Sulekha G., Higher Secondary Teacher (Malayalam), Thakazhi Devaswom Board Higher Secondary School v Travancore Devaswom Board and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **TUESDAY, THE 31[ST] DAY OF JANUARY 2023 / 11TH MAGHA, 1944** ## **WP(C) NO. 27058 OF 2005** ## **PETITIONER:** SULEKHA G. HIGHER SECONDARY TEACHER(MALAYALAM), THAKAZHI DEVASWOM BOARD HIGHER SECONDARY SCHOOL. BY ADVS.SMT.V.P.SEEMANDINI (SR.) SRI.M.R.ANISON SMT.K.P.GEETHA MANI SMT.T.B.REMANI SMT.P.A.RINUSA ## **RESPONDENTS:** 1 TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY. 2 DIRECTOR OF HIGHER SECONDARY SCHOOL THIRUVANANTHAPURAM. 3 S.SNEHARANI, PRINCIPAL D.B.H.S.S.,PARUMALA. 4 LATHA RAMAN NAIR, PRINCIPAL D.B.H.S.S.,THAKAZHY. 5 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL, EDUCATION, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 6 S.JAYA W/O.M.P.SREEKUMAR, AGED 40 HIGHER SECONDARY SCHOOL TEACHER, DBHSS THIRUVALLA RESIDING AT PARUTHIPPILLIL, KAROOR,AMBALAPUZHA. BY ADVS.SRI.M.V.S.NAMBOOTHIRI, SC, TDB SRI.S.BIJU, SC, TRAVANCORE DEVASWOM BOARD SRI.JUSTIN JACOB, SR.GOVERNMENT PLEADER SRI.V.G.ARUN SRI.T.R.HARIKUMAR SRI.SUNIL KUMAR A.G SRI.K.N.VENUGOPALA PANICKER, SC, TDB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)No.27058/2005 2 ## **JUDGMENT** The petitioner has approached this Court with the following prayers : - _(i) writ of certiorari or appropriate writ direction or order calling for records leading to Ext.P6 and quash the same so far as giving placement to the respondents 3 and 4 as Principal of D.B.H.S.S. ;_ - _(ii) Declare that Section 4 of the Kerala Higher Secondary Education State Service Rules providing for making the appointment to the post of Principal as selection post without providing guidelines for the selection is arbitrary and illegal;_ - _(iii) writ of mandamus or appropriate writ direction or order directing the respondents to constitute a selection committee to make selection for placement of Principal in a fair and proper manner ;_ - _(iv) writ of mandamus or appropriate writ direction or order directing the respondents to consider petitioner's representations and take a decision thereon in accordance with law, justice and good conscience ;_ - _(v) writ of mandamus directing respondents 1 and 2 not to appoint petitioner's juniors as Principal in HSS of 1[st] respondent and_ - _(vi) such other orders as deems fit to meet the ends of justice and award cost of these proceedings._ 2. Succinctly the facts in brief are that vide Ext.P1 order dated 09.10.2000, the petitioner was appointed as HSST in the Travancore Devaswom Board. The said appointment was approved by the 2[nd] respondent i.e., Director, Higher Secondary School, Thiruvananthapuram. Before the appointment, was working as HSA with effect from 07.08.1986 vide Ext.P2. The Government vide Ext.P3 dated 11.02.2005 laid down guidelines of placement of the Principals in Higher Secondary Schools, both WP(C)No.27058/2005 3 in Government sector and aided sector. It was issued in order to clarify certain doubts. The aforementioned guidelines reveal that seniormost higher secondary school teacher is determined as seniormost in total approved teaching experience, both in the Higher Secondary and High School levels. On 29.04.2005, vide Ext.P4 the first respondent issued a circular inviting applications from qualified higher secondary school teachers for selection to the post of Principal. Vide Ext.P5 an application was submitted by the petitioner. Selection committee by proceedings dated 06.06.2005 Ext.P6 selected respondents 3 and 4, alleged to be junior to the petitioner. 3. Learned counsel appearing on behalf of the petitioner submitted that the 2[nd] respondent had come out with a circular regarding placement of the Principal which envisaged that a candidate should have 12 years of teaching experience. The petitioner was the seniormost as per the seniority list Ext.P9 at Serial No.105 whereas respondents 3 and 4 are at Sl.No.119 and 138. As per Rule 6 of Chapter XXXII of the Kerala Education Rules, the qualifications required for a candidate to be promoted as Principal by way of promotion is (1) Masters Degree with not less than 50% marks from any Universities in Kerala or a WP(C)No.27058/2005 4 qualification recognised as equivalent thereto by any University in Kerala (2) B.Ed. Degree from any Universities in Kerala or a qualification recognised as equivalent thereto by any University in Kerala and (3) Minimum approved teaching experience of 12 years at Higher Secondary level under the same Educational agency with the caveat that (1) in the absence of the persons having qualification, approved teaching experience at High School/Upper primary/Lower primary schools under the same educational agency shall be considered (2) such experience shall be reckoned only for qualifying service and shall not be reckoned for seniority and (3) the person possessing a minimum service of six years as Higher Secondary School Teacher (Senior/Junior). 4. The Government came out with guidelines dated 11.02.2005 Ext.P3 promulgating the special rules for placement of Principals in Higher Secondary Schools and as per clause (II) the word 'seniormost' in the Higher Secondary School mentioned in the second paragraph of the Government Order was clarified to be seniormost in total approved teaching experience both in the Higher Secondary and High School levels. However, as per clause (V) under the head Aided Higher Secondary Schools, it was mandated that the Managers of the Aided Higher Secondary WP(C)No.27058/2005 5 Schools will take immediate steps to give placement in the post of Principal strictly in accordance with Special Rules if the same has not been made so far and the Headmasters who were qualified as on 12.11.2001 for the post of Principal and continuing as Principal will be allowed to continue and who are though continuing as Principal without requisite qualification shall be reverted. 5. The selection committee did not assign any reasons for rejecting the candidature of the petitioner despite the fact that the petitioner possesses all the qualifications and is also seniormost as per the seniority basis. In support of the aforementioned contention relied upon the judgment of this Court in _**Vijayamoney v. Director H.S. Education** [2008 (2) KLT 281]_ wherein it is stated that the selection implies the right of rejection depending upon the criteria prescribed, but the reasons for suitability were not assigned and therefore, selection was bad in law. 6. On the other hand, Mr.Justin Jacob learned Senior Government Pleader submitted that the post of Principal was a selection post and as per the special Rules, for appointment to that post, the method of appointment and qualification of the WP(C)No.27058/2005 6 teacher had to be followed as per the Government Order dated 09.11.2001 which in clear terms specified that the post of the Principal will be selection post and shall be made on the basis of the recommendation of selection committee consisting of various members. The special rules or any subsequent order do not indicate that the most senior higher secondary school teacher should be appointed as Principal. The decision of the duly constituted selection committee is final and binding. The rank list gave the reasons of the selected candidates for being competent to be appointed/promoted as Principal. Ext.P7 circular also does not say that only seniormost HSS teachers should be appointed as Principal. 7. In the counter affidavit of first respondent i.e., Secretary, Travancore Devaswom Board, it has been stated that as per the Government Order dated 09.11.2001, the selection committee would consist of the Manager or his nominee as Chairman, a Selection Grade Lecturer or Reader or Principal of a college nominated by the Manager and the Government representative as members. The judgment relied upon by the counsel representing the petitioner do not support the case as it was a case of selection of a sole eligible candidate. Ext.P6 dated WP(C)No.27058/2005 7 06.06.2005 is the proceedings of Travancore Devaswom Board and not of a selection committee, but a communication of the decision of the selection committee by the Secretary of the Travancore Devaswom Board. Copy of the selection committee has not been placed on record to make out a case of any favouritism, partiality or any other consideration. It was further contended that seniority was never a criteria for the selection or the placement of the Principal in case of the aided Higher Secondary School. The method of appointment and qualifications of the teachers and non teaching staff in the aided Higher Secondary School was issued as per the Government Order dated 09.11.2001 and the same was included in Chapter XXXII of the KER. 8. I have heard the counsel for the parties and appraised the paper book. 9. Vide Ext.P1 not only the petitioner but respondent Nos.3 and 4 were appointed as HSS teachers with effect from 10.10.2000 on temporary (adhoc) basis. Prior to the aforementioned appointment, the petitioner had been working as an HSA with effect from 07.08.1986. It would be expedient to extract the circular dated 29.04.2005 and the proceedings of the WP(C)No.27058/2005 8 Secretary communicating the decision of the selection committee selecting respondents 3 and 4 as Principals on promotion. _“ROC.No.4231/2005/Edn. Office of the_ _Travancore Devaswom Board, 29.4.2005 Trivandrum_ ## _CIRCULAR_ _Sub:Placement of Higher Secondary teachers as Principal – Application invited. Ref:G.O.(M.S.)43/2005/G.Edn.dated 11.2.2005_ _…._ _Applications are invited from qualified Higher Secondary teachers for selection to the placement of Principal in Higher Secondary Schools under the Management in the light of orders issued by Government as per the order under reference. The Higher Secondary teachers placed as Principal should also apply for the revised placement after observing the formalities insisted in the Special Rules. The application shall contain the details such as age, Educational Qualifications and approved teaching experience both in Higher Secondary and High School levels. Duly filled up application should reach the undersigned on or before 10.5.2005._ _The circular instructions should be intimated to all H.S.S. Teachers working in the respective schools._ **==> picture [28 x 11] intentionally omitted <==** ## _SECRETARY TRAVANCORE DEVASWOM BOARD”_ _“ROC No.4231/05/Edn. Office of the Travancore Devaswom Board 6/6/2005 Thiruvananthapuram, Proceedings of the Travancore Devaswom Board_ _Sub: Travancore Devaswom Board Higher Secondary Schools - Selection and appointment of Higher Secondary School Teachers for placement as Principals – orders issued._ _Read: 1) GO (MS) No.43/2005/G.Edn. dated 11/02/05_ _2) No.AcdB1/11646/HSE/2003 dated 13.04.2005 of the Director of Higher Secondary Education_ _….._ _As per the direction contained in the Government order and the circular read above,_ WP(C)No.27058/2005 9 _the Selection Committee which met on 28.05.2005 has selected the following Higher Secondary School Teachers for placement as Principals in the Higher Secondary Schools under the management of Travancore Devaswom Board._ _1. Smt.M.P.Syamala Kumari Amma, DB HSS, Thiruvalla_ _2. Smt.Sneha Rani.S., DB HSS, Thiruvalla_ _3. Smt.Lekha Raman Nair, DB HSS, Parumala_ _4. Smt.M.V.Priya, DB HSS, Thakazhy The following postings are ordered with immediate effect._ _1. Smt.M.P.Syamala Kumari Amma, HSS Teacher (Malayalam) DB HSS, Thiruvalla (Now working as Principal) is promoted as Principal and posted in the same school_ _2. Smt.Sneha Rani.S., HSS Teacher (English), DB HSS, Thiruvalla is promoted as Principal and posted to DB HSS, Parumala_ _3. Smt.Letha Raman Nair, HSS Teacher (Malayalam), DB HSS, Parumala is promoted as Principal and posted to DB HSS, Thakazhy 4. Smt.M.V.Priya, HSS Teacher (Malayalam), DB HSS, Thakazhy is promoted as Principal and posted to DB HSSS, Cheriyanad_ _The dates of relief and joining duty of the incumbents promoted shall be reported._ **==> picture [119 x 36] intentionally omitted <==** 10. Contention Ext.P6 proceedings of the selection committee do not reflect any reason for rejection is wholly misplaced, for, it is not the decision of the selection committee, but a communication of the Secretary, Office of the Travancore Devaswom Board, conveying the decision of the selection committee regarding the selection of candidates referred to therein including respondents 3 and 4. Seniority list Ext.P9 is not the criteria for consideration of appointment as Principal being a WP(C)No.27058/2005 10 ## selection post. For that there is a provision in Chapter XXXII Rule ## 6 of the Kerala Education Rules. The same reads as under: “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. Category Method of Qualifications No. Appointment ----------------------------------------------------------------(1) (2) (3) (4) ----------------------------------------------------------------Principal By Promotion (1) Master's Degree with not less 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 in Kerala or a qualification recognised as equivalent thereto by any University in Kerala. (3) Minimum approved teaching experience of 12 years at Higher Secondary Secondary Level under the same Educational Agency. Note - 1. In the absence of persons having qualification as specified above, approved teaching experience at High School/Upper/Primary/Lower Primary School's under the same Educational Agency shall be considered. 2. Such experience shall be reckoned only for qualifying Service and shall not be reckoned for Seniority. 3. Such persons must possess a minimum Service of Six years as Higher Secondary School Teacher (Senior/Junior)"] ----------------------------------------------------------------Sl. Category Method of Qualifications No. Appointment ----------------------------------------------------------------(1) (2) (3) (4) ----------------------------------------------------------------By transfer (1) Master's Degree with not less than 50% marks from any of the Universities in Kerala or a Qualification recognised as equivalent thereto by any WP(C)No.27058/2005 11 University in Kerala. (2) B.Ed. Degree from any of the Universities in Kerala or qualification recognised as equivalent thereto by any University in Kerala. (3) 4[Minimum approved teaching experience of 12 years under the same Educational Agency]” 11. Proceedings of the selection committee have not been placed on record to form a different opinion than the one sought to be projected. Cited judgment was a case where the candidate was the only person qualified for appointment as Principal and despite that selection committee did not select which was challenged in the Court. It is on that account reasoning was assigned in paragraphs 3 and 4, which read as under : _“3. I have considered the rival contentions in detail. Under Chapter XXXII of the KER, the first source of appointment as Principal is by promotion from Higher Secondary School Teacher. Of course Note 2 of item No.1 of Rule 4 thereof stipulates that the post of Principal will be a selection post. Apart from the same, there is no indication anywhere in the Rule as to how the selection has to be conducted. Ordinarily the word `selection' would mean the process of picking the best among the available candidates, after assessing the merit of the candidates. Here the only candidate available is the petitioner. Therefore there is no question of assessing comparative merit. The Supreme Court of India in the decision of Lt. Gen. Rajendra Singh Kadyan's Case (supra) has considered the question as to how the selection for promotion is to be made. In that decision, it was observed thus:_ _"11. ----------------------------------------------_ _Selection implies the right of rejection depending upon the criteria prescribed. Selection for promotion is based on different criteria depending upon the nature of the post and requirements of the service. Such_ WP(C)No.27058/2005 12 - _criteria fall into three categories, namely. 1. Seniority-cum-fitness,_ _2. Seniority-cum-merit,_ _3. Merit-cum-suitability with due regard to seniority._ _12.Wherever fitness is stipulated as the basis of selection, it is regarded as a nonselection post to be filled on the basis of seniority subject to rejection of the unfit. Fitness means fitness in all respects. "Seniority-cum-merit" postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed. Subject to fulfilling this requirement the promotion is based on seniority. There is no requirement of assessment of comparative merit both in the case of seniority-cumfitness and seniority-cum-merit. Merit- cumsuitability with due regard to seniority as prescribed in the case of promotion to AllIndia Services necessarily involves assessment of comparative merit of all eligible candidates, and selecting the best out of them."_ _Here the rules do not prescribe that the selection should be by any of the three methods. It simply says that the post is a selection post. Since it does not postulate seniority-cum-fitness or seniority-cummerit as the mode of selection, the only other alternative, going by the Supreme Court decision, is to assess the merit-cum-suitability of the candidates available for selection with due regard to seniority. The question of seniority and merit does not arise here since the petitioner is the only candidate available for consideration for selection. Therefore the only other criteria, which has to be looked into, is the suitability of the petitioner._ _4. In this connection the Supreme Court decision in Valsala Kumari Devi V. Director, Higher Secondary Education [2007(4) KLT 494 (SC) had occasion to consider the meaning of expression "subject to seniority and suitability". In paragraph 13 of the said judgment, it has been held thus:_ _"The expression "subject to seniority and suitability" occurring in G.O. dated 27.6.1990 does not mean the comparative assessment of suitability and it only means the suitability for the particular post and the suitability is related to the prescribed qualification and requisite experience. In view of the distinction between the appointment by promotion from General Education Subordinate Service and an appointment to the 75% vacancies ear- marked for direct recruitment, we are of the view that the finding arrived at by the Director, Higher_ WP(C)No.27058/2005 13 _Secondary School, Thiruvananthapuram, Kerala that seniority is not the criterion for `appointment by promotion to HSST' is erroneous and is not in terms of the Government Orders referred to above. Though in the order, it is stated that the 5th respondent is more suitable than the appellant, as rightly pointed out by learned counsel appearing for the appellant, it has not been shown or indicated the reasons or grounds for arriving at such decision that the 5th respondent was found more suitable than the appellant for the post. We are also in agreement with the contention that the Director has mechanically accepted the decision of the Selection Committee that the 5th respondent is more suitable than the appellant without reference to selection for appointment by promotion to HSST against 25% quota earmarked for qualified High School Assistants. We are of the view that the Director has committed an illegality in upholding the selection of the 5th respondent for appointment to the post of HSST. Further the 5th respondent has been preferred to the appellant for the reason that his main subject in B.A. is History, which is totally irrelevant for promotion to HSST from among HSAs. In G.O. dated 27.6.1990 the qualification prescribed is second class Master's Degree in the concerned subject with B.Ed. It is relevant to point out that the appellant and the 5th respondent have obtained M.A. Degree from Mysore University and the 5th respondent took B.Ed with Social Studies. The other reason given by the Selection Committee for preferring 5th respondent is that he has proficiency in English, Kannada and Malayalam whereas the appellant has proficiency in English and Malayalam. As rightly pointed out by learned counsel appearing for the appellant, once the requirement of the prescribed qualification is satisfied, the selection must be made on the basis of the seniority and suitability and there is no scope for making comparison of qualifications or comparative assessment of suitability. The expression `suitability' means that a person to be appointed shall be legally eligible and `eligible' should be taken to mean `fit to be chosen' (emphasis supplied)”_ _Applying those principles the eligibility for promotion of the petitioner to the post of Principal has to be decided only on the basis of her suitability. Going by the above decisions, the suitability has to be decided on the basis of the prescribed qualifications and requisite experience. In this case admittedly_ WP(C)No.27058/2005 14 _none of the three selection committee members had any knowledge whatsoever in Sanskrit. Therefore they could not have validly assessed the proficiency of the petitioner in Sanskrit. Admittedly the petitioner had the requisite qualification and experience. What they have stated in Ext.P13 is only this:_ _"This is to certify that M/s. Vijayamonery, K.R. is not selected for the post of HSS Principal as her performance in the interview was below satisfactory and she seemed to be not capable of handling the post of the Principal of a Higher Secondary School"”_ 12. On perusal of the findings, the reasons for rejection though have not been assigned, but the fact remains that the selection as per the prevalent rule was on the basis of seniority and suitability. The ratio aforementioned cannot be made applicable in the present case. The appointment of Principal is a selection post and the criteria for that has been prescribed in Rule 6. It is settled law that the person participated in the selection proceeding cannot be permitted to challenge the decision on selection which is not suitable to him. This view is derived from the decision of the Supreme Court in **Ashok kumar** **& Another vs. State of Bihar & others** (2017) 4 SCC 357). For the reasons aforementioned, I do not find any merit. Writ petition is accordingly dismissed. Sd/- **AMIT RAWAL JUDGE** csl WP(C)No.27058/2005 15 ## APPENDIX PETITIONER'S EXHIBITS : - EXT.P1 : COPY OF THE ORDER DATED 9.10.2000 OF THE 1ST RESPONDENT - EXT.P2 : COPY OF THE ORDER DATED 7.8.1986 OF THE 1ST RESPONDENT - EXT.P3 : COPY OF THE ORDER G.O.(M.S.) NO.43/2005/G.EDN. DATED 11.2.2005 - EXT.P4 : COPY OF THE CIRCULAR NO.ROC NO.4231/2005/EDN. DATED 29.4.2005 OF THE 1ST RESPONDENT - EXT.P5 : COPY OF THE APPLICATION DATED 9.5.2005 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT - EXT.P6 : COPY OF THE ORDER ROC NO.4231/05/EDN. DATED 6.6.2005 OF THE 1ST RESPONDENT - EXT.P7 : COPY OF THE CIRCULAR DATED 13.4.2005 ISSUED BY THE 2ND RESPONDENT. - EXT.P8 : COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 19.8.2005 - EXT.P9 : COPY OF THE PORTION OF SENIORITY LIST OF HSA