P.E MATHEW v. STATE OF KERALA AND OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **TUESDAY, THE 30TH DAY OF JUNE 2015/9TH ASHADHA, 1937** ## **WP(C).No. 34022 of 2014 (C)** ## **-------------------------------------------** ## **PETITIONER(S):** **-------------------------P.E MATHEW, AGED 55 YEARS, S/O.LATE M.C.EASOW MANAKATTU, ATTACHAKKAL P.O. KONNI - 689 692.** **BY ADVS.SRI.ARUN.B.VARGHESE SRI.JAYKAR.K.S.** **SMT.M.B.DHANYA BABU** ## **RESPONDENT(S)/RESPONDENTS:-:** **--------------------------------------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY SECRETARY GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM - 695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, OFFICER OF D.P.I., THIRUVANANTHPAURAM - 695 014.** **3. DEPUTY DIRECTOR OF EDUCATION, OFFICE OF DEPUTY DIRECTOR OF EDUCATION, THIRUVALLA PATHANAMTHITTA DISTRICT - 689 645.** **4. DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER PATHANAMTHITTA - 689 645.** **5. MALANKARA SYRIAN CATHOLIC SCHOOLS, REPRESENTED BY MANAGER, PATHANAMTHITTA DIOCESE NANNUVAKADU, PATHANAMTHITTA - 689 645.** **6. THE CORRESPONDENT, MALANKARA SYRIAN CATHOLIC SCHOOLS PATHANAMTHITTA - 689 645.** **7. SACRED HEART HIGH SCHOOL, REPRESENTED BY ITS HEADMISTRESS, MYLAPRA, PATHANAMTHITTA - 689 645.** **8. SHIRLEKUTTY DANIEL, HEADMISTRESS, SACRED HEART HIGH SCHOOL, MYLAPRA PATHANAMTHITTA - 689 645.** **R8 BY ADV. SRI.T.L.SREERAM R8 BY ADV. SRI.SAJIN JOSEPH R5-R7 BY ADV. SRI.BLAZE K.JOSE R BY GOVERNMENT PLEADER, SRI. RINNY STEPHEN CHAMAPARAMBIL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-06-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 34022 of 2014 (C) ------------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -------------------------------------** **EXHIBIT P1. TRUE COPY OF THE MEMO NO.138/PTA/2013-14 DATED 31.03.2014 ISSUED BY THE 6TH RESPONDENT.** - **EXHIBIT P2. TRUE COPY OF THE REPRESENTATION DATED 05.04.2014 SUBMITTED BEFORE THE 4TH RESPONDENT.** - **EXHIBIT P3. TRUE COPY OF THE JUDGMENT DATED 27.05.14 IN WP(C)NO.13011/14.** - **EXHIBIT P4. TRUE COPY OF THE ORDER NO.B4/3755/14 DATED 18.11.14 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P5. TRUE COPY OF THE APPOINTMENT ORDER DATED 01.04.14 ISSUED TO THE 8TH RESPONDENT.** - **EXHIBIT P6. TRUE COPY OF THE REVISION PETITION DATED 03.12.14 SUBMITTED BY THE WRIT PETITIONER BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE GO (RT) No.1012/2015/G.EDN. DATED 16.03.2015 ISSUED BY THE FIRST RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE APPLICATION DATED 10.10.2014 SUBMITTED BY THE WRIT PETITIONER UNDER THE RIGHT TO INFORMATION ACT.** - **EXHIBIT P9 TRUE COPY OF THE REPLY No.A2/10509/14 DATED 30.10.2014 ISSUED BY THE PUBLIC INFORMATION OFFICER.** **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **EXT. R6(a) TRUE COPY OF THE NOTICE PUBLISHED IN THE NOTICE BOARD DATED 05.02.2014.** **EXT.R6(b) TRUE COPY OF THE APPLICATION AND BIO-DATA SUBMITTED BY THE PETITIONER.** - **EXT.R6(c) TRUE COPY OF THE APPLICATION SUBMITTED BY THE 8TH RESPONDENT AND HER BIO-DATA** **EXT.R6(d) TRUE COPY OF THE MINUTES OF THE MEETING OF THE EDUCATIONAL BOARD DATED 14.03.2014. EXT.R6(e) TRUE COPY OF THE EXPLANATION DATED 12.11.2014 SUBMITTED BY THIS RESPONDENT TO THE DEO.** **EXT.R6(f) TRUE COPY OF THE ORDER No.4/873/2015 DATED 26.02.2015 OF THE DEO PATHANAMTHITTA.** // True copy // das PA to Judge ## **A.K.JAYASANKARAN NAMBIAR, J.** =========================================== **W.P.(C). No. 34022 of 2014** ===================================================== **Dated this the 30[th] day of June, 2015** ## **JUDGMENT** The petitioner was working as an HSA (Malayalam) from 12.06.1989 onwards under the 5[th] respondent Corporate Manager. In the writ petition, the petitioner is aggrieved by the appointment of the 8[th] respondent as Head Mistress of the 7[th] respondent School allegedly overlooking the claim of the petitioner, who was also qualified in all respects to hold the post of Head Master. The facts in the writ petition would disclose that the 5[th] respondent Corporate Management is in the Management of Minority Educational Institutions and both the petitioner as well as the 8[th] respondent belong to the same minority community. While the petitioner joined as HSA with effect from 12.06.1989, the 8[th] respondent joined the School as HSA on 20.06.1991. Going by the date of joining, the petitioner would be senior to the 8[th] respondent. It was ignoring this seniority that the 6[th] respondent appointed the 8[th] respondent as Head Mistress with effect from 01.04.2014. It is not in dispute that by Ext.P5 order, the appointment of the 8[th] respondent as Head Mistress with effect from 01.04.2014 was approved by the 4[th] respondent. While approving the appointment of the 8[th] respondent as Head Mistress, the 4[th] respondent also rejected the claim of the petitioner for appointment as Head Master -2- W.P.(C). No. 34022 of 2014 by Ext.P4 order. In the writ petition, the petitioner impugns Ext.P4 order of the 4[th] respondent to the extent it refused to set aside the appointment of the 8[th] respondent and direct the appointment of the petitioner to the post of Head Master. During the pendency of the writ petition, by an interim order, this Court directed the 1[st] respondent to consider and pass orders on Ext.P6 revision petition, that had been filed by the petitioner challenging Ext.P4 order of the 4[th] respondent. The 1[st] respondent thereafter proceeded to pass Ext.P7 order, finding that the 6[th] respondent had satisfied the 1[st] respondent that the selection criteria in the matter of selection to the post of Head Master had been duly followed and hence found that, there was no necessity to disturb the appointment of the 8[th] respondent as Head Mistress of the School. 2. The contention of the petitioner in the writ petition is essentially, that while consequent to Ext.P3 judgment, this Court had specifically directed the 4[th] respondent to consider the representation preferred by the petitioner, before granting approval to the appointment of the 8[th] respondent as Head Mistress, by considering inter alia the judgment of a Full Bench of -3- W.P.(C). No. 34022 of 2014 this Court in **Kurian Lisy v. State of Kerala** [2006(4) KLT 264], the 4[th] respondent in Ext.P4 order, did not deem it necessary to set aside the appointment of the 8[th] respondent as Head Mistress, notwithstanding the fact that the 6[th] respondent had not produced any material before him to suggest that a fair and transparent procedure had been followed by the respondent in the matter of selection of candidates for the post of Head Master. It is contended that, although the 1[st] respondent in Ext.P7 order refers to the 6[th] respondent as having satisfied the 1[st] respondent with regard to the following of a transparent procedure, while conducting the selection for the post of Head Mistress, there is no reference to any material on the basis of which the 1[st] respondent arrived at such a conclusion. 3. A counter affidavit has been filed on behalf of the 5[th] and 6[th] respondent. Therein, the specific stand taken by the respondents is that, there was in fact a procedure, that was followed by the 6[th] respondent, while conducting the selection to the post of Head Mistress. Exts.R6(a) to R6(e) have been produced as documents that were produced before the 1[st] respondent, at the time of hearing of the revision petition. -4- W.P.(C). No. 34022 of 2014 Reference is made to these documents to contend that there were in fact guidelines that were published, informing the teachers, of the norms that would govern the selection of a candidate to the post of Head Mistress. It is contended that, it was by adhering to the said norms that the 6[th] respondent eventually identified the 8[th] respondent as a candidate, who could be appointed to the post of Head Mistress. It is also contended that, on an assessment of merits of both the petitioner as well as the 8[th] respondent on the criteria indicated in the guidelines, it was found that the 8[th] respondent was more suitable for the post and it was under these circumstances that the 8[th] respondent was appointed as the Head Mistress of the School. 4. I have heard the learned counsel appearing for the petitioner, learned counsel for the 5[th] and 6[th] respondents and the learned Government Pleader for respondents 1 to 4, as well. 5. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that this Court had by Ext.P3 judgment, specifically directed the 4[th] respondent to consider the representation preferred by the -5- W.P.(C). No. 34022 of 2014 petitioner, highlighting his grievance against the appointment of the 8[th] respondent as Head Mistress in the School, overlooking his claim for the same post. While issuing directions to the 4[th] respondent, this Court had specifically referred to the Full Bench decision in **Kurian Lisy v. State of Kerala** (cited supra) and directed the 4[th] respondent to examine the representation of the petitioner in the light of the said judgment of this Court. In Ext.P4 order of the 4[th] respondent, that was passed pursuant to the directions of this Court in Ext.P3 judgment, it is seen that the 4[th] respondent specifically queried the 6[th] respondent on the following three aspects. Namely: - (1) What is the procedure adopted by the manager and criteria for choosing teachers for the post of HM under the management ignoring their service seniority. - (2) Whether above procedure is made available to each and every members of the teaching and non-teaching staff under the management and if so - (3) In which way the above procedure is made available with the staff of the management. 6. The reply to the said queries given by the 6[th] respondent is produced as Ext.R6(e) along with the counter -6- W.P.(C). No. 34022 of 2014 affidavit of the 6[th] respondent. It is seen from the said reply, that while the 6[th] respondent has indicated the criteria, on the basis of which selection would be conducted for the purposes of identifying the candidates for the post of Head Master, there is no mention with regard to the information, regarding the procedure to be followed, having been made available to each and every member of the teaching and non-teaching staff under the Management. Despite the said fact, the 4[th] respondent rejected the request of the petitioner for setting aside the appointment of the 8[th] respondent and to appoint him as Head Master of the School in question. In Ext.P6 revision petition that was preferred by the petitioner, challenging Ext.P4 order, Ext.P7 order was passed by the 1[st] respondent. The said order was passed after hearing the petitioner, the 6[th] respondent and the 8[th] respondent. It is the stand of the 6[th] respondent in these proceedings that, before the 1[st] respondent it had produced a copy of Ext.R6(a) notice and a copy of the guidelines mentioned in the said notice. To verify these aspects, I had asked the learned Government Pleader to make available the files that were before the 1[st] respondent, while considering the revision petition. On a perusal of the said files, I note that before the 1[st] respondent, the 6[th] respondent had -7- W.P.(C). No. 34022 of 2014 produced a copy of Ext.R6(a) notice and documents stated to be the guidelines that was annexed along with the said notice. The question to be considered, however, is whether reliance can be placed on the said document, especially in view of the specific contention taken by the petitioner that there were no such guidelines that were published in the School prior to the selection process that was conducted for appointment of a Head Master. The said aspects assume significance because it is also the specific contention of the petitioner that, even before the 4[th] respondent, and in specific response to the queries of the 4[th] respondent noted earlier, the 6[th] respondent had not produced these guidelines to substantiate his contentions with regard to publication of the procedure for selection. I find from Ext.P7 order that the 1[st] respondent has mechanically found that the 6[th] respondent had satisfied the 1[st] respondent with regard to its compliance with a fair and transparent procedure in the matter of selection of a Head Mistress for the School. From Ext.P7, I am unable to gather any information as regards the material that was perused by the 1[st] respondent to arrive at this satisfaction, that is seen recorded in Ext.P7 order. In my view, it would be incumbent upon the 1[st] respondent to enquire as to whether the 6[th] respondent had in fact, -8- W.P.(C). No. 34022 of 2014 adopted a fair and transparent procedure in the matter of selection of the Head Mistress of the School. For this purpose, the 1[st] respondent would have to collect material that would indicate that the guidelines, that were produced by the 6[th] respondent before him, were in fact published along with Ext.R6(a) notice, in a manner that would inform the teaching staff of the selection process that was contemplated. The enquiry of the 1[st] respondent would also have to take into account the fact that, pursuant to the query of the 4[th] respondent, the 6[th] respondent had not produced any material to show that there had been a publication of the guidelines at any stage before that. In my view, unless there is a finding on the issue of whether or not there was sufficient publication of the guidelines by the 6[th] respondent, there cannot be a consequential finding with regard to the transparency of the procedure followed by the 6[th] respondent in the matter of selection of Head Mistress. Thus, in order to enable the 1[st] respondent to have a fresh look into the matter, I quash Ext.P7 order and direct the 1[st] respondent to pass fresh orders on Ext.P6 revision petition preferred by the petitioner before him, after hearing the petitioner, the 6[th] respondent and the 8[th] respondent. The 1[st] respondent shall pass fresh orders in the matter, taking note of the -9- W.P.(C). No. 34022 of 2014 observations and directions in this judgment, within a period of three months from the date of receipt of a copy of this judgment. The 1[st] respondent shall also take note of the judgment of this Court in 2006 (4) KLT 264 (cited supra) while passing orders consequent to this judgment. The petitioner shall produce a copy of the writ petition, together with a copy of this judgment before the 1[st] respondent, for further action. The entitlement of the petitioner to any pecuniary benefits will depend upon the decision taken by the 1[st] respondent pursuant to the directions issued in this judgment. The writ petition is disposed as above. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** das