The Manager, M K N M Higher Secondary School, Kumaramangal, Thodupuzha, Idukki District and K. Anil v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **MONDAY, THE 12TH DAY OF JUNE 2017/22ND JYAISHTA, 1939** ## **WP(C).No. 608 of 2017 (A)** ## **----------------------------------------** **PETITIONER(S) :** **-------------------------** - **1. THE MANAGER, M K N M HIGHER SECONDARY SCHOOL KUMARAMANGALAM, THODUPUZHA, IDUKKI DISTRICT(DELETED).** - **1ST PETITIONER DELETED FROM PARTY ARRAY AS PER ORDER DATED 11.04.2017 IN I.A.NO. 6053 OF 2017.** **2. K.ANIL, S/O.KRISHNAN NAIR, AGED 49 YEARS, PRINCIPAL-IN-CHARGE, M K N M HIGHER SECONDARY SCHOOL, KUMARAMANGALAM, THODUPUZHA, IDUKKI DISTRICT.** **BY ADVS. SRI.V.A.MUHAMMED SMT.P.A.JENZIA** **RESPONDENT(S) :** - **----------------------------** **1. THE STATE OF KERALA REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM-695 001.** **3. THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, KOTTAYAM-686 001.** ## *** ADDITIONAL R4 TO R9 IMPLEADED** **4. SRI. SHIBU V.S., HIGHER SECONDARY SCHOOL TEACHER (ENGLISH), M K N M HIGHER SECONDARY SCHOOL, KUMARAMANGALAM, THODUPUZHA, IDUKKI DISTRICT- 685 608.** **5. TOMY MATHEW, HIGHER SECONDARY SCHOOL TEACHER (ECONOMICS), M K N M HIGHER SECONDARY SCHOOL, KUMARAMANGALAM, THODUPUZHA, IDUKKI DISTRICT- 685 608.** **..2/-** **..2..** ## **WP(C).No. 608 of 2017 (A)** **----------------------------------------** **6. GEORGE J.MANOOR, HIGHER SECONDARY SCHOOL TEACHER (MALAYALAM), M K N M HIGHER SECONDARY SCHOOL, KUMARAMANGALAM, THODUPUZHA, IDUKKI DISTRICT- 685 608.** **7. SRI. TOMCY THOMAS, HIGHER SECONDARY SCHOOL TEACHER (MATHEMATICS), M K N M HIGHER SECONDARY SCHOOL, KUMARAMANGALAM, THODUPUZHA, IDUKKI DISTRICT- 685 608.** **8. SMT. SHYLA.S, HIGHER SECONDARY SCHOOL TEACHER (HINDI), M K N M HIGHER SECONDARY SCHOOL, KUMARAMANGALAM, THODUPUZHA, IDUKKI DISTRICT- 685 608.** **9. SMT. RESMY JOSE, HIGHER SECONDARY SCHOOL TEACHER (PHYSICS), M K N M HIGHER SECONDARY SCHOOL, KUMARAMANGALAM, THODUPUZHA, IDUKKI DISTRICT- 685 608.** - **ADDITIONAL R4 TO R9 ARE IMPLEADED AS PER ORDER DATED 25.01.2017 IN I.A.NO. 1175 OF 2017.** **R1 TO R3 BY SR. GOVERNMENT PLEADER SRI. B.UNNIKRISHNA KAIMAL ADDL.R4 TO R9 BY ADV. SRI.P.NANDAKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-06-2017, ALONG WITH W.P(C).NO. 12589 OF 2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. **WP(C).No. 608 of 2017 (A)** ## **--------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER DATED 02-08-2013.** **EXHIBIT P2 TRUE COPY OF THE LETTER NO.A3/11095/14/RDD/HSE/KTM OF THE 3RD RESPONDENT DATED 12-06-2015.** **EXHIBIT P3 TRUE COPY OF THE STAFF STATEMENT OF TEACHERS.** **EXHIBIT P4 TRUE COPY OF THE ORDER NO.A3/11095/2015/RDD/HSE/KTM OF THE 3RD RESPONDENT DATED 18-06-2015.** **EXHIBIT P5 TRUE COPY OF THE APPEAL FILED BEFORE THE 2ND RESPONDENT DATED 25-09-2015 BY THE MANAGER. EXHIBIT P6 TRUE COPY OF THE STAY PETITION FILED BEFORE THE 2ND RESPONDENT DATED 01-12-2015.** **EXHIBIT P7 TRUE COPY OF THE ORDER NO.ACD.B1/62530/HSE/2015 OF THE 2ND RESPONDENT DATED 04-12-2015.** **EXHIBIT P8 TRUE COPY OF THE ORDER NO.B1/62530/HSE/2015 OF THE 2ND RESPONDENT DATED 01-04-2016.** **EXHIBIT P9 TRUE COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT DATED 13-04-2016 BY THE 2ND PETITIONER. EXHIBIT P10 TRUE COPY OF THE G.O.(RT)NO.3785/2016/G.EDN. DATED 09-11-2016 OF THE GOVERNMENT.** **EXHIBIT P11 TRUE COPY OF THE MINUTES OF INTERVIEW BOARD HELD ON 15-07-2006.** **EXHIBIT P12 TRUE COPY OF THE ORDER OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION DATED 18.02.2017.** **EXHIBIT P13 TRUE COPY OF THE ORDER OF THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION DATED 08.03.2017.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **P.V.ASHA, J.** ## **W.P.(C) Nos.608 & 12589 of 2017** ## **Dated this the 12[th] day of June, 2017** ## **JUDGMENT** The Manager as well as the Principal in charge of an aided Higher Secondary School have filed these writ petitions challenging the orders rejecting approval for promotion of Sri.K.Anil (petitioner in WP (C) No.608 of 2017) as Principal of the School. Both these writ petitions, involve the very same issue and are disposed of by this common judgment. Parties and documents referred to are as described in W.P.(C) No.608 of 2017, unless otherwise specified. 2. The petitioner was appointed as Principal as per Ext.P1 order dated 2.8.2013. The 3[rd] respondent returned the proposal for approval of that appointment on 12.6.2015 on the ground that the seniority list furnished by the Manager along with the proposal was incomplete and directing to produce seniority list with all relevant details of the date of joining, upgradation, signature etc. of all the teachers. Thereafter on 18.6.2015, the third respondent rejected the proposal as per Ext.P4 order on the ground that the Manager has not maintained seniority of HSSTs. The appeal before the 2[nd] respondent-the Director of Higher Secondary Education was rejected as per Ext.P8 order, stating that petitioner was appointed as HSST, on upgradation only on 15.07.2013 and there are a number of HSSTs in the School senior to the W.P.(C) Nos.608 & 12589/2017. **==> picture [14 x 10] intentionally omitted <==** petitioner. By Ext.P10 order, Government upheld the orders of respondents 2 and 3, seeing that there are several HSSTs in the School with date of appointment as 01.08.2000, when the petitioner who got appointment as HSST only on 15.07.2013. The contention of the petitioner and the Manager that other teachers did not have any objection against his promotion was not accepted. Government therefore directed cancellation of the promotion of the petitioner and directed to make fresh appointment to qualified hands based on seniority. The Manager as well as the petitioner are challenging these orders. It is their case that petitioner was given charge of Principal after conducting a selection by a selection committee convened on 15.07.2006 when all the HSSTs had given relinquishment as recorded in Ext.P11 minutes of the interview board. Thereafter when he completed 12 years service in the Higher Secondary Section, he was appointed as Principal. There was no objection from any teachers as against either of these appointment. 3. Sri. Shibu V.S, who is the additional 4[th] respondent in WP(C) No.608 of 2017 and the additional 5[th] respondent in W.P.(C) No. 12589 of 2017, has filed a counter affidavit in W.P.(C) No. 12589 of 2017. It is stated that additional 5[th] respondent was appointed as HSST on 01.08.2000 and he is the senior most HSST, who became qualified for promotion as Principal as on 01.08.2012, on completion W.P.(C) Nos.608 & 12589/2017. **==> picture [14 x 10] intentionally omitted <==** of 12 years service. On the other hand petitioner was appointed as HSST Junior only and was promoted as HSST only on 15.07.2013. He stated that he has not relinquished promotion as Principal. According to him the post of Principal was sanctioned in Higher Secondary Schools only as per order dated 6.1.2006. As on that date there was no HSST qualified in the School for appointment as Principal with 12 years' experience in Higher Secondary level. He became qualified on 20.08.2012. None of the HSST senior to petitioner including the 5[th] respondent has submitted any relinquishment either after the sanctioning of the post on 06.01.2006 or after they became fully qualified in 2012. 4. Producing Ext.P10 letter of relinquishment submitted by the additional 5[th] respondent, along with the reply affidavit in W.P.(C) No.12589 of 2017, Manager has stated that the additional 5[th] respondent cannot have any right to claim promotion as Principal. 5. The learned counsel for the petitioner points out that a Full Bench of this court has in the judgment in **Aided Higher Secondary** ## **School Teachers Association vs. State of Kerala : 2005 (1) KLT** **94** held that the post of Principal is available ever since the Higher Secondary section commenced and it is not correct to say that the posts were created on 6.1.2006. 6. I heard M/s V.A.Mohamed and Brijesh Mohan, the learned W.P.(C) Nos.608 & 12589/2017. **==> picture [14 x 10] intentionally omitted <==** counsel appearing for the petitioners, Sri. Nandakumar, the learned counsel appearing for the additional respondents and the learned Government Pleader and considered the pleadings as well as the rival contentions on either side. 7. A perusal of the letter of relinquishment produced as Ext.P10 in W.P.(C) No.12589 of 2017 would show that relinquishment was on 1.7.2004, at a time when the post of Principal was not created and at a time when the additional respondent no.5 or the petitioner was not qualified. It is not disputed that there was no qualified hand in the School with 12 years service in the Higher Secondary Section, till 01.08.2012. Petitioner's appointment as HSST was only on 15.07.2013 only, at a time when the additional 5[th] respondent was fully qualified. Therefore the action of the Manager in appointing the petitioner who is far junior to the additional 5[th] respondent and other teachers seniors to petitioner, under the guise of relinquishment obtained as in Ext.P10 in the year 2004 is illegal. The relinquishment Ext.P10 can only be with respect to the appointment as Principal in Charge. 8. The post of Principal was created by Government only as per G.O.(Ms) No.11/06/G.Edn. dated 6.1.2006. There is no relinquishment thereafter, before Ext.P1 order. All the respondents 1 to 3 consistently found that no proper seniority list is maintained by the Manager. All of W.P.(C) Nos.608 & 12589/2017. **==> picture [14 x 10] intentionally omitted <==** them found that the promotion was made overlooking the senior hands, ruling out the contention of the petitioners based on relinquishments like Ext.P10. 9. It is well settled that the relinquishment made at the time of temporary promotion cannot be acted upon for regular promotion and such a relinquishment cannot stand in the way of consideration of the incumbents for regular promotion, as held by this court in the judgments in **George v. State of Kerala :** 1998 (2) KLT 637, **State of Kerala V Susheela George :** 2000 (3) KLT 295 as well as a series of other cases. It is also well settled that relinquishment, should be one which is submitted when the vacancy was existing or was arising shortly. The action of the manager in acting upon Ext.P10 relinquishment when he made the promotion in the year 2013, after the creation of post on 06.01.2006, is therefore unsustainable. 10. It is also seen that, out of the teachers appointed as on 20.08.2000, petitioner was continuing as Higher Secondary School Teacher (Junior) while the additional 5[th] respondent was all along working as HSST. Therefore there could not have been any valid seniority list placing a Junior HSST or an HSST who got promotion on 15.07.2013 above the HSSTs with service as HSST from 01.08.2000 onwards. The question regarding the seniority to be reckoned for the purpose of appointment of Principals in the Higher Secondary Schools W.P.(C) Nos.608 & 12589/2017. **==> picture [14 x 10] intentionally omitted <==** by promotion of HSSTs was considered by this Court in **Nanminda Higher Secondary School v. Director of Higher Secondary Education** : 2015 (3) KLT 307, in which it was held that the feeder category for promotion being HSST alone, seniority in the post of HSST alone need be considered for the purpose of reckoning 12 years' experience. The judgment of the learned Single Judge directing to club the service rendered as HSST Junior along with that of HSST, was reversed. In paragraph 18 of the judgment it was held as follows: “18. Insofar as the provisions contained in R.6 are concerned, a minimum approved teaching experience of 12 years at Higher Secondary level prescribed in clause 3 is only one of the qualifications prescribed for the post of Principal. Therefore, though the term used is “12 years experience at Higher Secondary level”, it is not intended to confer seniority to promotees in the category of HSST, giving credit to their service as HSST (Junior) as well. This provision of the Rule cannot also read to mean that for the purpose of seniority, the rule making authority was not making any distinction between HSST and HSST (Junior). If it were so, there would have been such an indication in R.4, where the feeder category is confined to HSST and seniority in the feeder category is made the criteria for promotion. Therefore, the prescriptions in R.4 and R.6 can be harmonised only by such an interpretation of R.4 and R.6 of the special Rules.” The additional 5[th] respondent was having 12 years experience as HSST itself when appointment was made as per Ext.P1 order. Therefore other questions whether the experience could be as HSST Junior or in Higher Secondary School itself, etc. do not require consideration, for the time being. 11. Therefore I do not find any illegality in the impugned orders rejecting the proposal for promotion of the petitioner. In the above circumstances, these writ petitions are dismissed. W.P.(C) Nos.608 & 12589/2017. **==> picture [14 x 10] intentionally omitted <==** The petitioner Manager (in WP(C) No.12589/2017) points out that admissions to the higher secondary course is going on in the school and that will continue till 15[th] July. In the above circumstances, interim order passed by this court allowing Sri.Anil.K as Principal in charge will continue till 15.7.2017 on condition that the Manager shall take steps for regular selection to the post of Principal by that time. Sd/- **P.V.ASHA JUDGE** rkc