A. Mohammed Sabir Sahib v. T. A. Ashraf Kunju Assan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **MONDAY, THE 15TH DAY OF MARCH 2021 / 24TH PHALGUNA, 1942** ## **WA.No.2373 OF 2019** **AGAINST THE JUDGMENT DATED 24.10.2019 IN WP(C) 7835/2016(D) OF HIGH COURT OF KERALA** ## **APPELLANT/5th RESPONDENT:** **A.MOHAMMED SABIR SAHIB, AGED 41 YEARS HIGHER SECONDARY SCHOOL TEACHER (PHYSICS), LAJNATHUL MUHAMMADIYA HIGHER SECNDARY SCHOOL, LAJNATH WARD, ALAPPUZHA.** **BY ADV. DR.GEORGE ABRAHAM** ## **RESPONDENTS:** **1 T.A.ASHRAF KUNJU ASSAN, AGED 43 YEARS S/O ABOOBACKER KUNJU ASSAN, PRINCIPAL, LAJNATHUL MUHAMMADIYA HIGHER SECONDARY SCHOOL, ALAPPUZHA - 688 001. 2 THE STATE OF KERALA, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 3 THE REGIONAL DIRECTOR OF HIGHER SECONDARY EDUCATION, CIVIL STATION, KOTTAYAM - 686 001. 4 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, CHENGANNUR CHENGANNUR, ALAPPUZHA DISTRICT - 689 121. 5 THE MANAGER, LAJNATHUL MUHAMMADIYA HIGHER SECNDARY SCHOOL, LAJNATH WARD, ALAPPUZHA - 688 001. R1 BY ADV. SRI.V.A.MUHAMMED BY ADV.SMT.P.A.JENZIA R1 BY ADV. SRI.V.RAJASEKHARAN NAIR BY SR. GOVT.PLEADER SRI.A.J VARGHESE,** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10-03-2021, THE COURT ON 15-03-2021 DELIVERED THE FOLLOWING:** :2: W.A.No.2373 of 2019 ## **JUDGMENT** ## **A.K.Jayasankaran Nambiar, J.** The 5[th] respondent in W.P(C).No.7835 of 2016 is the appellant before us, aggrieved by the judgment dated 24.10.2019 of the learned Single Judge in the Writ Petition. The brief facts necessary for a disposal of the Writ Appeal are as follows: 2. The writ petitioner, who had approved service as a High School Assistant from 17.11.1994, and was promoted as Headmaster in the High School with effect from 01.04.2013, had sought appointment as Principal of the Higher Secondary School under the same educational agency relying on the provisions of Rule 4 (1) (2) of Chapter XXXII of the KER. As per the said Rule, the appointment to the post of Principal can be made either by promotion from among HSSTs under the respective educational agency or by transfer from qualified Headmasters of Aided High Schools under the respective educational agency. Through Note III to the said Rule, it is made clear that the post shall be filled up by the methods specified above in the ratio 2:1 and if qualified candidates are not available for appointment to a vacancy by :3: W.A.No.2373 of 2019 any one of the methods specified above, such vacancies shall be filled up by the other method. The writ petitioner was appointed as Principal of the Higher Secondary School, but when the appointment was sent to the Regional Deputy Director for approval, the same was rejected by Ext.P4 order, on the ground that the appointment of the writ petitioner would require the creation of an independent post of Principal, which in turn would lead to huge financial commitments to the Government. The writ petitioner, therefore, carried the matter in revision before the Government, and pursuant to a direction from this Court in W.P(C).No.32557 of 2015, the Government proceeded to pass Ext.P9 order dated 19.02.2016, after hearing both the writ petitioner and the appellant herein. In Ext.P9 order, the Government found, by relying on Rules 1, 4 and 6 of Chapter XXXII of the KER, that although the writ petitioner was qualified to be appointed as Principal of the Higher Secondary School, the person to be promoted as Principal by transfer from qualified Headmasters was required to teach 16 periods per week, and therefore, it was apparent that in addition to taking care of the administrative matters in the school, a Principal had also to take class for 16 periods per week depending upon the category of post they held at the time of promotion as Principal. The Government, in other words, assumed that the writ petitioner's appointment could only be seen as by way of promotion from HSST, and when so viewed, the writ petitioner :4: W.A.No.2373 of 2019 had to possess the qualification required of an HSST in the subject, which the previous incumbent to the post was qualified to teach. Finding that the vacancy arose to the post of Principal consequent to the retirement of Smt.S.Saleena who was a HSST (Malayalam), it was found that the vacancy had to be filled by an HSST in the subject Malayalam, and inasmuch as the writ petitioner was not qualified as an HSST (Malayalam), he could not aspire for an appointment as a Principal in the Higher Secondary School. The Revision Petition preferred by the writ petitioner was dismissed on the said findings. It is the said order of the Government that was impugned by the writ petitioner in the Writ Petition, wherein counter affidavits were filed on behalf of the appellant herein as also the Government. 3. The learned Single Judge, who considered the matter relied on a decision of a Division Bench of this Court in **Thomas v. State of Kerala [2013 (4) KLT 257]** to find that the appointment of a Headmaster promoted as Principal in the Higher Secondary School was liable to be approved even if it required the creation of a supernumerary post and a retention of the junior most HSST teaching the subject concerned, in the said post. It was found that the approval to the appointment of the writ petitioner could not have been declined for the reason that huge financial commitments had to be incurred by :5: W.A.No.2373 of 2019 the Government in retaining an incumbent in a supernumerary post. The contention raised by the respondents regarding the manner in which the ratio of 2:1 had to be applied while filling up the post of Principal was also rejected by holding that the ratio of 2:1 had to be applied to arising vacancies and not to the cadre strength in the post of Principal, especially in view of the fact that the provisions of the KS & SSR were not applicable to the appointments made under Chapter XXXII of the KER. A consequential direction was therefore issued to the respondents to approve the appointment of the writ petitioner as Principal in the Higher Secondary School with effect from 01.06.2015. 4. In the appeal before us, it is the contention of the learned counsel Dr.George Abraham, appearing on behalf of the appellant that the writ petitioner could not, at any rate, have been appointed as a Principal by virtue of his being a qualified Headmaster of an Aided High School under the educational agency concerned. It is pointed out that the vacancy to which the writ petitioner was appointed was in fact the 5[th] vacancy that arose after the post of Principal had been formally sanctioned in the Higher Secondary School in question. It is contended, therefore, that to the 5[th] vacancy arising in the post of Principal in the Higher Secondary School, the appellant had a better claim for :6: W.A.No.2373 of 2019 appointment by applying the ratio prescribed in Note III to Rule 4 (1) of Chapter XXXII of the KER. 5. On a consideration of the submissions made by the learned counsel Dr. George Abraham and Smt.P.A.Jenzia, appearing on behalf of the writ petitioner as also the learned Government Pleader appearing on behalf of the official respondents of the State, we are of the view that the rejection of approval to the appointment of the writ petitioner as Principal of the Higher Secondary School was for reasons other than what has been urged before us in the Writ Appeal preferred by the 5[th] respondent in the Writ Petition. As already noted, the reasons given in Ext.P9 order for rejecting the approval to the appointment of the writ petitioner as Principal of the Higher Secondary School was that he did not possess the qualification required of an HSST Malayalam for being appointed to the said post. The said finding was obviously rendered on the assumption that although the writ petitioner, who was a qualified Headmaster of an Aided High School under the Educational Agency, had the necessary qualification prescribed by the statutory rules, for being appointed as Principal of the Higher Secondary School, he had nevertheless to also possess the qualifications required of an HSST in the subject concerned. Inasmuch as the retiring Principal was an HSST in Malayalam, the finding of the Government in Ext.P9 order was that :7: W.A.No.2373 of 2019 the writ petitioner too had to have the qualifications applicable for an HSST Malayalam to be appointed in the post. As rightly found by the learned Single Judge, the said issue is covered in favour of the writ petitioner by the judgment of a Division Bench of this Court in **Thomas v. State of Kerala [2013 (4) KLT 257]** . The further ground raised by the appellant in this Writ appeal as regards the vacancy to which the writ petitioner was appointed as Principal, not having been raised as an issue before the educational authorities in the proceedings leading up to Ext.P9 order that was impugned in the Writ Petition, the principles of fairness would require us not to address the said issue in the Writ Appeal, more so when it was not a contention raised before the learned Single Judge either. That apart, we also find that the appellant did not independently challenge the findings against him in Ext.P9 order of the Government which rejected the approval to the appointment of the writ petitioner as Principal of the Higher Secondary School. It is also significant that the Government has also not chosen to prefer any Writ Appeal against the judgment of the learned Single Judge, which directs approval to be granted to the appointment of the writ petitioner. If, in fact, it is the intention of the Government to prescribe the additional requirements, as indicated in Ext.P9 Government Order, as prerequisites for the appointment of a Headmaster of an aided school as :8: W.A.No.2373 of 2019 Principal of a Higher Secondary School, then it is for them to amend the rules suitably to incorporate such provisions therein. As things presently stand, we do not deem it necessary to interfere with the findings of the learned Single Judge in the Writ Petition. The Writ Appeal, therefore, fails and is accordingly dismissed. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** Sd/- **GOPINATH P. JUDGE** mns/15.03.2021