Mary Margret 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 31ST DAY OF MAY 2019 / 10TH JYAISHTA, 1941** **WA.No. 1211 of 2019** **JUDGMENT IN WP(C) 37262/2017 of HIGH COURT OF KERALA DATED 8.4.2019** **APPELLANT/7TH RESPONDENT:** **MARY MARGRET AGED 52 YEARS H.S.A. PHYSICAL SCIENCE, LEO XIII HIGHER SECONDARY SCHOOL, PULLUVILA P.O., THIRUVANANTHAPURAM 695 526.** **BY ADVS. SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 6:** - **1 PRAMEELA FORGOD.A AGED 44 YEARS, W/O. BINU ANTONY, H.S.A (MATHS), LEO XIII HIGHER SECONDARY SCHOOL, PULLUVILA P.O., THIRUVANANTHAPURAM 695 526 (PRESENTLY DEPLOYED TO GOVT. H.S. UTHARMCODE)** - **2 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **3 DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM 695 001.** - **4 DEPUTY DIRECTOR OF EDUCATION THIRUVANANTHAPURAM 695 001.** - **5 THE DISTRICT EDUCATIONAL OFFICER, NEYYATTINKARA, THIRUVANANTHAPURAM 695 121.** W.A.No.1211 of 2019 -2- - **6 THE MANAGER, LEO XIII HIGHER SECONDARY SCHOOL, PULLUVILA P.O., THIRUVANANTHAPURAM 695 526.** - **7 SMT. LILLY.J., TEACHER-IN -CHARGE, LEO XIII HIGHER SECONDARY SCHOOL, PULLUVILA P.O., THIRUVANANTHAPURAM 695 526.** - **8 ADDL.R8.RAJU JAMES, CHENNANINNA COLONY, PUTHIYATHURA, PULLUVILA PO, THIRUVANANTHAPURAM-695526.** - **9 ADDL.R9 JACQULIN THADAYOOSE P.P VILLAKAM PURIDAM, PULLUVILA, PULLUVILA PO, THIRUVANANTHAPURAM-695526.** - **10 ADDL.R10 FELSITTA WILLIAM JOYAL WILLA, KANAVILA, PULLUVILA PO, THIRUVANANTHAPURAM-695526.** - **11 ADDL.R11 PUSHPASADASAN Y.,P.P VILAKOM, PULLUVILA, PULLUVILA PO, THIRUVANANTHAPURAM695526. (ADDL.R8 TO R11 IMPLEADED AS PER ORDER DATED 21/05/2019 IN IA.NO.04/2019)** **BY ADVS. SRI.N.NANDAKUMARA MENON (SR.) SRI.M.RAMASWAMY PILLAI SRI.K.RAJESH KANNAN SRI.P.C.VIJAYAKUMAR SRI.P.K.MANOJKUMAR** **OTHER PRESENT:** **SRI.P.K.MANOJKUMAR , SRI A.J VARGHESE SR GP** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 31.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** W.A.No.1211 of 2019 -3- ## **JUDGMENT** ## **K.VINOD CHANDRAN, J.** The dispute arises insofar as the appointment of a Head Mistress (HM) to a minority institution; LEO XIII Higher Secondary School. The petitioner was the HM appointed by the Manager as per Ext.P1. Respondents 6 and 7 were teachers who had a rival claim, of being senior to the petitioner. We refer to the parties from their status in the writ petition. 2. On the background facts it is to be noticed that the petitioner was appointed as H.M in the school by Ext.P1 dated 30.04.016; obviously asserting the privilege and protection conferred on a minority institution, under Article 30(1) of the Constitution of India, to have a person of their choice at the helm of affairs. Despite the appointment made by the Manager the DEO, directed continuance of the W.A.No.1211 of 2019 -4- petitioner as teacher-in charge for reason of a pending writ petition. The petitioner challenged the same before the DPI who directed approval of the petitioner, which however stood reversed in Ext. P7, in a revision before the Government. The Government by Ext.P7 directed the Manager to conduct a fresh selection in a transparent manner in tune with the directions in the judgment of a Full Bench in **Kurian Lizzy v. State of Kerala [2006 (4) KLT 264].** By staff fixation order , Ext.P9 dated 12.07.2017, the petitioner was deemed to be continuing as an HSA and retrenched and directed to be deployed in a Government School; which order was challenged by the Manager. The 6[th] respondent was also appointed as HM by Ext. P11. These orders were challenged in the writ petition, by the teacher appointed as HM, by Ext.P1. W.A.No.1211 of 2019 -5- 3. Later the 6[th] respondent was found not qualified. Hence, though she was appointed as Headmistress-in-charge, the Manager removed her and appointed the 7[th] respondent as Headmistress-in-charge, by Ext.P13 and forwarded the same for approval to the DEO. The said action was challenged by way of an amendment in the writ petition. The learned Single Judge, based on the decisions of the Honourable Supreme Court and unequivocal right of minority institutions to appoint HM of their choice without looking at the seniority, found that Ext.P1 has to be approved. The 7[th] respondent who is the rival claimant as of now is the appellant herein. 4. The petitioner, before the learned Single Judge relied on the judgment of the Honourable Supreme Court in **Manager, Corporate Educational Agency v. James Mathew [(2017) 15 SCC 595]** which constructively overruled W.A.No.1211 of 2019 -6- **.** _**Kurian Lizzy**_ The learned Single Judge noticed that the principle in _**Kurian Lizzy**_ had been reaffirmed by another Division Bench wherein it was held that the law laid down by the Full Bench, in _**Kurian Lizzy**_ never was diluted and hence, the procedure prescribed therein will have to be scrupulously followed. The aforesaid judgment of the Division Bench was interfered with in **(2017) 15 SCC 595** . no The learned Single Judge hence found that _**Kurian Lizzy**_ more holds the field and upheld the order of appointment of the Manager, following the binding precedent in _**Manager . Corporate Educational Agency**_ 5. We do not think any interference can be caused to the same and we extract paragraph 6 from the aforesaid judgment of the Hon'ble Supreme Court:- “6. The emerging position is that, once the management of a minority educational institution makes a conscious choice W.A.No.1211 of 2019 -7- of a qualified person from the minority community to lead the institution, either as the Headmaster or Principal, the court cannot go into the merits of the choice or the rationality or propriety of the process of choice. In that regard, the right under Article 30(1) is absolute.” In the teeth of the aforesaid observation, we do not think anything more is to be stated on the right of the minority institution to choose the HM of its school. 6. However, the learned Senior Counsel Smt. Sumathi Dandapani and Sri.N.Nandakumara Menon appearing respectively for the 7[th] respondent and the Parent Teacher Association (PTA) of the School, would bring to the notice of this Court that there are other extenuating circumstances, which render unfit the candidature of the petitioner to the post of HM. Some parents of the children studying there and the President of the PTA got themselves W.A.No.1211 of 2019 -8- impleaded in the writ appeal. 7. We first deal with the contention raised by the rival claimant, which is on the basis of the criminal charge framed against the petitioner under Section 324 of the IPC r/w Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000. The said case is stated to be pending before the JFCM-III, Neyyattinkara as C.C.No.1353 of 2016. The crux of the arguments raised by the learned Senior Counsel is that the fact that the criminal case is pending against the petitioner makes it abundantly clear that she is unfit to hold the post of HM. It is argued that the Honourable Supreme Court in _**Union of India etc.etc v. K.V.Jankiraman etc.etc. [AIR 1991 SC 2010]**_ had specifically found that when criminal prosecution is initiated against an employee, there could be no promotion granted on the basis of his qualification or seniority. The same principle would apply W.A.No.1211 of 2019 -9- here and though the minority institution has a right to choose any teacher without looking at the seniority, it has to be regulated by the declaration insofar as the disability to promotion, visiting the employee, by reason alone of the charge-sheet having been issued against her by the competent criminal court. It is also argued that in a similar situation, in _**Shaji v. Ramachandran [2003 (2) KLT 814]** ,_ a Division Bench of this Court had found that suitability is also one of the issues which is to be considered; even when the seniority is the only criteria in making promotions under the Kerala Education Rules (KER). Applying the same principles, it has to be found that the petitioner is unfit to hold the post of the HM and the Manager's decision to appoint her to the said position is bad. 8. The learned Senior Counsel Sri.Nandakumara Menon on behalf of the PTA has filed a number of documents W.A.No.1211 of 2019 -10- to bring to the notice of this Court the serious allegations of misappropriation leveled against the petitioner as per an audit report produced as Annexure 2 along with I.A. for impleadment dated 20.5.2019. The very integrity of the petitioner is under serious challenge on the ground that the audit report reveals collection of amounts to the tune of Rs.10 lakhs from the students of the school, the majority of whom are from impoverished families in the coastal belt and belonging to marginalized sections of society. It is pointed out that the Manager or the Educational Authorities, despite the audit report have not initiated any proceedings against the teacher till date. It is submitted that a person who has collected from the students and had money poor misappropriated the same is not competent to hold the post of HM. 9. The learned counsel for the petitioner points out W.A.No.1211 of 2019 -11- that the audit report is long after Ext.P1 appointment order. The audit report is read over to contend that there is no specific finding against the petitioner and the report only says that further enquiry has to be conducted, after looking into the various documents which are available with the Manager. As far as the criminal proceeding is concerned, the learned counsel would submit that it is a false case set up by a teacher who was inimical towards petitioner, whose son is the complainant. It is also pointed out that this Court had on 16.2.2018 in Crl.M.A.No.1626 of 2018 in Crl.M.C.No.1109 of 2018, stayed the further proceedings in the criminal case, though a charge sheet has been filed before the criminal court. 10. With respect to the criminal proceeding, we would not look into it elaborately, especially since the matter is pending before the criminal court. Suffice it to notice that the W.A.No.1211 of 2019 -12- allegation is that the petitioner resorted to indiscriminate beating of a student, with a stick, without any plausible reason for inflicting such punishment. The further proceedings in the criminal case has been now stayed by this Court. We also notice that in such circumstances, the decision of the Honourable Supreme Court in _**K.V.Jankiraman**_ would not be applicable. Therein, the Honourable Supreme Court was considering as to when the sealed cover procedure has to be resorted to. It was the categoric declaration of the Honourable Supreme Court that the sealed cover procedure is to be resorted to only after charge sheet is issued to the employee. The court found that when a charge-memo in a disciplinary proceeding or a charge-sheet in a criminal prosecution is issued to the employee, it can be said that the departmental proceedings/criminal prosecution is initiated against the W.A.No.1211 of 2019 -13- employee. In the present case, admittedly, there is no charge framed against the employee and there is only a final report filed before the criminal court having jurisdiction, on which the competent court has to frame the charges in the presence of the accused. We also notice that the further proceedings were stayed by the High Court and in such circumstance, there could not have been a consideration of the same when considering the petitioner for the post of HM. 11. The further argument on the ground of the criminal case against the petitioner is based on _**Shaji**_ **(supra)** . In _**Shaji**_ **,** a Division Bench considered the question whether a teacher has an indefeasible right to be appointed as the Headmaster/Principal of a school merely on the basis of seniority. Before going further, we have to notice that the said decision was not with respect to a minority institution. The KER, by Rule 44 of Chapter XIV A, W.A.No.1211 of 2019 -14- provides that seniority should be considered for appointment to the post of Headmaster/Headmistress if there are more than one candidate qualified to be appointed to the said post. This obviously does not apply to the minority institution as has been earlier found by us. 12. It was in the context of the prescription of seniority as the sole criterion, the Division Bench held in _**Shaji**_ **,** that the Manager having given detailed reasons for taking the view that the petitioner is not suitable by reason of the pending criminal cases, there was nothing wrong in the senior most person being kept out. Further the facts noticed from the said case are more complex than that arising here. There the claim of the senior most person was that he should be promoted as the HM of the High School section and later given charge of the Principal of the Higher Secondary School, The senior most was found to be not W.A.No.1211 of 2019 **==> picture [23 x 9] intentionally omitted <==** qualified to be posted as the Principal of the Higher Secondary School. 13. We do not think, even on the question of suitability, the proposition laid down was as to the pending criminal case against the teacher by itself disqualifying the said person from appointment as a Headmaster/ Headmistress. The view taken by the Division Bench is on the well established principles of judicial review as to the Court not substituting its own reasonableness over that of an authority empowered under the statute. In the present case also, despite the pendency of the criminal case, the Manager held that the petitioner-teacher is eminent to be appointed as the HM of the School. We would not substitute our opinions or our ideas of reasonableness over that of the Manager. But we make it clear that the criminal case will be proceeded with independent of the Managers opinion or W.A.No.1211 of 2019 -16- even our refusal to interfere on judicial review, which is solely on the principle stated above. 14. One other contention raised by the learned Senior Counsel, relying on Ext.P7 is that the Government categorically found that under Rule 67 of Chapter XIV A of KER, the Manager ought to have suspended the petitionerteacher. Rule 67 gives a discretion to the Manager to suspend a teacher when a case against him in respect of any criminal offence is under investigation or trial. Obviously, the Manager has not thought fit to order any such suspension on the basis of a criminal case filed against the petitioner. We hence reject the contentions of the rival claimant. 15. The other contention raised by the additional respondents impleaded in the appeal is with respect to Annexure 2 audit report. We would restrain ourselves from looking into the report as such, since the same is filed after W.A.No.1211 of 2019 -17- 5.4.2019, which is the last date of audit as seen from Annexure 2. The audit report was never before the Manager when Ext.P1 was passed, which is dated 30.4.2016. What was challenged before this Court is the refusal of the educational authorities to approve the appointment made by the Manager at Ext.P1. The orders of the educational authorities refusing such approval has been set aside by the learned Single Judge and directions have been issued to approve the same. 16. In that context, we do not think that the Manager had any reason to find the petitioner unfit at the time of her appointment since the audit is a subsequent event. On the totality of the circumstances, we do not find any reason to interfere with the impugned judgment. We, hence, dismiss the appeal. But, we make it clear that we have not observed on merits as to the criminal case pending against the W.A.No.1211 of 2019 -18- petitioner nor on the audit report placed before us. Appropriate action can be taken by the educational authorities or the Manager, if it is found to be necessary and is in accordance with law. The PTA also would also have its remedies in accordance with law. The writ appeal is hence dismissed with the limited reservation as above. The parties are left to suffer their respective costs. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** Scl/3.6 W.A.No.1211 of 2019 -19- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE**|**A1**|**THE COPY OF THE ARGUMENT NOTES SUBMITTED**| |---|---|---| |||**ON BEHALF OF THE APPELLANT THROUGH THE**| |||**COUNSEL.**| |**ANNEXURE**|**A2**|**THE COPY OF THE ORDER NO.**| |||**B5/21800/2016/DDE/K.DIS ISSUED BY THE**| |||**DEPUTY DIRECTOR OF EDUCATION DTD.**| |||**3.3.2017.**| |**ANNEXURE**|**A3**|**THE COPY OF THE FINAL REPORT U/S 173 OF**| |||**CRIMINAL PROCEDURE CODE AND CC 1353/2016**| |||**WHEREIN CHARGE SHEET HAS BEEN ISSUED ON**| |||**30.1.2016.**| |**ANNEXURE**|**A4**|**THE COPY OF THE JUDGMENT IN WPC NO.**| |||**31304/2018 DTD. 11.10.2018.**| |**ANNEXURE**|**A5**|**THE COPY OF THE ORDER NO.4/2019 DTD.**| |||**7.5.2019 ISSUED BY THE 6TH RESPONDENT**| |||**MANAGER TO THE APPELLANT.**| |**ANNEXURE**|**A6**|**TRUE COPY OF THE INTIMATION GIVEN AT 1.00**| |||**P,M ON 9.5.2019 TO THE DEO**| |**ANNEXURE**|**1**|**THE PHOTOSTAT COPY OF THE JUDGMENT DATED**| |||**11.10.2018 IN WP(C) NO.31304 OF 2018**| |||**PASSED BY THE HON'BLE HIGH COURT OF**| |||**KERALA AT ERNAKULAM.**| |**ANNEXURE**|**2**|**THE PHOTOSTAT COPY OF THE REPORT**| |||**NO.V.A2/66989/17 DPI DATED 23.3.2019**| |||**ISSUED BY THE SENIOR FINANCE OFFICER,**| |||**DIRECTOR OF PUBLIC INSTRUCTION.**| |**ANNEXURE**|**3**|**THE PHOTOSTAT COPY OF THE FIR NO.19 DATED**| |||**7.1.2016 ISSUED BY THE JUDICIAL FIRST**| |||**CLASS MAGISTRATE COURT III,NEYYATTINKARA.**| |**ANNEXURE**|**4**|**THE PHOTOSTAT COPY OF THE REPRESENTATION**| |||**DATED NIL SUBMITTED BY THE DEPUTY**| |||**DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM**| |||**DISTRICT.**| W.A.No.1211 of 2019 -20-