P.E.MATHEW v. STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **THURSDAY, THE 8TH DAY OF SEPTEMBER 2016/17TH BHADRA, 1938** **WP(C).No. 39613 of 2015 (B) ----------------------------** **PETITIONER(S):** **-------------** **P.E.MATHEW, H.S.A.(MAL)(RETIRED), ST.BENEDICT M.S.C.HIGH SCHOOLS, THANNITHODE P.O., PATHANAMTHITTA, S/O.LATE M.C.EASOW, MANKATTU, ATTACHAKAL P.O., KONNI.** **BY ADVS.SRI.ARUN.B.VARGHESE SRI.JAYKAR.K.S.** **SMT.M.B.DHANYA BABU** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION OFFICE OF THE DPI, THIRUVANANTHAPURAM-685001.** **3. THE DEPUTY DIRECTOR OF EDUCATION** **OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, THIRUVALLA, PATHANAMTHITTA DISTRICT-689645.** **4. THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DEO, PATHANAMTHITTA-689645.** **5. MALANKARA SYRIAN CATHOLIC SCHOOLS REPRESENTED BY MANAGER, PATHANAMTHITTA DIOCESE, NANNUVAKADU, PATHANAMTHITTA-689645.** **6. SACRED HEART HIGH SCHOOL** - **REPRESENTED BY ITS HEADMISTRESS, MYLAPRA, PATHANAMTHITTA DISTRICT-689645.** **7. THE CORRESPONDENT** - **MALANKARA SYRIAN CATHOLIC SCHOOLS, PATHANAMTHITTA-689645.** **8. SHIRLEYKUTTY DANIEL HEADMISTRESS, SACRED HEART HIGH SCHOOL, MYLAPRA, PATHANAMTHITTA 689645.** **R5 & 7 BY ADV. SRI.BLAZE K.JOSE R8 BY ADV. SRI.T.L.SREERAM R BY GOVERNMENT PLEADER, SMT. BEENA MARY JOSEPH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 39613 of 2015 (B)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT-P1: TRUE COPY OF THE MEMO NO.138/PTA/2013-14 DATED 31/3/2014 ISSUED BY THE 7TH RESPONDENT.** **EXHIBIT-P2: TRUE COPY OF THE REPRESENTATION DATED 5/4/14 SUBMITTED BEFORE THE 4TH RESPONDENT BY THE WRIT PETITIONER.** **EXHIBIT-P3: TRUE COPY OF THE JUDGMENT DATED 27/5/14 IN WP(C) NO.13011/2014.** **EXHIBIT-P4: TRUE COPY OF THE ORDER NO.B4/3755/14 DATED 18/11/2014 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT-P5: TRUE COPY OF THE APPOINTMENT ORDER DATED 1/4/14 WHEREIN THE 4TH RESPONDENT HAD ENDORSED THE APPROVAL OF THE 8TH RESPONDENT'S APPOINTMENT.** **EXHIBIT-P6: TRUE COPY OF THE REVISION PETITION DATED 3/12/14 SUBMITTED BY THE WRIT PETITIONER BEFORE THE FIRST RESPONDENT.** **EXHIBIT-P7: TRUE COPY OF THE G.O.(RT) NO.1012/2015/G.EDN DATED 16/3/15 ISSUED BY THE FIRST RESPONDENT.** **EXHIBIT-P8: TRUE COPY OF THE JUDGMENT DATED 30/6/2015 IN WP(C) NO.34022/2014.** **EXHIBIT-P9: TRUE COPY OF ORDER NO.GO(RT) NO.5731/2015/G.EDN DATED 4/12/2015 ISSUED BY THE FIRST RESPONDENT.** **EXHIBIT-P10: TRUE COPY OF THE RELEVANT PORTION OF THE SERVICE BOOK OF THE WRIT PETITIONER.** **EXHIBIT-P11: TRUE COPY OF THE CERTIFICATES ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION TO THE WRIT PETITIONER.** **EXHIBI-P12: TRUE COPY OF THE REPORT No.B4/82/15 DATED 17/09/15 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE FIRST RESPONDENT** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** **EXHIBIT R7(a) TRUE COPY OF THE NOTICE PUBLISHED IN THE NOTICE BOARD DATED 05.02.2014** ## **EXHIBIT R7(b) TRUE COPY OF THE REGULATION PUBLISHED ALONG WITH R7(a)** **EXHIBIT R7(c) TRUE COPY OF THE MINUTES OF THE MEETING OF THE EDUCATIONAL BOARD DATED 14.03.2014** **EXHIBIT R8(a) TRUE COPY OF THE APPLICATION AND BIO-DATA SUBMITTED BY THE 8TH RESPONDENT.** // True copy // PA to Judge das ## **A.K.JAYASANKARAN NAMBIAR, J.** =========================================== **W.P.(C). No. 39613 of 2015** ===================================================== **Dated this the 8[th] day of September, 2016** ## **JUDGMENT** The petitioner, who is working as an H.S.A (Malayalam) from 12.06.1989 onwards under the 5[th] respondent Corporate Manager, is aggrieved by Ext.P9 order of the 1[st] respondent, wherein, consequent to the directions in Ext.P8 judgment of this Court, the 1[st] respondent found that the management had complied with a fair procedure while conducting the selection for the post of Head Master. In the writ petition, it is the specific case of the petitioner that, while on an earlier occasion, the 1[st] respondent had accepted the version of the 5[th] respondent Manager, that there had, in fact, been a fair procedure that was followed in connection with the selection of a junior to the petitioner as Head Master of the school, the said order was quashed by this Court by Ext.P8 judgment, and specific directions were issued to the 1[st] respondent with regard to the manner in which an enquiry had to be made by the 1[st] respondent before coming to a conclusion as to whether a fair procedure was in fact, followed while appointing the Head Master of the school, pursuant to the process of selection. At paragraph 5 and 6 of the judgment it is stated as follows: 5. On a consideration of the facts and circumstances of -2- W.P.(C). No. 39613 of 2015 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 petitioner, highlighting his grievance against the appointment of the 8th 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 4th 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 6th 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 affidavit of the 6th respondent. It is seen from the said reply, that while the 6th 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, -3- W.P.(C). No. 39613 of 2015 having been made available to each and every member of the teaching and non-teaching staff under the Management. Despite the said fact, the 4th respondent rejected the request of the petitioner for setting aside the appointment of the 8th 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 6th respondent and the 8[th] respondent. It is the stand of the 6th 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 1st respondent, while considering the revision petition. On a perusal of the said files, I note that before the 1st respondent, the 6th respondent had 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 4th respondent, and in specific response to the queries of the 4th respondent noted earlier, the 6th 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 6th respondent had satisfied the 1st 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 -4- W.P.(C). No. 39613 of 2015 the 6th respondent had in fact, 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 6th 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 6th 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 6th respondent, there cannot be a consequential finding with regard to the transparency of the procedure followed by the 6th respondent in the matter of selection of Head Mistress. Thus, in order to enable the 1st respondent to have a fresh look into the matter, I quash Ext.P7 order and direct the 1st respondent to pass fresh orders on Ext.P6 revision petition preferred by the petitioner before him, after hearing the petitioner, the 6th respondent and the 8th respondent. The 1[st] respondent shall pass fresh orders in the matter, taking note of the observations and directions in this judgment, within a period of three months from the date of receipt of a copy of this judgment. The 1st 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 1st 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.” 2. It is pointed out that, in Ext.P9 order passed by the 1[st] respondent, as against the directions in the judgment referred -5- W.P.(C). No. 39613 of 2015 ## above, the 1[st] respondent found as follows: “The matter has been examined in details of the strength of the supporting documents produced at the time of the hearing and the contentions and arguments put forward by the affected parties. The arguments were also examined in the light of Full Bench decision in 2006(4) KLT 264. The Management invited applications to the post of Headmaster/Headmistress after duly publishing the same in the notice board. The regulations or the section criteria governing the selection was also published in the notice board along with the application inviting to the post of Headmaster. The Education Board met on 14.3.2014 considered and scrutinized the applications. The petitioner had only given the details of his education qualifications that is MA, B.Ed. He was having 25 years of service. Whereas Smt.Shirleykutty having BA, B.Ed. She also had a total service of 29 years out of which 23 years as H.S.A and 6 years as UPSA, Account Test (L&H) and KER. She also produced the documents regarding so many additional qualifications and extra curricular activities. Considering the additional qualifications, the Board found that she is more suitable one for the betterment of the students as well as the institution and is better among the 2 candidates. Therefore she was selected as Headmistress, superseding the petitioner's claim on valid reasons and in a very fair, reasonable and transparent procedure. Since the management promoted the teacher by invoking the right conferred on them under article 30(1) of Constitution of India. Government finds no reason in interfering the right of Management.” 3. It is the contention of the learned counsel for the petitioner that, inasmuch in Ext.P9, the 1[st] respondent has not adhered to the directions in Ext.P8 judgment, Ext.P9 order is vitiated and ought to be quashed. The prayer in the writ petition is -6- ## W.P.(C). No. 39613 of 2015 for quashing the orders leading to and including Ext.P9, and for a declaration that the appointment of the 8[th] respondent as Head Master, is illegal. There is a further prayer for a declaration that the petitioner is entitled to be appointed as Head Master in the 6[th] respondent School. 4. A counter affidavit has been filed by the 8[th] respondent, wherein, the findings in Ext.P9 order are sought to be justified for the reasons contained therein. It is maintained that the 8[th] respondent was selected as the Headmistress for valid reasons and pursuant to a fair, reasonable and transparent procedure. 5. I have heard the learned counsel appearing for the petitioner, the learned counsel appearing for the 8[th] respondent as also the learned Government Pleader appearing for the official respondents. 6. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that contrary to the specific directions in Ext.P8 judgment, where the 1[st] respondent was directed to conduct an enquiry after collecting -7- W.P.(C). No. 39613 of 2015 material that would indicate that the guidelines that were produced by the 5[th] respondent before him, was in fact published along with a notice inviting application for the post of Head Master, and in a manner that would inform the teaching staff of the selection process that was contemplated, the 1[st] respondent in Ext.P9 order, appears to have merely gone by the documents produced before him at the time of hearing. It is blandly stated that the regulations, and the selection criteria governing selection, were published in the notice board along with the notice inviting application to the post of Head Master. Ext.P9 order does not indicate the documents that were produced, or the nature of the enquiry conducted by the 1[st] respondent, pursuant to which the 1[st] respondent acted while rendering the said findings. I am therefore of the view that Ext.P9 order does not comply with the specific directions issued by this Court in Ext.P8 judgment. 7. While for the aforementioned reasons, this Court would normally have quash Ext.P9 order, and remanded the matter back to the 1[st] respondent for a fresh adjudication after complying with the directions in Ext.P8 judgment, I find that during the pendency of these legal proceedings, and with effect from 31.05.2015, the -8- W.P.(C). No. 39613 of 2015 writ petitioner retired on superannuation from the school in question. I also note that, even assuming it is eventually found that the selection procedure followed in the school for the selection of Head Master was erroneous, the petitioner herein would not be in a better position since there will still have to be an assessment of his suitability before the petitioner could be seen as the one entitled for promotion to the post of Head Master. Inasmuch as the said suitability assessments cannot be undertaken at this stage, I find that a quashing of Ext.P9 order, and a remand to the 1[st] respondent at this stage would be an exercise in futility. Thus, expressing this Court's displeasure in the manner in which Ext.P9 order was passed, flouting the directions issued in Ext.P8 judgment, and finding that the quashing of Ext.P9 would not serve any practical purpose, this writ petition is disposed without interfering with Ext.P9 order of the 1[st] respondent. 8. As already observed above, this Court expresses its displeasure in the manner in which Ext.P9 order was passed by the 1[st] respondent. Despite the specific directions in Ext.P8 judgment, the 1[st] respondent appears to have mechanically proceeded to decide the issue without undertaking the exercise of making an -9- W.P.(C). No. 39613 of 2015 enquiry with regard to the manner in which the notices were published in the school, inviting applications for the post of Head Master. When this Court issues specific directions with regard to the manner in which an enquiry is to be conducted, it would be incumbent upon the 1[st] respondent to comply with the directions in letter and spirit. Inasmuch as that has not been done in Ext.P9 order, I deem it necessary to sound a word of caution to the 1[st] respondent to be more diligent while passing orders pursuant to directions issued from this Court. The writ petition is disposed as above. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** das/ 08.09.2016