Pleader who supported the stand taken by the appellant, on account of the retrospectivity given to in the

proviso to Rule 18 (1) of 2011 Rules.

It is true that as on the date when the judgment was delivered by the learned Single Judge, the amendment dated 23-12-2020 was not in force and

therefore there was justification on the part of the learned Single Judge to have issued such an order. But, when, during the pendency of the appeal,

the Rule has come into effect, we cannot ignore the Rule position as matters stand now. The appeal ought to be decided based on the present

statutory provisions, especially when the proviso to Rule 18 (1) had been given retrospective effect from 30-04-2011.

But having regard to the fact that the appellant had already retired from service and the writ petitioner had challenged retrospectivity of the

amendment in W.P (C)+ No.1382/2021, we are of the view that the rights of the parties has to be finalized after disposal of W.P (C) No.1382/2021.

As far as the appellant is concerned he was appointed as Headmaster by the Manager from 01-04-2019 and he had completed his tenure and had

already superannuated. But he was not paid the salary of the Headmaster since it was not approved by the competent authority. As far as the writ

petitioner is concerned, after the judgment, he was appointed as Headmaster and is being paid salary and his appointment has been approved, which

of-course was pursuant to the judgment of the learned Single Judge. Having regard to these facts it is only appropriate that the appeal be disposed of

relegating the parties to ventilate their right to occupy the post of Headmaster in W. P (C) No.1382/2021. The writ appeal is therefore disposed of as

under:

(i) That the right of the appellant as well as the writ petitioner to be posted as Headmaster with effect from 01-04-2019 shall be subject to the result in

W. P (C) No.1382/2021. A decision in that regard shall be taken untrammelled by any findings in the judgment in W. P (C) No.12838/2019.

(ii) The right of the parties to receive salary and other perks will be subject to the result in W. P (C) No.1382/2021. Until such time, status-quo shall be

maintained. The right of the petitioner to receive salary of Headmaster from 01-04-2019 will be subject to the result of the writ petition.

(iii) The pension papers of the appellant shall be prepared on the basis of the salary drawn by him in the lower scale of pay of the Headmaster

provisionally and the pension be paid accordingly, subject to result of the writ petition.

The parties can approach the learned Single Judge for an early hearing of the matter.