K.B. Presannan Pillai v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY ,THE 22ND DAY OF MARCH 2019 / 1ST CHAITHRA, 1941** **WP(C).No. 5649 of 2019** ## **PETITIONER/S:** **K.B.PRESANNAN PILLAI, AGED 54 YEARS, S/O.M.BHASKARAPILLAI, PRINCIPAL IN CHARGE AND NON VOCATIONAL TEACHER (MATHEMATICS), VELAYUDHA VILASOM VOCATIONAL HIGHER SECONDARY SCHOOL, AYATHIL, KOLLAM AND RESIDING AT KALEELIL VEEDU, VENGA P.O., SHASTAMKOTTA, KOLLAM DISTRICT - 690 569.** **BY ADVS. SRI.N.UNNIKRISHNAN SRI.PAULACHAN IYPE** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, GENERAL EDUCATION (SC) DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2 THE DIRECTOR, VOCATIONAL HIGHER SECONDARY EDUCATION GOVERNMENT OF KERLA, HOUSING BOARD COMPLEX, 5TH FLOOR, FIRE FORCE JUNCTION, THIRUVANANTHAPURAM - 695 001.** - **3 THE ASSISTANT DIRECTOR, REGIONAL OFFICE OF VOCATIONAL HIGHER SECONDARY EDUCATION, KATTAKKADA, KOLLAM- 691 008.** - **4 VELAYUDHA VILASOM VOCATIONAL HIGHER SECONDARY SCHOOL, AYATHIL, KOLLAM DISTRICT, PIN- 691 021, REP. BY ITS MANAGER, SHRI.ARUN SHANKER.** W.P.C 5649/19 & W.A787/19 2 - **5 SUMA.T.R.,** **NON VOCATIONAL HIGHER SECONDARY TEACHER(CHEMISTRY), VELAYUDHAN VILASOM VOCATIONAL HIGHER SECONDARY SCHOOL, AYATHIL, KOLLAM DISTRICT, PIN - 691 021.** **BY ADVS. SRI.LINDONS C.DAVIS SMT.E.U.DHANYA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.03.2019, ALONG WITH WA.787/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.C 5649/19 & W.A787/19 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY ,THE 22ND DAY OF MARCH 2019 / 1ST CHAITHRA, 1941** ## **WA.No. 787 of 2019** **AGAINST THE ORDER/JUDGMENT IN WP(C) 5649/2019 of HIGHCOURT** ## **APPELLANT/S:** **K.B.PRESANNAN PILLAI, AGED 54 YEARS, S/O.M.,BHASKARA PILLAI, PRINCIPAL IN CHARGE AND NON VOCATIONAL TEACHER (MATHEMATICS), VELAYUDHA VILASOM VOCATIONAL HIGHER SECONDARY SCHOOL, AYATHIL, KOLLAM AND RESIDING AT KALEELIL VEEDU, VENGA P.O., SHASTAMKOTTA, KOLLAM DISTRICT - 690 569.** **BY ADVS. SRI.N.UNNIKRISHNAN SRI.PAULACHAN IYPE** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, GENERAL EDUCATION (SC) DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE DIRECTOR, VOCATIONAL HIGHER SECONDARY EDUCATION, GOVERNMENT OF KERALA, HOUSING BOARD COMPLEX, 5TH FLOOR, FIRE FORCE JUNCTION, THIRUVANANTHAPURAM - 695 001.** W.P.C 5649/19 & W.A787/19 4 - **3 THE ASSISTANT DIRECTOR, REGIONAL OFFICE OF VOCATIONAL HIGHER SECONDARY EDUCATION, KATTAKKADA, KOLLAM - 691 008.** - **4 VELAYUDHAN VILASOM VOCATIONAL HIGHER SECONDARY SCHOOL,** **AYATHIL, KOLLAM DISTRICT, PIN - 691 021, REP. BY ITS MANAGER, SHRI.ARUN SHANKER.** - **5 SMT.SUMA T.R., NON VOCATIONAL HIGHER SECONDARY TEACHER (CHEMISTRY), VELAYUDHAN VILASOM VOCATIONAL HIGHER SECONDARY SCHOOL, AYATHIL, KOLLAM DISTRICT, PIN - 691 021.** ## **OTHER PRESENT:** ## **SRI A.J VARGHESE SR GP** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22.03.2019, ALONG WITH WP(C).5649/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** W.P.C 5649/19 & W.A787/19 5 ## **J U D G M E N T** ## **[ WP(C) 5649/2019 & WA.787/2019 ]** ## **K.Vinod Chandran, J.** The writ appeal is filed challenging the modification of an interim order. The controversy revolves around the appointment of Principal to the Velaudhavilasom Vocational Higher Secondary School, Ayathil, Kollam District. The Manager, first appointed the appellant/petitioner and then later revoked it and appointed the 5[th] respondent. The appointment of the appellant, in the meanwhile was approved by the Director and the appellant formally took charge of the post of Principal. Later on the subsequent revocation, the Director approved the 5[th] respondent's appointment as Principal. Appellant challenged the said order by a writ petition, in which there was an interim stay of operation of the impugned order, granted on 25.02.2019. Later, at the instance of the Manager, by order dated 28.02.2019, there was a modification made on the basis of the submission made by the learned Government W.P.C 5649/19 & W.A787/19 6 Pleader that, as on the date of the interim order passed by the Division Bench, the 5[th] respondent was the Principal. Interim order dated 26.03.2018 of the Division Bench is produced as Ext.P8 in the writ petition. Considering the fact that the 5[th] respondent is retiring on 30.03.2019, we thought it fit that there should be a resolution of the controversy before such retirement occurs. Hence on consent of parties, we called for the writ petition itself. 2. We have heard Sri.N.Unnikrishnan, appearing for the appellant/petitioner Sri.Lindons C.Davis, appearing for the respondents 4 and 5, the Manager and the rival claimant as also the learned Senior Government Pleader. We also directed the files leading to the impugned orders to be produced, which we have perused. 3. Before looking at the controversy raised herein, we have to notice that there was a dispute with respect to the Non-Vocational Higher Secondary Teachers being excluded from appointment as Principal in Vocational Schools based on the Special Rules framed for the purpose of regulating the appointment and W.P.C 5649/19 & W.A787/19 7 service in aided Vocational Higher Secondary Schools. The Non-Vocational teachers including the petitioner/appellant challenged the Special Rules in a writ petition. The writ petition was allowed in their favour holding that the exclusion is discriminatory. There was an appeal filed against the judgment, in which there was a _status quo_ order granted; which is the interim order of the Division Bench referred to in the order impugned in the appeal. 4. The appellant was appointed by Ext.P1 on 01.12.1995 as a part time Non-Vocational Teacher in Mathematics. The appellant was regularized in service with effect from 01.12.1995 by Ext.P2 order dated 21.02.2004. He claims seniority from 01.12.1995 as a full-time teacher itself. After Ext.P3 judgment dated 11.04.2017, the Manager appointed the petitioner/appellant as the Administrative Head of the Vocational Higher Secondary Section, by Ext.P4 dated 09.05.2017. From that date onwards the petitioner/appellant is continuing as the Administrative Head. However, the approval did not W.P.C 5649/19 & W.A787/19 8 materialise for reason of the _status quo_ order passed by the Division Bench in the appeal from Ext.P3 judgment. The petitioner/appellant then approached the Division Bench with a prayer for clarification, which was granted as per Ext.P8 dated 26.03.2018. The Division Bench clarified that the authorities would be free to give approvals for appointments already made, subject, however to the final decision in the writ appeals. The order of _status quo_ was also directed to be continued. In such circumstance, the Educational Authority considered Ext.P4 appointment made by the Manager and issued Ext.P9 dated 06.04.2018, approving the appointment of the appellant as the Principal. The appellant formally took charge on 09.04.2018 as is revealed from Ext.P5 report of transfer of charge from one Bindu.K.T, who was the Head Mistress of the High School, holding charge of the Principal, to which school the Vocational Higher Secondary School was attached. 5. There is no dispute as to what has been narrated herein before. The Manager does not dispute W.P.C 5649/19 & W.A787/19 9 the appointment of the Appellant as Head of Administration on 09.05.2017 as per Ext.P4 and sending the same for approval of the educational authorities. But however, the Manager asserts that before the approval of the Appellant was considered by the Director, the Manager had in fact revoked the appointment of the appellant (Ext.P4) and appointed the 5[th] respondent as the Principal. For that the Manager relies on Ext.P11 dated 19.12.2017. The Manager contends that on 20.12.2017 itself, the said communication was addressed to the Director through the Additional Director. However, the Additional Director returned the same for it being defective. Later, when the petitioner had taken charge as per Ext.P5; on the very same day by a communication, produced as Ext.P13 dated 09.04.2018, the Manager submitted a reminder to the Director, the copies of which were served on the appellant, the 5[th] respondent and one another teacher named Padmakumar.S. 6. Yet another communication was forwarded by Ext.P14 dated 13.07.2018 and aggrieved by the non W.P.C 5649/19 & W.A787/19 10 consideration of the various communications to the Director, the Manager also approached this Court by Ext.P16 writ petition, which at the admission stage was disposed of by Ext.P17. A mere direction was issued for consideration of the approval of the appointment of the 5[th] respondent as Principal. The Director then issued Ext.P18 order appointing the 5[th] respondent as Principal, based on which Ext.P19 was issued by the Manager to the petitioner/appellant asking him to hand over charge to the 5[th] respondent. 7. Admittedly, the petitioner was appointed as Administrative Head by Ext.P4 order of the Manager dated 09.05.2017 and he continued till his approval by Ext.P9 dated 06.04.2018. Ext.P5 is the formal handing over of charge as Principal on the approval being granted to the appointment at Ext.P4. Hence, it cannot be said that either at the time of issuance of _status quo_ order in the writ appeal or at the time of passing of Ext.P8 order the 5[th] respondent was in charge as the Administrative Head of the Vocational Higher Secondary School. We, hence, find the modification of the interim W.P.C 5649/19 & W.A787/19 11 order granted, to be bad. The appeal hence, has to be allowed. 8. Since, we have called for the writ petition itself and heard elaborately on the controversy, we are of the opinion that the writ petition itself can be disposed of by us, especially taking into account the fact that the 5[th] respondent is retiring on 30.03.2019. We have perused the files handed over by the Government. We find that the order of appointment of the 5[th] respondent issued by the Manager dated 19.12.2017 is not available in the files. The Manager's order appointing the petitioner/appellant on 09.05.2017 is available in the files. The communication issued from the Office of the Director to the Additional Director regarding the inability to consider the approval, when an interim order of _status quo_ has been passed is also available in the files. For the first time, the appointment of 5[th] respondent by the Manager allegedly by an order dated 19.12.2017, is seen marked in the file along with communication dated 05.02.2018 of the Manager at page 93 of the records. W.P.C 5649/19 & W.A787/19 12 The communication dated 05.02.2018 is a reminder, which enclosed the order dated 19.12.2017, which is produced as Ext.P11 in the writ petition. Later, after Ext.P8 order was passed by the Division Bench the Director is seen to have taken up the appointment dated 09.05.2017 for consideration and approved it by Ext.P9 dated 06.04.2018, which order is also available in the files. The appointment of the petitioner/appellant as Principal has materialised on the basis of a proper handing over of charge, at Ext.P5 on 09.04.2018. Neither the 5[th] respondent nor the other teacher, who is a teacher in a vocational subject challenged the appointment of the petitioner as Head of Administration or Ext.P9 by which his appointment as Principal was approved. 9. We notice the Manager's contention that the communication dated 19.12.2017, which was addressed to the Director, by a covering letter dated 20.12.2017 was handed over back to the Manager with an endorsement dated 20.12.2017. Though the said document is not produced, the learned counsel hands over the same W.P.C 5649/19 & W.A787/19 13 across the Bar. In the covering letter dated 20.12.2017, which refers to the proceedings of the Manager dated 19.12.2017 following endorsement was made by the Assistant Director: _“Endt: No:L1/3752/2017 dated Kollam 16.01.2018. Returned to the Manager, VVVHSS, Ayathil vide letter No.E3/5231/2017 dated 17.10.2017 of VHSE Director. The copy of the same is attached for information.”_ 10. The letter dated 17.10.2017 referred to in the endorsement as seen from the files, is produced at Ext.R4(a). Ext.R4(a) refers to a communication from the Office of the Director dated 24.08.2017 and the Assistant Director's response to the Director dated 31.08.2017, which are available in page No.67 and 69 of the file. Communication dated 24.08.2017 available at page No.67 refers to the communication of the Assistant Director dated 16.05.2017, which is available in page No.1. The Assistant Director by communication dated 16.05.2017 addressed the Director specifically with respect to the appointment of the petitioner/appellant as Principal. The Director by W.P.C 5649/19 & W.A787/19 14 letter dated 24.08.2017 informed the Assistant Director that since the _status quo_ order is passed by a Division Bench of this Court, no consideration of the appointment of Principal can be made at that stage. The further communication by the Assistant Director on 31.08.2017 is with respect to the objection raised by another teacher, one Sri.Padmakumar.S. Obviously, the Assistant Director, based on the communication from the Director that the _status quo_ order restraints them from considering the application for approval of appointment as a Principal returned the proceedings dated 19.12.2017 and hence, the same is not available in the files. 11. However, the fact remains that the proceedings dated 19.12.2017 was never informed to the petitioner who had already taken charge as Administrative Head of the school when the said order was passed. It is also to be noticed that the later communication dated 05.02.2018 issued to the Director seeking consideration of the proceedings dated 19.12.2017 was also not served on the petitioner/appellant. The 1[st] proceedings which W.P.C 5649/19 & W.A787/19 15 was served on the petitioner/appellant was Ext.P13 dated 09.04.2018, which was after his approval and his taking charge as Principal. To Ext.P13 the petitioner/appellant had made detailed objections by Ext.P15, before the Director. The Director, obviously did not issue notice to the petitioner before the approval of the 5[th] respondent was considered. Presumably, such consideration was made by reason of the directions issued in Ext.P17 judgment. As we earlier noticed, though in Ext.P16 the petitioner was made a party, he was never served with notice, for reason of the writ petition itself having been disposed of at the admission stage. 12. In this context the decision of the Honourable Supreme Court as placed before us by the learned counsel for the petitioner assumes relevance. **Dharampal** **Sathyapal Limited v. Deputy Commissioner of Central** **Excise, Gauhati and others** [(2015) 8 SCC 519] traced the origin and development of the principles of natural justice, which the Court found to be comprised of (i) the Rule against bias, (ii) an adequate opportunity of W.P.C 5649/19 & W.A787/19 16 hearing as also (iii) issuance of a reasoned order. The aspect of procedural fairness as embedded in the principles of natural justice, the learned Judges found to be applicable in the case of administrative actions too. We extract hereunder paragraph 35 of the decision: “From the aforesaid discussion, it becomes clear that the opportunity to provide hearing before making any decision was considered to be a basis requirement in the court proceeding. Later on, this principle was applied to other quasi-judicial authorities and other tribunals and ultimately it is now clearly laid down that even in the administrative actions, where the decision of the authority may result in civil consequences, a hearing before taking a decision is necessary. It was, thus, observed in A.K.Kraipak case that if the purpose of rules of natural justice is to prevent miscarriage of justice, one fails to see how these rules should not be made available to administrative inquiries. In Maneka Gandhi v. Union of India also the application of principle of natural justice was extended to the administrative action of the State and W.P.C 5649/19 & W.A787/19 17 its authorities. It is, thus, clear that before taking an action, service of notice and giving of hearing to the noticee is required. In **Maharashtra** **State Financial Corpn. v. Suvarna Board** **Mills** , this aspect was explained in the following manner:(SCC p. 568, para 3) _'It has been contended before us by the learned counsel for the appellant that principles of natural justice were satisfied before taking action under Section 29, assuming that it was necessary to do so. Let it be seen whether it was so. It is well settled that natural justice cannot be placed in a straitjacket; its rules are not embodied and they do vary from case to case and from one fact-situation to another. All that has to be seen is that no adverse civil consequences are allowed to ensue before one is put on notice that the consequence would follow if he would not take care of the lapse, because of which the action as made known is contemplated. No particular form of notice is the demand of law. All will depend on facts and circumstances of the case'.”_ 13. As we noticed, the Manager himself had appointed the petitioner as the Principal, which W.P.C 5649/19 & W.A787/19 18 approval was given effect to and the petitioner took charge. If, in the meanwhile, a proceeding was issued revoking the appointment already made and appointing another, the first appointee should have been put to notice of such revocation and the new appointment made. The Manager does not have a case that at any time when the petitioner was holding office as Head of Administration of the VHSS or when the petitioner had taken charge formally as Principal, the petitioner was informed of the revocation. Admittedly the revocation was allegedly made when consideration of approval of the first appointment order was pending before the Director and the petitioner/appellsant was continuing as Head of the School. The first communication issued to the petitioner/appellant was on 9.4.2018 which is produced as Ext.P13. The petitioner/appellant had immediately responded to the same by objections placed before the Director. The Director also did not issue any notice to the petitioner who was then discharging his duties as Principal, on the basis of an approval order issued on 6.4.2018. Neither the Manager nor the W.P.C 5649/19 & W.A787/19 19 Director could have reviewed its own orders since there is no specific power of review provided in the Special Rules. It is also pertinent that none of the teachers also challenged the appointment of the petitioner as Head of Administration and subsequent approval as Principal of the VHSS. The petitioner admittedly had taken charge as per Ext.P5 on 9.4.2018 and had been continuing as Principal of the VHSS. It is also significant that not even the order at Ext.P18 was endorsed to the petitioner/appellant and the petitioner/appellant first came to know of it when Ext.P19 handing over of charge was directed by the Manager. There is hence clear violation of principles of natural justice at the hands of the Manager and the Director. 14. Even assuming that the Manager had issued proceedings before the approval was granted on 19.12.2017, we have to notice from the various orders produced by the Manager itself that the proceedings were defective for one reason or another. A proper seniority list was not produced before the Educational W.P.C 5649/19 & W.A787/19 20 Authorities. Ext.P18 order specifically indicates that a proper proceeding was made before the Educational Authorities on 13.7.2018, appointing the 5[th] respondent as Principal, when the approval of the petitioner had already taken place and he had been continuing as Principal of the school. There could have been no such proceedings taken by the Manager after the approval of the petitioner was granted nor could the Director have interfered with his earlier approval granted by Ext.P9. The Manager too did not challenge the approval of the petitioner/appellant. 15. The learned Counsel for the Manager has a further contention that by Ext.R4(b), the Manager was directed to prepare a proper seniority list which was done as per Ext.R4(e). Ext.R4(e) indicates that Sri.Padmakumar, vocational teacher claimed to be the senior most and the petitioner to be at serial No.9. The petitioner's counsel per contra submits that even with an application under the Right To Information Act, the copy of the seniority list was not supplied to him. It is also asserted that the petitioner intends to W.P.C 5649/19 & W.A787/19 21 challenge Ext.R4(e). 16. On the contention of Prasanna Kumar being the senior most, we have to notice that Prasanna Kumar never challenged the appointment of the petitioner as Head of Administration nor his approval as Principal on 6.4.2018. The learned counsel for the Manager submits that Prasanna Kumar had submitted a relinquishment insofar as the appointment of Smt. Suma T.R. since she is retiring on 30.3.2019. We have to notice that the 5[th] respondent is said to have relinquished her claim by Ext.P20 dated 1.12.2012. We have not referred to the said order till now, since the relinquishment is of the year 2012. In any event, the 5[th] respondent having not resisted the appointment of the petitioner as Head of Administration nor approval as Principal, there cannot be any claim raised by her for the post of Principal. As far as Prasanna Kumar's claim is concerned, we desist from making any observations, since he is not in the party array. He would be left to agitate his claims before the appropriate forum in accordance with law and subject to laws of limitation. W.P.C 5649/19 & W.A787/19 22 We hence allow the writ petition directing the petitioner/appellant to be continued as Principal in accordance with the approval granted by the Director as per Ext.P9 unless the same is interfered with by a competent forum. Exts.P18 and P19 would stand set aside. No order as to costs. ## **Sd/-** ## **K.VINOD CHANDRAN** ## **JUDGE** **Sd/-** DG/Scl **V.G.ARUN JUDGE** W.P.C 5649/19 & W.A787/19 23 ## **APPENDIX OF WP(C) 5649/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE APPOINTMENT ORDER DATED 01/12/1995 ISSUED TO THE PETITIONER BY THE 4TH RESPONDENT.** **EXHIBIT P2 A TRUE COPY OF ORDER DATED 21/02/2004 ISSUED BY THE THIRD RESPONDENT. EXHIBIT P3 A TRUE COPY OF JUDGMENT DATED 11/04/2017 IN W.P.(C) NO.30257/2012.** **EXHIBIT P4 A TRUE COPY OF APPOINTMENT ORDER NO.VVVHSS/535/17 DATED 09/05/2017 ISSUED TO THE PETITIONER. EXHIBIT P5 A TRUE COPY OF REPORT OF TRANSFER OF CHARGE DATE 09/04/2018. EXHIBIT P6 A TRUE COPY OF LETTER NO.VH-128/05-06 DATED 02/07/2005. EXHIBIT P7 A TRUE COPY OF LETTER NO.L3-3486/05 DATED 02/07/2005 ISSUED TO THE PETITIONER. EXHIBIT P8 A TRUE COPY OF INTERIM ORDER DATED 26/03/2018 IN WRIT APPEAL NO.1321/2017. EXHIBIT P9 A TRUE COPY OF ORDER NO.E3/5231/17 DATED 06/04/2018 ISSUED BY THE SECOND RESPONDENT. EXHIBIT P10 A TRUE COPY OF LETTER DATED 19/12/2017 SUBMITTED BY THE 5TH RESPONDENT TO THE FOURTH RESPONDENT. EXHIBIT P11 A TRUE COPY OF LETTER NO.VVVHSS/582/17 DATED 19/12/2017. EXHIBIT P12 A TRUE COPY OF THE SENIORITY LIST AS PER OF JOINING IN SCHOOL PRODUCED BY THE PETITIONER IN W.P.(C) NO.30257/2012. EXHIBIT P13 A TRUE COPY OF LETTER NO.VVVHSS/612/18 DATED 09/04/2018 TO THE 2ND RESPONDENT. EXHIBIT P14 A TRUE COPY OF LETTER NO.VVVHSS/644/18 DATED 13/07/2018 ADDRESSED TO THE SECOND RESPONDENT BY FOURTH RESPONDENT.** W.P.C 5649/19 & W.A787/19 24 **EXHIBIT P15** **A TRUE COPY OF LETTER DATED 25/04/2018 SUBMITTED TO THE SECOND RESPONDENT.** **EXHIBIT P16 A TRUE COPY OF W.P.(C) NO.2652/2019. EXHIBIT P17 A TRUE COPY OF JUDGMENT DATED 29/01/2019 IN W.P.(C) NO.2652/2019. EXHIBIT P18 A TRUE COPY OF ORDER NO.E3/5231/17 DATED 13/02/2019 ISSUED BY THE SECOND RESPONDENT. EXHIBIT P19 A TRUE COPY OF LETTER NO.VVVHSS/758/19 DATED 18/02/2019. EXHIBIT P20 A TRUE COPY OF LETTER DATED 01/12/2012 SUBMITTED BY FIFTH RESPONDENT.**