M. Hameed v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941** ## **WP(C).No.25202 OF 2016(A)** ## **PETITIONER/S:** **M. HAMEED, AGED 53 YEARS, S/O. M. MOHAMMED, U.P.S.A SELECTION GRADE, A.U.P.S PAYYANADAM, PALLIKUNNU POST, (VIA) MANNARKAD COLLEGE, PALAKKAD DISTRICT, PIN-678 583. BY ADVS. SRI.C.A.MAJEED SRI.K.H.ASIF SMT.MOLTY MAJEED SRI.K.J.SHARATH KUMAR** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE PRINCIPAL SECRETARY,**| ||**GENERAL EDUCATION DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695 001.**| |**2**|**THE DIRECTOR OF PUBLIC INSTRUCTIONS,**| ||**JAGATHI, THIRUVANANTHAPURAM, PIN-691 001.**| |**3**|**THE DEPUTY DIRECTOR OF EDUCATION,**| ||**CIVIL STATION, PALAKKAD-678 001.**| |**4**|**THE DISTRICT EDUCATION OFFICER,**| ||**DEO'S OFFICE, MANNARKKAD, PALAKKAD DISTRICT,**| ||**PIN-678 582.**| |**5**|**THE ASSISTANT EDUCATION OFFICER,**| ||**AEO'S OFFICE, MANNARKKAD, PALAKKAD DISTRICT,**| ||**PIN-678 582.**| |**6**|**THE MANAGER,**| ||**A.U.P.S., PAYYANADAM, PALLIKKUNNU POST,**| ||**(VIA) MANNARKAD COLLEGE, PALAKKAD DISTRICT,**| ||**PIN-678 583.**| **W.P.(C) No.25202 of 2016 2** **7 MRS. K.A.RADHIKA, AGED 49 YEARS, A.U.P.S., PAYYANADAM, PALLIKKUNNU POST, (VIA) MANNARKAD COLLEGE, PALAKKAD DISTRICT, PIN-678 583.** **BY ADVS. R1 TO R5 - SRI. JESTIN MATHEW, GOVERNMENT PLEADER R6 - SMT. P.R. REENA R7 - SRI.JACOB SEBASTIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C) No.25202 of 2016** **3** ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Exts.P12 and P13 proceedings of the Manager of the Aided Upper Primary School, Payyanadam, Palakkad District dated 24.02.2016 and the order of the Assistant Educational Officer, Mannarkad dated 26.03.2016, whereby the appointment of the 7[th] respondent as Headmistress of the school was ordered by the Manager, and affirmed by the Assistant Educational Officer respectively, and for other related and consequential reliefs. Brief material facts for the disposal of the writ petition are as follows: 2. According to the petitioner, petitioner has rendered 33 years of service in the 6[th] respondent school as U.P.S.A, Senior Assistant and Headmaster in charge. Petitioner is the seniormost candidate belonging to the same community of the management and the most eligible teacher for appointment to the post of Headmaster as per Rule 45 of the Kerala Education Rules, 1959. The case projected by the petitioner is that, in flagrant violation of the said Rules, the 6[th] respondent Manager proceeded to appoint the 7[th] respondent who was 8 years junior to the petitioner. When the petitioner questioned the said appointment, he ## **W.P.(C) No.25202 of 2016 4** was issued with a show cause notice. Challenging the said action and the appointment of the 7[th] respondent, petitioner approached this Court by filing W.P.(C) No.25093 of 2014, and after hearing the parties, Ext.P8 judgment was rendered setting aside the appointment of the 7[th] respondent, since there was no proper selection procedure, and directed the Manager to conduct the selection within one month from the date of receipt of a certified copy of this judgment, failing which the petitioner was directed to be promoted. 3. Thereafter, according to the petitioner, no selection procedure was framed, published or followed. But, as per Ext.P9 communication dated 19.02.2016, petitioner was directed to produce qualification and experience certificates before a panel consisting of the Manager, his brothers and close relatives and Ext.P12 order was passed on the same day. It is also submitted that, even though an appeal was preferred before the Assistant Educational Officer, the same was also dismissed, affirming the decision of the management. These are the basic background facts projected by the petitioner to secure the reliefs sought for in the writ petition. **W.P.(C) No.25202 of 2016** **5** 4. Ext.P15 is an Assessment Report given to the Manager of the school by a Committee constituted to conduct a fair and transparent process of finding very suitable and capable individual to occupy the chair of Headmaster as per the norms laid down in Ext.P8 judgment. Case projected by the petitioner is that, the Management has not taken into account the directives contained in Ext.P8 judgment to identify a procedure to conduct the selection, even though the Manager is vested with the freedom to select its own confidant to the post of Headmaster by virtue of the rights and liberties guaranteed under Article 30(1) of the Constitution of India. 5. The 6[th] respondent Manager has filed a detailed counter affidavit. Among other contentions, it is stated that, the post of Headmaster fell vacant on 01.04.2014, and there were a number of teachers who were qualified as per the provisions under the Kerala Education Act and Rules. Petitioner was the seniormost qualified teacher, but he is having only the educational qualification of Pre-degree and T.T.C. He has not passed the SET qualification. However, there were other qualified teachers in the school including petitioner's sister-in-law Raveena, Baby Philip, **W.P.(C) No.25202 of 2016 6** Thressia Jacob and K. Radhika, the 7th respond nt herein. It was found that the 7th respondent has mor than 9 years of future service before superan uation and she was having the qualifications of 1) T.T. ., 2) B.A., 3) B.Ed., 4) M.A., 5) SET, 6) Account Test 2003 and 7) KER Test, 2013. It was found that al the other teachers as aforesaid were having far les er qualification than the 7th respondent and also mu h less future service in the school before attainm nt of the age of superannuation. 6. In the said circumstances, the Manager considered the aforesaid teachers for promotion to the post of Headmaster and it was found that 7[th] respondent is the best among the aforementioned four teachers to lead the school with success and progress, and hence the 6[th] respondent had selected the 7[th] respondent to be appointed as the Headmistress of the school. The appointment order was approved by the Assistant Educational Officer on 30.06.2014. Moreover, it is submitted that, the conduct of the petitioner is not in accordance with the conduct of a person who can head the institution, and the petitioner is not regular in his discharge of duties as a teacher and there has been large number of complaints against the petitioner from ## **W.P.(C) No.25202 of 2016 7** the students as well as the P.T.A. Other contentions are also raised with respect to the conduct of the petitioner. 7. Apart from the same, it is submitted that, the proviso to Rules 43 and 44 of Chapter XIV-A of KER is not applicable with regard to the appointment of the post of Headmaster of a minority institution. Learned counsel for the 6[th] respondent has relied upon the judgment of the apex court in ' _**N. Ammad v. Manager, Emjay High School and Others**_ ' [(1998) 6 SCC 674], wherein the apex court had held that, the selection and appointment of the Headmaster in a school are of prime importance in the administration of the educational institution. Therefore, according to the 6[th] respondent, it was taking into account all the relevant aspects, Ext.P12 order was passed. It is also pointed out that, a clear selection procedure was undertaken by the management in accordance with the directions issued by this Court in Ext.P8 judgment, and it was accordingly that Ext.P9 notice dated 19.02.2016 was issued, directing the petitioner and others to be present with originals of proofs/credentials of qualifications, efficiency certificates, experience certificate etc. etc. on 24.02.2016 at 10.30 A.M. **W.P.(C) No.25202 of 2016** **8** 8. It is also evident from Ext.P10 that petitioner has submitted a written note on the said notice in respect of the claim raised by the petitioner. It was taking into account the entire aspects of the matter, the management has passed Ext.P12 proceedings dated 24.02.2016. From Ext.P12, it is clear that the quality and claims of all the aspiring senior teachers were taken into account and found that the 7[th] respondent is the most suitable person due to the qualifications she had in order to secure the appointment as Headmistress of the school. As per Ext.P13, the Assistant Educational Officer has taken into account the orders passed by the Manager and the directions contained in Ext.P8 judgment and found that the procedure adopted by the Manager for heading the more suitable person was in accordance with law, and therefore, no interference is warranted to the selection conducted. **==> picture [396 x 13] intentionally omitted <==** Educational Officer has also filed a detailed counter affidavit, justifying the stand adopted in Ext.P13 order. **==> picture [396 x 10] intentionally omitted <==** **W.P.(C) No.25202 of 2016** **9** petitioner, learned Government Pleader and the respective counsel appearing for respondents 6 and 7, and perused the pleadings and the documents on record. 11. As is discussed above, the sole question to be considered is, whether any transparent procedure was undertaken by the management, as directed by this Court in Ext.P8 judgment. It is evident from Ext.P9 that a selection committee was constituted by the Manager and issued notice to 5 of the teachers who were seniors in the institution, and after assimilating the credentials, experience, qualifications, conduct etc., Ext.P12 order was passed by the Management. It is clear from Ext.P12 that the credentials, experience and other aspects produced by the parties were assimilated by the Manager and it was accordingly that the Management has conducted the selection of the 7[th] respondent as the Headmistress of the school. 12. The Assistant Educational Officer as per Ext.P13 has also taken into account the procedure adopted by the Management in the matter of selection, and it was thereupon found that the procedure adopted by the Management is in accordance with the directions contained in Ext.P8 judgment. It is also evident from Ext.P15 that the Management has appointed a committee ## **W.P.(C) No.25202 of 2016 10** to identify the qualifications of the parties, verification of the certificates etc. and give a report to the Management. A detailed report is submitted by the Committee so constituted, taking into account the credentials of the respective candidates and the Management has arrived at the findings taking into account those aspects also. 13. Moreover, petitioner has projected the case put forth before this Court before the Manager as well as the Assistant Educational Officer, evident from Exts.P10 and P16, and therefore, it was taking into account all the relevant aspects, the Management has appointed the 7[th] respondent. It is also clear and evident that, under Article 30(1) of the Constitution of India, a minority institution is entitled as of right to establish and administer educational institutions and the management of the minority educational institution would have freedom to appoint the Headmaster or Principal. It is further clear from the Full Bench judgment of this court in ' _**Kurian Lizy and Others v. State of Kerala and Others**_ ' [2006 KHC 1014] that, Chapter 14A of the Rules of 1959 would have no control over the powers conferred under Article 30(1) of the Constitution, although such institution ## **W.P.(C) No.25202 of 2016** **11** has necessarily to evolve a rationale procedure for selection of the Headmaster or Principal. It is also clear from the said judgment, the selection procedure should be fair, reasonable and transparent. 14. So also, I have taken into account the judgment rendered by this Court in ' _**Jameela K. v. State of Kerala and Others**_ ' [2015 (3) KHC 509], wherein also this Court held that the right of the minority institution to appoint a Headmaster of their own choice from among qualified teachers flows from Constitution of India, and therefore, prescription of seniority as envisaged under Rule 44(1) of Chapter 14A of KER as such would not apply. Therein also, this Court has held that the selection procedure should be a transparent, fair and reasonable one. 15. Taking into account all these aspects and the orders passed by the Management as well as the Assistant Educational Officer, I am of the considered view that a fair and transparent selection procedure was adopted by the Management in the matter of appointment of the 7[th] respondent. Therefore, it cannot be said that there is any illegality, arbitrariness or unfairness in Ext.P12 order passed by the Manager and Ext.P13 order passed by the Assistant Educational **W.P.(C) No.25202 of 2016 12** Officer. Resultantly, the writ petition has no sustenance, accordingly it is dismissed. **Sd/-** ## **SHAJI P.CHALY** **JUDGE** **St/-28.10.2019** **W.P.(C) No.25202 of 2016** **13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF THE SENIORITY LIST OF TEACHERS ENGAGED IN 6TH RESPONDENT SCHOOL DATED 20/6/2014. EXHIBIT P2. PHOTOCOPY OF THE APPOINTMENT ORDER OF THE 7TH RESPONDENT DATED 22/5/2014 ALONG WITH THE ENDORSEMENT OF THE 5TH RESPONDENT. EXHIBIT P3. PHOTOCOPY OF THE REPLY NO.C/989/2014 ISSUED BY THE 5TH RESPONDENT DATED 30/6/2014. EXHIBIT P4. PHOTOCOPY OF THE JUDGMENT DATED 22/8/2014 IN WPC NO.21943/2014.` EXHIBIT P5. PHOTOCOPY OF THE REPLY FILED BY THE PETITIONER DATED 3/9/2014. EXHIBIT P6. PHOTOCOPY OF THE COUNTER AFFIDAVIT FILED BY THE 6TH RESPONDENT DATED 16/12/2014 IN WPC NO.25093/2014. EXHIBIT P7. PHOTOCOPY OF THE COUNTER AFFIDAVIT FILED BY THE 6TH RESPONDENT DATED 20/7/2015 IN WPC NO.25093/2014. EXHIBIT P8. PHOTOCOPY OF THE JUDGMENT DATED 29/1/2016 IN WPC NO.25093/2014. EXHIBIT P9. PHOTOCOPY OF THE NOTICE DATED 19/2/2016 FROM THE 6TH RESPONDENT EXHIBIT P10. PHOTOCOPY OF THE REPRESENTATION DATED 24/2/2016 SUBMITTED BY THE PETITIONER TO THE 6TH RESPONDENT. EXHIBIT P11. PHOTOCOPY OF THE DATA SHEET PROVIDED BY THE 6TH RESPONDENT TO THE PETITIONER. EXHIBIT P12. PHOTOCOPY OF THE ORDER OF THE MANAGER BEARING NO.AUPS PAYYANEDAM 001/ADMN/2016 DATED 24/2/2016. EXHIBIT P13. PHOTOCOPY OF THE ORDER OF THE 5TH RESPONDENT BERING NO.C/2861/2014 DATED 26/3/2016.** **W.P.(C) No.25202 of 2016 14** **EXHIBIT P14. PHOTOCOPY OF THE LETTER DATED 5/4/2016 SUBMITTED BY THE PETITIONER. EXHIBIT P15. PHOTOCOPY OF THE ASSESSMENT REPORT DATED 24/2/2016 GIVEN TO THE 6TH RESPONDENT. EXHIBIT P16. PHOTOCOPY OF THE LETTER DATED 15/4/2016 SUBMITTED BY THE PETITIONER TO THE 5TH RESPONDENT.** **EXHIBIT P17. PHOTOCOPY OF THE APPLICATION DATED 29/4/2016 UNDER THE RTI ACT BY THE PETITIONER.** **EXHIBIT P18. PHOTOCOPY OF THE REPLY UNDER THE RTI ACT DATED 7/5/2016 FROM THE 5TH RESPONDENT. EXHIBIT P19. PHOTOCOPY OF THE JUDGMENT DATED 2/7/2016 IN WPC NO.8604/2016.** ## **RESPONDENTS' EXHIBITS: NIL**