K.N.Balaraman Nampoothiri vs Sreedharan P

P.B.Suresh Kumar, J.

These writ appeals are preferred challenging the common judgment in two writ petitions namely, W.P.(C) Nos.35914 of 2018 and 4006 of 2019. Among the writ appeals, W.A.Nos.177 of 2021 and 208 of 2021 are preferred by the petitioner in W.P.(C) No.4006 of 2019 and W.A.Nos.318 of 2022 and 322 of 2022 are preferred by the sixth respondent in W.P. (C) No.4006 of 2019, who is also the fifth respondent in W.P.(C) No.35914 of 2018.

The dispute relates to the rival claims made by the petitioners in the writ petitions for appointment to the post of Headmaster in an aided high school namely, Kalladi Abdu Haji High School (the School). As common questions arise for consideration in the appeals, they are disposed of by this common judgment. Parties and documents are referred to in this judgment, unless otherwise mentioned, as they appear in W.P.(C) No.35914 of 2018.

The petitioner was initially appointed as Upper Primary School Assistant in the School on 21.07.1992. While continuing as such, he was appointed as High School Assistant (HSA) in the School in a leave vacancy with effect from 19.07.1997. On termination of the said leave vacancy, the petitioner was reverted as Upper Primary School Assistant. Later, the petitioner was appointed again in the School in another leave vacancy as HSA with effect from 15.01.2001. While he was continuing as HSA, as the teacher in whose leave vacancy the petitioner was appointed resigned from service, the petitioner was regularly appointed as HSA in the said vacancy without interruption and he was continuing as such.

While so, the post of Headmaster in the School became vacant on 01.05.2016. As per Rule 44A(1) of Chapter XIVA of the Kerala Education Rules (KER), only teachers who have 12 years of continuous graduate service and who have cleared the test in Kerala Education Act and the Kerala Education Rules and Account Test (Lower) conducted by the Kerala Public Service Commission, alone can be appointed as Headmaster of a high school. The second proviso to the said Rule clarifies that teachers who have attained the age of 50 years shall be exempted permanently from acquiring the test qualification. On 10.06.2015, the Government issued an order clarifying the second proviso to Rule 44A of Chapter XIVA KER to the effect that in the case of appointment to the post of Headmaster, preference shall be given to those teachers who have acquired the test qualification specified in the Rule. The petitioner in W.P.(C) No.4006 of 2019 being the senior most teacher of the School who crossed the age of 50 was, in the circumstances, appointed by the Manager as the Headmaster of the School, even though he did not have the test qualification. The proposal made by the Manager for approval of the said appointment was turned down by the Educational Officer as per Ext.P2 order, taking the stand that he does not have the test qualification required in terms of Rule 44A(1) of Chapter XIVA KER in the light of the Government Order dated 10.06.2015. The petitioner in W.P.(C) No.4006 of 2019 did not however challenge Ext.P2 order. The Manager of the School, in the circumstances, appointed the petitioner as Headmaster of the School on 26.09.2016, as per Ext.P3 order. The petitioner in W.P.(C) No.4006 of 2019 did not challenge Ext.P3 order also as provided for in Rule 44(2) of Chapter XIVA KER. Nevertheless, the proposal made by the Manager to approve Ext.P3 order was also turned down by the Educational Officer, taking the view that the petitioner does not have 12 years graduate service as required in terms of Rule 44A. Ext.P7 is the order issued by the Educational Officer in this regard. The petitioner challenged Ext.P7 order in Ext.P8 revision petition before the Government. As Ext.P8 revision was not considered by the Government, the petitioner filed W.P.(C) No.37901 of 2016, and this Court disposed of the said writ petition in terms of Ext.P9 judgment directing the Government to consider and pass orders on Ext.P8 revision within two months, after hearing the petitioner as also others who are likely to be affected by the orders to be passed. Pursuant to Ext.P9 judgment, though Ext.P8 revision petition was heard by the Government on 17.03.2017, the same was not disposed of. W.P.(C) No.35914 of 2018 was instituted by the petitioner in the above background seeking a direction to the Government to comply with the directions contained in Ext.P9 judgment.

During the pendency of the writ petition, the Government disposed of Ext.P8 revision as per order dated 28.01.2019 directing the Educational Officer to appoint the petitioner as the Headmaster of the School with effect from 26.09.2016 itself after holding that he has the requisite graduate service. W.P.(C) No.4006 of 2019 was instituted challenging Ext.P2 order of the Educational Officer as also the order of the Government dated 28.01.2019 passed on Ext.P8 revision. The case set out by the petitioner in W.P.(C) No.4006 of 2019 is that Ext.P2 order issued by the Educational Officer declining the proposal for approval of his appointment as Headmaster of the School is bad as he is entitled to the benefit of exemption as provided for in the second proviso to sub-rule (1) of Rule 44A; that in light of the direction in Ext.P9 judgment that orders on Ext.P8 are to be passed after hearing all the affected persons, he should have also been heard before passing the order dated 28.01.2019. It is alleged by the petitioner in the said writ petition that he has challenged Ext.P2 order in revision before the Government on 01.11.2018.

The Government Order dated 10.06.2015 referred to in paragraph 4 above was held to be bad by this Court on 20.09.2016, as per the judgment in Pavandoor Higher Secondary School v. Sadanandan, 2016 (4) KLT 207 on the premise that a statutory provision cannot be nullified by an executive order. On 13.12.2017, the Government amended Rule 44A of Chapter XIVA KER by adding a third proviso to it with retrospective effect from 01.06.2015, clarifying that notwithstanding anything contained in the second proviso, in the case of appointment to the post of Headmaster, preference shall be given to those teachers who have acquired the test qualification specified in the Rule. The said amendment was also challenged in W.P.(C) No.4006 of 2019.

The learned Single Judge took the view that inasmuch as the petitioner in W.P.(C) No.4006 of 2019 has not challenged the order declining approval of his appointment as the Headmaster of the School then and there, he cannot be heard to contend that he should have been appointed as the Headmaster of the School at this distance of time. Although the petitioner in W.P.(C) No.4006 of 2019 challenged Ext.P2 order in revision before the Government on 01.11.2018, the learned Single Judge took the view that the said challenge was belated. That apart, it has come out that when approval of the appointment of the petitioner as Headmaster was also declined by the Educational Officer, the Manager wanted to give charge of the Headmaster to the petitioner in W.P.(C) No.4006 of 2019 and he refused to accept the same. According to the learned Single Judge, the said conduct on the part of the petitioner in W.P.(C) No.4006 of 2019 would also preclude him from contending that he should have been appointed as Headmaster of the School in the vacancy that arose on 01.05.2016. Consequently, W.P.(C) No.4006 of 2019 was dismissed and W.P.(C) No.35914 of 2018 was allowed, directing that rights of the parties will be governed by the order passed by the Government dated 28.01.2019 and directing the Educational Officer to approve the appointment of the petitioner in W.P.(C) No.35914 of 2018 as Headmaster with effect from the date of his appointment. As noted, it is aggrieved by the said decision of the learned Single Judge that the aforesaid appeals are preferred.

Heard the learned counsel for the parties on either side.

The  learned  counsel  for  the  petitioner  in W.P(C) No.4006 of 2019 argued with all vehemence that Ext.P2 order of the Educational Officer declining approval of his appointment as Headmaster of the School is illegal inasmuch as he is exempted from acquiring the test qualification under the Rule. The learned counsel however conceded that even though the executive order dated 10.06.2015 which was in force at the relevant time has been held to be bad by this Court, the amendment to the Rule brought later with retrospective effect precludes him from pursuing the claim that he should have been appointed in the vacancy that arose on 01.05.2016. He, however contended that the retrospective effect given to the amendment is bad in law and it was so held by this Court in Pavandoor Higher Secondary School v. Sadanandan (supra) and in W.A.No.925 of 2019. The learned counsel has also conceded that the decisions in the said two cases have been doubted by another Division Bench and the matter now stands referred to a Larger Bench of this Court for pronouncement on the validity of the amendment. It was also contended by the learned counsel that at any rate, the Government Order dated 28.01.2019 which is under challenge in W.P.(C) No.4006 of 2019 is bad inasmuch as the Government has not complied with the direction contained therein that orders shall be passed on Ext.P8 revision petition only after affording all the parties who are likely to be affected by the order in the said revision petition.

Per contra, the learned counsel for the petitioner contended that the petitioner in W.P.(C) No.4006 of 2019 had a right of appeal against Ext.P3 order in terms of which his client was appointed as Headmaster of the School with effect from 26.09.2016, and inasmuch as he has not challenged Ext.P3 order in appeal, he is precluded from challenging the order of the Government dated 28.01.2019 upholding the said appointment as valid. It was also argued by the learned counsel that the challenge made by the petitioner in W.P.(C) No.4006 of 2019 against Ext.P2 order is a belated one and cannot be entertained by this Court. He has relied on the decision of the Apex Court in Union of India v. A. Durairaj, (2010) 14 SCC 389, in support of the said proposition.

The learned counsel for the fifth respondent, the senior most teacher of the School next in line to the petitioner in W.P.(C) No.4006 of 2019, endorsed the arguments advanced by the learned counsel for the petitioner in W.P.(C) No.4006 of 2019, as she is entitled to be considered for appointment as Headmaster of the School after the retirement of the petitioner W.P.(C) No.4006 of 2019, if his claim is upheld by this Court.

We have examined the arguments advanced by the learned counsel for the parties on either side.

As noted, the vacancy of the Headmaster arose in the School on 01.05.2016. Though the petitioner in W.P.(C) No.4006 of 2019 who was the senior most teacher in the School at the relevant time was appointed by the Manager as the Headmaster of the School, the said appointment was not approved by the Educational Officer. A perusal of Ext.P2 order passed by the Educational Officer in this regard would indicate that even though the order issued by the Government on 10.06.2015 clarifying the second proviso to Rule 44A is not referred to therein, the order is one issued placing reliance on the said order of the Government. Since the Manager of the School did not challenge the said order, inasmuch as the same is an order dealing with the right of the petitioner in W.P.(C) No.4006 of 2019 to be considered for appointment to the post of Headmaster in the School, he should have certainly challenged the said decision in a manner known to law. The said order was held to be bad by this Court only long thereafter on 20.09.2016, in terms of the judgment in Pavandoor Higher Secondary School (supra). Immediately thereupon, on 13.12.2017, the Government introduced the third proviso to Rule 44A(1) with retrospective effect and restored the status quo ante. It is seen that the petitioner in W.P.(C) No.4006 of 2019 preferred revision petition before the Government challenging Ext.P2 order on 01.11.2018 after the decision of this Court in Pavandoor Higher Secondary School (supra). In other words, it is almost after two and a half years, the petitioner in W.P.(C) No.4006 of 2019 challenged Ext.P2 order declining approval of his appointment as Headmaster in the School. It is relevant in this regard to note that in the meanwhile, on 26.09.2016 itself, the petitioner was appointed as the Headmaster of the School. Rule 44(2) confers a right of appeal for persons aggrieved by the appointment of Headmasters of the school before the Educational Officer. The petitioner in W.P.(C) No.4006 of 2019 has not challenged the appointment of the petitioner also availing the said remedy that was available to him. The petitioner in W.P.(C) No.4006 of 2019 cannot be heard to contend that he was not aware of the said appointment. Be that as it may, the petitioner challenged Ext.P7 order dated 24.10.2016 before the Government in Ext.P8 revision filed on 21.11.2016 itself and approached this Court immediately thereafter and obtained Ext.P9 judgment on 28.11.2016 directing the Government to consider Ext.P8 revision petition. It is in light of the direction issued by this Court in Ext.P9 judgment that Ext.P8 revision was disposed of by the Government on 28.01.2019. The petitioner in W.P.(C) No.4006 of 2019 who challenged the said order before this Court cannot also be heard to contend that he was not aware of the various actions pursued by the petitioner against Ext.P7 order. It is trite that anyone who feels aggrieved by non-selection to a particular post or orders in the nature of Ext.P2 declining approval of the appointment by the competent authority, should approach the court/tribunal at the earliest. If a person having a justifiable grievance allows the matter to become stale and approaches the court/tribunal belatedly, grant of any relief on the basis of such an application would lead to serious administrative complications to the employer as also difficulties to other employees, as it would upset their rights. Having regard to the facts and circumstances of the case, we do not find any infirmity in the view taken by the learned Single Judge that the challenge made by the petitioner in W.P.(C) No.4006 of 2019 against Ext.P2 order is belated and cannot be entertained. That apart, the petitioner is guilty of laches also, inasmuch as he allowed Ext.P3 appointment of the petitioner to become final without there being a challenge against the same as provided for under Rule 44(2) of Chapter XIVA KER. It is unnecessary for us, therefore, to examine the correctness of Ext.P2 decision.

There is also no merit in the contention put forward by the learned counsel for the petitioner in W.P.(C) No.4006 of 2019 that the Government Order dated 28.01.2019 is bad in law, inasmuch as the Government has not complied with the direction contained in Ext.P9 judgment. True, it was directed by this Court in Ext.P9 judgment that orders shall be passed only after affording all parties who are likely to be affected by the orders in the said revision petition. As noted, the subject matter of Ext.P8 revision was the correctness of Ext.P7 order issued by the Educational Officer declining approval of the appointment of the petitioner as Headmaster in the School. The said appointment has been made since the earlier appointment of the petitioner in W.P.(C) No.4006 of 2019 as Headmaster of the School has not been approved by the Educational Officer as per Ext.P2 order. As already noticed, there was no challenge against Ext.P2 order from any corner until Ext.P8 revision was heard by the Government on 17.03.2017. In the circumstances, it cannot be said that the Government was obliged to issue notice to the petitioner in W.P.(C) No.4006 of 2019 before orders were passed on Ext.P8 revision petition.

In light of the discussion aforesaid, we do not find any merit in the appeals and are, accordingly, dismissed.