M. Constantin Claudia v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932** **WP(C).No. 12858 of 2004(E)** **---------------------------------** ## **PETITIONER(S)/ PETITIONER** **-----------------------------------** **M. CONSTANTIN CLAUDIA, AGEAD 43, D/O.REV.E. MANASSEH, NOW RESIDING AT K.P.8/936, CHAITHRA, LAKSHMI GARDEN, KUDAPPANA KUNNU P.O., TRIVANDRUM-43, NOW WORKING AS HSST (HISTORY), AT C.L.H.S.S., PEROORKADA, THIRUVANANTHAPURAM.** ## **BY ADV. SRI.BENOY THOMAS** ## **RESPONDENT(S):** **--------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM.** **3. MANAGER, LUTHERAN CORPORATE MANAGEMENT, C.L. HSS, COMPOUND, PEROORKKADA, TRIVANDRUM-5.** **4. SASIDHARAN PILLAI, PRINCIPAL IN-CHARGE C.L. HIGHER SECONDARY SCHOOL, PEROORKKADA, TRIVANDRUM-5.** - **ADDL. R5 AND R6 IMPLEADED** **5. REV. C.H. ALFRED, KALVARY LUTHERAN COMPOUND, PEROORKKADA P.O., TRIVANDRUM - 5.** **6. D. SATHYANESAN, LO.S. BHAVAN, MELAPENVILA, AYIRA P.O., PARASSALA, TRIVANDRUM.** - **R5 & R6 ARE IMPLEADED AS PER ORDER DATED 01/02/2005 IN I.A. NO. 9458/2005.** **R1 & R2 BY GOVT. PLEADER SRI.P.NANDAKUMAR R4 BY ADV. SRI.D.KISHORE** **R3-5 BY ADV. SRI.P.GOPALAKRISHNAN NAIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **svs/** ## **WP(C).No. 12858/2004(E)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** ## **P1: COPY OF MEMO OF APPOINTMENT AND APPROVAL ORDER OF THE PETITIONER DATED 28/08/1991 AND 02/09/1991 RESPECTIVELY.** - **P2: COPY OF GOVERNMENT ORDERS, G.O.(MS)NO.171/03/G.EDN. DATED 23/06/2003 AND G.O.(MS)NO.185/03/G.EDN. DATED 14/07/2003 RESPECTIVELY.** - **P3: COPY OF THE ORDER NO.ACD.B5.291/2003/HSE DATED 12/03/2004 ISSUED BY THE 1ST RESPONDENT.** - **P4: COPY OF THE GOVERNMENT ORDER DATED 16/12/2003 ISSUED BY THE 1ST RESPONDENT.** - **P5: COPY OF THE G.O.(P)NO.38/2005/GEN.EDN. DATED 04/02/2005.** ## **RESPONDENT'S EXHIBITS:** **R4(a):COPY OF THE APPOINTMENT ORDER DATED 24/11/2003 ISSUED BY THE MANAGER OF THE SCHOOL.** **R4(b):COPY OF THE MINUTES OF SELECTION COMMITTEE.** **R4(c):COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 26/07/2005.** **R4(d):COPY OF THE APPOINTMENT ORDER DATED 02/09/1991.** **R4(e):COPY OF THE ORDER NO.ACD-B5-1220/05/HSE DATED 22/01/2006 OF THE 2ND RESPONDENT.** ## **/TRUE COPY/** **P.A. TO JUDGE** **svs/** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.12858 of 2004** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of October, 2010** ## **J U D G M E N T** The petitioner is a Higher Secondary School Teacher working in the 3[rd] respondent's school. According to the petitioner, she possesses all qualifications prescribed under Chapter XXXII of the Kerala Education Rules for consideration for appointment as Principal in the school. The 4[th] respondent also is a Higher Secondary School Teacher possessing the prescribed qualifications. The petitioner has filed this writ petition challenging the appointment of the 4[th] respondent as Principal on the ground that, such appointment of the 4[th] respondent was not made after following a selection procedure known to law. According to the petitioner, the Manager has after appointing the 4[th] respondent as Principal, created documents to show that a selection procedure has been followed by constituting a selection committee and the selection committee selected the 4[th] respondent for W.P.(C)No.12858 of 2004 2 appointment. Against the selection of the 4[th] respondent, the petitioner earlier approached this court by filing W.P.(C) No.40607/2003, wherein this court directed the Director of Higher Secondary Education to consider the grievance of the petitioner. Pursuant to which, Ext.P3 order has been passed upholding the validity of the appointment of the 4[th] respondent. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: - “i) declare that the continuance of the 4[th] respondent is only as Principal in-charge as per the Govt. orders dated 23-6-2003 which was later superseded by the Govt. by Govt. order dated 16-12-2003. - ii) declare that even in the matter of appointment of Principal in-charge as already done by the Manager, the petitioner being senor to the 4[th] respondent having lower level service ought to have been appointed by the Manager as Principal in-charge. - iii) issue a writ of certiorari quashing Ext.P4 Government order. - iv) issue a writ of certiorari quashing Ext.P3. - v) issue a writ of mandamus or direction directing the 3[rd] respondent Manager to appoint the Principal of the Higher Secondary School on a regular basis in accordance with Chapter XXXII of KER after considering all the eligible hands including the petitioner and the 4[th] respondent. W.P.(C)No.12858 of 2004 3 - vi) grant such other orders as this Hon'ble Court deems fit and proper. - vii. declare that Note (i) of Clause (1) of Rule 4 Chapter XXXII of KER in so far as it included officers of Higher Secondary Education department not below the rank of a Deputy Director in the panel of Government nominees to be nominated by the Manager to be included in the selection committee for selection of Principal is arbitrary, hit by Article 14 and therefore void and unenforceable and further that the selection of the 4[th] respondent if any actually found to be held under the impugned clause is also void. - viii. set aside the appointment of the 4[th] respondent as Principal of the Petitioner's HSS.” 2. The primary contention of the petitioner is that, the selection and appointment of the 4[th] respondent was without following a selection procedure known to law. In the writ petition, the 4[th] respondent has filed a counter affidavit dated 08.06.2004 wherein there was no mention about the selection committee and interview. Later after an year, he filed another counter affidavit dated 06.07.2005 along with which some documents alleged to be minutes of the selection committee constituted under Rule 4 of Chapter XXXII of the Kerala Education Rules were produced. The petitioner would contend that, for approval of the appointment of the 4[th] respondent as Principal, the W.P.(C)No.12858 of 2004 4 manager ought have produced the Minutes of the proceedings of the selection committee along with the appointment order before the 2[nd] respondent which was not produced, despite which, the Director wrongly held that, the manager has followed the procedure prescribed, which cannot be accepted as valid and correct. He particularly points out the manager, who is alleged to have constituted the selection committee has not filed any counter affidavit to support the contentions of the 4[th] respondent. The petitioner asserts that no such selection committee was constituted and no selection was made with notice to the petitioner. 3. The 4[th] respondent originally filed a counter affidavit dated 08.06.2004 taking the contention that, the selection was in accordance with law. The 4[th] respondent has again filed another counter affidavit dated 06.07.2005 producing Ext.R4 (b), stated to be the Minutes of the selection committee constituted for selection of Principal. According to the 4[th] respondent, the Manager had invited W.P.(C)No.12858 of 2004 5 applications for selection to the post of Principal to which six persons had responded and an interview was conducted by a selection committee in which the 4[th] respondent was selected. According to the 4[th] respondent, the same is a valid and proper selection procedure. The 2[nd] respondent has also filed a counter affidavit in support of the impugned order. The petitioner has filed a reply affidavit refuting the contentions in the counter affidavits. 4. I have considered the rival contentions in detail. 5. Note (i) of Rule 4 (1) of Chapter XXXII of the K.E.R (as it then stood before amendment) contains the procedure for selection for appointment to the post of Principal which reads thus: ## **TABLE** Sl. Category No. (1) (2) 1. Principal Method of appointment (3) - (1) By promotion from category 2 under the respective educational agency. ## OR - (2) By transfer from qualified Headmasters of Aided High Schools under the respective educational agency. W.P.(C)No.12858 of 2004 6 - Note:(i) The post of Principal will be a selection post and appointment to the post shall be made on the basis of the recommendation of a selection committee consisting of the Manager or his nominee as Chairman, a selection grade Lecturer or Reader or Principal of a college nominated by the Manager and Government representative as members. The Government representative shall be nominated by the Manager from among the Officers of Higher Secondary Education Department not below the rank of a Deputy Director or Officers of the Government not below the rank of a Deputy Collector. - (ii) Preference shall be given to Aided Higher Secondary School Teachers having teaching experience at the Higher Secondary School level. - (iii) The post shall be filled up by the methods specified in item (i) and (ii) above in the ratio 2:1. If qualified candidates are not available for appointment to a vacancy by any one of the methods specified above, such vacancies shall be filled up by the other method. The same shows that, the selection of Principal has to be by a selection process known to law. Admittedly, the selection made by the manager is not by direct recruitment but is by promotion from Higher Secondary School Teachers of the same school. Therefore, the Manager ought to have invited applications from all the eligible candidates working in the school and conducted a selection process by a selection W.P.(C)No.12858 of 2004 7 committee constituted in accordance with the rule. I am of opinion that, insofar as all the eligible teachers are in the school itself for transparency of the selection process, the Manager ought to have obtained acknowledgment of all the eligible teachers regarding the notification inviting applications and should have issued individual memos regarding date of interview obtaining acknowledgment of the teachers. Such a selection procedure only would be a transparent selection procedure. I am saying so, because, in cases which has come up before me, I have found a tendency on the part of the managers of the schools to make a farce of a selection process without intimating the eligible teachers about the selection whether it be a selection to the post of Higher Secondary School Teacher or Principal. In fact, in the case of appointment to the post of Higher Secondary School Teachers for not having followed such a transparent procedure, I had in W.P.(C) Nos.16786 and 17054/2004 set aside such a selection for not having intimated the eligible teachers of the vacancy and the 8 W.P.(C)No.12858 of 2004 notification inviting applications. The manager should adopt a transparent procedure of inviting applications from qualified teachers and inviting them for interview by the selection committee. If the averment of the manager that the notification inviting applications and the date of the interview have been notified in the notice board of the school, it is likely to lead to manipulations by manager to select a person of his choice, thus avoiding other eligible candidates from the selection process. Therefore without proof of having published the notification inviting applications and intimation regarding date of interview to the applicants, the selection process cannot be held to be transparent. Insofar as the number of qualified persons are very limited who are available in the school itself, the manager should have obtained acknowledgment regarding both from the qualified Higher Secondary School Teachers in the school who are entitled to be considered for selection to the post. W.P.(C)No.12858 of 2004 9 6. Strangely in this case, the manager has not come forward with a counter affidavit stating that a valid and transparent selection procedure had been adopted by the manager in the matter of selection of Principal. It is the 4[th] respondent who has produced the copy of the minutes of the selection committee. The petitioner had specifically stated in ground 'A' as follows: “A. It is submitted that the 4[th] respondent's appointment was not made in accordance with the special rules ie. Chapter XXXII of KER, the statutory rules made in pursuance of the directions given by the Hon'ble Supreme Court in Dollichan's Case but only in accordance with the Govt. orders issued in violation of the statutory rules which was subsequently superseded by the Government by another Govt. order dated 16-12-2003, true copy of which is produced herewith and marked as Exhibit P4. A selection process is contemplated as per the statutory rules which was not done in this case. No notification inviting applications was also issued by the management before appointing the 4th respondent as Principal in charge as per the Govt. orders. Petitioner apprehends that the earlier manager might have fabricated documents in respect of the selection required by the rules. Inspite of demand by the petitioner's counsel at the time of hearing, no records pertaining to regular selection including notification were produced before the 2nd respondent. Therefore, the conclusion arrived at by the 2nd respondent in the impugned order that the appointment of the 4 th respondent was in accordance with the special rules, is unreasonable and merely because the 4th respondent is qualified as per the rules does not implies that the appointment is as per the rules. Therefore, the impugned order is vitiated both on facts and law, and the order is liable to be set aside and a fresh direction is ordered to be issued to the Manager to make appointment of the Principal of the 3[rd] respondent school on a regular basis as per Chapter XXXII of KER, ignoring Ext.P4 Government order which cannot over-ride the statutory rules. Ext.P4 Govt. order is also bad being ultravires and repugnant to W.P.(C)No.12858 of 2004 10 Chapter XXXII which supplanted the said rules. It only contemplates a placement ie. appointment of Principal in charge. It also contemplates a HM for the high school section which is also against the scheme of the Act & Rules. It is also against the interpretations and findings in Shaji v. Ramachandran, reported in 2003 (2) KLT 814 which has become final when the SLPs filed by the Govt. against the same are dismissed. The Government is barred by Principles of resjudicata/constructive res-judicata to deviate from the said judgment in respect of the petitioner's school in that case. Hence on public policy, the State Government cannot deviate from the same system followed in that school as per the decision in Shaji v. Ramachandran and as per Chapter XXXII of KER.” (underlining supplied) 7. Neither the manager nor the 2[nd] respondent has chosen to controvert the above specific averments of the petitioner. If infact the minutes of the selection committee was available at that time, the manager ought to have produced the same before the 2[nd] respondent, which had not been done. This leads support to the contention of the petitioner that the minutes could have be concocted later. In the above circumstances, I do not think that, the procedure adopted by the manager can be said to be a transparent and valid selection procedure. Accordingly, the selection of the 4[th] respondent and Ext.P3 order are set aside. The manager shall conduct a fresh selection after W.P.(C)No.12858 of 2004 11 giving intimation regarding the selection process to each of the eligible applicant and obtaining an acknowledgment for the same from them and make fresh appointment in accordance with law. This shall be done as expeditiously as possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. Till fresh appointments are made the 4[th] respondent can provisionally continue. The selection process shall be confined to the persons who were eligible at the date of conducting the selection which has been set aside and shall be in accordance with the Rules prevailing at that time. The writ petition is allowed as above. S. SIRI JAGAN JUDGE shg/