Rince P Sebastian v. State of Kerala and Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V ``` ``` THURSDAY, THE 1[ST]DAY OF SEPTEMBER 2022 / 10 TH BHADRA,1944 ``` ``` WP(C) NO. 25167 OF 2021 ``` ## `PETITIONER/S:` ``` RINCE P SEBASTIAN, AGED 42 YEARS HEADMASTER, MAR THOMA GIRLS HIGHER SECONDARY SCHOOL, THRISSUR-1. BY ADVS. GEORGE ABRAHAM JOSEPH GOPURAN JOBY D JOSEPH ``` ## `RESPONDENT/S:` ``` 1STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THYCAUD, THIRUVANANTHAPURAM-695 001. 3REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, EDAPPALLY, ERNAKULAM-682 024. 4MANAGER, MAR THOMA GIRLS HIGHER SECONDARY SCHOOL, THRISSUR-680 001. 5GLENDA PAUL VALIYAVEETTIL, PRINCIPAL IN- CHARGE, MAT THOMA GIRLS HIGHER SECONDARY SCHOOL, THRISSUR-680 001. ``` ``` C.HARIKUMAR ARUN KUMAR M.A SANDRA SUNNY SMT.ANIMA, GP ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 01.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 25167 OF 2021 ``` ``` 2 ``` ## **JUDGMENT** The petitioner is presently working as Headmaster of Mar Thoma Girls Higher Secondary School, Thrissur. He has approached this Court claiming entitlement to be appointed as the Principal of the Higher Secondary Section of the School. 2. Short facts are as under: The school was upgraded as a Higher Secondary School during the academic year 2010-2011, and the post of Principal was sanctioned in the year 2013. The assertion of the petitioner is that the petitioner became qualified for the post of Principal on 10.3.2014, on which date he acquired Post Graduation. The petitioner contends that as on 1.6.2017, the petitioner alone was qualified to the post of Principal, and he ought to have been appointed as Principal under Rule 4 Chapter XXXII of the KER. Instead, the Manager appointed Manjush L. as Principal in charge. 3. Being aggrieved, the petitioner approached this Court and preferred W.P.(C) No.14466 of 2019, and this Court issued directions to the RDD to consider the matter and take a decision. 4. The RDD, after evaluating the facts and circumstances, took the view that promotion to the post of Principal is to be carried ``` WP(C) NO. 25167 OF 2021 ``` ``` 3 ``` out along with the appointment of a Higher Secondary School Teacher, and as there is no vacancy of HSST (Maths), the claim raised by the petitioner cannot be considered. Holding so, the request made by the petitioner was declined. The petitioner contends that the stand taken by the RDD is clearly against the law laid down by this Court in **Jayaraj v. State of Kerala** [2016 (2) KLT 200], wherein it has been stated that a qualified Headmaster, in the absence of anyone in the feeder category, would have to be appointed dehors the fact that the same would create an additional post in the Higher Secondary section. 5. Raising his contentions, the petitioner preferred an appeal before the 1st respondent, but the same was rejected by Ext.P13 order. 6. Exhibit P11 and P13 orders were challenged before this Court by preferring W.P.(C) No.24596 of 2020. 7. A learned Single Judge of this Court, after considering the entire facts, took the view that on account of the law laid down by this Court in Jayaraj (supra), the objections raised against the petitioner as recorded in the reply issued by the Manager and Ext.P13 order passed by the Government cannot be sustained. It was further held that merely because the school does not have enough student strength to warrant an additional post of HSST in Mathematics, the petitioner’s ``` WP(C) NO. 25167 OF 2021 ``` ``` 4 ``` claim for by-transfer appointment to the post of Principal cannot be defeated. However, a contention was raised by the Manager that the 5th respondent herein, Smt. Glenda Paul Valiyaveetil is a qualified HSST, and she deserved to be appointed to the first turn to the post of Principal under the mandate of Rule 4 of Chapter XXXII of the KER. This Court, observing that the contention raised by the Manager requires an assessment of various factual factors and documents, issued directions to the RDD to look into the factual aspects and take a final decision. While disposing of the matter, this Court had observed in paragraph No. 10 as follows: “10. There can be a little doubt that the issues between the petitioner and Manager are in the realm of factual circumstances, since it has to be ascertained when the post of Principal was sanctioned to the school. If, as stated by Dr.George Abraham, the said post had been sanctioned even in the year 2010-2011, then certainly, his client’s claim for being appointed in the year 2016, when he became qualified may carry some weight. If, on the contrary, the post was created later, after Smt.Glenda Paul Valiyaveetil also qualified, then her claim will certainly have to be considered because, as per Rule 4 of Chapter XXXII of the KER, the appointment of the post of Principal has to be done in the ratio of 2:1 between qualified Higher Secondary School Teachers and qualified High School Headmaster/Headmistress.” 8. The petitioner contends that from Ext.P16 Government Order dated 23.2.2013, it would be evident that the Government has sanctioned the post of Principal for 147 schools, and the Marthoma ``` WP(C) NO. 25167 OF 2021 ``` ``` 5 ``` GHSS, Thrissur, where the petitioner was working, was included as Sl.No.24. However, ignoring the same, the RDD rejected the request made by the petitioner on the ground that the petitioner had not raised his claim before the management in time and the same was done only on 26.3.2019. It was also observed in the order that it was on 4.1.2018 that Smt. Glenda Paul had acquired the qualification for the post of Principal. 9. The petitioner contends that the stand taken by the RDD while rejecting the request cannot be sustained. He refers to Ext.P18 service book, and it is stated that the qualification possessed by the petitioner of having passed Masters Degree in Mathematics has been endorsed in the service book on 15.6.2016, and the same has been countersigned by the Manager. It is also stated by referring to Ext.P19 approved seniority list of teachers as on 1.1.2015 that the petitioner is possessing Post Graduation qualifications. According to the petitioner, the 5th respondent was not qualified as on 1.6.2017, whereas the petitioner was promoted to the post of Headmaster on 1.6.2016, and his appointment was approved from the said date. He thus became qualified to be promoted to the post of Principal with effect from 2.6.2016 itself. Prior to the petitioner acquiring the qualification, the Manager had appointed Sri. L.Manjush as Principal in charge. ``` WP(C) NO. 25167 OF 2021 ``` ``` 6 ``` However, when the petitioner had acquired the qualification, the Manager was required to replace the Principal in charge by appointing ## the petitioner to the post of Principal. It is in the afore circumstances that this writ petition is filed seeking the following reliefs: i) To issue a writ of certiorari or any other appropriate writ, order or direction, to quash Exhibit P14 and Exhibit P17 orders issued by the respondents. ii) To declare that the petitioner is fully qualified to be promoted as Principal of Mar Thoma Girls Higher Secondary School, Thrissur, with effect from 1/6/2017 onwards. iii) to issue a writ of mandamus or any other appropriate writ, order or direction, directing the 4th respondent to promote the petitioner as Principal of Mar Thoma Girls Higher Secondary School, Trichur by replacing the 5th respondent from the post of Principal. iv) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents 1 to 3 to approve the appointment of the petitioner as Principal of Mar Thoma Girls Higher Secondary School, Trichur, with effect from 1/6/2017 onwards. 10. In the counter affidavit filed by the 3rd respondent, it is stated as follows in paragraph no.15:- 5. It is very clear that, the petitioner submitted a request before the Manager to appoint him as Principal by specifying his qualifications only on 26/03/2019 and on 17/04/2019 itself the manager has sent a reply stating that there is no vacancy to accommodate him as Principal. By checking the documents it is very clear that on 04/01/2018, itself Smt. Glenda Paul Valiyaveetil HSST (Maths) has been qualified to the Principal post. As per 2:1 proportion, Glenda Paul Valiyaveetil, who is the only HSST eligible senior most to become Principal in the first turn. Stating the above facts, the order in WP(C) 24596/2020 was complied by this office. The petitioner again filed the WP(C) 25167/2021 stating to quash the proceedings dated ordered by the RDD. But the present situation is not different from the earlier cases. Since the appointment of the petitioner leads to creation of an additional post in the school which ``` WP(C) NO. 25167 OF 2021 ``` ``` 7 ``` leads to a huge financial burden to the government. Also as per 2:1 proportion to appoint Principal, senior most HSST who is qualified is getting the chance to be a Principal. No teaching periods are left to accommodate the petitioner as Principal. If his request is considered HSST (Jr) Mathematics who has been working from 15/08/2013 in the permanent post will be thrown out from the school. The creation of a supernumerary post will lead to a huge financial burden to the government it will pave the way to file enormous writ petitioners in such cases in future. Considering all the above facts the writ petition may be kindly be rejected. 11. Though Sri. C.Harikumar appeared for the 5th respondent, he has not chosen to file a counter. Though the Manager was served with notice, he has not chosen to appear either in person or through counsel. 12. I have heard Sri.George Abraham, the learned counsel appearing for the petitioner, Smt.Anima, the learned Government Pleader and Sri.C.Harikumar, the learned counsel appearing for the 5th respondent. 13. Rule 4 of Chapter XXXII of the KER prescribes the method of appointment. The feeder category for the post of Principal is ‘by promotion’ or ‘by transfer’ from qualified Headmasters of Aided High Schools under the respective educational agency. Note III under Sl. No. 1 of the table under Rule 4 prescribes that the post of Principals shall be filled up from the feeder category in the ratio of 2:1, i.e., when two successive vacancies of Principal are filled from the Higher Secondary Section, the third vacancy should go to the Headmaster of the School, if he/she is so qualified to be appointed as ``` WP(C) NO. 25167 OF 2021 ``` ``` 8 ``` Principal. The provision further provides that if qualified hands are not available in either of the two methods, then the other method shall be resorted to. In **Jayaraj** (supra), a learned Single Judge of this Court, after evaluating the statutory provisions and the Government Orders, held as follows in paragraph Nos. 12 to 14 of the judgment. 12. The statutory rule prescribes that the method of appointment shall be either from the HSST or from qualified Headmasters of aided Schools, under the same educational agency. Preference at the first instance are to the HSST's and then to the HM in the ratio of 2:1. The petitioner, who is qualified to be appointed as Principal, is eligible to be so considered, especially since there are no qualified HSST's available. The petitioner's eligibility under the statutory rule cannot be frustrated, merely for the reason that there are no posts available of HSST in the Higher Secondary section, so as to ensure compliance of the GOs produced at Exts. P11 & P12. 13. Exts. P11 & P12 insofar as it conflicts with the statutory rule has to be held to be of no consequence. The petitioner prays that the GO's be set aside in toto. But if a harmonization of the executive order with the statutory rule is possible, this Court would only attempt that and steer clear of striking down the former. It is hence declared that in the circumstances in which the GO conflicts with the rule, the statutory rule would prevail and have precedence. 14. A qualified Headmaster, in the absence of anybody eligible from the other feeder category, would have to be appointed, de hors the fact that the same would create an additional post in the Higher Secondary section. GO (MS) No. 290/06 / G.Edn. then would apply. When a Headmaster is promoted as Principal in the Higher Secondary Section then if there are HSST's available for all the subjects; then the junior most HSST in that subject would be continued as supernumerary. When ``` WP(C) NO. 25167 OF 2021 ``` ``` 9 ``` the Higher Secondary Section does not have the subject of the Headmaster promoted, then he shall be exempted from teaching 16 hours. 14. The records before this Court reveals that the post of Principal was sanctioned in the school by G.O.(P) No. 76/2013 dated 23.2.2013. It is mentioned in Ext.P17 order itself that the petitioner herein was appointed as Headmaster on 1.6.2016 and that he had completed the probation period in the post of Headmaster on 1.6.2017. Ext.P3 degree certificate reveals that the petitioner had passed M.Sc Degree in Mathematics as early as November, 2013 and that the M.G.University had issued an eligibility certificate on 7.7.2015. In other words, as of 1.6.2017, the petitioner was qualified to be appointed to the post of Principal. There is no dispute with regard to the fact that there were no qualified HSSTs in the School as of 1.6.2017. It is also not disputed that Smt. Glenda Valiyaveetil acquired Post Graduate qualification on 4.1.2018. In view of the law laid down in Jayaraj (supra), a qualified Headmaster, in the absence of anybody eligible from the other feeder category, would have to be appointed, dehors the fact that the same would create an additional post in the Higher Secondary Section. Furthermore, when a Headmaster is promoted as Principal in the Higher Secondary Section, then even if there are HSSTs available for all the subjects, then the juniormost HSST in that subject would be continued as supernumerary. When the Higher Secondary Section does not have the ``` WP(C) NO. 25167 OF 2021 ``` ``` 10 ``` subject of Headmaster, who has been promoted, then he shall be exempted from teaching 16 hours. 15. From the counter affidavit filed by the 3rd respondent, it is stated that the appointment of the petitioner would lead to the creation of an additional post in the school and that may result in financial burden. It is also stated that no teaching periods are left to accommodate the petitioner as Principal. It would be pertinent to note that the very same contentions were repelled by this Court during the earlier round of litigation. Furthermore, the said contention cannot be sustained in the light of the law laid down in Jayaraja (supra). 16. Yet another reason to reject the request made by the petitioner is that the petitioner failed to inform the Manager about the acquisition of his qualifications and that the same was mentioned only on 26.3.2019. However, by that time, the 5th respondent had acquired the qualification on 4.1.2018. As stated earlier, the petitioner had acquired post Graduate qualification in the year 2013 itself as is evident from Ext.P3. From Ext.P18 staff list countersigned by the Manager and approved by the AEO, it is evident that the Manager was aware of the Post Graduate qualification acquired by the petitioner. The qualification acquired by the petitioner was endorsed by the Manager on 15.6.2016 and the office of the AEO has verified the same. Even in ExtP19 approved seniority list of teachers in the ``` WP(C) NO. 25167 OF 2021 ``` ``` 11 ``` educational institution as on 1.1.2015, the Post Graduate qualification acquired by the petitioner is made mention of. In that view of the matter, the Manager was not justified in taking a stand that the petitioner had not intimated the Manager about his qualification prior to the appointment of the 5th respondent. Furthermore, in spite of the issuance of the notice, the Manager has not appeared before this Court to counter the contentions advanced by the petitioner. In view of the discussion above, the petitioner is entitled to succeed. Exts.P14 and P17 will stand quashed. It is declared that the petitioner is fully qualified to be promoted as Principal of Marthoma Girls Higher Secondary School with effect from 1.6.2017 onwards. The 4th respondent shall initiate appropriate steps to promote the petitioner as Principal with effect from 1.6.2017 onwards. Appropriate orders shall be passed expeditiously, in any event, within a period of two months from the date of receipt of a copy of this judgment. The proposal shall be forwarded within the time ordered as above to the competent among the official respondents, who shall consider the grant of approval and take a decision within a further period of one month. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** sru ``` WP(C) NO. 25167 OF 2021 ``` ``` 12 ``` ## `APPENDIX OF WP(C) 25167/2021` |`PETITIONER’S EXHIBITS`|| |---|---| |`Exhibit P1`|`TRUE COPY OF THE APPOINTMENT ORDER SHOWING`| ||`APPROVAL OF APPOINTMENT AS H.S.A. (MATHS),`| ||`DATED 5.6.2002.`| |`Exhibit P2`|`TRUE COPY OF THE APPOINTMENT ORDER DATED`| ||`1.6.2016.`| |`Exhibit P3`|`TRUE COPY OF THE DEGREE AWARDED BY THE M.S.`| ||`UNIVERSITY TO THE PETITIONER.`| |`Exhibit P4`|`TRUE COPY OF THE ELIGIBILITY CERTIFICATE DATED`| ||`7.7.2015.`| |`Exhibit P5`|`TRUE COPY OF THE REPRESENTATION SUBMITTED BY`| ||`THE PETITIONER DATED 26.3.2019 TO THE 4TH`| ||`RESPONDENT.`| |`Exhibit P6`|`TRUE COPY OF THE REPLY ISSUED BY THE MANAGER`| ||`DATED 17.4.2019.`| |`Exhibit P7`|`TRUE COPY OF THE JUDGMENT IN W.P.C NO. 19948/13`| ||`DATED 25.2.16.`| |`Exhibit P8`|`TRUE COPY OF THE REPRESENTATION DATED`| ||`17.5.2019.`| |`Exhibit P9`|`TRUE COPY OF THE JUDGMENT IN W.P. C NO.`| ||`14466/19 DATED 27.5.2019.`| |`Exhibit P10`|`TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE`| ||`PETITIONER DATED 25.7.2019.`| |`Exhibit P11`|`TRUE COPY OF THE ORDER PASSED BY THE 3RD`| ||`RESPONDENT DATED 8.8.2019.`| |`Exhibit P12`|`TRUE COPY OF THE APPEAL FILED BY THE PETITIONER`| ||`BEFORE THE 1ST RESPONDENT, DATED 28.8.2019.`| |`Exhibit P13`|`TRUE COPY OF THE GOVERNMENT ORDER G.O(RT) NO.`| ||`2702/2020/G.EDN. DATED 1.10.2020.`| ``` WP(C) NO. 25167 OF 2021 ``` ``` 13 ``` |`Exhibit P14`|`TRUE COPY OF THE ORDER PASSED BY THE MANAGER`| |---|---| ||`DATED 24.3.2021.`| |`Exhibit P15`|`TRUE COPY OF THE JUDGMENT IN W.P.C NO.`| ||`24596/2020 DATED 9TH APRIL 2021.`| |`Exhibit P16`|`TRUE COPY OF THE GOVERNMENT ORDER DATED`| ||`23.2.2013 ALONG WITH ANNEXURE.`| |`Exhibit P17`|`TRUE COPY OF THE ORDER PASSED BY THE REGIONAL`| ||`DEPUTY DIRECTOR DATED 28.10.2021.`| |`Exhibit P18`|`TRUE COPY OF THE SERVICE BOOK OF THE PETITIONER`| ||`CONTAINING PAGES 1 TO 4.`| |`Exhibit P19`|`TRUE COPY OF THE APPROVED SENIORITY LIST FILED`| ||`BY THE MANAGER DATED 1.1.2015.`| |`RESPONDENTS EXHIBITS`|| |`Exhibit R3(a)`|`COPY OF APPROVAL ORDER OF RDD DATED 13.6.2014`| ||`BEARING NO.B1/12524/2013.`| |`Exhibit R3(b)`|`COPY OF PROCEEDINGS`| ||`NO.B2/5643/RDD/HSE/EKM/2019/DATED 8.8.2019.`|