V.B. Sajitha v. Director of Public Instruction (Academic), Thiruvananthapuram and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **MONDAY, THE 2ND DAY OF JULY 2012/11TH ASHADHA 1934** ## **WP(C).No. 14185 of 2009 (P) ---------------------------** **PETITIONER(S): --------------------------** **V.B.SAJITHA, U.P.S.A.** **M.M.L.P.SCHOOL, PANAYAPPILLY, KOCHI.** **BY ADVS.SRI.G.HARIHARAN SRI.PRAVEEN.H.** **RESPONDENT(S): ---------------------------** **1. DIRECTOR OF PUBLIC INSTRUCTION(ACADEMIC), THIRUVANANTHAPURAM.** **2. DISTRICT EDUCATIONAL OFFICER, ERNAKULAM.** **3. ASSISTANT EDUCATIONAL OFFICER, MATTANCHERRY.** **4. MANAGER,** - **M.M.L.P.SCHOOL, PANAYAPPILLY.** **5. K.V.RUKIYA BEEVI, U.P.S.A, M.M.L.P.SCHOOL, PANAYAPPILLY, KOCHI-2,ERNAKULAM.** **R1 TO R3 BY GOVERNMENT PLEADER SMT. M.J.RAJASREE BY ADVS. SRI.V.A.MUHAMMED** **SRI.K.E.HAMZA** ## **BY ADV. SRI. RAJASEKHARAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Kss** ## **WPC.NO.14185/2009 P** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE SENIORITY LIST PUBLISHED BY THE 4TH RESPONDENT.** **P2: COPY OF THE ORDER DTD. 20/05/2008 VIDE ORDER NO.1106/08/DD PASSED BY THE 3RD RESPONDENT. P3: COPY OF THE ORDER NO.F5/89244/2008/K. DIS.DPI DTD. 27/01/2009. P4: COPY OF THE DECLARATION DTD. 7/05/2008.** **RESPONDENT'S EXHIBITS:** **R4(A): COPY OF THE G.O.(RT) NO.4336/08/G,EDN. OF THE GOVERNMENT DTD. 29/09/2008.** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **S. SIRI JAGAN, J.** ------------------------------------------- W.P.(C) No.14185 of 2012 ---------------------------------------------Dated this the 2[nd] day of July, 2012 ## **JUDGMENT** The petitioner is an UPSA in the aided school managed by the 4[th] respondent. The post of Headmistress of the school fell vacant on 31.3.2008. The 4[th] respondent appointed Smt. P.K. Rabia as Headmistress with effect from 1.4.2008. The said Smt. P.K. Rabia relinquished her claim for appointment as Headmistress. In the said vacancy, the 4[th] respondent appointed the 5[th] respondent, who is junior to the petitioner. According to the petitioner, in the seniority list of teachers of the school, the petitioner is serial No.22 and the 5[th] respondent is serial No.27. The petitioner's grievance in this writ petition is that the appointment of the 5[th] respondent in preference to the petitioner as Headmistress by the 4[th] respondent is illegal and unsustainable. The petitioner seeks the following reliefs: “(i) Issue a writ of Certiorari or any other appropriate writ, quashing Exhibit P3 order passed by the 1[st] respondent. (ii) Issue a writ of mandamus or any other appropriate writ commanding the 4[th] W.P.(C)No.14185/09 2 respondent to appoint the petitioner as Headmistress being the senior most teacher with retrospective effect from 31.03.2008 on the strength of exhibit.P1 seniority list.” 2. The 4[th] respondent takes the stand that the school being a minority school, the 4[th] respondent is entitled to chose anyone among the qualified teachers of the school for appointment as Headmistress. Therefore, the petitioner cannot challenge the appointment of the 5[th] respondent as Headmistress is the contention raised by the 4[th] respondent. 3. In answer, the petitioner would contend that in view of the Full Bench decision of this Court in _**Kurian Lizy**_ v. _**State of Kerala**_ [2006(4) KLT 264 (F.B.)], even when a manager of the minority school appoints a Headmistress of his choice, the manager is bound to adopt a fair procedure for selecting the most suitable among the qualified persons for such appointment, which has not been done in this case. 4. The learned counsel for the 4[th] respondent would point out that a Division Bench of this Court had in _**Manager, SSHS. School**_ v. _**Lijin**_ [2007(3) KLT 663] held that in view of the decision of the Supreme Court in _**Secretary, Malankara**_ 3 W.P.(C)No.14185/09 _**Syrian Catholic College**_ v. _**T. Jose & others**_ [2007(1) SCC 386], the Full Bench decision in _**Kurian Lizy's**_ case (supra) is no more good law. He points out that, the later Full Bench overruled the decision in _Lijin's_ case (supra) only on 18/3/2010 in the decision of _**M.D.P.S. U.P. School**_ v. _**Paulose**_ [2010 (2) KLT 29(F.B.)]. Therefore, all the appointments made between the Division Bench decision in _Lijin's_ case (supra) and the Full Bench decision in _Paulose's_ case (supra) must be deemed to have been done validly and only the appointments made subsequent to _Paulose's_ case would be affected by the Full Bench decisions of this Court in _Kurian Lizy's_ and _Paulose's_ case (supra). Insofar as the appointment, which is under challenge in this writ petition, was made in 2008, the same was perfectly in accordance with the judgment in _Lijin's_ case (supra) and therefore, it must be upheld is the contention of the 4[th] respondent. 5. The learned counsel for the petitioner points out that even where an earlier decision of this Court operated for some time, the decision rendered later on would have retrospective effect clarifying the legal position, which was not 4 W.P.(C)No.14185/09 earlier correctly understood. According to the learned counsel for the petitioner, therefore, the decision in _Paulose's_ case operates retrospectively and therefore, the appointments made in 2008 would also be squarely covered by that decision. The petitioner relies on the decision of a learned Judge of this _**-**_ Court in _**Kerala Agro Industries Corporation Ltd**_ . v. _**Amminikutty Amma**_ [1997 KHC 480] and a Division Bench decision of the Supreme Court in _**Asst. Commissioner, Income Tax, Rajkot**_ v. _**Saurashtra Kutch Stock Exchange Ltd.**_ [2008 KHC 5282] in support of these contentions. 6. I have considered the rival contentions in detail. After hearing both sides, I am inclined to agree with the learned counsel for the petitioner. In _Kurian Lizy's_ case (supra), a Full Bench of this Court has laid down the manner in which a minority institution should select and appoint a Headmaster for the school. Of course, in _Lijin's_ case (supra) the Division Bench took the view that in view of the decision of the Supreme Court in _Malankara Syrian Catholic College's_ case (supra), the decision of the Full Bench in _Kurian Lizy's_ case (supra) is no more good law. But, in _Paulose's_ case W.P.(C)No.14185/09 5 (supra) the Full Bench held the view that the decision of the Division Bench in _Lijin's_ case is wrong and the decision in _Kurian Lizy's_ case does not in any way run contrary to the decision in _Malankara Syrian Catholic_ College's case. Of course, in between _Kurian Lizy's_ case and _Paulose's_ case there is a gap of three years. It is also true that the appointment in question was made during that interregnum. But, the Supreme Court has, in the case of _**Saurashtra Kutch Stock Exchange Ltd's**_ case (supra), held as follows in paragraphs 42 and 43: “42. In our judgment, it is also well settled that a judicial decision acts retrospectively. According to Blackstonian theory, it is not the function of the Court to pronounce a 'new rule' but to maintain and expound the 'old one'. In other words, Judges do not make law, they only discover or find the correct law. The law has always been the same. If a subsequent decision alters the earlier one, it (the later decision) does not make new law. It only discovers the correct principle of law which has to be applied retrospectively. To put it differently, even where an earlier decision of the Court operated for quite some time, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood. 43. Salmond in his well known work states; '(T)he theory of case law is that a judge does not make law; he merely declares it; and the W.P.(C)No.14185/09 6 overruling of a previous decision is a declaration that the supposed rule never was law. Hence any intermediate transactions made on the strength of the supposed rule are governed by the law established in the overruling decision. The overruling is retrospective, except as regards matters that are res judicatae or accounts that have been settled in the meantime.'” Even prior to that, a learned Judge of this Court had in _**Amminikutty Amma's**_ case (supra) took the same view. Therefore, I must essentially hold that the decision in _Kurian Lizy's_ case was all along deemed to be in force notwithstanding the fact that in _Lijin's_ case a different view was taken by a Division Bench, in view of _Paulose's_ case (supra). Even apart from that, in this case, ever since the appointment of the 4[th] respondent as Headmistress in 2008, the petitioner was continuously challenging the same and therefore, this writ petition has to be decided on the basis of correct law even with regard to the appointment in 2008 since the issue was live all along. Therefore, I have no doubt in my mind that the ratio of the decision in _Kurian Lizy's_ case as reiterated in Paulose's case, is clearly applicable to the facts of this case. The 4[th] respondent has not been able to satisfy me with any materials 7 W.P.(C)No.14185/09 whatsoever that the 4[th] respondent had in fact adopted a fair procedure as laid down in Kurian Lizy's case before selecting the 5[th] respondent for appointment as Headmistress. Therefore, the appointment of the 5[th] respondent as Headmistress is quashed. The 4[th] respondent is directed to make fresh appointment of Headmistress in his school, after considering all the eligible persons for such appointment in accordance with the principles laid down in _Kurian Lizy's_ case, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. ## **S. SIRI JAGAN, JUDGE** acd W.P.(C)No.14185/09 8 W.P.(C)No.14185/09 9