WA 978 of 2023 (The Manager, St. Sebastian's High School, Punnakkal; Sri K.J. Jose v. Xavier T.J. and others)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. WEDNESDAY, THE 16[TH] DAY OF AUGUST 2023 / 25TH SRAVANA, 1945 WA NO. 978 OF 2023** **AGAINST THE JUDGMENT IN WP(C) 2494/2021 OF HIGH COURT OF** ## **KERALA** ## **APPELLANTS/RESPONDENT NO.5, 6 & 7 IN WRIT PETITION:** 1 THE MANAGER, ST: SEBASTIAN'S HIGH SCHOOL, PUNNACKAL (VIA) THIRUVAMBADY, THAMARASERRY, KOZHIKODE, PIN - 673603 2 THE CORPORATE MANAGER, DIOCESE OF THAMARASERRY, KOZHIKODE, KOZHIKODE DIST,PIN-673 573 3 K.J .JOSE, HEADMASTER IN-CHARGE OF THE ST. SEBASTIAN HIGH SCHOOL, PUNNAKKAL, THIRUVAMBADI, THAMARASSERY, KOZHIKODE ,PIN-673 603. BY ADVS. JOHN JOSEPH VETTIKAD C.JOSEPH JOHNY ## **RESPONDENTS/PETITIONER/RESPONDENTS 1 TO 4:** 1 XAVIER T.J., AGED 57 YEARS S/O JOSEPH T.V, HIGH SCHOOL ASSISTANT (PHYSICAL SCIENCE) (RETIRED), ST. SEBASTIAN HIGH SCHOOL PUNNAKKAL, THIRUVAMBADI, THAMARASSERY, KOZHIKODE,, PIN - 673603 2 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEXE II, WA No.978 of 2023 2 THIRUVANATHAPURAM,PIN-695 001 3 THE DIRECTOR OF GENERAL EDUCATION JAGATHY, THIRUVANATHAPURAM,PIN-695 014. 4 THE DEPUTY DIRECTOR OF EDUCATION, MANACHIRA, KOZHIKODE,PIN-673 001. 5 THE DISTRICT EDUCATIONAL OFFICER, THAMARASSERY, KOZHIKODE DISTRICT, PIN - 673573. BY ADVS. SRI.V.A.MOHAMMED SRI.P. GOPAL BY SMT.VINITHA.B. SR.GP **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA No.978 of 2023 3 ## **DR.A.K. JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ** **................................................................................ WA No.978 of 2023** **................................................... Dated this the 16[th] day of August, 2023** ## **JUDGMENT** ## Dr.A.K.Jayasankaran Nambiar.J The Manager of St.Sebastian's High School, Punnakkal, Kozhikode District, the educational agency and Sri.K.J.Jose, an HSA of the said school, who were 5[th] , 6[th] and 7[th] respondents respectively in writ petition No.2494 of 2021, preferred by Xavier T.J, who was also an HSA in the school, are the appellants herein, aggrieved by the judgment dated 16.3.2023 of a learned single Judge in the writ petition. 2. The brief facts necessary for disposal of this writ appeal are as follows:- The writ petitioner Sri.Xavier.T.J., who was an HSA (Physical Science) in the St.Sebastian's High School, Punnakkal, had approached this Court, aggrieved by Ext.P5 and P9 orders which were the appointment order dated 5.6.2008 appointing the 7[th] respondent (Sri.K.J.Jose) as Headmaster of the school and the Government Order dated 18.12.2020 that dismissed the revision preferred by the petitioner against the approval granted to the order WA No.978 of 2023 4 appointing the 7[th] respondent, Sri.K.J.Jose as the Headmaster of the school. In the writ petition, the challenge against the aforesaid orders was essentially on the contention that the 7[th] respondent was not in service as an HSA in the school on the date of arising of the vacancy in the post of Headmaster with effect from 1.6.2018. It is not in dispute before us that the said 7[th] respondent had been retrenched from the post of HSA in the school during the 2007-2008 academic year and had continued as a protected teacher in a Government Higher Secondary School, Cheruvady, till his re-appointment in the school with effect from 5.6.2018 as Headmaster. The contention of the writ petitioner therefore was that, although the appellants herein had justified the appointment of the 7[th] respondent as Headmaster by referring to their status as the management of a minority educational institution in the state and their right to appoint a person of their choice as Headmaster, the said preferential right could be exercised only in respect of a person who was a teacher in the school as on the date of arising of the vacancy to the post of Headmaster. In the instant case, it was pointed out that the 7[th] respondent was not a teacher in the school as on 1.6.2018, and therefore could not have been appointed as Headmaster overlooking the claim of the writ petitioner, who was admittedly the senior most HSA in the school, qualified in all respects for appointment as a Headmaster in the said school. 3. The learned single Judge, who considered the writ petition found that the appointment of the 7[th] respondent was through the issuance of an appointment order in the statutorily prescribed Form 27, but the Manager WA No.978 of 2023 5 had not scored out that paragraph in the statutory form which certified that there was no qualified teacher existing in service under the educational agency who was eligible for promotion to the vacancy for which the appointment in question was made. The portion in Form 27 referred to by the learned single Judge, which according to him ought to have been struck off, reads as follows:- “Certified that there is no qualified teacher existing in service under this Educational Agency who is eligible for promotion to the vacancy for which the above appointment is made.” 4. The learned single Judge also found that in view of the judgment of this Court in **Manager, Mar Sleeba U.P.School v. State of Kerala** (1990 KHC 138) which judgment was affirmed by a Division Bench in appeal, a protected teacher who was not teaching in the school at the time when the vacancy arose to the post of Headmaster could not be considered for appointment as the Headmaster although the said person had a preferential right to re-appointment in the school based on his protected status. Thus, on both the aforesaid findings the learned single Judge allowed the writ petition and declared the writ petitioner entitled for promotion as Headmaster with effect from 1.6.2018 notionally and also found him entitled for pensionary benefits based on the aforesaid findings. 5. It needs to be stated at this juncture that the writ petitioner who was found eligible for promotion with effect from 1.6.2018, retired from WA No.978 of 2023 6 service on 31.05.2020 without actually having rendered a days work as Headmaster. The 7[th] respondent on the other hand continued to render service as Headmaster in the school till 31.05.2023 when he too retired as Headmaster on superannuation. The net result of the declarations in the impugned judgment will be that the writ petitioner will become entitled for notional promotion as Headmaster in the school from 1.6.2018 till 31.05.2020 when he retired from service and although he would not be entitled to the salary of Headmaster during the said period, he would be entitled to take the then salary of Headmaster as the last drawn salary for the purposes of computing his pensionary benefits. The 7[th] respondent on the other hand would now have to be treated as Headmaster of the school only with effect from 1.6.2020 (and not from 1.6.2018) upto the date of his retirement on superannuation i.e., 31.05.2023. While he would be entitled only to the salary as HSA for the period from 1.6.2018 to 1.6.2020, he would also be entitled to pensionary benefits on the basis of his last drawn salary as Headmaster at the time of his superannuation from the school on 31.05.2023. Essentially therefore, what we need to decide in this appeal is whether or not the declaration of the learned single Judge in the writ petition requires any intervention. 6. In our view, the finding of the learned single Judge that the Manager had necessarily to score off the particular portion in Form 27 extracted above, while exercising his discretion, as the Manager of a minority educational institution, to appoint a person of his choice as Headmaster of the WA No.978 of 2023 7 school by overlooking the principles of seniority, does not appear to us as correct in law. The right of the Manager of a minority educational institution to appoint a person who is qualified in all respects as Headmaster of the institution overlooking the seniority of other qualified teachers in that regard has to be seen as flowing from the provisions of the Constitution that treat the said right as fundamental, and the statutory provisions under the Kerala Education Act and Rules that enable him to effectuate that right. The inaction on the the part of the Manager to score out any portion of the statutory form, which does not distinguish between appointments made in ordinary educational institutions and those made in minority educational institutions cannot in our view be fatal to the exercise of discretion by the Manager of the minority educational institution. We, therefore, set aside that finding of the learned single Judge which holds that appointment of the 7[th] respondent as illegal, solely on that ground. 7. That said, we are in complete agreement with the findings of the learned single Judge on the second issue with regard to the ineligibility of the 7[th] respondent to be considered for appointment as Headmaster, especially when he was not a teacher in the school as on the date of arising of the vacancy, namely, 1.6.2018. The decision relied on by the learned single Judge read with the decision of a Division Bench in **Prasad v. Philipose Mar Dilshus U.P.School** (2005 KHC 1001) and the decision of the Full Bench of this Court in **Abraham A.G. and others v. State of Kerala and others** [2009 (3) KHC 557] fortify the view that unless a person concerned is actually WA No.978 of 2023 8 working as a teacher in the school as on the date of arising of the vacancy to the post of Headmaster, the said person cannot be considered for appointment as Headmaster of the school even based on the discretion exercised in his favour by the Manager of a minority educational institution. Thus, for the reasons stated by the learned single Judge, as supplemented by the reasons in this judgment, we partly allow this appeal. The writ appeal is disposed as above. **Sd/-DR.A.K. JAYASANKARAN NAMBIAR, JUDGE** **Sd/-MOHAMMED NIAS C.P. JUDGE** dlk 17.8.2023 WA No.978 of 2023 9 ## **APPENDIX OF WA 978/2023** ## **PETITIONERS ANNEXURES** |Annexure A|TRUE COPY OF GO(P) NO: 14/84G.EDN DATED| |---|---| ||18/01/1984| |Annexure B|TRUE COPY OF BY LETTER NO.H(2) /| ||88725/13/DPI DATED 11/09/2013| ## **RESPONDENTS ANNEXURES** |Annexure R1(a)|True copy of the relieving order of the| |---|---| ||3rd appellant issued by the Head master,| ||Government Higher Secondary School,| ||Cheruvadi| |Annexure R1(b)|True copy of the revision petition dated| ||02-07-2020 filed by the 1st respondent| ||before the 2nd respondent|