K. L. Thomas v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 25TH DAY OF MARCH 2019 / 4TH CHAITHRA, 1941** ## **WP(C).No. 8937 of 2019** ## **PETITIONER:** **K.L.THOMAS AGED 55 YEARS S/O.LUKOSE G., WORKING AS HSST (MALAYALAM), SCS HSS, THIRUVALLA, RESIDING AT KURONVILA LOVE DALE, VALAKOM P.O., KOLLAM- 691532. BY ADV. SRI.V.PHILIP MATHEW** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY SECRETARY, DEPARTMENT OF EDUCATION,**| ||**KERALA GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695001.**| |**2**|**DIRECTOR OF PUBLIC INSTRUCTIONS,**| ||**JAGATHY P.O., THIRUVANANTHAPURAM- 695014.**| |**3**|**MANAGER,**| ||**MT AND E.A.SCHOOL CORPORATE MANAGEMENT, SCS CAMPUS,**| ||**THIRUVALLA P.O- 689101.**| ||**BY ADVS.**| ||**SRI.V.A.MUHAMMED**| ||**SRI.M.SAJJAD**| ||**SRI.V.RAJASEKHARAN NAIR**| ||**SMT.NISHA BOSE, SENIOR GOVERNMENT PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 8937 of 2019** **2** ## **JUDGMENT** **The petitioner, who is working as Higher Secondary School Teacher (Malayalam), in SCS HSS, Thiruvalla, has filed this writ petition seeking a direction to the respondents to allow him also to participate in the process of selection for appointment to the post of Head Master [HM] in High School under the 3[rd] respondent - Corporate Management .** **2. The petitioner commenced his service as a Lower Primary School Assistant on 29.8.1983. While continuing in that post in a Government School, he got appointment as LPSA under the Corporate Management of the 3[rd] respondent on 1.6.1988. He was promoted as HSA(Malayalam) on 5.6.1990 and thereafter he was appointed as HSST (Malayalam) on 2.9.2002. He has got 12 years of graduate service as HSA as on the date of his appointment as HSST. The petitioner claims that, he has passed the test in KER and** **WP(C).No. 8937 of 2019** **3** **Account Test conducted by the Kerala Public Service Commission.** **3. According to the petitioner despite his appointment as HSST in the year, 2002, he continues to be eligible for appointment as Head Master (HM) in any aided School under the management.** **4. As per Ext.P6 notice dated 5.3.2019, the 3[rd] respondent invited applications from among High School Assistants having 15 years of service as HSAs for appointment to the post of HM under the Management, against 5 vacancies. The petitioner challenges Ext.P6 notification to the extent it prescribes 15 years of service as HSA and to the extent it limits the applications from HSAs alone. However, petitioner has submitted an application in response to Ext.P6, though he is working as Higher Secondary School Teacher.** **5. The writ petition is filed apprehending** **WP(C).No. 8937 of 2019** **4** **that he would not be invited for the process of selection on the ground that he is working as HSST. The petitioner is also challenging the prescription of 15 years service as HSA as one of the eligibility conditions for appointment as Head Master.** **6. The learned Government Pleader as well as the learned counsel for the 3[rd] respondent, seriously opposed the reliefs sought in this writ petition. According to them, as long as petitioner is not one included in the gradation list of HSAs, he cannot have any claim for participating in the process of selection for appointment of Headmaster. It is pointed out that petitioner, who was appointed as HSST as early as in September, 2002 does not have any lien in the post of HSA so as to claim consideration of his case for appointment to the post of Head Master.** **7. On the other hand the learned counsel for the petitioner relies on the Full Bench** **WP(C).No. 8937 of 2019** **5** **judgment of this Court in** _**Pushparaj v. Manoharan**_ **: 2006(2) KLT 951 as well as the Full Bench judgment in** _**Sasidharan Nair V State of Kerala**_ **: 2003(1) KLT 998 referred to therein and argues that any teacher, who has got 12 years graduate service as HSA is eligible for appointment as Head Master.** **8. The learned Government Pleader, relying on the judgment in** _**Sachidanandan P. and another v. State of Kerala and Others**_ **: 2011 KHC 268 argued that the petitioner, who was already confirmed/deemed to have been confirmed in the Higher Secondary service and who has completed his probation successfully cannot have any claim as HSA and he is therefore not entitled to be considered for promotion as HM.** **9. The learned counsel for the Manager relies on the judgment of this Court in** _**T.V.Luciamma and another v. State of Kerala and Others**_ **: 1990 (1) KLJ 137 also, wherein it was** **WP(C).No. 8937 of 2019** **6** **held that a High School Assistant cannot have any claim for appointment as Head Master in an Upper Primary School. Therefore it is argued that the same proposition is to be followed in the present case also and only HSAs can be appointed as Head Masters in High Schools.** **10. I heard the learned counsel for the petitioner Sri.V.Philip Mathew; the learned Counsel for the Manager Sri.M.Sajjad and Sri.V.Rajasekharan Nair and Ms. Nisha Bose, the learned Senior Government Pleader.** **11. Rule 44 of Chapter XIV A KER provides that the appointment of Headmasters shall ordinarily be according to seniority from the seniority list prepared and maintained under clauses (a) and (b) as the case may be on Rule 34. It further provides that Manager will appoint the Headmaster subject to the Rules laid down in the matter. Rule 44A provides for the minimum service qualification for appointment as HM. Rule** **WP(C).No. 8937 of 2019** **7** **44A is subject to Rule 44. Therefore only those having qualification prescribed in Rule 44A in the feeder category as provided in Rule 44 would be eligible for promotion as HM. Though in Rule 44 it is provided that the appointment shall “ordinarily be according to seniority”, an appointment other than from among those included in the seniority list of HSA prepared and maintained under Rule 34, is not envisaged. The words 'ordinarily' only qualifies seniority. The** **teacher should be from among those in the rolls/gradation list of HSAs prepared and published, though there can be some deviations with respect to the seniority in given cases, as provided in the Note, which mandates the relinquishment of the senior claimant.** **12. Rule 34 of Chapter XIV A KER, provides that every Management shall, subject to the provisions contained in Rule 37, prepare and maintain in Form II-A a staff list otherwise** **WP(C).No. 8937 of 2019** **8** ## **called a seniority list each for teachers in the High Schools and those in the Primary Schools, as specified below:** _**“(a) In the case of High Schools, a combined seniority list of High School Assistants (Subjects) and High School Assistants (languages) specified in clauses (ii) and (ii-A) of rule 3, Chapter XXIII shall be prepared giving the High School Assistants (Languages) the credit of their entire service as High School Assistants (Languages) irrespective of whether they are Graduates or Title Holders, without prejudice to the interse seniority of High School Assistants (Subjects) and High School Assistants (Languages). The purpose of the seniority list shall be only to determine the relative position of persons who shall be eligible for promotion as High School Headmaster by virtue of length of service and prescribed qualifications for promotion as High School Headmaster.**_ _**(b) In the case of Upper Primary Schools and Lower Primary Schools, a combined seniority list of Upper Primary School Assistants, Lower Primary School Assistants, Junior Language Teachers and Specialist Teachers specified in Rules 3 and 4 chapter XXXI, shall be prepared. The purpose of the seniority list will be only to determine**_ **WP(C).No. 8937 of 2019** **9** _**the position of persons eligible for promotion as Primary School Headmaster by virtue of length of service and prescribed qualifications for promotion as Primary School Headmaster.”**_ **13. Rule 35 provides for the preparation of seniority list in case the Educational Agencies have more than one school in a District; they shall be constituted in one unit and a common seniority list for all the schools in the unit. This provision does not permit a common seniority list for teachers in different grades, going by Rule 2 of Chapter I of KER. The Note 2 to Rule 35 provides that “the seniority list shall be made as on the first day of January every year. The list should be made up to date and renewed every year”. Therefore appointment of Headmaster shall always be from the updated/renewed seniority list maintained by the educational agency.** **14. The petitioner, who became HSST in the** **WP(C).No. 8937 of 2019** **10** **year 2002 is no longer included in the seniority list of HSAs. He is not liable to be included in the seniority list from 2003 onwards. He is working as HSST in a different section of the School for the last more than 17 years and is governed by Chapter XXXII of the KER.** **15. Even though the learned counsel for the petitioner relied on the Full Bench judgment of this Court in** _**Pushparaj v. Manoharan**_ **: 2006 KHC 679, I find that the factual circumstances which arose in those cases are different. In that case, the dispute was with respect to the claim of a teacher who joined the School on inter management transfer for appointment as HM. After discussing the provisions contained in Rules 44(1), 44A, 45, 34 and 37 in the very same chapter, it was held that the service rendered before transfer is liable to be reckoned towards the 12 years graduate service, which is a qualification required for appointment as HM.** **WP(C).No. 8937 of 2019** ## **11** **16. But in this case, the judgment in** _**Luciamma's case**_ **is squarely applicable. In** _**Luciamma's case,**_ **this Court found that teachers in High School section are not eligible for appointment as HM in Upper Primary section, even if they are working under the same Management. In the present case also the petitioner has severed his relationship from the High School section in the year 2002 itself and he cannot have any right to be included in the seniority list of HSAs or in the Feeder category for promotion as Headmaster. Merely because the petitioner has worked for a period of 12 years or more as HSA, he does not become entitled to be considered for appointment as Headmaster as long as he does not continue in the seniority list of HSAs.** **17. After 17 years of his appointment as HSST he cannot have any right even to get reverted as HSA for the purpose of promotion as** **WP(C).No. 8937 of 2019** **12** **Head Master. It is not also possible even to treat him as continuing as HSA, even notionally, for the purpose of promotion.** **18. The judgment relied on by the learned Government Pleader also stands against the claim of the petitioner, and he cannot have any right to be considered for appointment as Head Master in any of the schools under the Management.** **The contention raised by the petitioner regarding the fixing of 15 years service for appointment as Head Master, does not require to be considered in these circumstances.** **Therefore this writ petition fails and** **is dismissed.** **Sd/P.V.ASHA JUDGE** ww **WP(C).No. 8937 of 2019** **13** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 COPY OF THE CERTIFICATE DATED 09.05.86 ISSUED BY THE UNIVERSITY OF KERALA TO SHOW THAT PETITIONER HAS PASSED B.A IN MALAYALAM.** **EXHIBIT P2 COPY OF THE CERTIFICATE DATED 06.06.90 ISSUED BY THE UNIVERSITY OF CALICUT TO SHOW THAT PETITIONER HAS PASSED B.ED IN MALAYALAM.** - **EXHIBIT P3 COPY OF THE CERTIFICATE DATED 02.02.88 FROM THE UNIVERSITY OF KERALA TO SHOW THAT PETITIONER HAS PASSED M.A.IN MALAYALAM.** **EXHIBIT P4 COPY OF THE CERTIFICATE DATED 20.09.2010 FROM SRI.VENKATESWARA UNIVERSITY SHOWING THAT PETITIONER HAS PASSED M.A IN ENGLISH.** **EXHIBIT P5 COPY OF THE CERTIFICATE DATED 12.02.2017 ISSUED BY THE ALL INDIA AWARDEE TEACHERS' FEDERATION.** **EXHIBIT P6 COPY OF THE NOTICE DATED 05.03.2019 ISSUED BY THE 3RD RESPONDENT.**