Dileep R v. State of Kerala & Others (Writ Appeal Nos. 511 of 2021 & 556 of 2021)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 11[TH] DAY OF NOVEMBER 2022 / 20TH KARTHIKA,** ## **1944** **WA NO. 511 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 17796/2020 OF HIGH COURT OF** ## **KERALA** ## **APPELLANT/PETITIONER:** **DILEEP R, AGED 50 YEARS** **PRINCIPAL-IN-CHARGE, HSST (MATHEMATICS), NETAJI HIGHER SECONDARY SCHOOL, PRAMADOM, MALLASSERY P.O., PATHANAMTHITTA.** ## **BY ADV GEORGE ABRAHAM** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, G.P.O., THIRUVANANTHAPURAM-695001.** - **2 DIRECTOR OF GENERAL EDUCATION, HIGHER SECONDARY WING, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM-695001.** - **3 REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, CHENGANNUR-689121.** - **4 MANAGER, NETAJI HIGHER SECONDARY SCHOOL, PRAMADOM, MALLASSERY P.O., PATHANAMTHITTA-689646.** Writ Appeal Nos.511 & 556 of 2021 **==> picture [33 x 8] intentionally omitted <==** - **5 K.JAYAKUMAR,** **HEADMASTER, NETAJI HIGHER SECONDARY SCHOOL, PRAMADOM, MALLASSERY P.O., PATHANAMTHITTA689646.** **BY SRI.V.A.MUHAMMED BY SR.GP SRI.A.J.VARGHESE** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11.11.2022, ALONG WITH WA.556/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Writ Appeal Nos.511 & 556 of 2021 - : 3 :- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 11[TH] DAY OF NOVEMBER 2022 / 20TH KARTHIKA,** ## **1944** **WA NO. 556 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 24186/2020 OF HIGH COURT OF** ## **KERALA** ## **APPELLANT/NOT A PARTY IN WPC:** **DILEEP R, AGED 50 YEARS PRINCIPAL-IN-CHARGE, HSST (MATHEMATICS), NETAJI HIGHER SECONDARY SCHOOL, PRAMADOM, MALLASSERY P.O., PATHANAMTHITTA.** ## **BY ADV GEORGE ABRAHAM** ## **RESPONDENTS/PETITIONER & RESPONDENTS IN WPC:** - **1 K.JAYAKUMAR, AGED 54 YEARS, S/O.O.N.KRISHNA KURUP, PRINCIPAL-IN-CHARGE, NETAJI HSS, PRAMADOM, P.O. MALLASSERY , PATHANAMTHITTA DISTRICT-689646.** **2 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, ANNEX-II, THIRUVANANTHAPURAM-695001.** - **3 THE DIRECTOR OF GENERAL EDUCATION, HIGHER SECONDARY WING, SANTHI NAGAR, THIRUVANANTHAPURAM-695001.** Writ Appeal Nos.511 & 556 of 2021 - : 4 :- - **4 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, CHENGANNUR, ALAPPUZHA DISTRICT-689121.** - **5 THE MANAGER, NETAJI HIGHER SECONDARY SCHOOL, PRAMADOM, P.O. MALLASSERY, PATHANAMTHITTA DISTRICT-689646.** **BY SRI.V.A.MUHAMMED BY SR.GP SRI.A.J.VARGHESE** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON** **11.11.2022, ALONG WITH WA.511/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Writ Appeal Nos.511 & 556 of 2021 - : 5 :- **P.B.SURESH KUMAR & C.S.SUDHA, JJ. ----------------------------------------------Writ Appeal Nos.511 & 556 of 2021 ----------------------------------------------Dated this the 11[th] day of November, 2022.** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** Among these appeals, W.A.No.511 of 2021 is directed against the judgment in W.P.(C) No.17796 of 2020 and W.A.No.556 of 2021 is directed against the judgment in W.P.(C) No.24186 of 2020. 2. As the writ petitions were disposed of by a common judgment, the appeals are also disposed of by this common judgment. Parties and documents are referred to in this judgment for convenience, as they appear in W.P.(C) No.17796 of 2020 from which W.A.No.511 of 2021 arises. 3. The petitioner is the seniormost Higher Secondary School Teacher working in Netaji Higher Secondary School, Pramadom (the School). He was promoted as Higher Secondary School Teacher from the category of High School Teacher with effect from 24.01.2018. The petitioner being the Writ Appeal Nos.511 & 556 of 2021 - : 6 :- seniormost Higher Secondary School Teacher, he was put in charge of the Principal of the School and the said charge arrangement was approved by the competent authority. 4. While the petitioner was working as the Principalin-charge of the School, the fifth respondent who was senior to the petitioner in the category of High School Teacher, and who has relinquished the claim for appointment as Higher Secondary School Teacher by promotion earlier, became the Headmaster of the High School. On being appointed as the Headmaster of the High School, the fifth respondent staked a claim for appointment as the Principal of the School. The said claim of the fifth respondent was turned down by the Government in terms of Ext.P6 order mainly on the ground that there is no workload for the subject of the fifth respondent in the Higher Secondary section of the School. Although the claim aforesaid of the fifth respondent was turned down, in terms of Ext.P6 order, the Government directed the competent authority to appoint the fifth respondent as the Principal-incharge of the School. The writ petition was filed by the petitioner aggrieved by Ext.P6 order to the extent it directs the competent authority to appoint the fifth respondent as the Writ Appeal Nos.511 & 556 of 2021 - : 7 :- ## Principal-in-charge of the School. 5. In the meanwhile, the fifth respondent also challenged Ext.P6 order on the ground that in the light of the decision of this Court in **Jayaraj v. State of Kerala** , 2016 (2) KLT 200, he is entitled to be appointed as the Principal of the School. 6. The learned Single Judge who considered the writ petitions together, took the view that in the light of the decision of this Court in **Jayaraj,** the fifth respondent is entitled to be appointed as the Principal of the School. Consequently, the learned Single Judge set aside Ext.P6 order and directed the Manager of the School to appoint the fifth respondent as the Principal of the School. The petitioner is aggrieved by the said decision of the learned Single Judge and hence, these appeals. 7. Heard the learned counsel for the petitioner, the learned counsel for the fifth respondent as also the learned Government Pleader. 8. The learned counsel for the petitioner contended that the post of Principal has so far not been sanctioned by the Government for the School and in the Writ Appeal Nos.511 & 556 of 2021 - : 8 :- absence of a sanctioned post, the learned Single Judge was not justified in rendering the impugned judgment. It was further argued by the learned counsel that if there is no post of Principal in the School, the fifth respondent may not be entitled to the benefit of the judgment of this Court in **Jayaraj.** The learned counsel pointed out that this Court has stayed the operation of the judgment on account of the said reason and the issue has become academic since the fifth respondent has now retired from service. 9. On a query from the Court, the learned counsel for the fifth respondent conceded that the post of Principal has not been sanctioned till date by the Government for the School and that the writ petition was instituted by the fifth respondent on an incorrect assumption that the post of Principal has already been sanctioned by the Government. The fact that the fifth respondent has retired from service is also not disputed by the learned counsel. Nevertheless, the learned counsel argued, based on the decision of the Full Bench of this Court in **Aided Higher Secondary School Teachers Association v. State of Kerala** , 2005 KHC 19, that it is obligatory for the Government to sanction the post of - : 9 :- Writ Appeal Nos.511 & 556 of 2021 Principal in every Higher Secondary School and therefore, the question whether the Government has sanctioned the said post for the School is totally irrelevant. In other words, according to the learned counsel, in the light of the said decision of this Court, the impugned judgment cannot be said to be illegal in any manner. 10. We have considered the rival contentions. As noted, the post of Principal has not been sanctioned till date by the Government for the School. If the said post has not been sanctioned for the School, no one can be appointed as the Principal of the School. In that view of the matter, according to us, insofar as the fifth respondent has retired from service, it is unnecessary for this Court to consider at present the question whether the claim raised by the fifth respondent for promotion to the post of Principal is sustainable. 11. True, it has been held by the Full Bench of this Court in **Aided Higher Secondary School Teachers Association** that it is obligatory for the Government to sanction the post of Principal in every Higher Secondary School. The proposition cannot be doubted, but insofar as the post of Principal has not been sanctioned by the Government - : 10 :- Writ Appeal Nos.511 & 556 of 2021 till the retirement of the fifth respondent, the proposition may not come to the rescue of the fifth respondent in any manner to sustain the impugned judgment. The fifth respondent has no case that he is entitled to function as the Principal-in-charge of the School in his capacity as the Headmaster of the School, in terms of any statutory provision or executive orders. The impugned judgment, in the circumstances, is liable to be set aside. In the result, the writ appeals are allowed, the impugned judgment is set aside, W.P.(C) No.24186 of 2020 is dismissed and W.P.(C) No.17796 of 2020 is allowed quashing Ext.P6 order, to the extent it directs the Manager to appoint the fifth respondent as the Principal-in-charge of the Higher Secondary section of the School. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **C.S.SUDHA, JUDGE.** ds 16.11.2022 Writ Appeal Nos.511 & 556 of 2021 - : 11 :- ## **APPENDIX OF WA 511/2021** ## **PETITIONER ANNEXURES** |**ANNEXURE A**|**COPY OF THE STAFF FIXATION ORDER**| |---|---| ||**PASSED BY THE REGIONAL DEPUTY**| ||**DIRECTOR, CHENGANNUR DATED 12.04.2019.**| |**ANNEXURE B**|**COPY OF THE STAFF FIXATION ORDER FOR**| ||**THE ACADEMIC YEAR 2019-20 DATED**| ||**11.12.2019.**| |**ANNEXURE C**|**COPY OF G.O(MS)NO.106/2017/G.EDN DATED**| ||**21.08.2017.**| |**ANNEXURE D**|**COPY OF GO(MS)NO.14/2019/G.EDN DATED**| ||**06.02.2019.**|