M.P. Lissy v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 04TH DAY OF JULY 2019 / 13TH ASHADHA, 1941** ## **WP(C).No.30730 of 2015** ## **PETITIONER:** **M.P.LISSY, AGED 56 YEARS, H.S.A (SOCIAL SCIENCE), IUHSS, PARAPPUR P.O., KOTTAKKAL, MALAPPURAM - 676 503.** **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**DEPARTMENT OF GENERAL EDUCATION, SECRETAIRAT,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**2**|**THE DIRECTOR OF PUBLIC INSTRUCTIONS,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**3**|**DEPUTY DIRECTOR OF EDUCATION,**| ||**MALAPPURAM - 676 001.**| |**4**|**DISTRICT EDUCATIONAL OFFICER,**| ||**TIRURANGADI, MALAPPURAM - 676 306.**| |**5**|**THE MANAGER,**| ||**IUHSS, PARAPPUR P.O., KOTTAKKAL,**| ||**MALAPPURAM - 676 503.**| |**6**|**T.MOHAMMEDKUTTY,**| ||**HEADMASTER, IUHSS, PARAPPUR P.O., KOTTAKKAL,**| ||**MALAPPURAM - 676 503.**| **BY ADVS. SMT. MARY BEENA JOSEPH, SENIOR GOVERNMENT PLEADER SRI.GEORGE POONTHOTTAM SRI.T.R.RAVI SMT.NISHA GEORGE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.07.2019, ALONG WITH WP(C).3065/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.30730 of 2015 & 3065 of 2017** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 04TH DAY OF JULY 2019 / 13TH ASHADHA, 1941** **WP(C).No.3065 of 2017** ## **PETITIONERS:** |**1**|**T.MOHAMMEDKUTTY,**| |---|---| ||**AGED 51 YEARS,**| ||**HEADMASTER,**| ||**ISHA ATHUL ULOOM HIGHER SECONDARY SCHOOL,**| ||**PARAPPUR P.O., KOTAKKAL, MALAPPURAM-676503.**| |**2**|**THE MANAGER,**| ||**ISHA ATHUL ULOOM HIGHER SECONDARY SCHOOL,**| ||**PARAPPUR P.O., KOTAKKAL, MALAPPURAM-676503.**| ||**BY ADV. SRI.GEORGE POONTHOTTAM (SR.)**| ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, HIGHER SECONDARY EDUCATION, B2 BLOCK, CIVIL STATION, MALAPPURAM – 676001. 3 THE DISTRICT EDUCATIONAL OFFICER, TIRURANGADI, MALAPPURAM-676306. BY ADV. SMT.MARY BEENA JOSEPH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.07.2019, ALONG WITH WP(C).30730/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.30730 of 2015 & 3065 of 2017** ## **3** ## **JUDGMENT** **The rival claimants for the post of Headmaster have filed both these writ petitions. W.P.(C) No.30730 of 2015 is filed by Smt.M.P.Lissy and W.P.(C) No. 3065 is filed by the Manger and Sri.T.Mohammedkutty, who are the respondents 5 and 6 in Smt.M.P.Lissy's case. The parties and documents referred to in the judgment are as described in W.P.(C) No. 30730 of 2015.** **2. Smt.M.P.Lissy commenced her service as HSA (Social Studies) in the Isha Athul Uloom Higher Secondary School (Un-aided), on 24.09.1984. In Ext.P1 Seniority List published by the 5th respondent Manager, petitioner was at Serial No.3 as on 01.01.2015 with date of commencement of service on 24.09.1984. The 6th respondent - Sri.Mohamedkutty is at Serial No.15 with date of commencement of service on** **WP(C).No.30730 of 2015 & 3065 of 2017** **4** **02.01.1992. Sri. T.Abdul Rasheed is at Sl.no.12 with date of commencement on 20.06.1991.** **3. It is stated that when a vacancy of Headmaster arose in the school on 01.04.2014, the Manager appointed Sri. T.Abdul Rasheed at Sl.no.12 as Headmaster Overlooking the petitioner, stating that she was not qualified. Sri.T.Abdul Rasheed got promotion as Principal of the said School and consequent to that, a vacancy of Headmaster arose in the school on 01.09.2015. The Manager again overlooked her and appointed another junior - the 6[th] respondent - Sri.Mohammedkutty. The writ petition was filed in October, 2015 immediately after filing Ext.P2 objection before the 4[th] respondent. Petitioner points out that the appointment of the 6[th] respondent as Head Master is not yet approved.** **4. According to petitioner, the** **WP(C).No.30730 of 2015 & 3065 of 2017** **5** **appointment was made without considering her; without inviting any application and without adopting any transparent or fair procedure as directed in the judgments of this Court in** _**Belsi v. Corporate Management of Latin Catholic Schools**_ **: 2010 (2) KLT 134 as well as** _**Kurian Lizy v. State of Kerala**_ **: 2006 (4) KLT 264. Petitioner also relies on the judgment of this Court in** _**Jameela K. v. State of Kerala**_ **: 2015 (3) KLT 509 where an appointment made under identical circumstances was set aside following** **the judgment in** _**Belsi's case**_ **. Petitioner also relies on the judgment in** _**Mrs.Ivy C.da.Conceicao v. State of Goa and Others**_ **: Civil Appeal No.1257/2017. According to the petitioner, not even a notice was issued inviting application from among eligible hands and no interview was conducted with notice to petitioner or other teachers.** **WP(C).No.30730 of 2015 & 3065 of 2017** **6** **5. The 5[th] respondent filed a counter affidavit producing Ext.R5(a) certificate issued by the National Commission for Minority Educational Institutions declaring the AUP School, Parappur run by the 5[th] respondent as a minority institution. It is stated that the 5[th] respondent has every right and freedom to choose a qualified person as Headmaster even in deviation from Rule 44A of Chapter XIV A of KER. The Manager has produced Ext.R5(b) notice dated 18.08.2015, claiming that there was a publication in the notice board regarding the criteria governing selection against the vacancy of Headmaster. It is stated that none of the teachers including the petitioner submitted any application pursuant to the notification and did not raise any complaint before the 5[th] respondent. It is also stated that out of the 5 seniors to 6[th] respondent, two** **WP(C).No.30730 of 2015 & 3065 of 2017** ## **7** **had relinquished their claim and two did not turn up. It is stated that even in the absence of applications, the Management decided to appoint the 6[th] respondent on a comparative assessment of merit when he was found to be more suitable. Producing Ext.R5(c) proceedings it is stated that the appointment was made following all the mandatory requirements.** **6. According to the 5[th] respondent, petitioner does not have any right to claim appointment as Headmaster in the School since the 5[th] respondent school is an institution having minority status. It is stated that the procedure contemplated in the Full Bench judgment in** _**Kurian Lizy's case**_ **was followed notifying the vacancy calling for application; but the petitioner did not respond.** **7. Ext.R1(b) is a notice dated 18.08.2015, the publication of which, the learned Counsel** **WP(C).No.30730 of 2015 & 3065 of 2017** **8** **for the petitioner disputes. By that notice, applications were invited from qualified hands. It also provided that selection for appointment of Headmaster against the vacancy arising in 2015-16 would be made from among qualified hands after conducting an interview based on the criteria fixed therein, as the institution is having minority status. Criteria is fixed as: 5 marks for Post Graduates; 10 marks for graduates; 5 marks for B.Ed; 1 mark up to a maximum of 15 marks for each year of service; 10 marks for State/National award; 15 marks for Ph.D/M.Phil and 40 marks for interview. In Ext.R5(c) proceedings, it is stated that interview was held on 21.08.2015; though applications were invited from among qualified hands, nobody else except the 6th respondent submitted application and participated in the interview. It was stated that the petitioner** **WP(C).No.30730 of 2015 & 3065 of 2017** **9** **had already informed the Management that she cannot work as Deputy Headmaster and that may be the reason for her not to apply; two senior teachers M/s.Krishnadasan and B.Giridharan, who had relinquished promotion as Deputy Headmaster also, did not submit any application; the other two seniors Sri.Moideen and Sri.T.C.Mammad had already relinquished their claim; therefore it was decided to appoint the 6th respondent, who was in-charge of Deputy Headmaster and was found qualified.** **8. The W.P.(C) No.3065/2017 is filed by the 6th respondent T.Mohammedkutty along with the Management, complaining that even after the retirement of the petitioner Smt.M.P.Lissy on 30.06.2016, the appointment of 6th respondent is not approved. According to him, his appointment was perfectly in accordance with law and the seniority is not relevant for a Manager of a** **WP(C).No.30730 of 2015 & 3065 of 2017** **10** **Minority Institution to make promotion to the** **post of Headmaster and therefore the petitioner Smt.M.P.Lissy is not entitled to promotion merely because she is the senior most person.** **9. The learned counsel for the Manager as well as the 6[th] respondent rely on the judgment of the Apex Court in** _**Manager, Corporate Educational Agency v. James Mathew and Others**_ **: 2017 (4) KHC 83, wherein it was held that a Management of a Minority Educational Institution is free to appoint the Head Master or Principal of its own choice and it has no obligation to appoint any senior available from the same community.** **10. The learned counsel for the petitioner points out there was no notification or publication enabling the teachers like her to submit applications, as claimed by the 5[th]** **WP(C).No.30730 of 2015 & 3065 of 2017** **11** **respondent; the procedure laid down for appointment of Headmaster in a minority institution in the judgment in** _**Kurian Lizy's case or Belsi's case**_ **was not the subject matter for consideration before the Apex Court.** **11. Though the learned counsel for the petitioner asserted that the issue considered** **by the Apex court in the judgment in** _**James Mathew's case**_ **was not in respect of the procedure to be adopted as held in** _**Kurian Lizzy's case**_ **, as approved in the judgment in** _**Belsy's case**_ **and followed in** _**Manager, M.M.L.P.School v. Sajitha**_ **: 2014 (2) KLT 367, as well as in the judgment in** _**Jameela v. State of Kerala**_ **: 2015(3) KHC 509, where it was held that the minority institutions shall appoint the Headmaster after adopting a fair and transparent procedure considering all the qualified hands and it would also appear so, I am unable to accept the same.** _**James Mathew's case**_ **was** **WP(C).No.30730 of 2015 & 3065 of 2017** **12** **rendered against the judgment in W.A.No.416 of 2002 where the judgment in** _**Kurian Lizy's case**_ **(** _**supra)**_ **was considered. I have considered an identical contention in my judgment dated 08.04.2018 in W.P.(C)No.37262 of 2017 and in the light of the judgment in James Mathew's case, held that minority institution is free to choose the Headmaster.** **12. Therefore the right of the Management to appoint a person of their choice has been upheld by the Apex Court. So it cannot be said that the promotion granted to the 6[th] respondent or the denial of promotion to petitioner was not correct in the light of the judgment of the Apex Court. Therefore W.P.(C) No.30730/2015 is dismissed.** **13. In W.P.(C) No.3065/2017, the petitioner Sri.Mohammedkutty has got approval for his appointment as Headmaster with effect from** **WP(C).No.30730 of 2015 & 3065 of 2017** **==> picture [15 x 9] intentionally omitted <==** **01.07.2016 on a provisional basis on the basis of the interim order passed by this Court on 27.02.2017.** **In view of the fact that the W.P.(C) No.30730/2015 is dismissed, it would be open for the competent authorities to approve the appointment of Sri.T.Mohammedkutty with effect from 01.09.2015. He would be entitled to all the consequential benefits.** **Accordingly, W.P.(C) No.30730/2015 is dismissed and W.P.(C) No.3065/2017 is allowed.** **Sd/-** **P.V.ASHA, JUDGE.** ww **WP(C).No.30730 of 2015 & 3065 of 2017** **14** ## **APPENDIX OF WP(C) 30730/2015** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SENIORITY LIST. EXHIBIT P2 TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.** **RESPONDENT'S/S EXHIBITS: EXHIBIT R5(A) TRUE COPY OF THE CERTIFICATE/ORDER PASSED BY THE NATIONAL MINORITY COMMISSION DATED 28.09.2011.** **EXHIBIT R5(B) TRUE COPY OF THE PUBLICATION DATED 18.08.2015 PUBLISHED IN THE NOTICE BOARD. EXHIBIT R5(C) TRUE COPY OF THE PROCEEDINGS WITH REGARD TO THE SELECTION PROCESS.** **WP(C).No.30730 of 2015 & 3065 of 2017** **15** ## **APPENDIX OF WP(C) 3065/2017** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 28/9/2011 ISSUED BY THE GOVERNMENT OF INDIA.** **EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 18/8/2015.** **EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER DATED 1/9/2015 APPOINTING 1ST PETITIONER AS THE HEADMASTER OF THE SCHOOL.** **EXHIBIT P4 TRUE COPY OF THE SENIORITY LIST AS ON 1/1/2015.** - **EXHIBIT P5 TRUE COPY OF THE ORDER NO. B3/5788/15 DATED 19/10/2015 ISSUED BY THE DISTRICT EDUCATIONAL OFFICER, TIRURANGADI.** **EXHIBIT P6 TRUE COPY OF THE ORDER NO. B6/32695/ 15/K/DIS DATED 8/4/2016 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, MALPPURAM. EXHIBIT P7 TRUE COPY OF THE ORDER NO. F/8238/2015/ RDD/MLPM/HSE DATED 20/5/2016 PASSED BY THE 2ND RESPONDENT. EXHIBIT P8 TRUE COPY OF THE ORDER APPROVING THE APPOINTMENT OF THE 1ST PETITIONER AS HEADMASTER W.E.F. JULY 01, 2016.**