M. Honey v. Manager Kopparathu Higher Secondary School & Ors.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **WEDNESDAY, THE 3[RD] DAY OF AUGUST 2022 / 12TH SRAVANA, 1944** **WA NO. 639 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 28642/2019 OF HIGH COURT OF** ## **KERALA** ## **APPELLANT/RESPONDENT NO.5:** **M.HONEY AGED 44 YEARS HIGHER SECONDARY SCHOOL TEACHER (CHEMISTRY), KOPPARETHU HIGHER SECONDARY SCHOOL, P.O.PATTOLI MARKET, KAYAMKULAM, ALAPPUZHA DISTRICT - 690 531.** **BY ADVS. KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.THULASI K. RAJ** ## **RESPONDENTS/PETITIONER/RESPONDENTS 1 TO 4 & 6, 7:** **1 MANAGER, KOPPARETHU HIGHER SECONDARY SCHOOL P.O., PATTOLI MARKET, KAYAMKULAM, ALAPPUZHA DISTRICT - 690 531.** **2 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 014.** - **3 DIRECTOR OF GENERAL EDUCATION GENERAL EDUCATION DEPARTMENT, JAGATHY, THIRUVANANTHAPURAM - 695 014.** - **4 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, CHENGANNUR, ALAPPUZHA DISTRICT - 689 121.** Writ Appeal No.639 of 2021 2 **5 SHINY A. HIGHER SECONDARY SCHOOL TEACHER (PHYSICS), KOPPARETHU HIGHER SECONDARY SCHOOL P.O. PATTOLI MARKET, KAYAMKULAM, ALAPPUZHA DISTICT - 690 531.** **6 LEKSHMI A.S., HIGHER SECONDARY SCHOOL TEACHER (MATHEMATICS), KOP-PARETHU HIGHER SECONDARY SCHOOL P.O., PATTOLI MARKET, KAYAMKULAM, ALAPPUZHA - 690 531.** **7 VISHNU S.L., HIGHER SECONDARY SCHOOL TEACHER (JUNIOR) BOTANY, KOPPARETHU HIGHER SECONDARY SCHOOL P.O., PATTOLI MARKET, KAYAMKULAM, ALAPPUZHA DISTRICT - 690 531.** **BY SR.G.P. A.J.VARGHESE FOR R2 TO R4 BY SRI.M.R.ANISON** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Writ Appeal No.639 of 2021 3 ## **C.R.** ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **----------------------------------------------Writ Appeal No.639 of 2021 -----------------------------------------------** ## **Dated this the 3[rd] day of August, 2022.** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** This appeal is directed against the judgment dated 22.12.2020 in W.P.(C) No.28642 of 2019. The appellant was the fifth respondent in the writ petition. Parties and documents are referred to in this judgment, as they appear in the writ petition. 2. The petitioner is the Manager of an aided Higher Secondary School. The Higher Secondary section of the school was sanctioned from the year 2014-2015. Since there were no qualified hands then in the school for appointment by transfer as Higher Secondary School Teacher [HSST] or Higher Secondary School Teacher (Junior), the petitioner took steps to appoint the required number of teachers from the open Writ Appeal No.639 of 2021 4 market. It is stated that there were three posts of HSST and four posts of HSST (Junior) in the school. A selection was conducted and appointments were made by the petitioner to the said posts from the ranked lists prepared by the Selection Committee. The fourth respondent secured first rank in the selection for appointment to the post of HSST and respondents 5 and 6 secured ranks 3 and 2 respectively in the said selection. The petitioner appointed the fourth respondent on 05.01.2018 and respondents 5 and 6 on 06.01.2018. The said appointments were approved with effect from the respective dates of appointment in terms of Ext.P2 order issued by the third respondent. 3. The fifth respondent preferred an appeal against Ext.P2 order before the second respondent seeking a direction to the Manager to submit a revised proposal for approval of her appointment with effect from 05.01.2018. On the said appeal, the second respondent took the view that insofar as three vacancies were existing at the time of preparation of the select list and since respondents 4 to 6 were included in the same select list, they should have been appointed on the same day itself and consequently directed Writ Appeal No.639 of 2021 5 the third respondent to approve the appointment of respondents 5 and 6 as HSST in the school with effect from 05.01.2018. Ext.P3 is the order issued by the second respondent in this regard. Although Ext.P3 order was challenged by the petitioner in revision before the Government, the same was affirmed by the Government as per Ext.P5. In the meanwhile, the fourth respondent being the earliest appointee to the post of HSST in the school, the petitioner appointed her as Principal-in-Charge of the School. Exts.P3 and P5 orders were under challenge in the writ petition. 4. The case set out by the petitioner in the writ petition was that being the appointing authority, he has absolute discretion in the matter of making appointments and that the appointees cannot claim that they should be appointed with effect from a particular date. It was also the case of the petitioner that the dates of appointments were fixed based on the merits of the candidates and the fourth respondent being a candidate who secured more marks in the selection, she was appointed earlier to others and there is nothing illegal in the same. Writ Appeal No.639 of 2021 6 5. A counter affidavit has been filed in the matter by the fifth respondent contending, _inter alia,_ that insofar as the selection was conducted on the same day and since vacancies were available on the date of selection, the vacancies should have been filled up by appointing all the selected candidates on the same day itself. It was also contended by the fifth respondent that had the Manager adopted the said course, the fifth respondent being elder to the fourth respondent, she would have had a claim for appointment as Principal in preference to the fourth respondent and it was with a view to appoint the fourth respondent as Principal that the appointments were made by the petitioner in the manner aforesaid. 6. The learned Single Judge took the view that in the absence of any specific provision in the Kerala Education Act (the Act) and the Kerala Education Rules (the Rules) interdicting the Manager from making appointments in the manner in which appointments have been made by him, there is no illegality in the decision taken by the Manager to appoint the fourth respondent earlier to the appointment of respondents 5 and 6. The learned Single Judge has also found Writ Appeal No.639 of 2021 7 that the decision of the Manager to appoint the fourth respondent earlier to the appointment of respondents 5 and 6 cannot be said to be unfair as she was found to be more meritorious than respondents 5 and 6 in the selection. The writ petition, in the circumstances, was allowed and Exts.P3 and P5 orders were quashed. It is aggrieved by the said decision of the learned Single Judge that the fifth respondent has come up in this appeal. 7. Heard the learned counsel for the fifth respondent as also the learned counsel for the petitioner. 8. The learned counsel for the fifth respondent argued that insofar as the selection was conducted on the same day and since vacancies were available on the date of selection, the vacancies should have been filled up by appointing all the selected candidates on that day itself and the Manager had no discretion to defer the appointment of two among the selected candidates to a subsequent date so as to enable the initial appointee to claim seniority over the subsequent appointees. It was pointed out that had they been appointed on the same day, in the light of Rule 37 of Chapter XIV A of the Rules, the fifth respondent would have been senior Writ Appeal No.639 of 2021 8 to the fourth respondent. According to the learned counsel, being a statutory authority, the Manager of an aided school can act only fairly and reasonably, and not arbitrarily in the matter of discharging his functions and that the conduct of the Manager in deferring the appointment of the fifth respondent cannot be said to be a fair action, for it is intended to defeat her right to claim seniority over the fourth respondent in the grade of HSST in the school. The learned counsel has relied on the decisions of this Court in **Jayasree T. v. Director of Higher Secondary Education,** 2009 (2) KHC 424, **Mar Philixinos Vocational Higher Secondary School, Kumbazha v. State of Kerala,** 2010 KHC 50, **Manager, H.M. High School v. State of Kerala,** 1987 SCC OnLine Ker 498 and **Viswanathan v. Director of Higher Education,** 2005 KHC 1184, in support of the said proposition. The learned counsel has also placed reliance on a few other judgments rendered by this Court based on the judgments referred to above. 9. Per contra, the learned counsel for the petitioner supported the impugned decisions pointing out that what is required to be established by the fifth respondent in a Writ Appeal No.639 of 2021 9 case of this nature is her right to claim appointment with effect from 05.01.2018. It was vehemently argued by the learned counsel that the fifth respondent being only a person who is included in a select list, she cannot claim any right to be appointed, much less any right to be appointed with effect from a particular date. It was also argued by the learned counsel that the right of the fifth respondent being only to be considered for appointment, the second respondent has erred in directing the third respondent to approve the appointment of respondents 5 and 6 with effect from 05.01.2018. It was also argued by the learned counsel that having regard to the scheme of the Act and the Rules, in the absence of any statutory provision making it obligatory for the Manager to appoint all persons who are selected for appointment against notified vacancies on the same day itself, the fifth respondent cannot claim that she was entitled to be appointed with effect from 05.01.2018. It was also pointed out by the learned counsel that even if it is assumed that the Manager has deferred the appointment of the fifth respondent for a day so as to enable the fourth respondent to claim seniority over her, the decision cannot be said to be unfair, unreasonable or Writ Appeal No.639 of 2021 10 arbitrary as the fourth respondent was admittedly a candidate more meritorious than the fifth respondent, having secured more marks in the selection. 10. We have examined the arguments advanced by the learned counsel for the parties on either side. 11. There is no dispute on any of the factual aspects. Both the fourth and fifth respondents are persons selected against notified vacancies in one and the same selection. While the fourth respondent could secure 237 marks, the fifth respondent could secure only 215 marks in the selection. Even though there existed sufficient vacancies, the Manager had not appointed respondents 4 and 5 on the same day. Instead, the Manager appointed the fourth respondent on 05.01.2018 and the fifth respondent on 06.01.2018. The appointments were approved by the third respondent with effect from the respective dates in terms of Ext.P2 order. In appeal, the second respondent directed the third respondent to approve the appointments of respondents 5 and 6 as well with effect from 05.01.2018, as per Ext.P3 order. It is the said order of the second respondent which has been affirmed by the Government as per Ext.P5 order. The short question, therefore, Writ Appeal No.639 of 2021 11 is whether the petitioner was obliged under law to appoint the fifth respondent on 05.01.2018 itself. 12. It is beyond dispute that appointment of HSSTs in aided Higher Secondary Schools is governed by the provisions contained in the Act and the Rules. Section 11 of the Act provides that subject to the rules and conditions laid down by the Government, teachers of aided schools shall be appointed by the Managers of such schools from among persons who possess the qualifications prescribed under Section 10. Rule 5 of Chapter XXXII of the Rules dealing with the method of appointment and the qualifications of teachers and non-teaching staff in aided higher secondary schools provides that the appointing authority for the various category of posts shall be the Manager. In the Note appended to Rule 5, it has been provided that appointments to teaching posts shall be made on the recommendation of a Selection Committee. There is no provision in the Act and the Rules which makes it obligatory for the Manager to appoint candidates selected against notified vacancies on the same day itself, irrespective of their merit, so as to enable the elder to claim seniority over the younger. The pointed question, therefore, is whether, in the Writ Appeal No.639 of 2021 12 absence of a specific provision, the selected candidates could claim that they should be appointed on the same day, irrespective of their merit so as to enable the eldest among them to claim seniority over the younger. 13. In order to answer the question aforesaid, it is necessary to understand the scheme of the Act and the Rules. Section 7 of the Act mandates that every educational agency running an aided school may appoint a person to be the Manager of the aided school. The Rules provide a mechanism to approve the Managers so appointed by the educational agencies. The Act and the Rules define the functions, confer rights and create liability on the Manager of aided schools. The scheme of the statute is that the school shall be run by the Manager in accordance with its provisions and it is the Manager who is answerable to the authorities under the statute in relation to the affairs of the school. No doubt, the Manager being a person appointed under the Act, he is a statutory authority. In **Assistant Educational Officer v. P.R.Mamoo,** 1968 KLT 556, a Full Bench of this Court has held that if Managers are authorities appointed under the Act, their powers and disabilities must only be as mentioned in the Act. Writ Appeal No.639 of 2021 13 The position aforesaid has been clarified and explained further by a Division Bench of this Court later in the context of appointment of the Headmaster of a school in **K.P.Sethumadhavan v. District Educational Officer, Palghat,** 1974 KLT 469. It was held in the said case that the power to appoint a teacher is vested in the Manager under the statute and the only insistence is that this power must be exercised subject to the provisions of the statute. Paragraph 3 of the judgment in the said case reads thus: “3. We would have normally dismissed this appeal, but we think, there is a matter of principle involved which has to be clarified. The power to appoint the Headmaster or a teacher is vested in the Manager under the educational Act and the Rules. Notwithstanding the restrictions and the limitations introduced by the Act and Rules this power is still with the Manager. The only insistence by the Act and the Rules being that this power must be exercised subject to the provisions of the Act and Rules. No educational authority has the power in the first instance to direct that any person should be appointed as a teacher or the Headmaster in a school. That power must be exercised by the Manager. This is understandable, and is as it should be, because it is he who has to run the school and his power of choice and his ideas of competence and the manner in which he wants the school to be run, which we expect would be in the most efficient manner, and in the best interests, of the pupils and in the interests of general public, must not be interfered with by the educational authorities created by the statute only for the Writ Appeal No.639 of 2021 14 purpose of ensuring fair play and the prevention of favourism or of denying to persons rights they have under the statute and the rules. Often times this position is forgotten, and the only reason why we are now dealing with this matter in appeal is to remind the authorities concerned that this is the position and this must be strictly followed and adhered to.” As evident from the extracted passage, this Court has clarified that it is for the Manager to run the school, and his power of choice and ideas of competence and the manner in which he wants the school to be run in an efficient manner must not be interfered with by the educational authorities created by the statute only for the purpose of ensuring compliance of the provisions of the Act. In the light of the statutory provisions and the decisions aforesaid, we are of the view that restrictions that could be enforced against the Managers are only restrictions provided for in the Act and Rules. In other words, in respect of all other matters relating to administration, the Manager shall have absolute right to take any decision. Needless to say, in the absence of any specific provision in the statute interdicting the Manager from making appointments in a particular manner, there is no illegality in the decision taken by the Manager to appoint the fourth respondent earlier to the appointment of respondents 5 and 6, even if it was intended to Writ Appeal No.639 of 2021 15 enable the fourth respondent to claim seniority over the fifth respondent so as to appoint her as Principal of the school at a later point of time. 14. As noted, Managers of aided schools are appointed by the educational agencies concerned in terms of the Act and the Rules to ensure compliance of the provisions therein. No doubt, Managers of aided schools being statutory functionaries, they have to act fairly, reasonably and without arbitrariness in discharging their functions. But that does not mean that they shall not protect the interests of the educational agency which owns and runs the school while acting as the Manager. Although the statute imposes certain restrictions on private schools which are aided by the Government, the same does not take away the entire rights of the educational agency over the school. Even while a school receives aid from the Government, the educational agency holds absolute right over the management of the school, subject of course, to the restrictions imposed by the statute. The statutory duty cast on the Manager to act fairly, reasonably and without arbitrariness, according to us, is only in the context of complying with the provisions of the Act and the Writ Appeal No.639 of 2021 16 Rules and does not extent to matters not covered by the statute. In respect of matters not covered by the Act and the Rules, we are of the view that the choice, ideas of competence and the manner in which the Manager wants the school to be run, cannot be interfered with by the educational authorities who are created for the purpose of ensuring compliance of the provisions of the Act and the Rules. That apart, as noted, the fourth respondent is a candidate who has secured more marks than the fifth respondent in the selection process, and if the Manager chooses to appoint a more meritorious candidate on an earlier date, such a decision cannot be said to be unfair or unreasonable. 15. Let us now deal with the judgments cited by the learned counsel for the petitioner. In **Jayasree** _(supra)_ , it was held by the Division Bench of this Court that the Manager of an aided school being a statutory functionary, he has a duty to act fairly, and he cannot act capriciously. In that case, the question was whether a teacher who was appointed in a short term vacancy in an aided Higher Secondary School and relieved on termination of vacancy, is entitled to reappointment in the next arising vacancy. On the facts of that Writ Appeal No.639 of 2021 17 case, this Court took the view that even in the absence of any provision which compels the Manager to appoint the teacher in the next arising vacancy, the Manager was duty bound to reappoint the teacher who was earlier appointed and relieved and it is in the said context that this Court held that the Managers of aided schools have to act fairly. The decision in the said case can only be understood as a decision taken in the backdrop of the facts of that case and the same cannot be understood as laying down a proposition that the Managers of aided schools have to function like Government Officials, forgetting the fact that they have an obligation to the educational agency as well. **Manager, H.M. High School** _(supra)_ was a case relating to the appointment of the Headmaster in an aided High School. The dispute was between two teachers, of which one was qualified as on the date of occurrence of the vacancy and the other was exempted from acquiring the qualifications in terms of the provisions of the Rules after the occurrence of the vacancy when he attained the age of 50 in terms of the statute. The Manager chose to appoint the latter. The decision of the Manager was interfered with by the Government holding that the candidate who was Writ Appeal No.639 of 2021 18 qualified as on the date of occurrence of vacancy was entitled to appointment. In that context, it was held by this Court that the Manager being a statutory functionary, he is obliged to adopt ascertainable standards and unalterable criterion for ascertaining the entitlement of teachers for appointment as Headmaster and the decision of the Government is therefore right. The said judgment also, according to us, has no application to the facts of the case on hand, as the teacher who was affected by the decision of the Manager had a right to be considered for appointment as Headmaster on the date of occurrence of the vacancy. In the case on hand, as rightly pointed out by the learned counsel for the petitioner, the fifth respondent being only a person whose name was included in the select list had no right to claim appointment [See **Jatinder Kumar v. State of Punjab,** (1985) 1 SCC 122]. The only obligation of the appointing authority when a select list is drawn is to make appointments only in the order of merit, and the said requirement of law has been complied with in the case on hand. **Mar Philixinos** _(supra)_ is the last case on which reliance was placed by the learned counsel for the fifth respondent. That was a case dealing with the disciplinary Writ Appeal No.639 of 2021 19 action taken by the Manager of a Vocational Higher Secondary School against a teacher therein. The teacher was terminated from service by the Manager for unauthorised absence, and the said decision was interfered with by the Government. The decision of the Government was then challenged on the ground that the relationship between the Manager and the teacher is governed by the principle of master and servant relationship and the Government has, therefore, no authority to interfere with the decision of the Manager in terminating the service of the teacher. Earlier in **Rajalakshmi Amma v. State of Kerala** , 1996 (1) KLT 750, this Court held that the Managers of Vocational Higher Secondary Schools sanctioned by the Government have to act fairly and conduct the school only in accordance with well-accepted norms complying with the principles of natural justice and fair play, even in the absence of any statutory rules or specific executive orders regarding the conditions of service of non-teaching staff. In **Rajalakshmi Amma** , in the matter of arriving at the said conclusion, this Court found that the entire expenses necessary for conducting Vocational Higher Secondary Schools in the State are met by the Government, and the State has, Writ Appeal No.639 of 2021 20 therefore, a pervasive control over the establishment and administration of Vocational Higher Secondary Schools, and the Managers of such schools cannot, therefore, be considered as independent autonomous authorities and that they cannot act arbitrarily while dealing with the teaching and non-teaching staff. It is following the decision in **Rajalakshmi Amma** , this court has decided **Mar Philixinos** _(supra)_ . The scheme of establishment and administration of aided schools and the scheme of establishment and administration of Vocational Higher Secondary Schools being different, we do not think that the observation in the said judgment has any application on the facts of the present case. Coming to the decision of this Court in **Viswanathan** _(supra)_ , the argument was that insofar as the executive order prescribing the ratio 25:75 between promotion and direct recruitment for appointment in the Higher Secondary sections of aided schools does not stipulate that the Manager should first fill up the post to which the senior incumbent is entitled, he is free to adopt any order in the matter of making the appointments. It was held in the said case that the procedure to be adopted by the Manager in the matter of making appointments shall be reasonable even in Writ Appeal No.639 of 2021 21 the absence of any stipulation and that when there are several teachers belonging to different subjects entitled for consideration to a few vacancies, those posts to which senior incumbents are to be considered shall be set apart for the quota of in-service candidates, so that senior incumbents will not be superseded by a junior incumbent. Unlike the case on hand, the in-service candidates in that case had a right to be appointed against the vacancies to the extent of 25%. That apart, we have already held that the procedure followed by the Manager in the matter of appointing the fourth respondent in preference to respondents 5 and 6 cannot be said to be unreasonable. The said judgment also, according to us, has no application to the facts of the present case. In the light of the above discussion, there is no merit in the appeal and the same is, accordingly, dismissed. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **C.S.SUDHA, JUDGE.** ds 20.07.2022