Anitha A v State of Kerala and Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ``` ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 22 [ ND ] DAY OF JUNE 2022 / 1ST ASHADHA, 1944 ``` ``` WP(C) NO. 20286 OF 2022 ``` ## **`PETITIONER/S:`** ``` ANITHA A, AGED 52 YEARS WIFE OF PROF. S. JAYADEV, PRINCIPAL, VISWABHARATHI MODEL HIGHER SECONDARY SCHOOL, KAPPILMEKKU, KRISHNAPURAM, KAYAMKULAM 690 533, ALAPPUZHA DISTRICT (RESIDING AT DEVARAGAM, SOUTH MONKUZHY, P.O. PULLIKKANAKKU, (VIA) KAYAMKULAM 690 537, ALAPPUZHA DISTRICT). BY ADVS. V.A.MUHAMMED M.SAJJAD ``` ## **`RESPONDENT/S:`** ``` 1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEXE II, THIRUVANANTHAPURAM- 695 001. 2 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, THAMBAYATHIL BUILDINGS, NEAR RAILWAY STATION EDUCATION, THAMBAYATHIL BUILDINGS, NEAR RAILWAY STATION, CHENGANNUR, ALAPPUZHA DISTRICT 689 121. 3 THE DEPUTY DIRECTOR OF EDUCATION, NEAR CIVIL STATION, ALAPPUZHA 688 001. 4 THE DISTRICT EDUCATIONAL OFFICER, NEAR TALUK OFFICE, MAVELIKKARA, ALAPPUZHA DISTRICT- 690 101. ``` ``` WP(C) NO. 20286 OF 2022 ``` ``` 2 ``` ``` 5 THE MANAGER, VISWABHARATHI MODEL HIGHER SECONDARY SCHOOL, KAPPILMEKKU, KRISHNAPURAM, KAYAMKULAM 690 533, ALAPPUZHA DISTRICT. ``` ``` SMT NISHA BOSE SR GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 20286 OF 2022 ``` ``` 3 ``` ## **JUDGMENT** The petitioner states that she was appointed as High School Assistant (“HSA”) in the Viswabharathi Model Higher Secondary School, an aided school managed by the 5th respondent, with effect from 01.08.1991. While so, the school was upgraded as a Higher Secondary School during the academic year 2014-2015, and since the petitioner was qualified, she staked a claim to the post of Principal. When no action was taken, she approached this court and filed W.P.(C) No.15974/2021, and pursuant to the directions issued by this court, Exhibit P6 order was passed on 13.12.2021 by the Government. In tune with the order, the Manager granted promotion to the petitioner. Consequent thereto, Exhibit P7 proposal was forwarded by the Manager to the Regional Director, Chengannur. When no action was taken, the petitioner approached this Court and filed W.P.(C) No.14709/2022. This Court, after considering the entire facts and circumstances, disposed of the writ petition by issuing the following directions: “4. On a consideration of the submissions made across the bar and after perusing the pleadings, I am of the opinion that this writ petition can be disposed of, directing the 2nd respondent to consider and pass appropriate orders on the proposal for approval of the appointment of the petitioner as Principal as submitted by the 5th respondent, as ``` WP(C) NO. 20286 OF 2022 ``` ``` 4 ``` expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. Needless to mention that, while considering the proposal, the 2nd respondent shall appreciate the binding Government Orders as well as the judgments of this Court on the relevant issue. 5. As far as the nonpayment of salary is concerned, irrespective of whether the petitioner's appointment as Principal is approved or not, the petitioner was admittedly serving as Headmistress of the Higher Secondary School before being appointed as Principal. Necessarily, she is entitled to get her salary in the said scale. 6. Hence, there will be a direction to the 3rd and 4th respondents to disburse the salary of the petitioner in the post of Headmistress pending consideration of the approval for appointment as a Principal. The disbursement of salary as directed above shall be made within a period of three weeks from the date of receipt of a copy of this judgment.” 2. The petitioner contends that without adverting to the directions issued by this Court in Exhibit P15 judgment, the 2nd respondent had issued Exhibit P16 order rejecting the approval of the appointment of the petitioner as Principal for want of class periods. The petitioner asserts that the order passed by the 2nd respondent cannot be sustained in the light of the law laid down by this Court in **Jayaraj V.P and another v. State of Kerala and others** [2016 KHC 419] produced as Ext. P17. It is also contended that while passing Exhibit P16 order, the directions issued by this Court in Exhibit P15 were not adverted to. It is in ``` WP(C) NO. 20286 OF 2022 ``` ``` 5 ``` the above circumstances that this writ petition is filed seeking the following reliefs: “ (i) call for the records relating to Exhibit P16 and set aside the original of the same by the issue of a writ of certiorari or other appropriate writ or order. (ii) declare that the petitioner is entitled to get by transfer appointment as Principal in Viswabharathi Model Higher Secondary School, Kapppilmukku w.e.f. 01.06.2020. (iii) issue a writ of mandamus or other appropriate writ, order or direction commanding the 2nd respondent to approve the appointment of the petitioner as Principal made in the light of Exhibit P6 vide Exhibit P8 and forthwith. (iv) issue a writ of mandamus or other appropriate writ order or direction commanding the Respondents to grant pay and allowances due to the petitioner in the cadre of Head Mistress in the light of Exhibits P10 to P14 until approval to Exhibit P8.” 3. I have heard Sri. M. Sajjad, the learned counsel appearing for the petitioner and the learned Government Pleader. 4. It appears from the records that it is pursuant to the orders passed by this Court as per Exhibit P15 judgment that Exhibit P16 order was passed. The only reason stated in Exhibit P16 is that there are no sufficient class periods for the petitioner in the subject. The question is whether the said order can be sustained. ``` WP(C) NO. 20286 OF 2022 ``` ``` 6 ``` 5. This Court in **Jayaraj** (Supra) had occasion to lay down as follows: “14. A qualified Headmaster, in the absence of anybody eligible from the other feeder category, would have to be appointed, de hors the fact that the same would create an additional post in the Higher Secondary Section. GO(MS) No. 290/06/G.Edn. then would apply. When a Headmaster is promoted as Principal in the Higher Secondary section, then if there are HSST’s available for all the subjects; then the junior-most HSST in that subject would be continued as supernumerary. When the Higher Secondary Section does not have the subject of the Head Master promoted, then he shall be exempted from teaching 16 hours.” 6. In the light of the law laid down by this Court in Exhibit P17 judgment, the 2nd respondent was not justified in issuing Exhibit P16 order. Furthermore, I find that while passing the said order, the respondent did not advert to the directions issued by this Court in Exhibit P15. I also find that, in tune with the law laid down by this Court in Exhibit P17 judgment, Exhibits P18 to P22 orders have been issued by the Government holding that a qualified Headmaster would have to be appointed as Principal under the 2:1 ratio dehors the fact that HSSTs are available for all subjects. In that view of the matter, I am of the view that the petitioner is entitled to succeed. ``` WP(C) NO. 20286 OF 2022 ``` ``` 7 ``` Ext.P16 will stand quashed. There will be a direction to the 2nd respondent to reconsider the matter in the light of directions issued by this Court in Exts. P15 and P17 judgments and by following Exts. P18 to P22 Government Orders. Appropriate orders shall be passed as per procedure and in consonance with law, expeditiously, in any event, within a period of two months from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the writ petition along with the judgment before the 2nd respondent to ensure compliance. **Sd/RAJA VIJAYARAGHAVAN V JUDGE** ``` avs ``` ``` WP(C) NO. 20286 OF 2022 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 20286/2022`** ## **`PETITIONER EXHIBITS`** |`Exhibit P1`|`TRUE COPY OF THE ORDER NO. B5/17331/2020`| |---|---| ||`DATED 24.01.2021 OF THE DEO, MAVELIKKARA.`| |`Exhibit P2`|`TRUE COPY OF THE G.O(RT) NO.`| ||`2913/2021/G.EDN DATED 02.06.2021 OF THE`| ||`GOVERNMENT.`| |`Exhibit P3`|`TRUE COPY OF THE LETTER OF THE PETITIONER`| ||`ADDRESSED TO THE MANAGER DATED 21.06.2021.`| |`Exhibit P4`|`TRUE COPY OF THE G.O(RT) NO.`| ||`1992/2020/G.EDN DATED 16.06.2020 OF THE`| ||`GOVERNMENT.`| |`Exhibit P5`|`TRUE COPY OF THE JUDGMENT IN W.P.C NO.`| ||`15974/2021 DATED 09.08.2021.`| |`Exhibit P6`|`TRUE COPY OF THE G.O(RT) NO.`| ||`5829/2021/G.EDN DATED 13.12.2021 OF THE`| ||`GOVERNMENT.`| |`Exhibit P7`|`TRUE COPY OF THE LETTER OF THE MANAGER`| ||`ADDRESSED TO THE REGIONAL DIRECTOR,`| ||`CHENGANNUR DATED 21.02.2022.`| |`Exhibit P8`|`TRUE COPY OF THE APPOINTMENT ORDER OF THE`| ||`PETITIONER DATED 22.12.2021.`| |`Exhibit P9`|`TRUE COPY OF THE LETTER OF THE MANAGER`| ||`ADDRESSED TO THE RDD HSE, CHENGANNUR DATED`| ||`22.12.22021.`| |`Exhibit P10`|`TRUE COPY OF THE CIRCULAR NO.`| ||`23323/J2/89/G.EDN. DATED 06.11.1989 OF THE`| ||`GOVERNMENT.`| |`Exhibit P11`|`TRUE COPY OF THE LETTER NO.`| ||`48885/T1/2002/G.EDN DATED 10.12.2002 OF`| ||`THE GOVT.`| ``` WP(C) NO. 20286 OF 2022 ``` ``` 9 ``` |`Exhibit P12`|`TRUE COPY OF THE JUDGMENT IN W.P.C NO.`| |---|---| ||`33755/2016 DATED 07.12.2016.`| |`Exhibit P13`|`TRUE COPY OF THE JUDGMENT IN W.P(C) NO.`| ||`29427/2016 DATED 05.09.2016 DATED`| ||`05.09.2016.`| |`Exhibit P14`|`TRUE COPY OF THE JUDGMENT IN W.P(C) NO.`| ||`32084/2017 DATED 09.10.2017.`| |`Exhibit P15`|`TRUE COPY OF THE JUDGMENT IN W.P. (C) NO.`| ||`14709/2022 DATED 18.05.2022.`| |`Exhibit P16`|`TRUE COPY OF THE ORDER NO.`| ||`6443/C3/2021/RDD/CNGR DATED 06.06.2022 OF`| ||`THE 2ND RESPONDENT.`| |`Exhibit P17`|`TRUE COPY OF THE DECISION REPORTED IN 2016`| ||`KHC 419 DECIDED ON 26.02.2016.`| |`Exhibit P18`|`TRUE COPY OF THE G.O(RT) NO.`| ||`1260/2019/GEDN DATED 01.04.2019 OF THE`| ||`GOVT.`| |`Exhibit P19`|`TRUE COPY OF THE G.O(RT) NO.`| ||`5014/2019/G.EDN DATED 21.11.2019 OF THE`| ||`GOVT.`| |`Exhibit P20`|`TRUE COPY OF THE G.O(RT) NO.`| ||`2992/2021/G.EDN DATED 11.06.2021 OF THE`| ||`GOVT.`| |`Exhibit P21`|`TRUE COPY OF THE G.O(RT.) NO.`| ||`5063/2021/G.EDN DATED 10.11.2021 OF THE`| ||`GOVT.`| |`Exhibit P22`|`TRUE COPY OF THE G.O(RT) NO.`| ||`1572/2022/G.EDN. DATED 11.03.2022 OF THE`| ||`GOVT.`|