Corporate Manager of Schools, Diocese of Kanjirappally, Pastoral Centre, Kanjirappally v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH** **FRIDAY, THE 16TH DAY OF MARCH 2012/26TH PHALGUNA 1933** **WP(C).No. 3631 of 2012 (D) -------------------------------------** ## **PETITIONER** ## **------------------** **THE CORPORATE MANAGER OF SCHOOLS, DIOCESE OF KANJIRAPALLY, PASTORAL CENTRE, KANJIRAPALLY - 686 507.** **BY ADVS.SRI.ABRAHAM VAKKANAL (SR.) SRI.PAUL ABRAHAM VAKKANAL SRI.DIJO SEBASTIAN SMT.VINEETHA SUSAN THOMAS** ## **RESPONDENTS** ## **----------------------** **1. STATE OF KERALA REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM - 695 014.** **3. THE DISTRICT EDUCATION OFFICER, KANJIRAPALLY, PONKUNNAM.P.O, PIN- 686 506.** **4. JOY ABRAHAM,** - **HIGH SCHOOL ASSISTANT, (SOCIAL SCIENCE) ST. THOMAS HIGH SCHOOL, ERUMELY, ERUMELY.P.O KOTTAYAM DISTRICT - 686 509.** **BY ADV. SRI.R.K.MURALEEDHARAN BY GOVERNMENT PLEADER SRI.LIJU STEPHEN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16-03-2012, ALONG WITH W.P.C.NO.3207/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MG** ## **WP(C).No. 3631 of 2012 (D)** ## **-------------------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** |**EXT.P1:-**|**COPY OF THE APPROVAL ORDER NO.ET3/46957/08/DPI.**| |---|---| |**EXT.P1(A):-**|**COPY OF THE CERTIFICATE ISSUED BY THE NATIONAL COMMISSION**| ||**FOR MINORITY EDUCATIONAL INSTITUTIONS.**| |**EXT.P2:-**|**COPY OF THE REVISION PETITION FILED BY THE 4TH RESPONDENT**| ||**BEFORE THE 2ND RESPONDENT.**| |**EXT.P2(A):-**|**COPY OF THE ORDER OF THE 2ND RESPONDENT.**| |**EXT.P3:-**|**COPY OF THE CIRCULAR INVITING APPLICATIONS.**| |**EXT.P3(A):-**|**COPY OF THE CRITERIA FOR SELECTION.**| |**EXT.P4:-**|**COPY OF THE RANK LIST.**| |**EXT.P5:-**|**COPY OF HE SHOW CAUSE NOTICE.**| |**EXT.P6:-**|**COPY OF THE REPLY TO THE 2ND RESPONDENT.**| |**EXT.P7:-**|**COPY OF THE HEARING NOTE.**| |**EXT.P8:-**|**COPY OF THE ORDER.**| |**EXT.P9:-**|**COPY OF THE REVISION PETITION.**| |**EXT.P10:-**|**COPY OF THE JUDGEMENT IN W.P.(C) NO.32051/2011(F)**| |**EXT.P11:-**|**COPY OF THE HEARING NOTE.**| |**EXT.P12:-**|**COPY OF THE GOVERNMENT ORDER G.O.(RT)NO.573/2012/G.EDN.**| |**EXT.P13:-**|**COPY OF THE COMPLAINT FROM THE PARENT .**| |**EXT.P14:-**|**COPY OF THE COMPLAINT FROM THE PARENTS OF THE STUDENTS.**| |**EXT.P15:-**|**COPY OF THE COMPLAINT FROM A TEACHER OF ST.GEOGE LOWER**| ||**PRIMARY SCHOOL, THULAPPALLY (UNDER SAME MANAGEMENT).**| |**EXT.P16:-**|**COPY OF THE REPORT FROM THE HM OF ST.MARY'S HS, UMIKUPPA TO**| ||**THE MANAGER.**| |**EXT.P17:-**|**COPY OF THE CERTIFICATE FROM THE SECRETARY OF RANNI-PERUNAD**| ||**PANCHAYATH.**| |**EXT.P17(A):-**|**COPY OF THE ORDER.**| **MG** **(CONTD.....)** ## **-2-** **WP(C).No. 3631 of 2012 (D)** **------------------------------------EXT.P18:COPY OF THE REPLY FROM THE HEADMASTER TO THE CORPORATE MANAGER. EXT.P19:COPY OF THE LETTER FROM THE PARENTS TEACHERS ASSOCIATION PRESIDENT.** **EXT.P19(A):COPY OF THE LETTER. EXT.P20:COPY OFD THE STATEMENT FROM SHRI.BIJU DOMINIC. EXT.P21:COPY OF THE RELEVANT PAGE OF 4TH RESPONDENT SERVICE BOOK SHOWING THE LEAVE SANCTIONED.** **EXT.P21(A):COPY OF THE RELEVANT PAGE OF 4TH RESPONDENT SERVICE BOOK SHOWING THE LEAVE SANCTIONED.** **EXT.P21(B):COPY OF THE RELEVANT PAGE OF 4TH RESPONDENT SERVICE BOOK SHOWING THE LEAVE SANCTIONED.** **EXT.P22:COPY OF THE RELEVANT PAGE OF SMT.DOLLY JOSEPH SERVICE BOOK SHOWING THE LEAVE SANCTIONED.** ## **RESPONDENT'S EXHIBITS:** **EXT.R4(A):COPY OF THE CERTIFICATE ISSUED BY THE HEADMASTER ST.THOMAS HSS ERUMELI DATED 17.02.2012. EXT.R4(B):COPY OF THE COMPLAINT FILED BY SUJATHA PRASANNA BABU DATED 07.03.2011.** **EXT.R4(C):COPY OF THE REPRESENTATION SUBMITTED BY ARANYA V.RAJEEV. EXTR4(D):COPY F THE REPRESENTATION SUBMITTED BY AMITHA P BABU. EXTR4(E):COPY OF THE REPRESENTATION SUBMITTED BY ANUJA DEVADAS.** **EXT.R4(F):COPY OF THE LETTER DATED 18.02.2012 BY THE HEADMISTRESS ST.GEOGE'S LPS THULAPALLY.** **EXT.R4(G):COPY OF THE LICENSE ISSUED TO SRI.BIJU DOMIKNIC FOR THE YEAR 2006-2007 BY RANNI-PERUNAD GRAMA PANCHAYATH DATED 02.12.2006.** **EXT.R4(H):COPY OF THE LICENSE ISSUED IN FAVOUR OF SRI.TOMY SEBASTIAN FOR THE YEAR 2007-08 BY RANNI-PERUNAD GRAMA PANCHAYATH DATED 06.12.2007.** **EXT.R4(I):COPY OF THE LICENSE ISSUED TO JOSEPH THOMAS THURUTHIYIL FOR THE YEAR 2008-09.** ## **MG** **(CONTD.......)** **-3-** ## **WP(C).No. 3631 of 2012 (D)** **------------------------------------EXT.R4(J):COPY OF THE LICENSE ISSUED TO JOSEPH THOMAS THURUTHIYIL FOR THE YEAR 2010-11. EXT.R4(K):COPY OF THE LICENSE ISSUED BY RANNI-PERUNAD GRAMA PANCHAYATH IN FAVOUR OF JOSEPH MATHEW DATED 29.11.11. EXT.R4(L):COPY OF THE CERTIFICATE OF RECOGNITION DATED 05.08.2006. EXT,R4(M):COPY OF THE CERTIFICATE OF RECGNITION DATED 12.06.2010 IN SOCIAL SCIENCE SUBJECT. EXT.R4(N):COPY OF THE CERTIFICATE OF RECOGNITION DATED 12.06.2010 IN SOCIAL SCIENCE SUBJECT. EXT.R4(O):COPY OF THE COMPLAINT BY THANKACHAN GEORGE TO 2ND RESPONDENT DATED 27.02.2011. EXT.R4(P):COPY OF THE LIST OF STAFF IN ST.THOMAS HSS ERUMELI FOR THE YEAR 2011-12 SHOWING THEIR NAMES AND THE 1% LEVY. //TRUE COPY// PA TO JUDGE** **MG** ## **C.N. RAMACHANDRAN NAIR & BABU MATHEW P. JOSEPH, JJ.** -----------------------------------------------------------W.P.(C). Nos. 3631 & 3207 of 2012 ------------------------------------------------------------Dated this the 16[th] day of March, 2012 ## **JUDGMENT** ## Ramachandran Nair, J. Since the issue raised is one and the same in these two Writ Petitions, one filed by the Management and other by a senior teacher claiming the post of Head Master, both cases are heard together and we proceed to dispose of the same by this common judgment. Parties referred in this judgment are as arrayed in W.P.(C) No.3631 of 2012, which is filed by the management challenging Exts.P8 and P12 orders issued by the Director of Public Instructions and the State Government respectively directing the petitioner to appoint the 4[th] respondent as Head Master of the High School. 2. The 4[th] respondent has filed the connected Writ Petition for a direction from this Court to the petitioner in W.P.(C) No.3631 [W.P.(C) Nos.3631 & 3207/2012] 2 of 2012 to implement the orders of the D.P.I. and the Government which is challenged in the Writ Petition filed by the management. 3. Admittedly, the petitioner has large number of schools in the corporate management wherein the 4[th] respondent is one of the senior most High School teachers with 30 years service. The 4[th] respondent being a member of the minority community, which runs the corporate management schools, was eligible to be considered for the post of Head Master. When the teachers junior to 4[th] respondent were being posted as Head Masters, he approached the Director of Public Instructions with a complaint, which was disposed of by him stating that the management should adopt a fair procedure for selection wherein the 4[th] respondent should be considered. According to the management, they agreed to this instruction of the D.P.I. and, therefore, conducted written examination and interview for appointment as Head Masters in the schools for the academic year 2010-2011. Ext.P4 rank list shows the marks obtained by 18 teachers who have experience ranging from 18 years to 30 years. In the rank list, the 4[th] respondent is placed No.10 and as of now only five persons have been appointed from the said list as Head Masters, [W.P.(C) Nos.3631 & 3207/2012] 3 who are all admittedly above the 4[th] respondent. The management's case is that the orders issued by the D.P.I. and Government directing them to appoint 4[th] respondent as Head Master are unsustainable and are not supported by any Rule in the K.E.R. and hence they have challenged the same in the Writ Petition. However, 4[th] respondent's case is that the examination itself conducted by the management is unreliable and he should be promoted. 4. The first dispute raised by Adv.Mr.Muraleedharan, appearing for the 4[th] respondent, is that in the examination conducted by the management, they have shown favours to their favourites and given marks accordingly. According to him, there is no transparency in the examination and therefore the results produced vide Ext.P4 are unreliable. 5. Further contention raised is that out of 130 marks, only 50 marks are for theory and 50 marks provided for interview, while upto 30 marks are for service which is awarded at the rate of one mark for each completed year of service as H.S.A. So far as apportionment of marks is concerned, we feel provision for 50 marks out of 130 for interview offer scope for favoritism and arbitrariness and the same is opposed to various decisions of the [W.P.(C) Nos.3631 & 3207/2012] 4 Supreme Court particularly in the decision reported in **Ajay Hasia** v. **Khauid Mujib Sehravardi** [(1981 AIR (SC) 487]. However, Senior Counsel Shri. Abraham Vakkanal appearing for petitioner, flatly refused the allegation and submitted that after participating in the selection process, the 4[th] respondent has no right to contest the same particularly after publication of the result wherein he figures as No.10 in the rank list. Since 50 marks for interview provides scope for favouritism, we straightaway excluded the same from the total marks and then checked the marks obtained by the candidates by clubbing the theory marks with the marks for experience. In this process, what we notice is that the 4[th] respondent with rank No.10 only goes upto the position of 6[th] and so much so, his turn has not reached for promotion as Head Master. When we adopted this method to find out arbitrariness or favoritism in the examination or selection process, Adv.Muraleedharan contended that even the theory examination itself is not conducted in a transparent manner. This allegation does not stand proved with the pattern of marks awarded to candidates who have got very high percentage of marks in the interview. For example, the third in the rank list who got 76% in interview, got only 34% in the theory [W.P.(C) Nos.3631 & 3207/2012] 5 examination. Similarly, the 4[th] in the rank list who got 72 marks in the interview, got only 48% in the theory examination. Assuming that these candidates who got higher percentage of marks in interview are favoured ones, we see no reason why they were given low marks in theory examination, if the management indulged in malpractice in the award of marks for theory examination. We are, therefore, not satisfied with the allegations of manipulations in the written examination. Above all, what we notice is that two other teachers with 30 years experience are ranked only 15 and 16 on account of very poor marks obtained by them in theory as well as interview. 6. In view of our findings and observations above, we do not find any favoritism by the management in declining Head Master post to the 4[th] respondent. Even though Senior Counsel appearing for the petitioner pointed out certain allegations against 4[th] respondent which goes against his claim as eligible teacher for promotion as Head Master, we have not reckoned such allegations while deciding these cases. Further, the exclusion of marks for interview was done by us only to verify and find out whether 4[th] respondent will get a scorning much above others so that the legality of provision for high marks for interview could be [W.P.(C) Nos.3631 & 3207/2012] 6 considered. So much so, this judgment should not be treated as holding the position that provision for 50 marks for interview is illegal or arbitrary. However, we leave this issue open to be challenged, if anybody has got any grievance. Since we have already found that in the selection procedure 4[th] respondent is not discriminated against, Ext.P8 order issued by the D.P.I. and Ext.P12 order issued by the Government challenged in W.P.(C) No.3631 of 2012 have to be interfered with. Accordingly, we allow this Writ Petition by vacating the said orders. Consequently, W.P.(C) No.3207 of 2012, filed by 4th respondent, fails and is dismissed. ## **Sd/-** ## **C.N. RAMACHANDRAN NAIR, JUDGE** Sd/- **BABU MATHEW P. JOSEPH, JUDGE.** krs.