Latha P. v State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` FRIDAY, THE 10[TH] DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944 ``` ## **`WP(C) NO. 3405 OF 2023`** ## **`PETITIONER/S:`** ``` LATHA.P, AGED 55 YEARS PRINCIPAL, KUTHUPARAMBA HIGHER SECONDARY SCHOOL, KUTHUPARAMBA, KANNUR - 670643 RESIDING AT KAYYANTHALA HOUSE, PERAVOOR KANNUR DISTRICT, 670673, PIN - 670673 BY ADVS. M.A.FAYAZ M.VISHNUPRIYA C.B.ABHINAVA ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA, REP. BY SECRETARY TO THE GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2DIRECTOR OF GENERAL EDUCATION O/O DIRECTOR OF GENERAL EDUCATION, JAGATHI, THIRUVANANTHAPURAM, PIN - 695014 3REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION PAYYAMBALA, O/O REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION PAYYAMBALAM, KANNUR, PIN - 670001 4DISTRICT EDUCATIONAL OFFICER THALASSERRY O/O DISTRICT EDUCATIONAL OFFICER THALASSERRY THALASSERRY, PIN - 670104 5MANAGER,KUTHUPARAMBA HIGHER SECONDARY SCHOOL, THOKKILANGADI P.O , KANNAUR, PIN - 670643 BY ADV SMT.NISHA BOSE, SENIOR G.P. ``` ## **`OTHER PRESENT:`** ``` SR.GP SMT NISHA BOSE ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2- W.P.(C). No. 3405 of 2023 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== W.P.(C) No. 3405 of 2023 ============================================================= Dated this the 10[th ] day of February, 2023 ## **JUDGMENT** The above writ petition is filed with following prayers: _“i. To issue a Writ of mandamus directing the 3[rd] respondent to approve the By Transfer Promotion of the petitioner as Principal of Kuthuparamba Higher Secondary School w.e.f 01.06.2021 forthwith._ _ii. To declare that In view of the fact there was no qualified HSST's available for promotion to the post of Principal as on 01.06.2021 petitioner's By Transfer Promotion as Principal is liable to be approved in accordance with the statutory provisions contained in Rule 4(1) and 4(2)(1) of Chapter XXXII KER._ _iii. In view of the approval of By Transfer Promotion as Principal given to Smt. Prasanna Kumari.M.C vide Ext.P3 and the By Transfer Promotion given to one Sri.Dineshan.P.M as HSST vide Ext.P13 the refusal to grant approval of By Transfer to the petitioner on the ground of ongoing management dispute is in violation of Article 14 of the Constitution of India, and therefore discriminatory._ _iv. To issue a Writ of Mandamus directing the 3[rd] respondent to reconsider the proposal for approval of_ 3- W.P.(C). No. 3405 of 2023 _petitioner's By Transfer Promotion as Principal, In the light of the directions Issued by the Hon'ble Court vide Ext.P15 Judgment issued in respect of the teacher in the school, forthwith and to grant approval of petitioner's By Transfer Promotion._ _v. To issue Writ mandamus directing the 4[th] respondent to sanction and disburse salary due to the petitioner In the scale of Principal of Higher Secondary School w.e.f. 01.06.2021 onwards._ _vi. To dispense with the filing of translated copies of the Exhibits produced in the above Writ Petition. AND_ _vii. To grant such other reliefs or orders as this Hon'ble Court may deem fit and proper in the above case, and to award costs.”_ 2. Petitioner is working as Principal of the Kuthuparamba Higher Secondary School, Kuthuparamba w.e.f. 01.06.2021. Petitioner was originally appointed as HST in the school on 06.06.1994 and is having 29 years of service, and he qualified to be promoted as headmaster is the contention of the petitioner. In the academic year 2014-15 Higher Secondary Batches were sanctioned to the school, and one post of Principal, 8 posts of Higher Secondary School Teachers, 4 posts of Higher 4- W.P.(C). No. 3405 of 2023 Secondary School Teachers (Jr) and 2 Lab Assistants were sanctioned. Due to some issues, the appointment to the newly sanctioned posts in the Higher Secondary Section was done only in the year 2021. It is further stated that since there was no qualified HSST available for promotion to the post of Principal the incumbent Headmistress of the Secondary Section Smt.Prasannakumari.M.C was promoted as Principal w.e.f. 21.04.2021 in accordance with Rule 4(2) Chapter XXXII KER and in the said vacancy, petitioner was promoted and posted as Head Mistress w.e.f. 21.04.2021. The by transfer promotion of Smt. Prasannakumari was approved vide Ext.P3. The said Smt. Prasannakumari retired from service on 31.05.2021. Since no qualified HSSTs were available at the time of the retirement of Smt. Prasannakumari on 31.05.2021, petitioner who was working as Headmistress, was given promotion as Principal in accordance with Rule Rule 4(2) (iii) of Chapter XXXII KER w.e.f. 01.06.2021 But the 3[rd] respondent has not granted approval of 5- W.P.(C). No. 3405 of 2023 appointment to the petitioner as Principal even after 18 months, is the grievance. The reason for not approving the appointment is that there exists a management dispute and the matter is pending before this Court. 3. Heard the counsel for the petitioner and the Government Pleader. No notice is necessary to the 5[th] respondent in the facts and circumstances of the case. If the 5[th] respondent is aggrieved by any of the directions in this judgment, the 5[th] respondent is free to file a review petition before this Court. 4. The short point raised by the petitioner is that there is no dispute about the qualification and eligibility of the petitioner for the post of Principal. The only reason for not considering the proposal for approval is that a management dispute is pending pending before this Court. In the same school, when there arise a same issue, this Court intervened as per Ext.P15 judgment and directed the Department to take necessary steps for approval. It 6- W.P.(C). No. 3405 of 2023 ## will be better to extract paragraphs 5 and 6 of Ext.P15 judgment here: _“5. I find that the predominant reason given by the 2[nd] respondent to decline approval is the pendency of W.P.(C) No.25268/2021. By Ext.P7 interim order, this Court had stayed the order issued by the Government handing over the managership to the DEO. As is evident from Ext.P8 order issued in the Contempt proceedings, the 3[rd] respondent was entitled to function as Manager, and no interdictions were placed on the same. In that view of the matter, there was no justification on the part of the 2[nd] respondent in declining approval. Another reason stated is the stay granted by this Court in W.P.(C) No. 19808/2021 filed seeking enforcement of the rights of persons with disabilities. The said writ petition has been finally disposed of by issuing certain directions and observations, which stand clarified by the Division Bench. That being the case, approval could not have been declined stating the pendency of the above writ petition. If there are other minor defects, the 2[nd] respondent ought to have granted an opportunity to the petitioners as well as the Manager to cure the same._ _6. In view of the discussion above, the petitioners are entitled to succeed. Exts.P9 to P9 (d) orders issued by the 2[nd] respondent are quashed. There will be a direction to the 2nd respondent to reconsider the matter in the light of the observations and directions above. The pendency of W.P.(C) No.25268/2021 shall not be taken as a reason to_ 7- W.P.(C). No. 3405 of 2023 _decline approval. The 2[nd] respondent shall pass fresh orders, expeditiously, in any event, within two months from the date of receipt of a copy of this judgment, with notice to the petitioners and the 3[rd] respondent.”_ Moreover, in the same educational authority, as per Ext.P14 , the 3[rd] respondent granted approval in a by transfer appointment. 5. The Government Pleader also, after getting instructions, submitted that the only reason for not considering the proposal is because of the pendency of the management dispute. The Government Pleader also submitted that there is a direction from the Government not to approve appointment in such situations. That contention will not stand in the light of Ext.P15 judgment of this Court. Moreover, in Ext.P7 it is clearly stated that the petitioner alone is the eligible person for the post. In such circumstances, according to me, the department ought to have allow the proposal for approval. 8- W.P.(C). No. 3405 of 2023 Therefore, this writ petition is disposed of in the following manner: 1. The 5[th] respondent is directed to resubmit the proposal for approval of by transfer promotion to the petitioner as Principal before the 3[rd] respondent within two weeks from the date of receipt of a copy of this judgment. 2. The 3[rd] respondent will consider that proposal and take appropriate decision to approve the by transfer promotion, if it is otherwise in order, as expeditiously as possible, at any rate, within one month from the date of receipt of the proposal. 3. The 3[rd] respondent is further directed to disburse the consequential benefits to the petitioner forthwith. 4. The petitioner will produce a certified copy of this judgment together with a copy of this writ petition before the 3[rd] and 5[th] respondent for compliance. ## **Sd/- P.V.KUNHIKRISHNAN** ## **JUDGE** das 9- W.P.(C). No. 3405 of 2023 ## **`APPENDIX OF WP(C) 3405/2023`** ## `PETITIONER EXHIBITS` ``` Exhibit P1TRUE COPY OF THE ORDER PROMOTING SMT.PRASANNAKUAMRI.M.C AS THE PRINCIPAL OF THE SCHOOL W.E.F 21.04.2021 ``` - `Exhibit P2 TRUE COPY OF LETTER NO.01/2021 DATED 30.04.2021 ISSUED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT.` - `Exhibit P3 TRUE COPY OF THE ORDER NO.B1/2153/2021 DATED 14.06.2022 ISSUED BY THE 3RD RESPONDENT TO SMT PRASANNA KUMARI.` - `Exhibit P4 TRUE COPY OF ORDER NO.2/2021 DATED 21.04.2021 ISSUED BY THE 5TH RESPONDENT PROMOTING THE PETITIONER TO THE POST OF HEADMISTRESS` ``` Exhibit P5TRUE COPY OF LETTER NO.2/2021 DATED 30.04.2021 AND OTHER ATTENDANT DOCUMENTS ISSUED BY THE 5TH RESPONDENT ``` - `Exhibit P6 TRUE COPY OF ORDER NO.B6/39325/2022 DATED 23.09.2022 PROCEEDINGS ISSUED BY THE 4TH RESPONDENT` - `Exhibit P7 TRUE COPY OF THE ORDER NO.5/2021 DATED 31.05.2021 ISSUED BY THE 5TH RESPONDENT` - `Exhibit P8 TRUE COPY OF THE LETTER NO.5/2021 DATED 04.06.2021 ISSUED BY THE 5TH RESPONDENT` - `Exhibit P9 TRUE COPY OF LETTER NO.B1/2154/2021 DATED 28.04.2022 ISSUED BY THE 3RD RESPONDENT` - `Exhibit P10 TRUE COPY OF LETTER NO.76/T3/2022/G.EDN DATED 12.08.2022 ISSUED BY THE 1ST RESPONDENT` - `Exhibit P11 TRUE COPY OF LETTER NO.A1/4111/2022 DATED 22.11.2022 ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT.` - `Exhibit P12 TRUE COPY OF ORDER NO.A5/E26347/2022 DATED 08.11.2022 ISSUED BY THE 3RD RESPONDENT APPROVING PETITIONER'S APPOINTMENT AS PRINCIPAL IN CHARGE.` - `Exhibit P13 TRUE COPY OF LETTER NO.B1/823/2022 DATED 25.11.2022 ISSUED BY THE 3RD` 10- W.P.(C). No. 3405 of 2023 ``` RESPONDENT TO THE 5TH RESPONDENT. Exhibit P14TRUE COPY OF PROCEEDINGS ORDER NO.B1/830/2022/K.DIS DATED 20.06.2022 ISSUED IN RESPECT OF ONE SRI.DINESHAN.P.M HSST (HISTORY) Exhibit P15TRUE COPY OF JUDGMENT IN W.P(C)NO.40749/2022 DATED 06.01.2023. ```