Sojan Joseph v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942** ## **WP(C).No.16391 OF 2020(Y)** ## **PETITIONER:** **SOJAN JOSEPH AGED 55 YEARS** **S/O P.K.JOSEPH, UP SCHOOL TEACHER, ST. THOMAS UP SCHOOL, KARUKUTTY P.O., ANGAMALY (VIA), ERNAKULAM DISTRICT-683 576.** **BY ADVS.** **SRI.SUNIL V.MOHAMMED SMT.AJITHA APPU SMT.M.S.NEETHUMOL SHRI.AADIL SHAH A.S.** ## **RESPONDENTS:** **1 THE STATE OF KERALA REP. BY SECRETARY TO THE GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE ASSISTANT EDUCATIONAL OFFICER, ERNAKULAM DISTRICT-682 011.** **3 THE CORPORATE MANGER, SACRED HEART CORPORATE EDUCATIONAL AGENCY OF CMI SCHOOLS, RAJAGIRI, KALAMASSERY, ERNAKULAM DISTRICT683 104.** - **4 MATHEW V.J,** **VELIKKAKATHU HOUSE, MANAPPURAM P.O., CHERTHALA, ALAPPUZHA DISTRICT-688 526.** **R1-3 BY GOVERNMENT PLEADER R3 BY ADV. SRI.NOUSHAD THOTTATHIL R4 BY ADV. SRI.RAFEEK. V.K.** ## **OTHER PRESENT:** **SRI. P.M.MANOJ - SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.16391 OF 2020 2** ## **JUDGMENT** The petitioner, who is stated to be working as an Upper Primary School Teacher in St.Thomas UP School, Karukutty, stakes a claim to be its Headmaster, on the ground that he is the senior most qualified person available for being so appointed. The petitioner, however, expressly and unequivocally concedes that the school in question is a minority educational institution and thus having the competence to choose and appoint the head as per its choice; but he, nevertheless, asserts, relying on the judgment of the Hon'ble Supreme Court _**M.D.Rafique v. Managing**_ _**Committee, Contai Rahamania High Madrasah**_ _**and Others [2020 (6) SCC 689],**_ that even when such choice is made by a minority institution, they are bound to follow a process of selection, which is fair, merit based and transparent. **WP(C).No.16391 OF 2020 3** 2. The petitioner alleges that instead of doing so, the 3[rd] respondent – Corporate Manager of the School has now appointed the 4[th] respondent, who is junior to him, without making any process of selection, as is mandated in _**M.D.Rafique**_ (supra). The petitioner, therefore, prays that the 3[rd] respondent – Corporate Manager be directed to forward the proposal of his appointment to the 2[nd] respondent Educational Authority and that the said Authority be directed to approve his appointment, based on the proposal to be so forwarded. 3. In response to the afore submissions of the petitioner, as made by his learned counsel Sri.Sunil V. Mohammed, the learned Standing Counsel for the 3[rd] respondent – Shri.Noushad Thottathil, submitted that a counter affidavit has been filed on record, wherein the following averments have been made which would **WP(C).No.16391 OF 2020 4** limpidly establish that a comparative assessment of the merit of both the petitioner and the 4[th] respondent was made by the Manager, before the latter was appointed as the Headmaster. “6. Even though the petitioner is the 2nd senior most teacher having qualification and experience to promote and appoint in the post of Head Master, this respondent considered the length of rest of service of the teachers in Exhibit P3 seniority list along with other factors to decide their suitability and excellence to prefer to promote and appoint in the post of Head Master arose at St.Mary's U.P.School, Thevara. In the selection process the 3rd respondent specifically verified the performance of the petitioner as Head Master of St.thomas U.P.School, Karukutty with effect from 28.01.2017 to 03.10.2018 and found that it was not satisfactory and petitioner was utterly failed to improve the status of the said School achieving the confidence of the local people even he is hailing from same Taluk where the said School is situating. Due to the Heavy Division fall presently, the St.Thomas U.P. School, Karukutty, is included in the category of “Uneconomical School” with single division. The 3rd respondent also considered the Educational Qualification of the petitioner, who is not a Graduate and not having much proficiency in English. But on the other hand 4th respondent, who is the next senior most teacher in Exhibit P-3 seniority list, who is having requisite qualifications to promote and appoint to the post of Head Master is a Graduate, having 2 years rest of service. 7.St.Mary's U.P. School, Thevara is having Malayalam and English Medium divisions studying 706 students and 21 teachers, major portion of the students are studying in English Medium. In the matter of promoting and appointing the 4th respondent as the Head Master of St.Mary's U.P.School, Thevara superseding the seniority of the petitioner, the 3rd respondent also considered that **WP(C).No.16391 OF 2020 5** the 4th respondent is a Graduate Teacher fully qualified to be appointed in the post of Headmaster as mandated under the statutory provisions contained in the Kerala Educational Rules, who is having 2 years rest of service is more suitable and preferable person to the post of Head Master to deal and manage the students and teachers of the English Medium Division in St.Mary's U.P School, Thevara in an excellent manner. The Minutes prepared for the selection and filling the vacant posts of Head Masters in St.Thomas U.P. School, Karukutty and St.Mary's U.P.School, Thevara by promotion is produced herewith and marked as Exhibit R3-2.” 4. Shri.Noushad Thottathil further submitted that since the petitioner is not a graduate and not very proficient in English and since his performance in the earlier School was not up to the mark, the Manager had no other option but to choose the 4[th] respondent. He concluded his submissions by saying that, in any event of matter, this writ petition is not maintainable, since appointment of the 4[th] respondent has already been approved and that he has taken over as the Headmaster of the school; while the petitioner's objections made before the 2[nd] respondent – Assistant Educational Officer, namely Ext.P6, has been rejected through Ext.R3(3) ## **WP(C).No.16391 OF 2020 6** proceedings, which he has not challenged until now. He, therefore, prays that this writ petition be dismissed. 5. The learned Senior Government Pleader-Sri.P.M.Manoj, appearing on behalf of the official respondents, affirms that appointment of the 4[th] respondent has already been approved and that this was because the competent Authority did not find anything against him, particularly because the School in question is a Minority Educational Institution. 6. The learned Senior Government Pleader submitted that since the petitioner's objections, namely Ext.P6, had already been rejected through Ext.R3(3) and since he has not challenged the same, the competent Educational Authority was enjoined, as per the provisions of the Kerala Education Act and Rules, to approve the appointment of the 4[th] respondent. He, ## **WP(C).No.16391 OF 2020 7** therefore, prayed that no further orders be issued against the official respondents. 7. I have considered the afore submissions and have also evaluated the materials available on record. 8. It is indubitable, going by the large amount of precedents occupying the field, that in the case of a minority educational institution, they are entitled to appoint a person of their choice as its head and this is an imperative facet of the constitutional protection under Article 30(1) of the Constitution of India. However, it is true that in _**M.D.Rafique (Supra)**_ the Hon'ble Supreme Court has clarified that while doing so, merit cannot be jettisoned and that the comparative excellence of the person so being appointed must also be ensured. 9. In the case at hand, as is evident from the afore extracted averments in the counter affidavit filed on behalf of the 3[rd] ## **WP(C).No.16391 OF 2020 8** respondent, the petitioner has been found to be not fully upto speed in his performance as a Headmaster of the earlier School and that he is not a Graduate or proficient in English. Of course, Shri.Sunil V.Mohammed - learned counsel for the petitioner contests the fact that his client had not performed well as a Headmaster earlier, saying that the documents on record would prove otherwise. 10. Even if I am to find favour with Shri.Sunil V.Mohammed on this aspect, am of the view that since it is admitted that the petitioner is not a graduate, the Corporate Manager was completely without error in having preferred the 4[th] respondent, who is better qualified and who has a longer tenure, as a Headmaster. 11. This is evident from his admission that the petitioner is to retire in April 2021; while the 4[th] respondent has a minimum of two years of service left. ## **WP(C).No.16391 OF 2020 9** 12. I cannot hence find the decision of the 3[rd] respondent to be in error in law, especially because this Court, while exercising the judicial review, can only scrutinize if the applicable decision making process has been followed, but cannot go into the merits of the decision _per se,_ on account of the constitutional protection available to the 3[rd] respondent under Article 30(1) of the Constitution. In the afore circumstances and for the reasons above, I have no other option but to dismiss this writ petition; however, leaving liberty to the petitioner to challenge the approval of the 4[th] respondent, if he is so desirous and if there are other reasons as per law, by invoking the remedies as may be available to him under the applicable Statues and Rules. ## **Sd/DEVAN RAMACHANDRAN JUDGE** **MC/19.1.2020** **WP(C).No.16391 OF 2020 10** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE CERTIFICATE DATED 21.6.1991 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION** - **EXHIBIT P2 TRUE COPY OF THE CERTIFICATE DATED 28.6.2003 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION** - **EXHIBIT P3 TRUE COPY OF THE APPROVED COMBINED SENIORITY LIST AS ON 1.1.2019 PUBLISHED BY THE CORPORATE MANAGEMENT** - **EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS DATED 28.1.2017 OF THE 3RD RESPONDENT PROMOTING AND POSTING THE PETITIONER AS HEADMASTER** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT 5.9.2018 IN WPC NO 2779/2018** - **EXHIBIT P6 TRUE COPY OF THE APPEAL DATED 11.5.2020 SUBMITTED BEFORE THE 2ND RESPONDENT** - **EXHIBIT P7 TRUE COPY OF THE NEWS REPORT APPEARED IN DEEPIKA DAILY DATED 15.08.2003.** - **EXHIBIT P8 TRUE COPY OF THE CERTIFICATE OF APPRECIATION ISSUED BY SARVA SIKSHA ABHIYAN DURING APRIL-MAY 2016.** - **EXHIBIT P9 TRUE COPY OF THE CERTIFICATE DATED 26.11.1996 ISSUED BY DISTRICT INSTITUTE OF EDUCATION AND TRAINING, ERNAKULAM.** - **EXHIBIT P10 TRUE COPY OF THE CERTIFICATE OF PARTICIPATION DATED 02.01.2012 ISSUED BY THE GOVERNMENT OF KERALA.** - **EXHIBIT P11 TRUE COPY OF THE LETTER DATED 21.02.2017 ISSUED BY THE ERSTWHILE CORPORATE MANAGER TO THE 2ND RESPONDENT.** - **EXHIBIT P12 TRUE COPY OF THE REQUEST DATED 10.06.2018 ALONG WITH TAX INVOICE SUBMITTED TO SBI, KARUKUTTY BY THE PETITIONER TO SPONSOR SMART CLASS.** - **EXHIBIT P13 TRUE COPY OF THE PROPOSAL DATED 02.12.2017 SUBMITTED BEFORE THE CORPORATE MANAGER.** **WP(C).No.16391 OF 2020 11** - **EXHIBIT P14 TRUE COPY OF THE SCHOOL MASTER PLAN FORWARDED BY THE PETITIONER TO THE GOVERNMENT.** - **EXHIBIT P15 TRUE COPY OF THE PHOTOGRAPH OF THE CONDUCT OF THE SUB-DISTRICT LEVEL SCIENCE EXHIBITION-2018 AT ST.THOMAS UP SCHOOL, KARUKUTTY.** - **EXHIBIT P16 TRUE COPY OF THE STAFF FIXATION ORDER DATED 08.07.2017 ISSUED BY THE AEO, ANGAMALY.** - **EXHIBIT P17 TRUE COPY OF THE ORDER DATED 26.06.2020 OF THE ADDITIONAL DIRECTOR (GENERAL) OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM ALONG WITH THE COVERING LETTER DATED 08.10.2020 OF THE AEO, ANGAMALY.** - **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R2(A) TRUE COPY OF THE ORDER DATED 24.10.2011** - **EXHIBIT R3(1) TRUE COPY OF THE CERTIFICATE NO.F.NO.983 TO 986 OF 2011/55990 DATED 24.10.2011 ISSUED BY THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS, GOVERNMENT OF INDIA.** - **EXHIBIT R3(2) TRUE COPY OF THE MINUTES PREPARED FOR THE SELECTION TO FILL THE VACANT POSTS OF HEAD MASTERS IN ST.THOMAS U.P. SCHOOL KARUKUTTY AND ST. MARY'S U.P.SCHOOL, THEVARA.** **EXHIBIT R3(3) A TRUE COPY OF THE ORDER NO.F978/2020/K.DIS DATED 24.08.2020 PASSED BY THE 2ND RESPONDENT IN EXHIBIT P6 APPEAL PREFERRED BY THE PETITIONER.** **(TRUE COPY) PA TO JUDGE**