Joy Joseph v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932** **WP(C).No. 14171 of 2008(K)** **--------------------------** **PETITIONER:** - **-------------------** **JOY JOSEPH, H.S.S.T.MATHEMATICS, VALANCHERRY HIGHER SECONDARY SCHOOL, VALANCHERRY, MALAPPURAM DIST.** **BY ADV. SMT.I.SHEELA DEVI** **RESPONDENTS:** - **------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION (T) DEPARTMENT, GOVRERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. DIRECTOR, OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, THIRUVANANTHAPURAM.** **3. MANAGER, VALANCHERY HIGHER SECONDARY SCHOOL, VALANCHERRY, MALAPPURAM DISTRICT. PIN:676 552.** **4. T.VIJAYA RAGHAVAN, PRINCIPAL, VALANCHERRY HIGHER SECONDARY SCHOOL, VALANCHERRY, MALAPPURAM DISTRICT. PIN:676 552.** **R1 & R2 BY GOVERNMENT PLEADER, SRI.SANDOSH RAJA R3 BY SRI.V.RAJENDRAN** **R4 BY ADVS. SRI.T.K.SAIDALIKUTTY SRI.LAL K.JOSEPH SRI.ZIYAD RAHMAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.10.2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 14171 of 2008(K)** **----------------------------------------** **APPENDIX ----------------** ## **PETITIONER'S EXHIBITS** ## **------------------------------------** **EXT.P1. COPY OF THE PROCEEDINGS ISSUED BY THE 2ND RESPONDENT BY ORDER NO.C6/2868/HSE/99 DATED 27.7.1999 OF APPROVAL OF APPOINTMENT OF HSST OF THE SCHOOL.** **EXT.P2. COPY OF THE NOTIFICATION INVITING APPOINTMENT OF PRINCIPAL OF THE SCHOOL.** **EXT.P3. COPY OF THE APPLICATION FOR APPOINTMENT AS PRINCIPAL DATED 28.2.2004 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** **EXT.P4. COPY OF THE APPOINTMENT ORDER DATED 17.6.2004 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT AS PRINCIPAL.** **EXT.P5. COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 17.6.2004 BEORE THE 2ND RESPONDENT.** **EXT.P6. COPY OF THE ORDER NO.ACD.A2/16968/HSE/04 DATED 13.9.2004 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT.** **EXT.P7. COPY OF THE ORDER NO.ACD.A2-16968/HSE/2004 DATED 11.9.2005 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** **EXT.P8. COPY OF THE SENIORITY LIST OF HSST OF THE SCHOOL.** **EXT.P9. COPY OF THE HEARING NOTE SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 28.12.2007.** **EXT.P10. COPY OF THE ORDER NO.67731/T1/2007/G.EDN. DATED 13.2.2008 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** **EXT.P11. COPY OF THE G.O. (MS) NO.122/2002/G.EDN. DATED 21.5.2002 ISSUED BY THE 1ST RESPONDENT.** **EXT.P12. COPY OF THE G.O.(MS) NO.171/2003/G.EDN. DATED 23.6.2003 ISSUED BY THE 1ST RESPONDENT.** **EXT.P13. COPY of the G.O. (MS) NO.185/2003/G.EDN. DATED 14.7.2003 ISSUED BY THE 1ST RESPONDENT.** **EXT.P14. COPY OF THE G.O. (MS) NO.161/2004/G.EDN. DATED 14.6.2004 ISSUED BY THE 1ST RESPONDENT.** **EXT.P15. COPY OF THE G.O. (MS) NO.43/2005/G.EDN. DATED 11.2.2005 ISSUED BY THE 1ST RESPONDENT.** **EXT.P16. COPY OF THE G.O. (P) NO.93/2009/G1.E DATED 27.3.2009 ISSUED BY THE 1ST RESPONDENT.** ## **WP(C).No. 14171 of 2008(K)** **---------------------------------------** ## **RESPONDENTS EXHIBITS** **--------------------------------------** **EXT.R4 (1). COPY OF ORDER OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM DATED 28.12.2008 IN ACD A2/16968/HSE/2001.** **EXT.R4 (2). COPY OF APPOINTMENT ORDER DATED 08.06.1989 OF THE MANAGER OF VALANCHERI HIGHER SECONDARY SCHOOL.** **EXT.R4 (3). COPY OF MEMO DATED 28.05.2004 ISSUED BY THE MANAGER, VALANCHERI HIGHER SECONDARY SCHOOL.** ## **P.A. TO JUDGE** **/ TRUE COPY /** **VK** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No.14171 of 2008-K-** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 6th day of October, 2010.** ## **JUDGMENT** The petitioner challenges the orders Exts.P7 and P10 and is seeking for a declaration that he is entitled to be appointed as Principal with effect from 12.11.2001. 2. The petitioner is working as Higher Secondary School Teacher under respondents 2 and 3. The contest is between the petitioner and the 4[th] respondent who has been appointed as the Principal of the school after a process of selection. 3. The service particulars show that the petitioner joined the third respondent's school on 12.11.1981. This appointment was upto 31.3.1982 and again he was reappointed as H.S.A. Mathematics in the regular vacancy on 1.6.1982. The said appointment was duly approved. He got appointment as H.S.S.T. on 27.8.1998. The 4[th] respondent joined the school as UPSA Malayalam and got promoted as H.S.A. Malayalam on 8.6.1989. This post was approved with effect from 26.8.1990 and his continuous service commenced from 26.8.1990. He was later appointed as HSST on the same day on which the petitioner was appointed, but on a part-time basis. His wpc 14171/2008 2 appointment as HSST was later approved with effect from 14.7.1999. 4. The petitioner is having the academic qualification M.Sc. Mathematics, B.Ed. and M.Ed. He has passed the Account Test Lower and Higher, KER Account Test for Executive Officers. He is also having an additional qualification of M.A. Psychology. Th 4[th] respondent's qualification is M.A. and B.Ed. Malayalam. 5. The management initiated steps for appointment of Principal in the light of the decision of a Full Bench of this Court in **Janardhana Kidavu v. State of Kerala** (2005 (1) KLT 94). Ext.P2 is the copy of the notification issued by the Manager. The petitioner also responded to the notification. By Ext.P4, the 4[th] respondent was appointed as Principal. The petitioner challenged the same by a representation Ext.P5. But the appointment of the 4[th] respondent was approved as per Ext.P6 order. The petitioner had been representing the matter before the second respondent again, but his claim was rejected by Ext.P7 order. The petitioner was canvassing the correctness of the orders, in the light of the fact that he is senior to the 4[th] respondent in the post of HSST also. The first respondent ultimately by Ext.P10 order, rejected the contentions of the petitioner. The view taken therein is that as per Chapter XXXII K.E.R., the post of wpc 14171/2008 3 Principal in Aided Higher Secondary Schools is a selection post. The appointment to the post of Principal should be made on the basis of the recommendation of the selection committee constituted as per rules. Also, seniority alone could not be the criterion for selection. The 4[th] respondent as placed first rank in the selection list and the management gave him appointment which was approved by the Director. 6. The petitioner is relying upon various Govt. Orders, viz. Exts.P11 to P15 in support of the plea that seniority in the Higher Secondary level has to be reckoned for the purpose of appointment of Principal. 7. The respondents have filed a counter affidavit supporting the order passed by the Government. 8. Chapter XXXII was introduced originally as per G.O.(P) No.331/2001/G.Edn. dated 9.11.2001 with effect from 12.11.2001. As far as the method of appointment to the post of Principal, the rule originally provided as follows: (i) by promotion from category 2 under the respective educational agency; OR (ii) by transfer from qualified Headmasters of Aided High Schools under the respective educational agency. The qualification is provided under Rule 6 which is as follows: wpc 14171/2008 4 1. Principal By promotion (1) Master's Degree with not less than 50% marks from any Universities in Kerala or a qualification recognised as equivalent thereto by any University in Kerala - (2) B.Ed. Degree from any Universities in Kerala or a qualification recognised as equivalent thereto by any University in Kerala (3) Minimum approved teaching experience of 12 years. Note: Preference shall be give based on the teaching experience at Higher Secondary level. By transfer (1) Master's Degree with not less than 50% marks from any of the Universities in Kerala or a Qualification recognised as equivalent thereto by any University in Kerala (2) B.Ed. Degree from any of the Universities in Kerala or qualification recognised as equivalent thereto by any University in Kerala (3) Minimum approved teaching experience of 12 years of Higher Secondary/High School level. Note (i) to Rule 4 is also important while considering the claims of the petitioner herein. Thereby, the selection committee has to conduct the selection and the recommendation of the selection committee is the basis wpc 14171/2008 5 under which the management can make the appointment. 9. Learned counsel for the petitioner submitted that the 4[th] respondent is lacking minimum approved teaching experience of 12 years as H.S.A. as well as HSST and therefore the 4[th] respondent was not eligible for consideration. 10. What is provided under Rule 6 is minimum approved teaching experience of 12 years. It is not specified whether the teaching experience should be at the level of H.S.A. or H.S.S.T. The Note (ii) to Rule 4 provides that preference shall be given to Aided Higher Secondary School Teachers having teaching experience at the Higher Secondary School level. Only in the method provided for by transfer appointment, it is provided that there should be minimum approved teaching experience of 12 years of Higher Secondary/High School level 11. The first question is whether the selection itself was legal or not. Herein as far as the proceedings of the selection committee is concerned, the main complaint raised by the petitioner is that he was not given any preference based on his seniority. The challenge is not against the method of selection, i.e. against the assignment of marks or criteria adopted by the selection committee. Therefore, what is pointed out is that experience and the seniority of the petitioner was not given due preference. The argument wpc 14171/2008 6 is developed like this. The 4[th] respondent is having service as U.P.S.A. also. In that view of the matter, it is pointed out that the preference granted to the 4[th] respondent above that of the petitioner, cannot be justified. 12. Learned counsel appearing for the Manager submitted that the appointment of the 4[th] respondent was not on temporary basis as HSST, but he was an HSST Junior in the light of the assignment of periods and that will not show that he was not in the cadre of HSST. It is also pointed out that Note 2 to Rule 4 only says that preference shall be given at the Higher Secondary School level. There is dispute whether the term Higher Secondary School level should mean regular service on a full time basis. According to learned counsel for the petitioner, only a full time service alone can be reckoned, whereas learned counsel for the Manager submitted that there is no such distinction, going by the provisions of the rule. 13. Evidently, what is mentioned is the service at the Higher Secondary School level. It is not specified that the teaching experience as part time or Junior HSST is not reckonable. In that view of the matter, I find force in the submission made by the learned counsel for the Manager. 14. Learned counsel for the petitioner submitted that the service of the 4[th] respondent at U.P. level cannot help him to gain any preference. In fact, this Court in **Prasannakumari v. Director of Higher Secondary** wpc 14171/2008 7 **Education** (2006 (1) KLT 356), while interpreting Rule 6 of Chapter XXXII, held that teaching experience can also be teaching experience as U.P.S.A. also. The distinction in the wording at different parts of the Rules have been examined and it was held thus in para 10: “When Rule 6 is carefully examined, it will be seen that when it comes to the first mode of appointment of Principal, i.e. promotion from H.S.S.Ts., the third qualification is mentioned as minimum teaching experience of 12 years and it is not insisted that the teaching experience should be at the High School or Higher Secondary school level. But when it comes to the second mode of appointment, i.e. by transferring qualified High School Headmasters, then it is clearly provided that minimum teaching experience of 12 years shall be at the High School or Higher Secondary School level. It is to be noticed that one of the alternative methods for appointment of Higher Secondary School Teacher and Higher Secondary School Teacher (Junior) under R.4 is by transfer posting of qualified U.P.S.As. and L.P.S.As. The minimum teaching experience of 12 years which is necessary when Principals are appointed by promotion from the cadre of Higher Secondary School Teachers can also be teaching experience at the U.P.S.A. level is only to be accepted, more so since the language of the rule does not admit of any ambiguity, though from the point of view of academicians it would have been ideal if it was insisted that the teaching experience should be at the High School/Higher Secondary School level.” wpc 14171/2008 8 Therefore, nothing turns upon the contention that teaching experience at the U.P. school level, could not have been reckoned. 15. Mainly the petitioner's argument is based upon the seniority he is having. Evidently, the rules provide for a selection by a selection committee. Of course, if the seniority alone was the criteria the petitioner should have been selected in the normal way. All the Govt. Orders relied upon the petitioner would have helped the petitioner to sustain the claims if the appointment of Principal was done in terms of the Govt. Orders in force at the relevant time. But herein, the appointment was in terms of the provisions of Chapter XXXII, after the rules were implemented. Therefore, the criteria, if any, provided under the Govt. Orders which were in existence then or which were issued to clarify certain aspects, may not advance the case of the petitioner. Going by Note 1 to Rule 4, the post is a selection post and the appointment will have to be made on the basis of the recommendation of the selection committee. Therefore, as the 4[th] respondent was ranked first in the rank list, unless the ranking itself was challenged on clear grounds, the authority could not have gone through the process of selection also. In that view of the matter, the seniority alone will not help the petitioner. Therefore, the order passed by the Government, Ext.P11 cannot be wpc 14171/2008 9 faulted. The view taken therein is only in terms of the settled principles. Hence, the writ petition is dismissed. No costs. **(T.R. Ramachandran Nair, Judge.)** ## **kav/**