Smt. Smitha P. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 31ST DAY OF OCTOBER 2019 / 9TH KARTHIKA, 1941** ## **WA.No.957 OF 2016** **AGAINST THE JUDGMENT IN WPC 8097/2014 DATED 25-02-2016 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **SMITHA.P** **W/O BABU P. MATHEW, AGED 41, PRINCIPAL-IN-CHARGE (HSST MATHAMETICS) DESABANDHU HIGHER SECONDARY SCHOOL, THACHANPARA, PALAKKAD-678 593 RESIDING AT C/14, ANUGRAHA, HILLVIEW NAGAR, THANAVU, OLAVAKODE, PALAKKAD.** **BY ADVS. SRI.K.T.SHYAMKUMAR SRI.HARISH R. MENON** ## **RESPONDENT/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION THIRUVANANTHAPURAM-695 001.** - **3 THE REGIONAL DEPUTY DIRECTOR HIGHER SECONDARY EDUCTION, ERNAKULAM-682 011.** WA Nos.957/16 & conn.cases -:2:- - **4 THE MANAGER DESABANDHU HIGHER SECONDARY SCHOOL, THACHANPARA, PALAKKAD-678 593.** - **5 SHRI V.P.JAYARAJAN HEADMASTER, HIGH SCHOOL SECTION, DESABANDHU HIGHER SECONDARY SCHOOL, THANPARA, PALAKKAD-678 593.** - **6 THE REGIONAL DEPUTY DIRECTOR HIGHER SECONDARY EDUCATION, MALAPPURAM-676 505.** - **7 P.R.SIVAPRAKASH S/O.RAJAGOPALAN NAIR, AGED 39, HIGH SCHOOL ASSISTANT (MATHEMATICS), DESABANDHU HIGHER SECONDARY SCHOOL, THACHANPARA, PALAKKAD-678 594.** - **8 ADDL. R8 REMYA.A., AGED 30 YEARS W/O.LITTISH.K.RAJAN, NOW WORKING AS HIGHER SECONDARY SCHOOL TEACHER (JR.), MATHEMATICS, DESABHANDHU HIGHER SECONDARY SCHOOL, THACHAMPARA.P.O., MANNARKKAD, RESIDING AT KAIPPANAL HOUSE, THACHAMPARA.** **(ADDL.R8 IS IMPLEADED IN WA AS PER ORDER DATED 31.10.2019 IN IA.1/2019.)** **R5 BY ADV. SRI.BENOY THOMAS** **R5, R8 BY ADV. SRI.PAULSON THOMAS R8 BY ADV. SRI.T.T.MUHAMOOD SRI. T. RAJASEKHARAN NAIR-SR.G.P.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17-102019, ALONG WITH WA.2168/2016, WA.985/2016, THE COURT ON 31-10-2019 DELIVERED THE FOLLOWING:** WA Nos.957/16 & conn.cases -:3:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 31ST DAY OF OCTOBER 2019 / 9TH KARTHIKA, 1941** ## **WA.No.2168 OF 2016** **AGAINST THE JUDGMENT IN WPC 19948/2013 DATED 25-02-2016 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER IN WP(C):** **V.P.JAYARAJ HEADMASTER, (NOW WORKING AS PRINCIPAL), DESABANDHU HIGHER SECONDARY SCHOOL, THACHAMPARA, PALAKKAD DISTRICT.** **BY ADVS.** **SRI.BENOY THOMAS SRI.PAULSON THOMAS** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001.** - **2 THE DIRECTOR OF HIGHER SECONDARY EDUCTION HOUSING BOARD BUILDING, THIRUVANANTHAPURAM, PIN 695 001.** - **3 REGIONAL DEPUTY DIRECTOR HIGHER SECONDARY EDUCATION, EDAPPALLY, ERNAKULAM 682 024.** WA Nos.957/16 & conn.cases -:4:- - **4 MANAGER DESABANDHU HIGHER SECONDARY SCHOOL, THACHAMPARA, PALAKKAD DISTRICT, PIN 678 051.** - **5 THE REGIONAL DEPUTY DIRECTOR HIGHER SECONDARY EDUCATION, MALAPPURAM 679 001.** **R1-3, R5 BY SR GOVERNMENT PLEADER SRI.T.RAJASEKHARAN NAIR** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17-102019, ALONG WITH WA.957/2016, WA.985/2016, THE COURT ON 3110-2019 DELIVERED THE FOLLOWING:** WA Nos.957/16 & conn.cases -:5:- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 31ST DAY OF OCTOBER 2019 / 9TH KARTHIKA, 1941** ## **WA.No.985 OF 2016** **AGAINST THE JUDGMENT IN WPC 19948/2013 DATED 25-02-2016 OF HIGH COURT OF KERALA** ## **APPELLANT/THIRD PARTY:** **SMITHA P** **W/O. BABU P.MATHEW, AGED 41, PRINCIPAL-INCHARGE (HSST MATHEMATICS), DESABANDHU HIGHER SECONDARY SCHOOL, THACHANPARA, PALAKKAD678593,RESIDING AT C/14, ANUGRAHA, HILLVIEW NAGAR, THANAVU, OLAVAKKODE, PALAKKAD.** **BY ADVS. SRI.K.T.SHYAMKUMAR SRI.HARISH R. MENON** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 5:** - **1 V.P.JAYARAJ, NOW WORKING AS HEADMASTER, DESHABANDHU HIGHER SECONDARY SCHOOL, THACHAMPARA, PALAKKAD DISTRICT, PIN-670024.** **2 STATE OF KERALA REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM-695001.** WA Nos.957/16 & conn.cases -:6:- - **3 THE DIRECTOR OF HIGHER SECONDARY EDUCATION HOUSING BOARD BUILDING, THIRUVANANTHAPURAM-695001.** - **4 THE REGIONAL DEPUTY DIRECTOR HIGHER SECONDARY EDUCATION, EDAPALLY, ERNAKULAM-682024.** - **5 THE MANAGER DESBANDHU HIGHER SECONDARY SCHOOL, THACHAMPARA, PALAKKAD-678051.** - **6 THE REGIONAL DEPUTY DIRECTOR HIGHER SECONDARY EDUCATION, MALAPPURAM, PIN-670032.** - **R1 BY ADV. SRI.BENOY THOMAS R1 BY ADV. SRI.PAULSON THOMAS BY ADV.SR.G.P. SRI.T.RAJASEKHARAN NAIR** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17-102019, ALONG WITH WA.2168/2016, WA.957/2016, THE COURT ON 31-10-2019 DELIVERED THE FOLLOWING:** WA Nos.957/16 & conn.cases -:7:- ## **J U D G M E N T** WA.Nos.957/2016, 985/2016 & 2168/2016 Dated this the 31[st] day of October 2019 ## _**Shaffique, J.**_ These appeals arise out of common judgment dated 25/2/2016 in WP(C) Nos. 8097/2014 and 19948/2013. The short facts of the case in WP(C) No. 8097/2014 are as under:- 2. WA No.957/2016 is filed by the appellant/petitioner in WP(C) No.8097/2014 Smt.Smitha P., who was appointed as the Principal in Charge of Desabandhu Higher Secondary School. She was appointed as HSA(Maths) on 1/6/1998. The school was upgraded as a Higher Secondary school as per GO(Ms) 128/2010/Gen.Edn dated 20/7/2010. Petitioner was appointed as HSST (Junior) Maths effective from 7/12/2011 which came to be approved as per order dated 27/2/2012 by the Regional Deputy Director. The post of Principal was created in the school on 6/8/2011. Petitioner was appointed as Principal in Charge of the school as a temporary measure since there were no other WA Nos.957/16 & conn.cases -:8:- qualified hands, which was approved by the Regional Deputy Director as per his order dated 17/8/2012. Petitioner was promoted as HSST (Senior) w.e.f. 23/2/2013 which was approved by the Regional Deputy Director as per order dated 24/1/2014 with effect from 6/7/2013. The appointment of the petitioner as Principal in Charge came to be challenged by the 5[th] respondent Sri.V.P.Jayaraj. The Director of Higher Secondary Education while considering the said claim observed that the 5[th] respondent was not qualified at the time when the vacancy had arisen. For the post of Principal, post graduation was an essential qualification and the 5[th] respondent acquired the qualification on 03/04/2012. The Director of Higher Secondary Education in Ext.P5 order dated 29/1/2013 held that the Manager was not justified in appointing HSST (Junior) as Principal in Charge when an HSST was working in a sanctioned post. It was further held that the action of the Regional Deputy Director in granting approval to the appointment of the petitioner who was HSST (Junior) Maths as Principal in Charge was against the rules and the same was cancelled. The contesting parties preferred revision petition before the Government. By order dated 16/7/2013, petitioners claim for WA Nos.957/16 & conn.cases -:9:- continuing as Principal in charge was upheld while rejecting the claim of the 5[th] respondent. It is further observed that the petitioner has been promoted as HSST (Senior) w.e.f. 23/2/2013 and was approved as per order of the Regional Deputy Director on 24/1/2014. In Ext.P7 order dated 24/1/2014, the approval was effected from 16/7/2013. She was brought back to the post of Principal in charge from 16/7/2013. According to the petitioner, she apprehended collusion between the Manager and the 5[th] respondent and their attempt to make the 5[th] respondent Principal in Charge. At that stage, she submitted Ext.P10 representation dated 17/3/2014 to the Manager. Apprehending that the 5[th] respondent will be appointed as Principal w.e.f. 22/3/2014, the writ petition was filed _inter alia_ contending that petitioner alone is qualified to hold the post of Principal. 3. WA No.985/2016 is filed challenging the judgment in WP(C) No.19948/2013 in which Smitha P., was not a party. The writ petition was filed by V.P.Jayaraj challenging Ext.P10 order dated 16/7/2013 by which the request of V.P.Jayaraj to be appointed as Principal of the School came to be rejected. It was held that V.P.Jayaraj was not qualified as on the date of WA Nos.957/16 & conn.cases -:10:- sanctioning of the teaching post in the school. There was no sanctioned post of HSST (Maths) to accommodate V.P.Jayaraj. Even if the HSST post in Maths is sanctioned, V.P.Jayaraj cannot be accommodated against that post as Smt.Smitha has to be accommodated in that post. Only a junior post in HSST (Maths) will alone arise. In that case, direction was also issued to approve the appointment of Smt.Smitha as Principal in Charge as a temporary measure. 4. WA No.2168/2016 has been filed by V.P.Jayaraj challenging the judgment in WP(c) No. 19948/2013. The learned Single Judge while considering the writ petitions along with WP(C) No. 6590/2014 allowed WP(C) No. 19948/2013. In WP(C) No. 8097/14, it was held that in so far as the petitioner is not qualified for the post of Principal for want of experience, she cannot seek continuance. Sri.V.P.Jayaraj also challenged Ext.P11 order dated 11/2/2005 and Ext.P12 order dated 6/1/2006 by which the Government insisted fixing the teaching hours of qualified Headmaster turned Principal as 16 periods per week. 5. We heard the learned counsel appearing on either side and the learned Government Pleader appearing on behalf of the WA Nos.957/16 & conn.cases ## -:11:- State and its authorities. 6. As per Rule 4 of Chapter XXXII of Kerala Education Rules, 1959 (KER), the post of Principal should be filled up by promotion from the category of HSST or by transfer from the qualified Headmasters of Aided High Schools under the respective Educational agency in the ratio 2:1. At the time when the higher secondary courses were sanctioned to the school in the year 2010-11, there was no qualified HSST to be appointed as Principal. Initially, the Headmaster of the High school was given the charge of Principal. The post of Principal was sanctioned only during the academic year 2011-12. Sri.V.P.Jayaraj who was working as Headmaster did not have the necessary qualification to be appointed as Higher Secondary School Teacher or Principal as he did not have Postgraduation in the concerned subject viz., Maths. Manager therefore appointed Smt.Smitha as Principal in Charge since the other incumbent who was senior to her did not undertake the said job. 7. Sri.V.P.Jayaraj became qualified on 03/4/2012. In the meantime, during the year 2012-2013, Smt.Smitha P., who was appointed as HSST (Junior) in Mathematics became qualified to WA Nos.957/16 & conn.cases -:12:- be upgraded as HSST. By Ext.P10 order, the Government formed an opinion that in so far as the Principal has to do the teaching work simultaneously without any increase in the sanctioned strength of teaching staff, there was no sanctioned post of HSST in Mathematics to accommodate Sri.V.P.Jayaraj as Principal and even if such a post is sanctioned, the natural claimant will be Smt.Smitha P., and therefore the request of Sri.V.P.Jayaraj cannot be considered. 8. Learned Single Judge in the impugned judgment held that in so far as both the teachers were not qualified to be appointed as Principal when the post was created on 7/6/2011, Smt.Smitha also cannot aspire for the said post, as on the said date. Sri.V.P.Jayaraj became qualified by obtaining postgraduation in Maths on 03/4/2012. When he became qualified, necessarily, the post of Principal has to be given to him as Smitha was only holding the charge of Principal. In Ext.P11 Government Order, it was mandated that the post of Principal should be carved out from the existing post of HSSTs and no new post would be sanctioned. 9. The contention urged by Sri.V.P.Jayaraj is that as far as WA Nos.957/16 & conn.cases -:13:- Principal is concerned, it is not a teaching post and to that extent Exts.P11 and P12 are bad in law. Learned Single Judge observed that even without setting aside Exts.P11 and P12 to the extent it is in conflict with the rule, the statutory rule shall prevail and has precedence. It was further held that when Headmaster is promoted as Principal in the Higher Secondary Section, if there are HSSTs available for all the subjects, the junior most HSST in that subject would be continued as supernumerary as observed in GO(Ms) No.290/06/G.Edn and when the Higher Secondary Section does not have the subject of the Headmaster promoted, then he shall be exempted from teaching 16 hours. 10. This is a case in which both the petitioners were not qualified to become Principal at the time when the post of Principal was created. Sri.V.P.Jayaraj became qualified on the date on which he got postgraduation at which time Smt.Smitha was working only as Principal in Charge. Therefore, V.P.Jayaraj alone was qualified to be promoted as Principal at the relevant time when he acquired the requisite qualification. 11. Now coming to the challenge with reference to Exts.P11 and P12, the Principals had been given the task of WA Nos.957/16 & conn.cases -:14:- teaching to avoid increase in the sanctioned strength. Learned counsel for the appellant in WA No.2168/2016 referred to the judgment in _**Thomas v. State of**_ **Kerala** (2013 (4) KLT 257) wherein, it was held at paragraph 10 as under:- _“10. The further contention based on the notifications cited above that a Principal would be necessarily required to carry on the teaching duties, which a Headmaster of a High School would be disabled from, in the event of the candidate being not qualified to be appointed as a Higher Secondary School Teacher, also does not impress us, since such an interpretation would again render otiose the two methods of appointment clearly mentioned in the Rules. For one, the stipulation of a Principal being the academic head, does not necessarily contemplate teaching duties on the incumbent, since the academic matters in a school is not confined to teaching alone. In any event, the prescription of 16 hours teaching duty to a Principal is not as per the Rules and is as per the notifications cited above. The prescription in a notification cannot render ineffective or whittle down a statutory rule. It is also pertinent that the Government has thought it fit to bring out Exhibit P6 notification, which provides for retention of the juniormost teacher in a subject, in a supernumerary post, when a Headmaster, by transfer, is appointed as Principal. Such a prescription in a notification is intended with the object of the smooth implementation of the provisions of the Rules and are strictly in order.”_ WA Nos.957/16 & conn.cases -:15:- The judgment cannot be used to arrive at a conclusion that Exts.P11 and P12 orders to the extent it prescribed 16 hours teaching duty to a Principal has to be set aside. Learned Single Judge had clearly stated the procedure to be followed in the event of any displacement on account of the fact that the number of posts had been filled up. Under such circumstances, we do not think that there is any reason to interfere with the judgment of the learned Single Judge. Appeals are dismissed. **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/-** **T.V.ANILKUMAR** Rp True Copy **JUDGE** PS to Judge WA Nos.957/16 & conn.cases -:16:- ## **APPENDIX OF WA 957/2016** **RESPONDENT'S EXHIBITS:** **ANNEXURE R8A TRUE COPY OF THE M.SC. DEGREE CERTIFICATE OF THE IMPLEADING PETITIONER.** - **ANNEXURE R8B TRUE COPY OF THE M.ED. DEGREE CERTIFICATE OF THE IMPLEADING PETITIONER.** - **ANNEXURE R8C TRUE COPY OF THE POST CREATION ORDER DATED 1.2.2014.** - **ANNEXURE R8D TRUE COPY OF THE NOTIFICATION DATED 6.2.22014 IN THE NEW PAPER ISSUED IN PURSUANCE TO ANNEXURE-R8(C)NOTIFYING THE VACANCY.** - **ANNEXURE R8E TRUE COPY OF THE APPOINTMENT ORDER OF THE IMPLEADING PETITIONER AS HSST (JR.) MATHEMATICS.** - **ANNEXURE R8F TRUE COPY OF THE STAFF FIXATION ORDER OF THE 4TH RESPONDENT'S SCHOOL FOR THE ACADEMIC YEAR 2013-2014.** - **ANNEXURE R8G TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT NO.F/11764/2016/RDD/MLPM/HSE DATED 26.10.2016.** - **ANNEXURE R8H TRUE COPY OF THE REVISION PETITION OF THE PETITIONER FILED AGAINST ANNEXURE -R8(G) BEFORE THE GOVERNMENT.** - **ANNEXURE R8I TRUE COPY OF THE JUDGMENT IN WPC.NO.34956/2016 DATED 7.12.2016.** **ANNEXURE R8J TRUE COPY OF THE G.O. (RT.)NO.2113/2017/G.EDN. DATED 29.6.2017.** WA Nos.957/16 & conn.cases -:17:- ## **ANNEXURE R8K** **TRUE COPY OF THE PROCEEDINGS OF THE GOVERNMENT DATED 26.8.2019 APPROVING THE APPOINTMENT OF 6TH RESPONDENT AT PRINCIPAL.** **ANNEXURE R8L TRUE COPY OF THE INTERIM ORDER IN I.A.NO.930/2016 IN WRIT APPEAL NO.985/2016 DATED 29.7.2016.** **ANNEXURE R8M** **TRUE COPY OF THE JUDGMENT IN WRIT APPEAL NO.1957 AND 2423 OF 2017 DATED 6.4.2018.** WA Nos.957/16 & conn.cases -:18:- ## **APPENDIX OF WA 985/2016** **RESPONDENT'S EXHIBITS:** **ANNEXURE R1A** **TRUE COPY OF THE PROCEEDINGS OF THE MANAGER WITH NUMBER DBHSSM/5/2016 DATED 23.5.2016.** **ANNEXURE R1B** **TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 23.5.2016.** **ANNEXURE R1C** **TRUE COPY OF THE PROCEEDINGS OF THE DEO, MANNARKKAD ACCEPTING THE RELIEVING OF THE 1ST RESPONDENT IN THE WRIT APPEAL PURSUANT TO HIS APPOINTMENT BY TRANSFER AS PRINCIPAL W.E.F. 23.5.2016.** **ANNEXURE R1D** **TRUE COPY OF THE COVER OF THE LETTER SENT BY THE 1ST RESPONDENT TO THE PRINCIPAL.** **ANNEXURE R1E** **TRUE COPY OF THE COVER LETTER SENT BY THE 1ST RESPONDENT TO THE PRINCIPAL.** True Copy PS to Judge Rp