Soopy N. vs State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 17TH DAY OF DECEMBER 2019 / 26TH AGRAHAYANA, 1941** ## **WP(C).No.39809 OF 2016(A)** ## **PETITIONER:** **SOOPY N. AGED 46 YEARS** **HIGHER SECONDARY SCHOOL TEACHER (ARABIC),N.A.M.HIGHER SECONDARY SCHOOL, PERINGATHUR, KANNUR-670675, RESIDING AT NANDOTH HOUSE,(PO) MULLAMBATH, KOZHIKODE, PIN-673507** **BY ADVS.** **SRI.ABRAHAM MATHEW (VETTOOR) SRI.ANIL ABEY JOSE SRI.SIJI ANTONY** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001** - **2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION THIRUVANANTHAPURAM PIN-695001** - **3 THE REGIONAL DIRECTOR OF HIGHER SECONDARY EDUCATION KANNUR, PIN-670001** - **4 THE MANAGER N.A.M.HIGHER SECONDARY SCHOOL,PERINGATHUR, KANNUR-670675** - **5 MUHAMMADALI.M** - **HIGHER SECONDARY SCHOOL TEACHER (ENGLISH),NAM HIGHER SECONDARY SCHOOL, PERINGATHUR,KANNUR-670675** **R1 TO R3 - SMT MARY BEENA JOSEPH,SENIOR GOVERNMENT PLEADER** **R5 BY ADV. SRI.V.A.MUHAMMED ADV. SRI.M.SAJJAD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-122019, THE COURT ON 17-12-2019 DELIVERED THE FOLLOWING:** WP(C).No.39809 OF 2016(A) 2 ## **J U D G M E N T** This writ petition is filed by the petitioner seeking to quash Exts.P8 and P10 orders passed by the Regional Deputy Director, Higher Secondary Education, Kannur dated 4.9.2014 and State Government dated 14.11.2016 respectively, whereby the proposal for approval of appointment of Muhammadali.A., HSST (English) i.e., the 5[th] respondent herein as HSST-inCharge of the principal of the school for the limited purpose of drawing and disbursing salary of the staff of the Higher Secondary Section and performing routine duties of Principal, as Head of the school, was approved, and affirmed. Brief material facts for the disposal of the writ petition are as follows; 2. Petitioner is a Higher Secondary School Teacher (Arabic) working at N.A.M. Higher Secondary School, Peringathur, Kannur District appointed by the 4[th] respondent Manager. A vacancy to the post of Principal arose w.e.f. 1.8.2014 in the school. According to the petitioner, petitioner is qualified and eligible from among the Higher Secondary School teachers as per by- WP(C).No.39809 OF 2016(A) 3 promotion post of Principal provided under Rule 4 of Chapter XXXII KER and placed his claim as per Ext.P6. However, the 4[th] respondent appointed the 5[th] respondent as Principal without considering Ext.P6 and in total violation of norms of selection process as per the Rules. The 3[rd] respondent granted approval as per Ext.P8, which was taken in appeal by the petitioner as per Ext.P9 and finally decided by the Government as per Ext.P10 against the petitioner. 3. The case projected by the petitioner is that, respondents have erred in deciding the crucial aspect of _inter-se_ seniority between the petitioner and 5[th] respondent in Higher Secondary School service. It is also pointed out that, petitioner and the 5[th] respondent were appointed as HSA on 3.6.1996 and petitioner was promoted as HSST (Junior) by transfer on 15.8.2000. Thereafter both the petitioner and 5[th] respondent were appointed as Higher Secondary School Teachers by transfer on 16.7.2001. According to the petitioner, petitioner has more teaching experience at the Higher Secondary School level than the 5[th] respondent and therefore, preference should have been given to the petitioner. But without taking into WP(C).No.39809 OF 2016(A) 4 account such legal circumstances, the Educational Authorities have passed an order in favour of the 5[th] respondent. 4. Fifth respondent has filed a detailed counter affidavit refuting the allegations and claims and demands raised by the petitioner. It is also pointed out that, 5[th] respondent is senior to the petitioner in the category of HSA. Being elder, the 5[th] respondent became HSST w.e.f. 4.7.2001, evident from the proceedings of the Director of Higher Secondary Education dated 17.12.2007 and Government Order dated 1.10.2014 produced as Exts.R5(a) & R5(b) respectively. However, petitioner became HSST only w.e.f.16.7.2001. Hence in the category of HSST, the 5[th] respondent is senior to the petitioner. It is also pointed out that, petitioner was not appointed as HSST on 5.8.2000. But he was only appointed as HSST (Junior), evident from Ext.R5(c) proceedings. Evident from Ext.P3, petitioner became HSST w.e.f.16.7.2001 and petitioner was a bytransfer appointee prior to the commencement of the Special Rules and till 16.7.2001, petitioner was accommodated against the post of HSST(Junior). Therefore, petitioner can claim seniority in the cadre WP(C).No.39809 OF 2016(A) 5 of HSST only from 16.7.2001. 5. The sum and substance of the contention advanced by the 5[th] respondent is that, service of the petitioner in the cadre of HSST(Junior) cannot be clubbed together with HSST for the purpose of seniority, which according to the 5[th] respondent, was made clear from the judgment of this court in **Nanminda** **Higher Secondary School v. Director of Higher Secondary Education** [2015(3)KLT 307]. Other contentions are also raised. 6. Third respondent has filed a counter affidavit fully supporting Exts.P8 and P10 orders passed by the Educational Authority as well as State Government. Among other contentions, it is stated that, one Muhammed Rafeeque. N.A., the Principal availed Leave Without Allowance for 5 years from 1.8.2015 to 31.7.2019 and vacancy of the post of Principal arose there and petitioner had submitted a request to consider him for the post of Principal. Petitioner got by-transfer appointment w.e.f. 5.8.2000 but the 5[th] respondent was appointed as HSST on 16.7.2001. Thereafter the 5[th] respondent was appointed as Principal in the temporary vacancy arose due to the WP(C).No.39809 OF 2016(A) 6 LWA availed by the then Principal. It was thereupon that, as per Ext.P8, 5[th] respondent was directed to take charge of the Principal. Petitioner has challenged Ext.P8 order in appeal before the Director of Higher Secondary Education, which was forwarded to the Government and the Government upheld the decision taken by the Manager in respect of the appointment of the 5[th] respondent as Principal. As per the existing Rules, the appointment of Principal is not recommended by the Selection Committee and preference will be given to persons, who is having teaching experience at Higher Secondary School level and in the case on hand, petitioner commenced his service as HSA w.e.f. 3.6.1996 and HSST(Junior) from 5.8.2000 and HSST from 16.7.2001 whereas the 5[th] respondent has commenced his service as HSA w.e.f. 3.6.1996 and HSST from 16.7.2001. Therefore, according to the 3[rd] respondent, since the order is passed in terms of law, no interference is warranted to the order passed by the Authorities. 7. I have heard learned counsel for petitioner and learned Government Pleader . 8. In my considered opinion, the issue can be WP(C).No.39809 OF 2016(A) 7 sorted out by making a reference to Chapter XXXII Rule 4 of the Kerala Education Rules as it stood then which read thus: _4. Method of appointment:- Appointment to the various categories specified in Colummn (2) of the table below shall be made by the method of appointment specified against each in column (3) thereof-_ Sl.No. Category Method of Appointment (1) (2) (3) 1. Principal (1) By promotion from category 2 under the respective educational agency. OR (2) By transfer from qualified Headmasters of Aided High Schools under the respective educational agency. Note:- (i) The post of Principal will be a selection post and appointment to the post shall be made on the basis of the recommendation of a selection committee consisting of the Manager or his nominee as chairman, a selection grade Lecturer or Reader or Principal of a college nominated by the Manager and Government representative as members. The Government representative shall be nominated by the Manager from among the Officers of Higher Secondary Education Department not below the rank of a Deputy Director or Officers of the Government not below the rank of a Deputy Collector. (ii) Preference shall be given to Aided Higher Secondary School Teachers having teaching experience at the Higher Seconary School level. (iii)The post shall be filled up WP(C).No.39809 OF 2016(A) 8 2. Higher Secondary Rule 6 dealing with qualification is also relevant to the context which read thus: 6. Qualifications:- No person shall be eligible for appointment to the category in column (2) in the table below under the method specified in column (3) unless he possesses the Qualifications prescribed in the corresponding entry in column (4) there of. Sl.No. Category Method of Qualification Appointment (1) (2) (3) (4) 1. Principal By promotion (1) Master's Degree with not than 50% marks from any Universities in Kerala or a qualification recognised as equivalent thereto by any University in Kerala (2) B.Ed. Degree from any Universities (3) Minimum approved teaching experience of 12 years. Note:- Preference shall be given based on the teaching experience at Higher Secondary level. WP(C).No.39809 OF 2016(A) 9 9. There is no case for any of the parties that, petitioner and the 5[th] respondent are not having qualification in accordance with Rule 4 of Chapter XXXII. Therefore, going by Rule 4, it is clear that to the post of Principal, the method of appointment is by promotion from category 2 under the respective educational agency. It is an admitted fact that, petitioner was appointed as HSST on 16.7.2001 and according to the petitioner, 5[th] respondent was also appointed on the very same day as HSST. However, the contention put forth by the petitioner is that, petitioner was promoted as HSST(Junior) by transfer on 5.8.2000 and therefore, petitioner has more teaching experience, which ought to have been taken into account by the Educational Authorities while considering the representation filed by the petitioner. 10. In fact the Government as per Ext.P10 order considered the question raised by the petitioner and held that, as per Government Order dated 23.6.2003, seniority for being placed as Principal will be determined with reference to the date from which they WP(C).No.39809 OF 2016(A) 10 are continuously working as HSST and in case if more than one HSST with the same date of appointment with HSST cadre, the seniority will be fixed reckoning the seniority as HSA and in the case on hand, petitioner as well as 5[th] respondent commenced service on 3.6.1996 as HSA and HSST from 16.7.2001. However, in the meanwhile petitioner was promoted to the post of HSST(Junior) on 5.8.2000 and hence his service as HSA ceased to exist w.e.f.4.8.2000. Therefore, 5[th] respondent who worked as HSA from 3.6.1996 to 16.7.2001 is senior to the petitioner and he is eligible to be considered for being placed as Principal as per the Government Order dated 23.6.2003. It was accordingly held that, the appointment of 5[th] respondent as Principal of the school is in order. 11. Petitioner has also produced Ext.P11 order of the State Government dated 14.7.2003, which was issued in partial modification of the Government Order dated 23.6.2003 referred to above and clause 1 thereunder read thus: _“1. In order to identify the senior most Higher Secondary School Teacher the total length of service of the Teacher at the Higher Secondary level should be taken into account.”_ WP(C).No.39809 OF 2016(A) 11 12. Since the service rendered by the petitioner as well as 5[th] respondent as Higher Secondary School Teachers on and w.e.f.16.7.2001, in accordance with the Government Order dated 23.6.2003, the service rendered by the 5[th] respondent as High School Assistant more than the petitioner is to be taken into account. This is not under much dispute. It was accordingly that Ext.P10 order is passed by the Regional Deputy Director. So much so while considering the issue, Government Order dated 1.10.2014 produced as Ext.R5(b), on the basis of representation submitted by the petitioner was not taken into account which read thus: “ **O R D E R** _As per the representation read as 1[st] paper above, Sri.Mohammadali.A. HSST, English, NAM HSS, Peringathur, Kannur has stated that while working as HSA in NAM Higher Secondary School, Peringathur, Kannur District, considering his seniority and eligibility, he was appointed as HSST English under 25% 'by transfer' quota and joined duty on 47.2001. But his appointment was approved only w.e.f. 16.7.2001, even though he was appointment against a sanctioned post. Since his appointment was approved_ WP(C).No.39809 OF 2016(A) 12 _only w.e.f. 16.7.2001, there is a service break for the period from 4.7.2001 to 16.7.2001. Hence he has requested Government to approve his appointment w.e.f. 4.7.2001 instead of 16.7.2001, in order to avoid service break for the period._ _2. Government have examined the matter in detail and found that the school was ungraded as Higher Secondary School in the academic year 20002001. However, the teaching posts of Higher Secondary Schools sanctioned during the academic year 1999-2000 to 2001-2002 were sanctioned with retrospective effect only in the year 2001 vide G.O. (Ms) No.261/2001/G.Edn dated 17.8.2001. Thus, the posts came into effect from the date on which the Plus I/Plus II classes commenced. In this case the Plus I and Plus II classes started on 4.7.2001 & 6.6.2001 respectively. Sri.Mohammadi.A was promoted and appointed as HSST in English w.e.f.4.7.2001 onwards and assumed charges on the same day itself. There is also a sanctioned post of HSST in English as on 4.7.2001._ _3. In the circumstances stated above,_ _Government are pleased to approve the service of Sri.Mohammadali.A as HSST (English) in NAM HSS, Peringathur, Kannur for the period from 4.7.2001 to 16.7.2001 notionally for the limited purpose of avoiding his break in service, on condition that he will not be eligible for any monetary benefit for the said period.”_ Understanding the situation so, there is also a clear seniority to the 5[th] respondent as HSST against the petitioner. WP(C).No.39809 OF 2016(A) 13 13. On evaluation of the facts, circumstances and law, I am of the considered opinion that, the order passed by the Regional Deputy Director and affirmed by the State Government is in accordance with law and I do not think any interference is warranted to the Government Order especially when the said order is passed after providing sufficient opportunity of hearing to the respective parties. Therefore, writ petition fails, accordingly it is dismissed. **Sd/-** ## **SHAJI P.CHALY** Smv 19.12.2019 **JUDGE** WP(C).No.39809 OF 2016(A) 14 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1: A TRUE COPY OF THE PROCEEDINGS NO.KDS/BII/8432/98 DATED 26.08/1998 WITH EFFECT FROM 15.07.1996 EXHIBIT P2: A TRUE COPY OF PROCEEDING NO.58856/S2/01/G.EDN DATED 01.11.2002 MODIFIED BY THE GOVERNMENT EXHIBIT P3: A TRUE COPY OF THE PROCEEDINGS NO.ACD. C2/18616/HSE/2001 DATED 05.10.2002 GRANTED BY THE 2ND RESPONDENT GIVING EFFECT FROM 05.08.2000 EXHIBIT P4: A TRUE COPY OF THE PAY FIXATION ORDER NO.A7/489/16/KDS OF AUGUST 2016 ISSUED BY THE 3RD RESPONDENT EXHIBIT P5: A TRUE COPY OF THE PAY FIXATION ORDER NO.AC/C2/18616/HSE/01 DATED 19.12.2005 ISSUED BY THE 3RD RESPONDENT EXHIBIT P6: A TRUE COPY OF THE APPLICATION DATED 28.07.2014 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT EXHIBIT P7: A TRUE COPY OF THE PETITION DATED 02.08.2014 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT EXHIBIT P8: A TRUE COPY OF THE ORDER NO.A7/5632/2014 DATED ISSUED BY THE 3RD RESPONDENT EXHIBIT P9: A TRUE COPY OF THE APPEAL DATED 05.11.2014 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT EXHIBIT P10: A TRUE COPY OF COMMUNICATION NO.18613/T1/2015/G.EDN.DATED 14.11.2016 ADDRESSED TO THE 2ND RESPONDENT EXHIBIT P11: A TRUE COPY OF THE RELEVANT GOVERNMENT ORDER GO.(MS)NO.185/2003.G.EDN.DATED 14.07.2003 RESPONDENTS' EXHIBITS: EXHIBIT R5(a): A TRUE COPY OF THE PROCEEDINGS ORDER NO.ACD/C2/18616/HSE/01 DATED 17.12.2007 OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION.** WP(C).No.39809 OF 2016(A) 15 **EXHIBIT R5(b): A TRUE COPY OF THE G.O. (Rt.)NO.3949/2014/G.EDN. DATED 1.10.2014 OF THE GOVERNMENT.** **EXHIBIT R5(c): A TRUE COPY OF THE PROCEEDINGS ORDER NO.ACD/C2/13616/HSE/01 DATED 3.4.2002 OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION.**