J. Mini v. State of Kerala and others

WPC.No.2416/2020 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _TUESDAY, THE 2[ND] DAY OF APRIL 2024 / 13TH CHAITHRA, 1946_ ## _WP(C) NO. 2416 OF 2020_ ## _PETITIONER:_ _J.MINI, AGED 53 YEARS, W/O.KERALESAN, PRINCIPAL, GUHANANDAPURAM HIGHER SECONDARY SCHOOL, CHAVARA SOUTH P.O., KOLLAM DISTRICT. RESIDING AT VENNARATHIL, MALIBHAGOM, CHAVARA SOUTH P.O.,KOLLAM DISTRICT, PIN-691 583._ _BY ADVS. M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SRI.ARUN BOSE_ ## _RESPONDENTS:_ _1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN695 001._ _2 DIRECTOR GENERAL OF PUBLIC INSTRUCTION, OFFICE OF THE DIRECTOR GENERAL PUBLIC INSTRUCTION, VPI JUNCTION, JAGATHY, THIRUVANANTHAPURAM._ - _3 THE DIRECTOR OF HIGHER SECONDARY EDUCATION, OFFICE OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION, SANTHI NAGAR HOUSING BOARD BUILDING, THIRUVANANTHAPURAM, PIN-695 001._ - _4 REGIONAL DEPUTY DIRECTOR, HIGH SECONDARY EDUCATION, CORPORATION BUILDING, THIRUVANANTHAPURAM, PIN-695 001._ WPC.No.2416/2020 2 _5 THE MANAGER, GUHANANDAPURAM HIGHER SECONDARY SCHOOL, CHAVARA SOUTH P.O., THEKKUMBHAGOM, KOLLAM DISTRICT, PIN-691 583._ _BY ADVS. GOVERNMENT PLEADER SAJJAD M V.A.MUHAMMED(K/124/1984)_ _SMT.SAROJINI K.G., GOVERNMENT PLEADER_ _THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ WPC.No.2416/2020 3 ## **JUDGMENT** The petitioner, who was working as Principal of the Higher Secondary Section of the school managed by the 5[th] respondent herein, has approached this Court seeking the following reliefs: (i) To issue a declaration that the petitioner is the most suitable and qualified candidate for transfer appointment to the post of Principal in the Guhanandapuram Higher Secondary School under the Management of the 5[th] respondent from 01.04.2018 and that the present post of Principal is to be filled up by transfer, appointing the petitioner following the ratio of 2:1 as provided for in the Rules and hence petitioner is entitled to approval as Principal w.e.f 01.04.2018 on the basis of Exhibit P11 Government Order and Exhibit P12 appointment order and Exhibit P12 series documents. (ii) To issue a writ of mandamus or other writ order or direction directing the 4[th] respondent to issue approval appointment to the petitioner as principal in the Guhanandapuram Higher Secondary School as per the appointment order Exhibit P12 from the manager w.e.f. 01.04.2018, with arrears with interest at 12% per annum. (iii) Alternatively to direct the respondents 1 to 3 to issue approval to the petitioner as Principal w.e.f.01.04.2018 with all consequential benefits including arrears of salary. WPC.No.2416/2020 4 (iv) To direct the respondents 1-3 to take exemplary action against the 4[th] respondent for disobeying the order Exhibit P11 by the Government. - (v) To issue such other further reliefs as this Hon’ble Court may deem fit and proper in the facts and circumstances of this case. - (vi) To order exemplary cost of this proceedings to the petitioner. 2. The grievance of the petitioner are as follows: The petitioner was initially appointed as HSA (Mathematics) in the School managed by the 5[th] respondent with effect from 26.07.1988 and later with effect from 01.06.2015 she was promoted as Headmistress. While continuing as Headmistress, a vacancy arose in the Higher Secondary Section of the School in the post of Principal with effect from 01.04.2018. As the petitioner was having necessary qualifications to be appointed as Principal by promotion by following the ratio of 2:1 contemplated under Chapter XXXII Rule 6 of KER, between the qualified Higher Secondary School Teachers and the Headmasters, she submitted a representation in this regard before the 5[th] respondent. However, the 5[th] respondent, instead of appointing the petitioner, appointed one Aji P., who was the senior most HSST in the Higher Secondary Section of the said school. Even though the same was challenged by the petitioner before the WPC.No.2416/2020 5 4[th] respondent, the same was rejected as per Ext.P8. As against the same, Ext.P9 appeal was submitted by the petitioner before the 1[st] respondent. As there was delay in disposing of the same, petitioner approached this Court with W.P.C.No.6303 of 2019. By Ext.P10 judgment, Ext.P9 appeal was directed to be disposed. In compliance with the directions in the said judgment, Ext.P11 order has been passed by the 1[st] respondent, holding that the petitioner is the person qualified and entitled to be appointed as the Principal in the school managed by the 5[th] respondent and subsequently a direction was issued to the 5[th] respondent to issue appropriate orders in this regard, appointing the petitioner as Principal by transfer, with effect from 01.04.2018, the date on which the said vacancy arose. 3. On the basis of the same, Ext.P12 appointment order has been forwarded by the 5[th] respondent to the 4[th] respondent along with necessary documents. However, instead of complying with Ext.P11 order, Ext.P13 communication has been issued by the 4[th] respondent addressing the 1[st] respondent seeking some clarifications in the said order. The clarifications sought were two fold. One is that, if the petitioner is granted appointment with effect from 01.04.2018 WPC.No.2416/2020 6 it would cause financial loss to the Government in view of the fact that from 01.04.2018 onwards, another Principal namely Aji P. appointed by the 5[th] respondent was holding charge and he was paid salary in the scale of the Principal. Therefore, it was pointed out that this would result in double payment as far as Government is concerned. The next aspect was that the petitioner was a Mathematics Teacher and there was no vacancy available in the HSST Section of the School to accommodate the petitioner and therefore, if the petitioner was appointed as the Principal, teacher strength of the school has to be increased, which would result in termination of Junior most teacher in the HSST section of the said school. Later, the petitioner was appointed as Principal in charge as per Ext.P14, from the date of Ext.P12, the appointment order. 4. This writ petition was submitted by the petitioner in such circumstances. In response to the averments contained in the writ petition a counter affidavit has been submitted by the Government, wherein it is mentioned that, even though the petitioner is qualified for appointment as Principal, there is no vacancy in her subject, i.e.; Mathematics to accommodate her as Principal. It is also averred that the Government have created the post of Principal on the specific condition that WPC.No.2416/2020 7 there would not any increase in the sanctioned strength of teaching posting including the post of Principal. The 5[th] respondent Manager also filed a counter affidavit supporting the claim of the petitioner. The 5[th] respondent manager also placed on record Ext.R5(a) judgment passed by this Court in W.P.(C).No.2225 of 2023, wherein the question as to the objection regarding an additional post being created on account of the appointment of Principal who cannot be accommodated in the HSST, for want of post, was considered. 5. Heard Sri.R.Reji, learned counsel for the petitioner, Smt.Sarojini K.G., learned Government Pleader for the respondent and Sri.Sajjad M., learned counsel appearing for the 5[th] respondent. 6. The question that arises for consideration is that the objection highlighted by the 4[th] respondent as per Ext.P13 order, despite Ext.P11 order passed by the Government directing the appointment of the petitioner as Principal with effect from 01.04.2018, is sustainable or not. Initially, in Ext.P13, two objections were raised by the 4[th] respondent. One of the objections is that, in view of the fact that there was no sanctioned vacancy to accommodate the petitioner whose subject was Mathematics in the Higher Secondary School WPC.No.2416/2020 8 Section of the School, consequent to the appointment of the petitioner as the Principal, sanctioned strength of the school will be increased, thereby Government would be forced to create a supernumerary post. However, it is to be noted that, the said question was specifically considered by this Court in various judgments, including Ext.R5(a) judgment relied on by the petitioner as well as the 5[th] respondent herein. In the said judgment, the said question was specifically considered and after referring to the decision rendered by the Division Bench in **Jayaraj V.P. and another v. State of Kerala [2016 (2) KLT 200]** , it was observed that objection raised in this regard is legally sustainable. It is to be noted that the relevant observations made by the Division Bench of this Court in **Jayaraj’s case (supra)** reads 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 WPC.No.2416/2020 9 the Head Master promoted, then he shall be exempted from teaching 16 hours.” 7. In the light of the settled position of law, the objection raised by the 4[th] respondent with respect to the apprehension relating to the creation of additional post in HSST Section cannot be sustained. This is particularly because, in **Jayaraj’s case (supra)** , and in several decisions including the judgment in Ext.R5(a), it was categorically observed that the appointment of principal cannot be objected to for want of sufficient vacancy to accommodate the incumbent in the said school. It was also specifically observed that if sufficient HSST posts are not available to accommodate the Principal, the junior most HSST in that subject should be considered as supernumerary. It is reported that the judgments rendered by this Court in **Jayaraj’s case (supra)** has become final and in the light of the position of law well settled in this regard, the objection raised by the 4[th] respondent in this regard cannot be sustained. 8. In Ext.P11 the 1[st] respondent specifically took note of the fact that before the present vacancy of the Principal arose in the said school, two vacancies arose and the same were filled up with qualified HSSTs. Therefore, as per the turn, on the basis of 2;1 ratio, the present post has to be filled WPC.No.2416/2020 10 up from the qualified HST in this regard. Therefore, entitlement of the petitioner to be appointed as the Principal is evident from the records. Therefore, the objection with respect to the necessity of the creation of additional post raised by the 4[th] respondent can have no significance and the same cannot be put forward by any authorities concerned. 9. Next aspect highlighted in Ext.P13, is with respect to the apprehension regarding the double payment to be effected by the Government. When the said issue was being considered, the learned counsel appearing for the 5[th] respondent manager brought the attention of this Court to a proceeding initiated by the 5[th] respondent on 20.05.2022. Learned counsel appearing for the 5[th] respondent brought the attention of this Court to the proceedings issued by the 4[th] respondent, refusing the salary of Aji P., who was initially appointed as the Principal by cancelling the fixation of pay sanctioned to the post of Principal granted to him. Accordingly, further direction was issued to initiating recovery proceedings of excess amount received by the said Aji P. In such circumstances, I am of the view that, question as to the double payment as highlighted by the 4[th] respondent can be considered by the 4[th] respondent after hearing the petitioner, WPC.No.2416/2020 11 the 5[th] respondent. However, appointment of the petitioner has to be effected as highlighted in Ext.P11 with effect from 01.04.2018, the date on which the vacancy arose, as it is to be noted in this regard that, the entitlement of the petitioner to get the appointment as the Principal cannot be declined, in the light of the observations made by this Court in **M.Valsalakumari Devi v. State of Kerala [2011(3) KLT 549].** 10. In such circumstances, the respondents herein are directed give appointment to the as Principal with effect from 01.04.2018. All monetary benefits therefrom shall be sanctioned and disbursed on the basis of her appointment, except for the period during which the said Aji worked as the Principal in the college. The question regarding the entitlement of the petitioner for the monetary benefits arising on account of his appointment with effect from 01.04.2018 till the said Aji.P was relieved, shall be decided by the 1[st] respondent, after hearing the petitioner the 5[th] respondent and the person from whom the recovery has to be effected, within a period of three months from the date of receipt of the judgment. The order of approval of appointment shall be issued within a period of one month and the monetary benefits WPC.No.2416/2020 12 pertaining to such appointment, except for the period during which the Aji P. worked as the Principal, shall be disbursed to the petitioner within a period of four months from the date of receipt of a copy of this judgment. It is also directed that, while considering the question of entitlement of the petitioner, decision relied on by the petitioner in **Valsalakumari Devi (supra)** shall also be taken into consideration. Sd/- **ZIYAD RAHMAN A.A.** **JUDGE** DG/5.4.24 WPC.No.2416/2020 13 ## _APPENDIX OF WP(C) 2416/2020_ ## _RESPONDENT EXHIBITS_ - _Ext. R-5 (a) True copy of the Judgment in W.P. (C) No. 2255/2023 dated 13.03.2023_ - _Ext. R-5 (b) Tue copy of the Judgment in W.A. No. 588/2023 dated 22.03.2023_ - _Ext. R-5 (c) True copy of the G.O. (Rt.) No. 440/2023/GEDN dated 18.01.2023_ - _PETITIONER EXHIBITS_ - _EXHIBIT P1 TRUE COPY OF REPRESENTATION DATED 14.03.2018 SUBMITTED BY THE PETITIONER TO THE MANAGER._ - _EXHIBIT P2 TRUE COPY OF REPRESENTATION DATED 26.03.2018 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DIRECTOR._ - _EXHIBIT P3 TRUE COPY OF REPRESENTATION DATED 31.03.2018 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT._ - _EXHIBIT P4 TRUE COPY OF JUDGMENT DATED 26.02.2018 IN W.P.C.No.6399/2018 OF THIS HON’BLE COURT._ - _EXHIBIT P5 TRUE COPY OF APPLICATION UNDER RTI ACT 2005 WAS SUBMITTED BY ON BEHALF OF THE PETITIONER BY ADV.ASWATHI KERALESAN ON 04.04.2018._ - _EXHIBIT P6 COPY OF APPLICATION UNDER RTI ACT 2005 SUBMITTED BY THE PETITIONER BEFORE THE REGIONAL DEPUTY DIRECTOR, 3RD RESPONDENT._ - _EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN WPC NO.12372/2018 DATED 21.05.2018._ - _EXHIBIT P8 TRUE COPY OF THE ORDER NO.ERO10/3216/2018/HSE DATED 18.08.2018 BY_ WPC.No.2416/2020 14 _THE 4TH RESPONDENT._ |_EXHIBIT P9_||_TRUE COPY OF THE APPEAL BEFORE THE_| |---|---|---| |||_GOVERNMENT BY HER APPEAL DATED_| |||_05.09.2018 FILED BY THE PETITIONER._| |_EXHIBIT P10_||_A COPY OF THE JUDGMENT DATED 01.03.2019_| |||_IN WPC NO.6303/2019 OF THIS HON'BLE_| |||_COURT._| |_EXHIBIT P11_||_GO.RT.NO.5014/2019/G-EDN_<br>_DATED_| |||_21.11.2019 BY THE GOVERNMENT DIRECTING_| |||_PETITIONERS TRANSFER APPOINTMENT._| |_EXHIBIT P12_||_APPOINTMENT ORDER OF THE PETITIONER AS_| |||_PRINCIPAL BY THE MANAGER._| |_EXHIBIT P12_|_(a)_|_STATEMENT OF CHANGE OF STAFF BY THE_| |||_MANAGER DATED 25.11.2019._| |_EXHIBIT P12_|_(b)_|_DECLARATION BY THE MANAGER DATED_| |||_25.11.2019._| |_EXHIBIT P12_|_(c)_|_DECLARATION BY THE PETITIONER DATED_| |||_25.11.2019._| |_EXHIBIT P12_|_(d)_|_DECLARATION BY THE MANAGER DATED_| |||_25.11.2019._| |_EXHIBIT P12_|_(e)_|_DECLARATION BY THE MANAGER REGARDING_| |||_RULE 51B CLAIMANTS._| |_EXHIBIT P13_||_CLARIFICATION LETTER DATED 12.12.2019_| |||_BY THE 4TH RESPONDENT REGIONAL DEPUTY_| |||_DIRECTOR TO THE GOVERNMENT._| |_EXHIBIT P14_||_ORDER DATED 12.12.2019 BY THE 4TH_| |||_RESPONDENT BY THE REGIONAL DEPUTY_| |||_DIRECTOR DENYING REGULAR APPROVAL TO_| |||_THE PETITIONER AS IN SPITE OF EXHIBIT_| |||_P11 GOVERNMENT ORDER._|