Philomina Sebastian v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **MONDAY, THE 9TH DAY OF JANUARY 2017/19TH POUSHA, 1938** ## **WP(C).No. 9106 of 2016 (K)** **---------------------------** **PETITIONER : -----------------------** **PHILOMINA SEBASTIAN, HIGH SCHOOL ASSISTANT (MALAYALAM), ST.MARY'S H.S.S. BHARANANGANAM, PALA, KOTTAYAM, PIN - 686 578.** **BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.L.ANNAPOORNA** ## **RESPONDENT(S):** **-----------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.** **2. DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM, PIN - 695 001.** **3. REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, OFFICE OF THE REGIONAL DEPUTY DIRECTOR OF HIGHER** **SECONDARY EDUCATION, NEAR FIRE STATION, KOTTAYAM, PIN - 686 002.** **4. CORPORATE MANAGER,** - **CORPORATE EDUCATIONAL AGENCY OF THE DIOCESE OF PALA, SHALOM PASTORAL CENTRE, PALA, PIN - 686 575.** **5. P.J.MATHEW, HIGHER SECONDARY SCHOOL TEACHER (MALAYALAM), ST. THOMAS H.S.S., PALA, PIN - 686 575.** **R1 TO R3 BY GOVERNMENT PLEADER SRI.B.UNNIKRISHNA KAIMAL R4 BY ADV. SRI.GEORGEKUTTY MATHEW** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 9106 of 2016 (K)** ## **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **--------------------------------------** ## **EXT.P1: TRUE COPY OF THE APPOINTMENT ORDER DATED 14.7.2014** - **EXT.P2: TRUE COPY OF THE CIRCULAR NO.A.C.D.C.1/9000/2013/HSE DATED 18.7.2013 ISSUED BY THE 2ND RESPONDENT** - **EXT.P3: TRUE COPY OF THE REPRESENTATION DATED 10.2.2015 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT** - **EXT.P4: TRUE COPY OF THE APPLICATION DATED 9.5.2015 SUBMITTED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT, 2005.** - **EXT.P5: TRUE COPY OF THE LETTER NO.A2/3811/15 DATED 26.5.2015 OF THE PUBLIC INFORMATION OFFICER IN THE OFFICE OF THE 3RD RESPONDENT** - **EXT.P6: TRUE COPY OF THE REPRESENTATION DATED 29.2.2016 SUBMITTED BY THE PETITIONER BEFORE THE MINISTER OF EDUCATION** - **EXT.P7: TRUE COPY OF THE REPRESENTATION DATED 1.3.2016 SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE CHIEF MINISTER OF KERALA** - **EXT.P8: TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE VIGILANCE AND ANTI CORRUPTION BUREAU, KOTTAYAM.** - **EXT.P9: TRUE COPY OF THE APPOINTMENT ORDER NO. NIL DATED 01/06/2016 ISSUED BY THE 4TH RESPONDENT** - **EXT.P10: TRUE COPY OF THE INTERIM ORDER DATED 02/05/2016 ON IA.NO.6822 OF 2016 IN WPC.NO.9044 OF 2016 OF THIS HON'BLE COURT** - **EXT.P11: TRUE COPY OF THE LETTER NO.B4/3596/RDD/KTM/16 DATED 16/06/2016 ADDRESSED TO THE 4TH RESPONDENT CORPORATE MANAGER.** - **EXT.P12: TRUE COPY OF THE ORDER NO.HSE/07/2016 DATED 15/07/2016 OF THE 4TH RESPONDENT** ## **RESPONDENT(S)' EXHIBITS ------------------------------------------** **EXT.R3(A) COPY OF THE ORDER NO.A2/6346/14/HSE/RDD/KTM DATED 10/06/2015.** ## **EXT.R3(B) COPY OF THE REPORT VIDE LETTER NO.A2/6346/RDD/KTM/14 DATED 25/08/2015** ## **EXT.R3(C) COPY OF THE PROCEEDINGS DATED 31/03/2016** **2/-** **-2-** ## **WP(C).NO.9106/2016** **EXT.R3(D) COPY OF THE LETTER NO.B4/3596/RDD/KTM/16 DATED 16/06/2016.** **EXT.R4(A) COPY OF THE ORDER DATED 16/06/16 ISSUED BY THE 3RD RESPONDENT** ## **EXT.R4(B) COPY OF THE ORDER DATED 15/07/2016 ISSUED BY THE 3RD RESPONDENT** ## **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **P.V.ASHA, J.** ## **--------------------------------------------W.P.(C). No.9106 of 2016 ----------------------------------------------** Dated this the 09[th] day of January, 2017 ## **JUDGMENT** The petitioner seeks appointment as HSST (Mal) under the 4th respondent with effect from 01.11.2013. The petitioner commenced her service as UPSA and thereafter she was promoted as High School Assistant (Malayalam) with effect from 20.06.1991 under the the 4[th] respondent, Corporate Educational Agency of the Diocese of Pala. A vacancy of Higher Secondary School Teacher (HSST) (Mal) arose in the School under the 4th respondent on 01.11.2013. Petitioner was the senior most H.S.A in Malayalam;, She was having all the qualifications as prescribed under the provisions contained in Rule 6 of Chapter XXXII of the Kerala Education Rules, 1959. However, the Manager appointed the 5[th] respondent, who was junior to her and who was having only B.A Degree in Natural Science. 2. As per Rule 6, for appointment as Higher Secondary School Teacher (H.S.S.T) Malayalam, the requiste qualification prescribed is Masters Degree in Malayalam with not less than 50% marks and B.Ed. in the concerned subject. **W.P.(C). No.9106 of 2016** **2** B.Ed. Degree holders in other subjects could be considered only in the absence of persons with B.Ed. Degree in the same subject. 3. As against the appointment of the 5[th] respondent, the petitioner submitted several objections, as contained in Ext.P3 dated 10.02.2015, submitted before the Regional Deputy Director of Higher Secondary Education. On the basis of information obtained on application under the Right to Information Act, through the Public Information Officer of the 3[rd] respondent in Ext.P5 letter dated 26.05.2015, petitioner came to know that the appointment of 5[th] respondent was not approved. The petitioner thereafter submitted several representations before the Director as well as the Government. Thereafter, this writ petition was filed in March 2016 challenging Ext.P1 order of appointment granted to the 5[th] respondent on 14.07.2014 and praying for a direction to the respondents to ensure her appointment as H.S.S.T. 4. Subsequent to the filing of the writ petition, the Manager appointed the petitioner as H.S.S.T Malayalam, as per Ext.P9 order dated 01.06.2016. However, it was rejected by the Regional Deputy Director of Education as per Ext.P11 order dated 16.06.2016 on the ground that the appointment **W.P.(C). No.9106 of 2016** **3** was not made on recommendation by a Selection Committee. The 3[rd] respondent stated that the action of the Manager in making appointment without constituting seelction committee was contrary to the provisions contained in Chapter XXXII of K.E.R and the Govt orders relating to the same. The Manager was accordingly directed to resubmit the proposal after taking steps for constituting the Selection Committee in accordance with the provisions. The petitioner pointed out that her rightful claim on the basis of qualification as well as seniority, was deliberately overlooked. 5. The 4[th] respondent Manager has filed a counter affidavit stating that the 5[th] respondent was appointed under the criteria of suitability, in preference to the petitioner. It is further stated that the petitioner was promoted as HSST on 1.6.2016; but she was reverted to the post of H.S.A (Malayalam) as per order dated 15.6.2016. 6. Thus, even though the petitioner was granted an order of appointment in June 2016 as H.S.S.T, she could not work as H.S.S.T for a period of more than 1 ½ months, since approval to that appointment was declined. 7. The petitioner's claim is that she was entitled to be appointed against the vacancy which arose on 1.11.2013 and **W.P.(C). No.9106 of 2016** **4** she was liable to be appointed with effect from 14.7.2014, the date on which the 5[th] respondent was appointed. It is to be noted that on account of the action of the Manager in making appointments contrary to the provisions contained in Rule 5, approval to the appointment of the petitioner happened to be denied. As per Rule 5 of Chapter XXXII K.E.R, appointments to teachers in Higher Secondary Schools shall be made on the recommendation of the Selection Committee consisting of the Manager or his nominee and Chairman or Principal of the School and the representative of the Government selected by the Manager from the Panel of Officers not below the rank of Deputy Collector or Officers not below the rank of Deputy Secretary to the Government prepared by the Director of Higher Secondary Education for every academic year. It is the Manager who made the appointment contrary to provisions contained in Rule 5 on account of which even the appointment was granted to the petitioner on 1.6.2016, happened to be rejected by the 3[rd] respondent. 8. The petitioner pointed out that being the senior most claimant against the vacancy which arose in November 2013, petitioner was entitled to be appointed and in case the appointment was made in accordance with rules, such **W.P.(C). No.9106 of 2016** **5** appointment would have been approved and she would have got salary and and all other benefits based on such appointment from 2013 onwards. The petitioner is due to retire from service on 31.03.2017. 9. Heard the learned Counsel for the petitioner, the learned Counsel for the Manager and the learned Govt Pleader. There is no appearance for the 5th respondent. 10. It is seen that the vacancy which arose in November 2013 was filled up by appointing the 5[th] respondent, who was an unqualified hand who was retained till June 2016. The Manager is duty bound to make appointments in accordance with the provisions contained in K.E.R. As far as the appointments in Higher Secondary Schools are concerned he has to see that appointments are made as provided in provisions contained in Chapter XXXII. Initially the petitioner was denied appointment on the ground of suitability criteria. Being the seniormost H.S.A with qualifications as prescribed in Rule 6 of Chapter XXXII. At least when the Manager chose to appoint the petitioner in June 2016, the Manager ought to have taken steps to constitute the Selection Committee as specified in Rule 5 of the Chapter XXXII. But Manager has not taken steps to get a **W.P.(C). No.9106 of 2016** **6** Government nominee appointed or to constitute the selection committee as provided in the rules. It is pertinent to note that, the 4[th] respondent is a Corporate Educational Agency having several Schools. Therefore, there is no reason at least for any oversight in respect of constitution of Selection Committee. It can only be deliberate in order to avoid appointment of the petitioner and to delay the same till her retirement. Even in the statement the Manager is silent on the question of selection committtee. 11. As there was no justifiable reason for not filling up the vacancy of HSST (Malayalam) by a duly qualified hand at the relevant time when the vacancy arose in November 2013 and denying appointment to the petitioner deliberately, by appointing the 5th respondent who is an unqualified and junior HSA in her place, Manager has acted contrary to the rules in KER and casues huge loss to petitioner by way of salary and other benefits, apart from the mental agony. Manager is therefore liable to compensate the petitioner for the denial of appointment as H.S.S.T from November 2013 onwards. 12. In the judgment in **Manager M.M.H.S v. Deputy Director [1994(1) KLT 321], t** his Court has in identical **7** ## **W.P.(C). No.9106 of 2016** circumstances where appointment was denied to Rule 51A claimant, held as follows: “In the instant case, writ petitioner was having a rightful claim for re-appointment under Rule 51A of Chapter XIV-A of the Rules. This fact is not in dispute. The vacancy to which she was to be appointed arose with effect from 1-6-1990. As per the orders of the educational authorities fixing the staff strength, that vacancy ought to have been filled up by the Manager with effect from 1-6-1990 itself. Only because of the recalcitrant attitude of the Manager, the writ petitioner was not appointed with effect from 1-6-1990. On account of the interference of this Court, Manager was compelled to appoint her in the said vacancy with effect from 12-9-1991. The Manager thus kept her away from the school for the period from 1-6-1990 to 12-9-1991. The failure of the manager is not appointing the writ petitioner against the vacancy which arose with effect from 1-6-1990 caused monetary loss to the writ petitioner. Such a losscaused to the teacher is to be recovered from the Manager as provided by the Rule quoted above. Learned Single Judge was right in giving direction to the educational authorities to compute the loss caused to the writ petitioner on account of the delayed appointment and to realise the same under the provisions of the Revenue Recovery Act. We are in full agreement with the reasonings adopted by the learned Judge. **W.P.(C). No.9106 of 2016** **8** 13. This is a clear case where the Manager did not perform his statutory duty to fill up the vacancy of HSST by a duly qualified hand in accoordance with the provisions in Chapter XXXII KER as well as the orders issued by the Educational Authorities. The judgment in **State of Kerala v. Joseph Ceasar [1998(2)KLT 194]** also the Division Bench of this Court, after considering the dictum laid down in the Full Bench in **State of Kerala v. E.C Elsy & Others [1987(2) KLT 882]** held that when an appointment is denied by the Manager by appointing someone else in the vacancies and the said teacher is drawing salary from the Government, there shall be a direction to the Government to pay the salary to the teacher and to recover it from the Manager and teacher ought not be made to suffer. In both these cases, it was directed that the Government would have to pay the salary to the teacher and thereafter recover the same from the Manager. In the judgment dated 7.7.2015 in W.P.C No. 370/12, this Court directed the Educational Authorities and to compute the loss caused to the teacher on account of the denial of appointment, in terms of the salary payable and thereafter to take steps to recover the same from the Manager if necessary by resorting to Kerala Revenue Recovery Act and then pay the **W.P.(C). No.9106 of 2016** **9** same to the petitioner. In tis case Government have not paid salary to the 5[th] respondent since his appointment was not approved. 14. In the light of the aforesaid judgments, I do not find any reason why the respondents 1 to 3 shall not also be directed to follow the same procedure in this case. Accordingly, there shall be a direction to respondents 1 to 3 to compute the loss caused to the petitioner on account of denial of appointment as H.S.S.T for the period from 14.7.2014 onwards. There shall be a further direction to the respondents 2 to 4 to see that the petitioner is appointed to the existing vacancy of H.S.S.T in accordance with law at any rate before she retires from service i.e., before 15.2.2017. 15. It is seen that the petitioner was subjected to an interview by the Selection Committee which was constituted on 12.7.2014, when the Selection Committee overlooked her claim and ranked 5[th] respondent as No.1, which shall ultimately ended in the rejection of approval to the appointment of 5[th] respondent for want of requisite qualification. Therefore there cannot be any objection for appointing the petitioner as she has already been considered by the selection committee for appointment to the very same **10** ## **W.P.(C). No.9106 of 2016** post, along with 5th respondent, in 2014. The Manager shall therefore make appointment of the petitioner as H.S.S.T (Malayalam) and the 3[rd] respondent shall takes steps for approving the same. The Manager shall take steps for the same before 15.02.2017 and the 3[rd] respondent shall take steps for approving the appointment and for disbursement of salary within a further period of one month. With the above directions, the writ petition is allowed. Sd/- **P.V.ASHA, Judge** lsn