Abey Daniel v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 21ST DAY OF MAY 2018 / 31ST VAISAKHA, 1940** **WP(C).No. 13064 of 2017** ## **PETITIONER:** **ABEY DANIEL, AGED 46 YEARS, S/O.VERY RT. A.DANIEL COR EPISCOPA, HSST, ST. GREGORIOUS HIGHER SECONDARY SCHOOL, P.O.PULAMON, KOTTARAKKARA, KOLLAM DIST. 691531** **BY ADV.SRI.R.K.MURALEEDHARAN** ## **RESPONDENT(S):** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM 695001** **2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM 695001** **3. THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, CORPORATION BUILDING, PALAYAM, THIRUVANANTHAPURAM 695033** **4. THE MANAGER, MMC CORPORATE MANAGMENT SCHOOLS, CATHOLICATE ARAMANA, DEVALOKAM, KOTTAYAM, PIN 686038** **5. G. KOSHY, ST. GREGORIOUS HIGHER SECONDARY SCHOOL,** - **P.O.PULAMON, KOTTARAKARA, KOLLAM DIST. 691531** **R1 TO R3 BY GOVERNMENT PLEADER SMT. MABLE C.KURIAN R5 BY ADVS. SRI.V.A.MUHAMMED** **SRI.M.SAJJAD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-03-2018, THE COURT ON 21-05-2018 DELIVERED THE FOLLOWING:** **PBS** ## **WP(C).No. 13064 of 2017 (G)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 A TRUE COPY OF THE RELEVANT EXTRACT OF THE DRAFT SENIORITY LIST OF HIGHER SECONDARY TEACHERS FOR APPOINTMENT TO THE POST OF PRINCIPAL** **EXHIBIT P2 A TRUE COPY OF THE APPOINTMENT ORDER DATED 01.04.2008 APPOINTING THE 5TH RESPONDENT AS PRINCIPAL** - **EXHIBIT P3 A TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 08.04.2008** **EXHIBIT P4 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC.NO. 25603 AND 27462 OF 2012 DATED 10.12.2012** - **EXHIBIT P5 TRUE COPY OF THE REPLY RECEIVED UNDER THE RTI ACT DATED 04.02.2013 FROM NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS, GOVERNMENT OF INDIA** - **EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 25.03.2013 ISSUED BY THE 3RD RESPONDENT** - **EXHIBIT P7 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC.NO. 11739/2013 DATED 06.06.2016 EXHIBIT P8 TRUE COPY OF THE ORDER DATED 16.08.2016 ISSUED BY THE 3RD RESPONDENT** - **EXHIBIT P9 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC.NO. 30188/2016 DATED 08.09.2016 EXHIBIT P10 A TRUE COPY OF THE ORDER DATED 29.03.2017 ISSUED BY THE 1ST RESPONDENT** - **RESPONDENT'S EXHIBITS** - **EXHIBIT R5(A) TRUE COPY OF THE NOTICE DATED 06.03.2008 OF THE MANAGER. EXHIBIT R5(B) TRUE COPY OF THE SIGNATURE OF THE TEACHERS.** - **EXHIBIT R5(C) TRUE COPY OF THE MARK SHEET.** **EXHIBIT R5(D) TRUE COPY OF THE APPEAL FILED BEFORE THE DIRECTOR OF HIGHER SECONDARY EDUCATION DATED 05.02.2010. EXHIBIT R5(E) TRUE COPY OF THE REPRESENTATION FILED BEFORE THE MANAGER DATED 23.11.2011 WITHOUT ANNEXURE.** **WP(C).No. 13064 of 2017 (G)** **EXHIBIT R5(F) TRUE COPY OF THE LETTER OF THE MANAGER DATED 23.05.2012. EXHIBIT R5(G) TRUE COPY OF THE REPRESENTATION FILED BEFORE THE GOVERNMENT DATED 11.02.2011. EXHIBIT R5(H) TRUE COPY OF THE REPRESENTATION FILED BEFORE THE GOVERNMENT DATED 05.11.2012, WITHOUT ANNEXURE. EXHIBIT R5(I) TRUE COPY OF THE DECISION REPORTED IN 2015(1) KLT 720 EXHIBIT R5(J) TRUE COPY OF THE DECISION REPORTED IN 2007(1)KHC 1027** **/TRUE COPY/ PS TO JUDGE** **PBS 21/5/2018** ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = =** **W.P.(C).No.13064 of 2017 = = = = = = = = = = = = = = = Dated this the 21st day of May, 2018** ## **JUDGMENT** ## 1.This writ petition is filed with the following prayers:- “(i)issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P10 order dated 29.3.2017 issued by the 1[st] respondent. (ii)issue a writ of mandamus or any other appropriate writ, order or direction directing the 4[th] respondent to conduct fresh selection of Principal for St.Gregorious HSS, Kottarakkara and further direct to send the proposal to the 3[rd] respondent who will consider the proposal and to approve the same within a time frame fixed by this Hon'ble Court.” - 2.Heard the learned counsel for the petitioner and the learned Government Pleader as well as the learned counsel appearing for the 5[th] respondent. - 3.It is contended that the petitioner is working as HSST in Mathematics. He was appointed on 14.9.1998. It is stated that there was no seniority list in the school and it was only W.P.(C).No.13064/17 2 pursuant to a direction issued by this Court in W.P. (C).No.13178/2012 that a provisional seniority list as on 1.1.2012 was issued. It is stated that a vacancy of Principal arose in the school on 1.4.2008. It is stated that at the time of occurrence of vacancy, the 5[th] respondent was not entitled for appointment whereas one Chinnamma KG, who was appointed as HSA on 11.1.1987 and promoted as HSST on 14.9.1998 was eligible for appointment. But the Manager appointed the 5[th] respondent as Principal from 1.4.2008 to 31.3.2013 by Exhibit P2. It is stated that an incorrect undertaking that no other qualified teacher is available in the educational agency was also falsely given and Exhibit P2 appointment was approved. It is stated the petitioner, who was a direct appointee as HSST completed 12 years of service in 2010 and became qualified and eligible for appointment after the tenure of the appointment of the 5[th] respondent expires on 31.3.2013. 4.Petitioner, therefore, requested for conduct of a fresh selection and preferred W.P.(C).No.25603/2012 seeking W.P.(C).No.13064/17 3 conduct of a fresh selection while the 5[th] respondent filed W.P. (C).No.27462/2012 seeking the consideration of his representation for extending the period of appointment as HM till the vacancy exists. By Exhibit P4 common judgment, both the requests were directed to be considered. It is stated that the contention taken by the Manager in earlier proceedings that the school had minority status also stood disproved since Exhibit P5 reply under the RTI Act specifically revealed that the school has no such minority status. It is stated that Exhibit P6 order was issued by the 3[rd] respondent extending the period of the 5[th] respondent's appointment without considering the contentions urged by the petitioner. The same was challenged before this Court in W.P.(C).No.11739/2013. By Exhibit P7 judgment Exhibit P6 order was set aside and a reconsideration was ordered. Pursuant thereto, Exhibit P8 order was issued by the 3[rd] respondent finding that the initial selection was vitiated and directing the conduct of fresh selection. By Exhibit P9 judgment dated 8.9.2016, this Court directed the consideration of the revision filed by the 5[th] W.P.(C).No.13064/17 4 respondent against Exhibit P8 order after hearing all concerned. - 5.Thereafter, Exhibit P10 order has been passed which is under challenge. The operative portion of Exhibit P10 reads as follows:- “ On the date of occurrence of vacancy, Smt.Chinnamma K.G and Shri.G.Koshy were qualified to be appointed as Principal as per above rules. Shri.Abey Daniel was not qualified to be appointed as Principal as on that date. Smt.Chinnamma K.G. had 21 days of seniority in Higher Secondary Service than the petitioner and she was HSST (Jr) in Sanskrit. But the petitioner who secured highest score in the interview conducted by the selection committee constituted under the Rules was selected Shri.G.Koshy as Principal. Accordingly, the Manager appointed him as Principal w.e.f. 1.4.2008 to 31.3.2013 and the Regional Deputy Director, Higher Secondary Education, Thiruvananthapuram approved the appointment as such. Smt.Chinnamma K.G. retired on superannuation on 31.3.2014. The appointment was made against a substantive vacancy under the rule and hence limiting the appointment to a particular period is against the rule. While considering the appointment for approval, the then Regional Deputy Director, Higher Secondary Education, Thiruvananthapuram ought to have been pointed out the Manager the defect occurred in the appointment orders. If it had done so, the dispute regarding the post of Principal could have been avoided. The Manager of the school admitted the mistake occurred in the appointment orders ie.limiting the appointment from 1.4.2008 to 31.3.2013 and he is willing to rectify the mistake. Though he had moved papers to that effect, the rectification was not materialised. Shri.G.Koshy who was appointed as per procedure under the rules has the right to continue in the post of Principal of the school till his retirement. He cannot be punished on the fault of W.P.(C).No.13064/17 5 the Manager and the Department. Rule 9(ii) Chapter XIVA has no relevance in this case as it is related to the change of appointment of teacher. The claim of Shri.Abey Daniel can only be considered as when the petitioner retires. As per Rule 8A Chapter XIV of KER, Director is competent to revise the orders relating to approval of appointments issued by the subordinate officers. In the circumstances, the impugned order passed by the Regional Deputy Director, Higher Secondary Education, Thiruvananthapuram directing to resort fresh selection of Principal at St.Gregorious HSS, Pulamon, Kottarakkara is set aside and the Director, Higher Secondary Education, Thiruvananthapuram is directed to approve the appointment of Shri.G.Koshy as Principal of the school from 1.4.2008 onwards based on the appointment order (rectified) of the Manager as per Rule 8A Chapter XIV of KER.” 6.The direction to conduct fresh selection was therefore set aside and the appointment of the 5[th] respondent as Principal was directed to be approved till the vacancy exists. - 7.Learned counsel for the petitioner contends that a glance at Exhibit P1 provisional seniority list prepared by the Manger itself would show that Chinnama K.G., who was appointed as HSST (Sanskrit) on 14.9.1998 and who had prior service as HSA on 11.1.1984 was fully qualified for appointment as Principal as on the date when the 5[th] respondent was appointed. It is, therefore, contended that the appointment of W.P.(C).No.13064/17 6 the 5[th] respondent in the first instance was illegal and unsustainable and the findings in Exhibit P10 to the contrary are absolutely baseless and vitiated. It is stated that it was on the specific contention raised by the Manager that the school had minority status that Smt.K.G.Chinnamma did not challenge the 5[th] respondent's appointment at the relevant time. It is stated that even in Exhibit P7 judgment, the contention with regard to minority status has been referred to and the 1[st] respondent was specifically directed to consider the said claim. It is contended that the said claim of the Manager was completely baseless and was a mischievous claim made to mislead this Court as well as the statutory authorites and the Government to obtain an undue advantage. It is contended that on the selection being found to be vitiated, the only course open to the respondents would be to direct the conduct of a fresh selection in accordance with rules, in which case, the petitioner would be the senior most qualified hand and would be eligible for appointment, since the school does not have minority status. W.P.(C).No.13064/17 7 - 8.The learned counsel for the petitioner relies on decisions reported in **Valsala Kumari Devi v. Director, Higher Secondary Education** [2007 4 KLT 494] to contend that the senior qualified hand would be entitled for appointment as Principal and the 5[th] respondent's selection was therefore vitated. The decision in **Babu v. KSEB** [2010(1) KLT 435] is relied on to contend that clear instances of false representation and fraud would initiate the entire selection process of the 5[th] respondent, since it was only on a misrepresentation with regard to minority status that the 5[th] respondent's appointment went unchallenged. - 9.A counter affidavit has been filed by the 5[th] respondent contending as follows:- - “ Though the petitioner commenced service from 14.09.1998 in the Higher Secondary level he was not having 12 years experience as on the date of occurrence of vacancy of Principal on 01.04.2008. Though the Selection Committee recommended this Respondent as Principal from 01.04.2008 W.P.(C).No.13064/17 8 onwards, the Manager without any basis limited the appointment up to 31.03.2013. The said confinement was artificial, without any Rule. Against the said limitation of appointment this Respondent has filed Appeal before the Director of Higher Secondary Education. I had approached the Manager as well, requesting for modifying the order of appointment, deleting the limitation in appointment order with a request to take up the matter to Regional Deputy Director. Thereupon the Manager vide letter dated 23.05.2012 requested the Regional Deputy Director of Education to grant approval of appointment of this Respondent from 01.04.2008 onwards without any reservation. This Respondent also filed W.P.(C) No. 27462/2012 seeking to approval without any reservation. The petitioner herein also filed W.P.(C) No. 25603/2012 contending that he is senior to this Respondent and disregarding that aspect this Respondent was appointed. By Ext. P4 Judgement this Hon'ble Court has directed the Regional Deputy Director Education to consider the matter and issue orders. Consequently vide Exhibit P6 it was ordered to extend the approval of this Respondent. It is challenged by the Petitioner in Exhibit P7 judgement. This Hon'ble Court vide Exhibit P7 judgement quashed Exhibit P6 and directed the Regional Deputy Director of Education to reconsider the issue. Thereupon the Regional Director of Education has issued Exhibit P8 order with a specific finding that limiting approval to W.P.(C).No.13064/17 9 the appointment upto 5 years was not legal. It was also found that as the appointment was made to substantive vacancy under the act of statute, it cannot be an appointment of contract or appointment fixed for limited period. It also found that permitting the Manager to make appointment to retirement vacancy for a fixed period is giving arbitrary power to the Management in making appointment which will lead to arbitrariness and illegality. Still the Regional Deputy Director ordered to make fresh selection of Principal. The above order was challenged by this Respondent before the Government and for time bound consideration of the same W.P.(C) No. 30188/2016 was moved. Thereupon the Government vide Exhibit P10 ordered that as on 01.04.2008, the date of occurrence of vacancy, Petitioner was not qualified and this Respondent was qualified and accordingly this Respondent was appointed as Principal. It is also found that by mistake Manager has sought for approval up to 31.03.2013 and later Manager sought for correction of the said mistake. It also found that Petitioner's claim can be considered only when this Respondent retires. Accordingly the Government have directed the Director to approve the appointment of this Respondent from 01.04.2008 onwards vide Exhibit P10. This order is legal and valid. The criteria for promotion as Principal would be the qualification as on the date of occurrence of vacancy. In the W.P.(C).No.13064/17 10 decision reported in **John Kuriakose Vs. State of Kerala** reported in 2015 (1) KLT 236 the Division Bench of this Hon'ble Court has held that appointment to the substantive vacancy under the act and statute cannot be appointment on any contract for any particular period. There is no legality in the impugned order.” 10.It is argued by the learned counsel appearing for the 5[th] respondent that there is no challenge to the 5[th] respondent's selection and Smt.Chinnamma had never thought it fit to challenge the appointment of the 5[th] respondent. It is contended that vacancy of Principal which arose on 1.4.2008 had been filled up by appointing the 5[th] respondent and no vacancy arose after the petitioner became fully qualified. It is contended that no vacancy of Principal having arisen after the petitioner became qualified, the petitioner can have no claim for appointment. The learned counsel for the 5[th] respondent placed reliance on decisions reported in **John Kuriakose v. State of Kerala** [2015 (1 )KLT 720] and **the Manager, Karimpuzha HSS v. State of Kerala and** W.P.(C).No.13064/17 11 **others** [2007(1) KHC 1027] to contend that appointment of Principal as a regular basis cannot be limited as a time bound appointment by the Manager. 11.I have considered the contentions advanced. The specific case of the petitioner is that the 5[th] respondent's selection and appointment in 2008 was vitiated because there was a senior qualified hand available as on that date for appointment. It is pertinent to note that Smt.K.G.Chinnamma, who was the senior most hand as pointed out by the petitioner, has not chosen to approach this Court or any of the Educational Authorities challenging the appointment of the 5[th] respondent at the relevant time. The 5[th] respondent was also qualified for appointment as on 1.4.2008. The petitioner was not qualified as on the said date. The mere fact that the Manager had restricted the appointment of the 5[th] respondent till 31.3.2013 cannot be a reason for the petitioner to contend that a vacancy would W.P.(C).No.13064/17 12 arise on 1.4.2013 requiring a fresh selection to be conducted. As a matter of fact, no such vacancy had arisen because the appointment to the post of Principal could have been made by the Manager only on regular basis and without the time limit as specified in the appointment order as also the order of approval. 12.The suspicious acts of the Manager in raising a claim that the school has a minority status when, as a matter of fact, no such status had been conferred on the school as also seeking to limit a regular appointment as a time bound one cannot be a reason for denying the benefits of an appointment for which the 5[th] respondent was fully qualified as on the date of such appointment. The petitioner's contention that a fresh selection is liable to be conducted for appointment to the post of Principal as on 1.4.2013 cannot be accepted in the facts and circumstances of this case. The mistakes contained in the impugned order with regard to the qualifications and W.P.(C).No.13064/17 13 experience of K.G.Chinnamma cannot be a reason for holding that the finding to the effect the 5[th] respondent is entitled to continue is in any way vitiated or unsustainable. I am of the opinion that since no vacancy arose after 1.4.2008 for considering the claim of the petitioner for promotion and since the petitioner was not qualified as on the date of appointment for appointment of the 5[th] respondent as Principal, the reliefs claimed in the writ petition cannot be granted. The writ petition fails and is accordingly dismissed. Sd/- **Anu Sivaraman, Judge** sj