T.A. Ashraf Kunju Assan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941** ## **WP(C).No.7835 OF 2016(D)** ## **PETITIONER:** **T.A.ASHRAF KUNJU ASSAN AGED 43 YEARS** **SON OF ABOOBACKER KUNJU ASSAN, PRINCIPAL, LAJNATHUL MUHAMMADIYA HIGHER SECONDARY SCHOOL, ALAPPUZHA688001.** **BY ADVS. SRI.V.A.MUHAMMED SRI.V.RAJASEKHARAN NAIR** ## **RESPONDENTS:** - **1 THE STATE OF KERALA GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION CIVIL STATION, KOTTAYAM-686001.** - **3 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION CHENGANNUR, ALAPPUZHA DISTRICT-689121.** - **4 THE MANAGER LAJNATHUL MUHAMMADIYA HIGHER SECONDARY SCHOOL, LAJNATH WARD, ALAPPUZHA-688001.** - **5 SRI.A.MOHAMMED SABIR SAHIB HIGHER SECONDARY SCHOOL TEACHER (PHYSICS), LAJNATHUL MUHAMMADIYA HIGHER SECONDARY SCHOOL,LAJNATH WARD, ALAPPUZHA-688001.** **R1 BY GOVERNMENT PLEADER R1, R4 BY ADV. SMT.P.A.JENZIA R1, R5 BY ADV. SRI.KALEESWARAM RAJ** ## **OTHER PRESENT:** ## **SRI.N.B.SUNILNATH, GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.7835 OF 2016 2 ## **JUDGMENT** This writ petition is filed seeking the following reliefs: _“(i) call for the records relating to Exhibits P-4 and P-9 and set aside the originals of the same by the issue of a writ of certiorari or other appropriate writ or order._ _(ii) issue a writ of mandamus or other_ _appropriate writ order or direction commanding_ _the 2[nd] and 3[rd] Respondents to approve the appointment of the Petitioner as Principal, Lajnathul Muhammadiya Higher Secondary school, Alappuzha from 01.06.2015.”_ ## 2. Heard the learned counsel for the petitioner, the learned government pleader,as well as the learned counsel appearing for the 5[th] respondent. ## 3. The petitioner, who had approved service as High School Assistant from 17/11/1994 and was promoted as Headmaster in the High school from 01/04/2013, has approached this court aggrieved by WP(C).No.7835 OF 2016 3 the rejection of approval for his promotion as Principal of the Higher Secondary School under the same management. It is stated that the petitioner is entitled to appointment as Principal of the Higher Secondary School applying the ratio of 2:1 provided in Rule 4(1)(2) of the chapter XXXII of the KER. The petitioner was so appointed. However by Ext.P4 order, the Regional Deputy Director, rejected the approval for the appointment on the ground that it requires the creation of an independent post of Principal and leads to huge financial commitments. 4. It is submitted by the learned counsel for the petitioner that the vacancy of Principal, to which the petitioner is appointed was the 6[th] vacancy which arose after upgradation and that as such, the petitioner is liable to be promoted by application of the ratio 2:1. The learned counsel for the petitioner relies on the decision of a Division Bench of this Court in _**Thomas v.**_ WP(C).No.7835 OF 2016 4 _**State of Kerala (2013(4)KLT 257)**_ where the issue of rejection of approval of appointment of a Headmaster appointed as principal on the ground of financial commitment was considered. The Division Bench held as follows: 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 WP(C).No.7835 OF 2016 5 provides for retention of the junior-most 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. 5. This Court had in Exts.P10 and P11 judgments followed the dictum laid down in _**Thomas's**_ case(Supra) and had held that the appointment of a Headmaster promoted as Principal is liable to be approved even if it requires the creation of a supernumerary post and that approval cannot be declined on the basis of financial commitment. 6. The 3[rd] respondent has placed a counter affidavit on record. It is stated that the approval of appointment of the petitioner as Principal with effect from 01/06/2015 had been rejected on the ground that there is no vacancy of HSST(Sociology) available in the Higher Secondary WP(C).No.7835 OF 2016 6 School. It is stated that the petitioner possesses MA in Sociology and if the by transfer appointment of the petitioner as Principal is approved, there will be creation of independent supernumerary Principal post which will lead to huge financial commitment to the Government. 7. The 4[th] respondent has filed a counter affidavit supporting the petitioner. The 5[th] respondent, who is a Higher Secondary School teacher working in the same school has raised a contention to the effect that the ratio of 2:1 can be applied only as against the cadre strength since the Note does not specify that the ratio is to be applied as against arising vacancies. It is therefore contented that since the cadre strength is only one, the ratio provided in the ground is unworkable and that as such, appointment has to be made by appointing the senior most Higher Secondary School Teachers as Principal. WP(C).No.7835 OF 2016 7 8. I have considered the contentions advanced. Rule 4(1)(2) of chapter XXXII of KER, which deals with the appointment to the post of Principal reads as follows: ## _**-**_ **Rule 4:** _**Method of Appointment:** Appointment_ _to the various categories specified in Column_ _(2) of the Table below shall be made by the_ _method of appointment specified against each in column (3) thereof-_ |_Sl_<br>_No_<br>_._|_Category_|_Method of Appointment_| |---|---|---| |_1_|_2_|_3_| |_1_|_Principal_|**_(1)_**_By promotion from category 2 under the_<br>_respective educational agency._<br>**_OR_**<br>**_(2)_**_By transfer from qualified Headmasters_<br>_of Aided High Schools under the respective_<br>_educational agency._<br>_Note:-_<br>**_(i)_**_[xxxx]_<br>**_(ii)_**_[xxxx]_<br>**_(iii)_**_The post shall be filled up by the_<br>_methods specified in item (i) and (ii)_<br>_above in the ratio 2:1. If qualified_<br>_candidates_<br>_are_<br>_not_<br>_available_<br>_for_<br>_appointment to a vacancy by any one of the_<br>_methods specified above, such vacancies_<br>_shall be filled up by the other method._| 9. It is submitted by the Learned counsel appearing for the 5[th] respondent that reading of the 1[st] sentence in Note III would show that there WP(C).No.7835 OF 2016 8 is no specification that the ratio is to be applied to vacancies and therefore it has to be applied only to the cadre strength as provided in Note to Rule 5(3) of Part II KS&SSR. However a reading of the Note as a whole would make it clear that the second sentence in the Note specifies that if qualified candidates are not available for appointment to the vacancy, such vacancy shall be filled up by any one of the methods such vacancies shall be filled up by the other method. The only logical conclusion would be that the ratio as provided in the Note is to be applied to arising vacancies and not to the cadre strength as stated by the learned counsel for the 5[th] respondent. Further, the appointment in question is to the post of Principal in an aided Higher Secondary School. In view of the fact that the provisions of the KS&SSR have not been made applicable in the case of aided school teachers, the issue of applying ratio to the cadre strength would not WP(C).No.7835 OF 2016 9 arise. 10. The reason stated in for rejection of approval stands covered by a bench decision of this court, I am of the opinion that the rejection of the approval on the ground that the approval of petitioners appointment would result in huge financial commitment is unsustainable. In view of the fact that there is no dispute in Ext.P4 that the petitioner is entitled to appointment as Principal applying the 2:1 ratio or with regard to the qualification of the petitioner, I am of the opinion that the Petitioner's appointment as Principal is liable to be approved. In the above view of the matter, Ext.P4 and P9 orders are set aside. There will be a direction to respondents to approve the appointment of the petitioner as Principal in the 4[th] respondent's Higher Secondary School with effect from 01/06/2015. Orders shall be passed WP(C).No.7835 OF 2016 10 with in a period of 2 months from the date of receipt of a copy of the judgment and consequential benefits shall be calculated and disbursed to the petitioner within a period of two months thereafter. The Writ Petition is ordered accordingly. ## **Sd/-** **ANU SIVARAMAN JUDGE** DM WP(C).No.7835 OF 2016 11 ## **APPENDIX OF WP(C) 7835/2016** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 EXHIBIT-P1: TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 01.06.2015. EXHIBIT P2 EXHIBIT-P2: TRUE COPY OF THE ORDER NO.B2/4708/2015/RDDE/HSE DATED 8.7.2015 OF THE RDD/HSE DATED 8.7.2015 OF THE RDD, ERNAKULAM. EXHIBIT P3 EXHIBIT-P3: TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.23564/2015-U DATED 5.8.2015. EXHIBIT P4 EXHIBIT-P4: TRUE COPY OF THE ORDER NO.B2/7673/RDD/HSE/KTM/15 DATED 22.09.2015 OF THE 2ND RESPONDENT. EXHIBIT P5 EXHIBIT-P5: TRUE COPY OF THE G.O.(MS.) NO.290/2006/G.EDN. DATED 2.12.2006 OF THE GOVERN11MENT. EXHIBIT P6 EXHIBIT-P6: TRUE COPY OF THE DECISION REPORTED IN 2013(4) KLT 257 DATED 14.08.2013. EXHIBIT P7 EXHIBIT-P7: TRUE COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT ALONG WITH STAY PETITION DATED 03.10.2015 BY THE MANAGER. EXHIBIT P8 EXHIBIT-P8: TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.32557/2015-T DATED 27.10.2015. EXHIBIT P9 EXHIBIT-P9: TRUE COPY OF THE G.O.(RT.) NO.703/2016/G.EDN. DATED 19.02.2016 OF THE GOVERNMENT EXHIBIT P10 EXHIBIT-P10: TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.36319/2015-L DATED 18.07.2017 EXHIBIT P11 EXHIBIT P11: TRUE COPY OF THE JUDGMENT IN W.A.NO.2423/2017 DATED 06.04.2018. //TRUE COPY// DM CA TO JUDGE**