SMITHA PAUL Vs. STATE OF KERALA AND ORS.

JUDGEMENT

(1.) The issue arising in both these cases relate to the promotion to the post of Headmaster in the 5th respondent's school, which is an aided Upper Primary School governed by Kerala Education Act and Kerala Education Rules, 1958 ('KER' for short) and hence these writ petitions are disposed of by this common judgment. Parties and documents referred to herein are as described in W.P(c).No.15688 of 2017 unless otherwise specified.

(2.) W.P(c).No.15688 of 2017 is filed by Smt. Smitha Paul claiming that she is the senior most UPSA entitled for promotion as Headmaster. She commenced her services as UPSA on 1.6.1994. She is a graduate with B.Ed and T.T.C. When a vacancy of Headmaster arose in the school on retirement of Sri K.P. Sreedharan on 21.4.2014, the Manager appointed the petitioner, who was the senior most UPSA as Headmistress w.e.f 1.5.2014. But the AEO rejected the proposal for approval of her promotion as per Ext.P2 order dated 22.02.2015 on the ground that she did not have the requisite test qualifications under the KER and the Right of Children for Free and Compulsory Education Rules. In an appeal filed by the Manager, the DEO upheld the order of the AEO as per Ext.P3 order dated 2.12.2015 on the ground that the petitioner did not have the test qualification as on 1.5.2014 and also on the ground that appeal was submitted beyond the time limit. The Director of Public Instructions, rejected the revision petition against it, as per Ext.P7 on the ground that the petitioner had not attained the age of 50 years and she did not have the test qualification as on the date of occurrence of vacancy. It was also found that teachers, who were juniors to the petitioner, had already acquired qualification and relinquishment was not obtained from them. It was also found that though relinquishment was obtained from 2 teachers subsequently, it was with retrospective effect. It was found that yet another qualified junior was available in the school who had not relinquished his claim over the post of Headmaster. The matter was taken up in revision before the Government and in Ext.P10 order the Government found that the qualification required for promotion to the post of Headmaster was 12 years of teaching experience and pass in departmental tests and test in Kerala Education Act and Rules or else the teacher should have attained the age of 50 years. The petitioner was only aged 44 years. Though she had completed 12 years of service as on 1.5.2014, she did not have the test qualification or eligibility for exemption. It was further found that M/s. Abdurahim Valappath, who was fully qualified, and Safar Iqbal, who had passed Account Test and KER, had relinquished their claim for promotion. In the case of the 6th respondent it was found that though he had completed 12 years of service and passed Account Test, he did not have the test qualification in KER and the only person who was found qualified as on 1.5.2014, i.e Sri Abdurahim Valappath, had already relinquished his claim. Accordingly, the orders passed by the subordinate authorities were upheld.

(3.) While so the Manager, who promoted her and had been pursuing the matter before the educational authorities, issued Ext.P13 order on 02.05.2017, withdrawing the promotion granted to the petitioner as Headmistress, saying that the petitioner, who did not have test qualification, was not qualified for promotion as Headmistress as on 01.05.2014; whereas the 6th respondent, who was the next senior hand, was fully qualified as on 01.05.2014, as test in Education Act and Rules is not yet made a qualification.