Rince P. Sebastian v. State of Kerala and Others (WP(C).No.24596 OF 2020(Y))

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943** ## **WP(C).No.24596 OF 2020(Y)** ## **PETITIONER:** **RINCE P. SEBASTIAN, HEADMASTER, MAR THOMA GIRLS HIGHER SECONDARY SCHOOL, THRISSUR.** **BY ADVS. DR.GEORGE ABRAHAM SRI.JOSEPH GOPURAN SHRI.JOBY D JOSEPH** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL**| ||**EDUCATION DEPARTMENT,SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695 001**| |**2**|**DIRECTOR OF GENERAL EDUCATION,**| ||**JAGATHY, THIRUVANANTHAPURAM-695 014**| |**3**|**REGIONAL DEPUTY DIRECTOR,**| ||**HIGHER SECONDARY EDUCATION, EDAPPALLY, ERNAKULAM-**| ||**682 024**| |**4**|**MANAGER,**| ||**MAR THOMA GIRLS HIGHER SECONDARY SCHOOL, THRISSUR-**| ||**680 001.**| |**5**|**MANJUSH.L.,**| ||**PRINCIPAL-IN-CHARGE, MAR THOMA GIRLS HIGHER**| ||**SECONDARY SCHOOL, THRISSUR-680 001.**| **R4 BY ADV. SRI.V.A.MUHAMMED R4 BY ADV. SRI.M.SAJJAD R4 BY ADV. SRI.V.RAJASEKHARAN NAIR R5 BY ADV. SRI.P.J.MATHEW R5 BY ADV. SRI.EBIN MATHEW** **R1-3 BY GOVERNMENT PLEADER SRI. P.M.MANOJ - SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.24596 OF 2020(Y)** **2** ## **JUDGMENT** **Dated this the 9th day of April 2021** The petitioner says that he is the Head Master of “Mar Thoma Girls Higher Secondary School”, Thrissur, and that he was qualified to be appointed as its Principal with effect from 02.06.2016. According to him, the post of Principal was sanctioned to the School in the academic year 2010-2011, when it was upgraded as a Higher Secondary School; but that since there was no teacher qualified to be appointed to the said post then, the Manager maintained _status quo._ 2. The petitioner asserts that, thereafter on 02.06.2016, when he became qualified, he ought to have been appointed as the Principal under the provisions of Rule 4 of Chapter XXXII of the Kerala Education Rules (KER), but that instead of doing so, the Manager refused to appoint any person, which position continues even today with the fifth respondent functioning as the Principal-in-charge presently. 3. The petitioner says that since the Manager is refusing to appoint him, he was constrained to approach this Court by filing WP(C) No.14466/2019, which culminated in Ext.P9 judgment, consequent to which, the Regional Deputy Director (RDD) issued Ext.P6 order holding that she cannot be appointed as Principal because neither is there a **WP(C).No.24596 OF 2020(Y)** **3** vacant post of HSST in Mathematics to accommodate him, nor can any teaching work be allotted to him, if he is to be appointed as a Principal. 4. The petitioner says that the order of the RDD was challenged by him before Government by filing a statutory appeal, which was, however, rejected through Ext.P13 order, reiterating the same stand. The petitioner contends that Exts.P6 and P13 cannot find favour in law anymore because a learned Judge of this Court has declared affirmatively in _**Jayaraj vs. State of Kerala**_ [2016 (2) KLT 200], that a “by-transfer” appointment as Principal of a Higher Secondary School cannot be denied to a Headmaster/Headmistress merely because there is no workload in the Higher Secondary Section for accommodating him/her. The petitioner, therefore, prays that Exts.P6 and P11 be set aside and the Manager be directed to appoint him to the available vacancy of Principal at the earliest. 5. The afore submissions of Sri.Dr. George Abraham – learned counsel for the petitioner, was refuted by Smt.P. A. Jenzia - learned counsel appearing for the Manager, arguing that the petitioner cannot claim any vested right to be appointed as the Principal of the School because there is another teacher, by name Smt. Glenda Paul Valiyaveetil, who is fully qualified to be appointed under the mandate of Rule 4 of **WP(C).No.24596 OF 2020(Y)** **4** Chapter XXXII of the KER. She submitted that, as per this provision, the first two turns in the post of Principal will have to be given to qualified Higher Secondary School Teachers and only the 3[rd] turn can be filled up through a “by-transfer” appointment. She prayed that, therefore, this writ petition be not entertained by this Court. 6. The learned Government Pleader – Sri. P.M. Manoj, submitted that the petitioner’s claim for being appointed as the Principal hinges upon two issues, namely, whether there is sufficient workload to accommodate him in the Higher Secondary Section and whether he is the senior most teacher, qualified to be appointed to the said post under the statutory ratio fixed under a Rule 4 of Chapter XXXII of the KER. The learned Senior Government Pleader submitted that on both these counts, the petitioner’s claim will have to fail because: for one, the school, admittedly, does not have enough students strength to accommodate an additional HSST in Mathematics; while, for the second, as far as qualified teachers are concerned, there is one HSST by name Smt.Glenda Paul Valiyavettil, who is fully qualified as on today. He, therefore, prayed that this writ petition be dismissed. 7. When I evaluate the afore submissions and go through the materials available on record, it is unnecessary to expatiate that on **WP(C).No.24596 OF 2020(Y)** **5** account of _**Jayaraj**_ (supra), the objections against the petitioner’s appointment as recorded in Exts.P6 and P13 are no longer relevant. Merely because the school does not have enough students strength to warrant an additional post of HSST in Mathematics, the petitioner’s claim for “by-transfer” appointment to the post of Principal cannot be defeated. 8. That said, the second objection now raised by the Manager against the petitioner is that there is another teacher by name Smt.Glenda Paul Valiyaveetil, who is a fully qualified HSST and they deserving to be appointed to the first turn of the post of Principal, under the mandate of Rule 4 of Chapter XXXII of the KER. 9. However, this is contested by Dr.George Abraham by pointing out that the post of Principal was sanctioned to the school as early as in the academic year 2010-2011, when it was upgraded as a Higher Secondary School; but that since no teacher was qualified at that time to hold the said post, no appointment could be made. He submitted that, however, his client became fully qualified on 02.06.2016 and therefore, that the Manager ought to have appointed him from that date, without waiting for other HSST to get qualified. He says that, however, this is exactly what the Manager has done, since he waited for the **WP(C).No.24596 OF 2020(Y)** **6** aforementioned Smt.Glenda Paul Valiyaveetil to be qualified on 04.10.2018 and to thus now illegally maintain that only the said teacher can be appointed to the available post. 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. 11. Since these aspects will require an assessment of various factual factors and documents, I do not think it will be justified for this Court to consider them on its merits, and am consequently, of the view that the 3[rd] respondent - Regional Deputy Director is enjoined to look into the same and take a final decision. This is more so because, even **WP(C).No.24596 OF 2020(Y)** **7** though this Court had, through Ext.P9, directed the said Authority to consider the petitioner’s claim, it has been rejected solely on the ground that there is no sufficient workload in the Higher Secondary Section to accommodate him as an HSST in Malayalam, which objection, as I have already said above, cannot now remain. In the afore circumstances, I order this writ petition and direct the 3[rd] respondent - Regional Deputy Director to hear the petitioner, as also the Manager of the School, along with the teacher by name Smt.Glenda Paul Valiyaveetil – either physically or video conferencing- thus culminating in an appropriate order thereon, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. Needless to say, Exts.P6 and P13 will stand set aside in the light of _**Jayaraj**_ (supra) and the 2[nd] respondent will complete the exercise as ordered above solely with respect to the rival claims of the teachers for being appointed, as Principal after ascertaining the date on which the post became available. **Sd/-** ## **DEVAN RAMACHANDRAN** **JUDGE** SAS/09/04/2021 **WP(C).No.24596 OF 2020(Y)** **8** ## **APPENDIX** ## **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 REPLY ISSUED BY THE MANAGER**| ||**DATED 17.4.2019**| |**EXHIBIT P7**|**TRUE COPY OF THE JUDGMENT IN WPC**| ||**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 WPC**| ||**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 A COPY OF THE GOVERNMENT**| ||**ORDER GO(RT) NO.2702/2020/G.EDN DATED**| ||**1.10.2020**| |**RESPONDENTS' EXHIBITS:-**|| |**EXHIBIT R5A**|**TRUE COPY OF THE STAFF LIST OF MAT THOMA**| ||**GIRLS HIGHER SECONDARY SCHOOL AS ON**| **WP(C).No.24596 OF 2020(Y)** **9** **08/12/2020** **EXHIBIT R5B TRUE COPY OF THE GOVERNMENT ORDER REITERATING THIS POSITION G.O.NO.2896652/T.I./2018/G.EDN. DATED 14/05/2019 EXHIBIT R4A TRUE COPY OF THE MINUTES OF THE MEETINGS OF THE THREE TEACHERS CLAIMING THE POST OF PRINCIPAL, MTGHSS, THRISSUR HELD ON 24.03.2021** //TRUE COPY// P.A. TO JUDGE