Fr. Saju M.D. v. Director of Higher Secondary Education and Others (WP(C) Nos. 37686/2022 & 37702/2022)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 2[ND] DAY OF MARCH 2023 / 11TH PHALGUNA, 1944 ``` ## **`WP(C) NO. 37686 OF 2022`** ## **`PETITIONER:`** ``` FR.SAJU M.D. AGED 50 YEARS S/O.M.K.DEVASSY, THE CORPORATE MANAGER, SACRED HEART CORPORATE EDUCATIONAL AGENCY OF CMI SCHOOLS, RAJAGIRI.P.O., KALAMASSERY, ERNAKULAM DISTRICT, PIN-683104. BY ADVS. C.A.CHACKO C.M.CHARISMA BABU V.P. ``` ## **`RESPONDENTS:`** ``` 1THE DIRECTOR OF HIGHER SECONDARY EDUCATION DIRECTORATE OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM-695001. ``` ``` 2THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, OFFICE OF REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, EDAPPALLY, EDAPPALLY.P.O., ERNAKULAM-682024. ADDL.R3STATE OF KERALA, REPRESENTED BY SECRETARY TO THE DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM ``` ``` IS SUO MOTU IMPLEADED AS ADDL.3RD RESPONDENT ``` ``` SMT.SURYA BINOY, SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.03.2023, ALONG WITH WP(C).37702/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).Nos.37686 & 37702 of 2022 **2** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 2[ND] DAY OF MARCH 2023 / 11TH PHALGUNA, 1944 WP(C) NO. 37702 OF 2022 ``` ## **`PETITIONERS:`** ``` FR. SAJU. M.D AGED 50 YEARS, S/O.M.K.DEVASSY, THE CORPORATE MANAGER, SACRED HEART CORPORATE EDUCATIONAL AGENCY OF CMI SCHOOLS, RAJAGIRI.P.O., KALAMASSERY, ERNAKULAM DISTRICT, PIN-683104. BY ADVS. C.A.CHACKO BABU V.P. C.M.CHARISMA ``` ## **`RESPONDENTS:`** ``` 1THE DIRECTOR OF HIGHER SECONDARY EDUCATION DIRECTORATE OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM-695001. 2THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, OFFICE OF REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, EDAPPALLY, EDAPPALLY.P.O., ERNAKULAM-682024. ADDL.R3STATE OF KERALA, REPRESENTED BY SECRETARY TO THE DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM ``` ``` IS SUO MOTU IMPLEADED AS ADDL.3RD RESPONDENT SMT.SURYA BINOY, SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.03.2023, ALONG WITH WP(C).37686/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).Nos.37686 & 37702 of 2022 **3** **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).Nos.37686 & 37702 of 2022 ---------------------------------------------Dated this the 02[nd] day of March, 2023** ## **JUDGMENT** These two writ petitions are connected and therefore, I am disposing these writ petitions by a common judgment. 2. I will narrate the facts in W.P.(C). No.37702/2022: Petitioner is the Corporate Manager of Sacred Heart Corporate Educational Agency of CMI Schools in Kalamassery. The petitioner is aggrieved by the rejection of approval of appointments of Smt.Indumol Antony. M. and Fr. Joby.V.A. as Higher Secondary School Teacher (HSST) with effect from 15.07.2021 by the 2[nd] respondent vide Ext.P1 order and rejection of Ext.P3 appeal by the 1[st] respondent vide Ext.P4 order. The petitioner appointed Smt.Indumol Antony.M. initially as High School Assistant (HSA) on 01.06.2007 under his management and thereafter she was given appointment by transfer as HSST in Sacred Heart Higher Secondary School, WP(C).Nos.37686 & 37702 of 2022 **4** Thevara, in the retirement vacancy of one Tomy Anthrapper, which arose on 31.05.2020. The petitioner also appointed Fr.Joby.V.A. initially as Upper Primary School Teacher (UPST) at St.Mary's UP School, Thevara, with effect from 01.06.2018, in the promotion vacancy of one Smt.Princy.T.K and thereafter he was given by-transfer appointment as HSST in Sacred Heart Higher Secondary School, Thevara in the retirement vacancy of one Fr.Johnson.V.V., which arose on 31.05.2020. The above said two appointments were made on 01.06.2020. Approval for their appointments was sought with effect from 15.07.2021 only as the Government imposed ban in making appointment till 15.07.2021 due to Covid-19 restrictions. But the same was rejected vide Ext.P1 order. Though the petitioner challenged Ext.P1 before the 1[st] respondent vide Ext.P3, the same was also dismissed vide Ext.P4 order. Aggrieved by the same, this writ petition is filed. 3. W.P.(C). No.37686/2022 is also filed by the same petitioner in W.P.(C). No.37702/2022. W.P.(C). No.37686/2022 is filed against the rejection of approval of appointment of Fr.Anto K.J as HSST by the 2[nd] respondent vide Ext.P1 order and the rejection of Ext.P3 appeal by the 1[st] respondent vide WP(C).Nos.37686 & 37702 of 2022 **5** ## Ext.P4 order. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. When these writ petitions came up for consideration on 23.11.2022, this Court passed the following order: The learned Government Pleader takes notice for the respondents and seeks an adjournment to get instructions. 2. The petitioner has approached this Court challenging Ext.P1 order issued by the 2nd respondent as confirmed by the 1st respondent. The petitioner points out that the respondents have refused to grant approval on the premise that even for transfer appointments, a selection committee consisting of a Government nominee has to be constituted. According to the learned counsel, in view of the law laid down in **Jollyamma v Thomas v. State of Kerala and Ors.** [Neutral Citation No. 2022/KER/58659], which was rendered following the law laid down in judgment dated 16.9.2020 in W.A.No. 280/2020, this Court had held that a selection committee with a Government nominee cannot be insisted since they are already in service and they have entered into service through a selection process. This Court had also held that the WP(C).Nos.37686 & 37702 of 2022 **6** selection committee, in terms of Chapter XXXIII of the KER is required only for the direct recruitment of Higher Secondary School Teachers and the constitution of a selection committee with a Government nominee is not required in the case of appointment by by-transfer mode. According to the learned counsel, passing of the impugned order without taking note of the law laid down by this Court should invite proceedings in contempt. 3. I take serious notice of the callous manner in which orders are being passed by the educational authorities. I also take exception to the fact that the order issued by the 2[nd] respondent was upheld by the 1[st] respondent without adverting to the Government orders as well as the law laid down by this Court. The learned Government Pleader shall get specific instructions in this regard.” 6. Today, when the matter came up for consideration, the counsel for the petitioner submitted that one of the appointee in W.P.(C). No.37702/2022 filed a revision before the Government and as per the directions of this Court, the matter is pending consideration before the Government. The counsel for the petitioner submitted that the main ground for rejecting the approval is that a selection committee consisting of a WP(C).Nos.37686 & 37702 of 2022 **7** Government nominee is not constituted. Admittedly the petitioner appointed the teachers on by-transfer. In such case it is settled in the light of the law laid down in **Jollyamma V.** **Thomas v. State of Kerala and Others [Neutral Citation No.2022/KER/58659]** that no selection committee with a Government nominee is necessary. There is a Division Bench judgment also in Writ Appeal No.280/2020 on this point. Therefore that is not at all a reason for rejection of approval. Moreover, Ext.P2 Government Order would also show that no such selection committee is necessary as far as by-transfer appointments are concerned. Next ground for rejection of approval is that 1:3 ratio is not followed. The petitioner has got a contention that only one appointment was made in the vacancy arose in the year 2021 and there is no question of violation of 1:3 ratio. As far as the appointment made in the year 2020, the counsel submitted that there are 24 posts of HSST and only 2 by-transfer appointments were made. 7. This Court considered the contentions of the petitioner and the Government Pleader. Admittedly the impugned orders in these cases are passed by the Director of WP(C).Nos.37686 & 37702 of 2022 **8** Higher Secondary Education. The petitioner has got a remedy against the same by way of a revision before the additional 3[rd] respondent. If that be the case, according to me, all these contentions can be considered by the Government and there can be a quietus for the entire issue. To facilitate the Government to consider the matter, the petitioner can be allowed file a revision before the additional 3[rd] respondent. The additional 3[rd] respondent will consider all the contentions of the petitioner and take appropriate steps regarding the approval of appointment of the teachers. Therefore, these writ petitions are disposed of in the following manner: 1. The petitioner in these writ petitions are allowed to file a revision petition before the additional 3[rd] respondent narrating the grievance raised in these writ petitions within two weeks from the date of receipt of a copy of this judgment. 2. Once such a revision petition is received, the additional 3[rd] respondent will consider and pass appropriate order in it, after affording an opportunity of hearing to the petitioner, in the WP(C).Nos.37686 & 37702 of 2022 **9** light of the observations in this judgment, as expeditiously as possible, at any rate, within three months from the date of receipt of the revision petition. 3. The petitioner will produce a certified copy of this judgment along with a copy of the writ petitions before the additional 3[rd] respondent for compliance. JV sd/- **P.V.KUNHIKRISHNAN JUDGE** WP(C).Nos.37686 & 37702 of 2022 **10** ## **`APPENDIX OF WP(C) 37702/2022`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF ORDER NO.B1/5061/RDD/HSE/ EKM/2021 DATED 1/10/2021 OF 2ND RESPONDENT. Exhibit P2TRUE COPY OF GO(RT) NO.247/2019/GED DATED 21/1/2019. Exhibit P3TRUE COPY OF APPEAL DATED 1/11/2021 SUBMITTED BY PETITIONER BEFORE THE 1ST RESPONDENT. Exhibit P4TRUE COPY OF ORDER NO.ACD.A1/218299/2021/ HSE DATED 13/4/2022 OF 1ST RESPONDENT. Exhibit P5TRUE COPY OF JUDGMENT DATED 2/11/2022 IN WP (C)NO.5989/22. ``` WP(C).Nos.37686 & 37702 of 2022 **11** ## **`APPENDIX OF WP(C) 37686/2022`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF ORDER NO.B1/5061/RDD/HSE/ EKM/ 2021 DATED 1/10/2021 OF 2ND RESPONDENT Exhibit P2TRUE COPY OF GO(RT)NO.247/2019/GED DATED 21/1/2019 Exhibit P3TRUE COPY OF APPEAL DATED 1/11/2021 SUBMITTED BY PETITIONER BEFORE THE 1ST RESPONDENT Exhibit P4TRUE COPY OF ORDER NO.ACD.A1/218300/2021/ HSE DATED 13/4/2022 OF 1ST RESPONDENT Exhibit P5TRUE COPY OF JUDGMENT DATED 3/11/2022 IN WP(C)NO.6037/22 ```