W.P.(C) Nos. 20484 of 2009 & 14895 of 2016

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN THURSDAY, THE 27[TH] DAY OF JULY 2023 / 5TH SRAVANA, 1945** **WP(C) NO. 20484 OF 2009** **PETITIONER:** T.SASIDHARAN SARVODYA HIGH SCHOOL, EACHOME P.O. EACHOME,, WAYANAD DIST. BY ADV SRI.KALEESWARAM RAJ **RESPONDENTS:** 1 STATE OF KERALA TO GOVT. DEPARTMENT OF GENERAL EDUCATION,, SECRETARIAT, THIRUVANANTHAPURAM. 2 DEPUTY DISTRCTOR OF EDUCATION WAYANAD. 3 DISTRICT EDUCATIONAL OFFICER WAYANAD. 4 THE MANAGER SAROVODAYA HIGH SCHOOL, EACHOME P.O. EACHOME,, WAYANAD DIST. 5 P.C. VELAYUDHAN H.S.A. SAROVODYA HIGH SCHOOL,, EACHOME,P.O. EACHOME, WAYANAD DIST. 6 P.V.SOBHANA H.S.A. SARVODAYA HIGH SCHOOL, EACHOME, P.O. EACHOME, WAYANAD DISTRICT. BY ADVS. SRI.GEORGE THOMAS MEVADA SRI.KOSHY GEORGE SMT.NISHA BOSE-SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2023, ALONG WITH WP(C).14895/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) Nos.20484 OF 2009 & 14895 of 2016 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN THURSDAY, THE 27[TH] DAY OF JULY 2023 / 5TH SRAVANA, 1945** ## **WP(C) NO. 14895 OF 2016** ## **PETITIONER:** T SASIDHARAN H.S.A(RETIRED),SARODAYA H.S,EACHOME,RESIDING AT DEVAKIMANDHIRAM,P.O.EACHOME,WAYANAD-670721. BY ADVS. SRI.KALEESWARAM RAJ KUM.A.ARUNA **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT,DEPARTMENT OF GENERAL EDUCATION,SECRETARIAT,THIRUVANANTHAPURAM695033. 2 DEPUTY DIRECTOR OF EDUCATION WAYANAD. 3 DISTRICT EDUCATIONAL OFFICER WAYANAD. 4 THE MANAGER SARVODAYA HIGH SCHOOL,EACHOME,P.O.EACHOME,WAYANAD DISTRICT. 5 P.C.VELAYUDHAN 'THULASI,EACHOME.P.O,VILAMBUKANDAM,WAYANAD-670721. 6 K.J.JOSE KAICHAKKAL HOUSE,EACHOME.P.O,PANAMARAM VIA, WAYANAD670721. 7 P.V.SHOBHANA KIZHAKECHIL HOUSE,EACHOME.P.O,PANAMARAM VIA, WAYANAD670721. BY ADVS. SRI.AMAL GEORGE SRI.KOSHY GEORGE SRI.GEORGE THOMAS MEVADA. SRI.MANU GEORGE KURUVILLA SMT.NISHA BOSE, SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2023, ALONG WITH WP(C).20484/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) Nos.20484 OF 2009 & 14895 of 2016 3 ## **ANU SIVARAMAN, J.** ## ========================= **W.P.(C) Nos.20484 of 2009 & 14895 of 2016** ========================= Dated this the 27[th] day of July, 2023 ## **JUDGMENT** The subject matter of these writ petitions is the appointment made by the 4[th] respondent to the post of Headmaster of the school in the year 2008. 2. It is contended by the learned counsel for the petitioner that the petitioner was initially appointed as High School Assistant (HSA) (Physical Science) in the 4[th] respondent's school with effect from 06.07.1983 and the appointment was duly approved. He retired from service on 31.05.2013. It is submitted that Exhibit P2 seniority list would show that the petitioner was the 4[th] person in the seniority list of High School Assistants. It is submitted that when a vacancy of Headmaster arose in the School on 01.04.2008, the Manager appointed one P.C.Velayudhan with effect from 01.04.2008 and on his retirement, one K.C.Jose with effect WP(C) Nos.20484 OF 2009 & 14895 of 2016 4 ## from 01.04.2010. 3. The petitioner contends that the 7[th] respondent, who was the senior claimant, did not raise any claim. However, the petitioner would have been the next person to be appointed in the order of seniority. It is submitted that initially, when Sri.Velayudhan was appointed as Headmaster, approval was rejected on the ground that the seniority of High School Assistants was not considered while making the appointment. The matter was taken before the Government in revision and Exhibit P3 order was passed on 14.01.2015, holding that the school did not have minority status as on the relevant date and that the appointment of a junior hand as Headmaster with effect from 01.04.2008 was, therefore, illegal. 4. It is submitted that thereafter, on a representation submitted by the Manager, Exhibit P4 proceedings were issued, modifying the order and holding that since the minority status once conferred under Article 30 (1) of Constitution of India can be enforced with retrospective effect and also the District Educational Officer, Wayanad has already approved the appointment of the Manager, the appointment of WP(C) Nos.20484 OF 2009 & 14895 of 2016 5 the 5[th] respondent as Headmaster with effect from 01.04.2008, is approved and the appointment of Sri.K.J.Jose, as Headmaster with effect from 01.04.2010 in the retirement vacancy of the 5[th] respondent is also approved. Learned counsel for the petitioner submits that since there is no power of review in the Government against orders passed in revision petitions, Exhibit P4 order is incompetent and without jurisdiction. 5. A detailed counter affidavit has been placed on record by the 4[th] respondent contending that the school in question is a Minority Educational Institution and that the said minority status would relate back to the date on which the society acquired the school. It is, therefore, contended that it was on finding that the position to the contrary which was accepted in Exhibit P3 was an incorrect proposition that the mistake was corrected by Exhibit P4 in W.P.(C) No.14895 of 2016 and that Exhibit P4 does not amount to review of a revisional order, but is only correction of a mistake. 6. The learned Government Pleader would also support the said contention. It is stated that the Apex Court has also WP(C) Nos.20484 OF 2009 & 14895 of 2016 6 considered the issue of the date of effect of the minority status in **Manager, Corporate Educational Agency v. James Mathew** [(2017) 15 SCC 595] and it is the accepted legal position that the minority status, once recognized, would relate back to the date on which the institution was either established by the minority or the school was acquired by the minority educational agency. It is further contended that the petitioner, who was admittedly junior to the 7[th] respondent did not have any _locus standi_ either to challenge Exhibit P4 order or to file this writ petition, in view of the fact that, even if all the contentions of the petitioner are accepted, it would be the 7[th] respondent who would be entitled to appointment as Headmaster and not the petitioner. It is, therefore, contended that Exhibit P4 order, which actually reflects the correct position of law is not liable to be set aside at the instance of the petitioner who is not aggrieved by the same. 7. The learned counsel for the petitioner fairly conceded that the position with regard to minority status stands concluded in favour of the institution. It is submitted that since the minority status stands declared in 2010, the WP(C) Nos.20484 OF 2009 & 14895 of 2016 7 contention that the school did not have minority status in 2008 cannot be accepted. However, it is contended that the teacher, who was appointed overlooking the petitioner's claim did not belong to the minority community and that therefore, the contention that the said teacher was appointed in exercise of the privilege under Article 3(1) cannot be accepted. It is further contended that since the 7[th] respondent never raised any claim against the appointments of Headmaster made in 2008 or 2010, it is clear that had the Manager made appointment according to seniority, the 7[th] respondent who had practically relinquished her claim, would not be entitled to appointment and that it would be the petitioner who would, then, have been appointed as Headmaster. 8. Having considered the contentions advanced on either side, I am in respectful agreement with the proposition that the power of the Government to review an order is specifically limited by the provisions of Rule 93 of the Chapter XIV of KER. Rule 93, having specifically provided that a review is available only against an original order, which aspect has been explained by a Full Bench of this Court in **Anilkumar** WP(C) Nos.20484 OF 2009 & 14895 of 2016 8 **P. v. State of Kerala and Others** [2009 (3) KHC 596], I am of the opinion that the contention that the Government did not have the power to review its own order which is passed in a revision under Rule 92 holds the field. However, the further question would be whether the said order ie. Exhibit P4 in W.P. (C) No.14895 of 2016 is liable to be interfered with at the instance of the petitioner. 9. It is submitted by the learned Senior Counsel appearing for the Manager that Smt.P.V.Sobhana was admittedly senior to the petitioner. It was an exercise of the minority right that the Manager had appointed P.C. Velayudhan as Headmaster in 2008 and on his retirement Sri.K.J.Jose in 2010. On Sri.K.J.Jose retiring from service, Smt.P.V.Sobhana was appointed as Headmistress in 2011 and continued in service till 2015. Therefore, the petitioner, who, admittedly, was included in the seniority list below Smt.P.V.Sobhana, would have a claim for appointment as Manager even on seniority, only subject to the claim of Smt.Sobhana. In the absence of any material to show that Smt.Sobhana had relinquished her claim, I am of the opinion WP(C) Nos.20484 OF 2009 & 14895 of 2016 9 that had the vacancies which arose on 01.04.2008 and 01.04.2010 been filled up in the order of seniority also, it would be Smt.P.V.Sobhana who would be entitled to appointment and not the petitioner. In the above factual situation, I am of the opinion that the other questions including the legality of Exhibit P4 does not have to be considered in these writ petitions. In view of the fact that it is now admitted that the institution being minority educational institution, there was power to administer the educational institution by the minority community and since the power admittedly includes the power to appoint a headmaster of his choice, there would be no illegality perpetrated by Exhibit P4. In the above view of the matter, the writ petitions fail and the same are accordingly dismissed. **Sd/ANU SIVARAMAN JUDGE** SSK/27/07 WP(C) Nos.20484 OF 2009 & 14895 of 2016 10 ## **APPENDIX OF WPC 20484 OF 2009** ## PETITIONER EXHIBITS |P1|TRUE COPY OF THE ORDER DATED 28.9.1995| |---|---| |P2|True copy of the seniority list of Teachers| ||as on 1.1.2008| |P3|True copy of the representation Dated| ||1.4.2008 filed by the Manager before the AEO| |P4|True copy of the representation dated| ||6.5.2008 filed by the 4th respondent Manager| ||before the 3rd respondent| |P5|True copy of the order dated 27.9.2008| |P6|True copy of the appeal petition dated| ||29.10.2008 filed by the Manager before the| ||2nd respondent| |P7|True copy of the representation dated| ||2.6.2008 submitted by the petitioner before| ||DEO| |P8|True copy of the order dated 31.3.2008| ||issued by Manager| |**RESPONENTS EXHIBITS**|| |Exhibit R4A:|True photocopy of the order dtd. 19.05.1990.| |Exhibit R4B:|True photocopy of the order dtd. 12.06.1997.| |Exhibit R4C|True photocopy of the order dtd. 0.10.2000.| |Exhibit R4D:|True photocopy of the order dtd. 07.07.2010.| |Exhibit R4E:|True photocopy of the order issued by| ||Minority Commission of India dt 22.07.2010.| WP(C) Nos.20484 OF 2009 & 14895 of 2016 11 ## **APPENDIX OF WP(C) 14895/2016** |PETITIONER EXHIBITS|| |---|---| |P1|TRUE COPY OF THE ORDER DATED 28.9.1995| |P2|TRUE COPY OF THE SENIORITY LIST OF TEACHERS| ||AS ON 1.1.2008| |P3|TRUE COPY OF G.O.(RT)NO.163/15/G.EDN DATED| ||14.1.2015| |P4|TRUE COPY OF THE G.O.(RT)NO.3730/2015/G.EDN| ||DATED 1.9.2015| |P5|TRUE COPY OF THE APPOINTMENT ORDER DATED| ||1.4.2008| |P6|TRUE COPY OF THE ORDER DATED 27.1.2016.| |**RESPONDENTS EXHIBITS**|| |Exhibit R4(A)|True photocopy of the deed of sale No.| ||1049/1990 and sale deed no. 1307/1990 of SRO| ||Panamaram dated 4/6/90 and 20/7/90.| |Exhibit R4(B):-|True photocopy of the order dated 19.05.1990.| |Exhibit R4(C):|Photograph showing of the oldest building of| ||the school in which the LP section| ||functioned.| |Exhibit R4(D)|Photograph of the building subsequently| ||constructed with the portion covered by| ||asbestos sheets.| |Exhibit R4(E):|Photograph showing the old tiled single| ||storeyed building in which was occupied by| ||the UP school and Std VIII.| |Exhibit R4(F):|Photograph of the UP section of the school| ||building. Exhibit R4(G): Photograph of the| ||school building constructed by the management| ||for accommodating the High School sections| ||and Higher Secondary sections with office| ||rooms, staff rooms, etc.| |Exhibit R4(H):|Photograph of the auditorium constructed by| ||the management.| |Exhibit R4(I):|True photocopy of the proceedings dated| ||12/6/1997.| |Exhibit R4(J)|True photocopy of the proceedings by District| ||Educational Officer Wayanad dated 30/10/2000.|