IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 WP(C).No. 16786 of 2004(W) -------------------------- PETITIONER(S): --------------- K.R.JEEJI, HIGHER SECONDARY SCHOOL TEACHER (MATHEMATICS), S.N.HIGHER SECONDARY SCHOOL, SREEKANTESWARAM, POOCHAKKAL, ALAPPUZHA DISTRICT. BY ADV. SRI.KRB.KAIMAL (SR.) RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVT. OF KERALA, GENERAL EDUCATION (T) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. THE MANAGER, S.N. HIGHER SECONDARY SCHOOL, SREEKANTESWARAM, POOCHAKKAL, ALAPPUZHA DISTRICT. 4. SMT.K.S.BEENA RANI, HIGH SCHOOL ASSISTANT (MATHS),S.N.HIGHER SECONDARY SCHOOL, SREEKANTESWARAM, POOCHAKKAL, ALAPPUZHA DT. ADV. SRI.V.A.MUHAMMED FOR R4 SHRI.K.B.PRADEEP G.P. SMT.K.R.DEEPA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/10/2008, A/O. W.P.C.NO.17054/2004, THE COURT ON 31.10.2008 DELIVERED THE FOLLOWING: W.P(C).No. 16786/04. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE APPOINTMENT ORDER DTD.1.12.99. P2. COPY OF THE REPRESENTATION DTD.22.1.02 BY R4 TO R2. P3. COPY OF THE REPRESENTATION DTD.10.2.01 TO R2 BY R4. P4. COPY OF THE REPRESENTATION DTD.24.7.01 BY R4 DTD.24.7.01. P5. COPY OF THE REPRESENTATION DTD.11.10.2000 BY R4 TO R3. P6. COPY OF THE ORDER DTD.17.6.02 BY R2. P7. COPY OF THE ORDER DTD.24.3.03 BY R2. P8. COPY OF THE REVISION PETITION DTD.2.11.02 BY R4 BEFORE R1. P9. COPY OF THE GOVT. ORDER DTD.7.1.04. P10. COPY OF THE REVIEW PETITION DTD.14.1.04 BY R3 BEFORE R1. P11. COPY OF THE ORDER DTD.11.5.04 BY R1. RESPONDENTS' EXHIBITS: R4(A) COPY OF THE JUDGMENT IN O.P.NO.1883/02 OF THIS COURT. B. COPY OF THE GOVT. ORDER DTD.1.10.91. C. COPY OF THE ORDER DTD.24.8.2000 BY THE HIGHER SECONDARY EDUCATION, TRIVANDRUM. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).Nos.16786 and 17054 of 2004 ================== Dated this the 31st day of October, 2008 J U D G M E N T These two writ petitions are filed by rival claimants for the post of Higher Secondary School Teacher (Mathematics) in S.N. Higher Secondary School, Sreekanteswaram, in Alappuzha District. The petitioner in W.P(C).No.16786/2004 (K.R.Jeeji) claims appointment as a direct recruit and the petitioner in W.P (C).No. 17054/04 (K.S.Beena Rani) claims appointment by transfer for HSAs of the High School section of the school. The Manager appointed Smt.Jeeji, which appointment was challenged by Smt.Beena Rani. The Director of Higher Secondary Education, confirmed the appointment. On a petition from Smt.Beena Rani, the Government set aside the appointment of Smt.Jeeji and directed the Manager to appoint Smt.Beena Rani. Smt.Jeeji is challenging the order of the Government and Smt.Beena Rani seeks implementation of that order. The facts necessary for disposal of these two writ petitions may be summarised as under: 2. The S.N. Higher Secondary School has a High School section also. Smt.Beena Rani was appointed as a HSA in w.p.c.16786/04 & cc. 2 Mathematics in the High School Section on 12.6.95. Originally, she possessed only a third class M.Sc. Degree in Mathematics. She wrote improvement exam and passed with second class in 1999, pass in M.Sc. with minimum second class being one of the prescribed qualifications for appointment as HSST. She received the provisional degree certificate dated 22.12.1999. She claims that she entrusted the same to the Principal immediately on receipt of the certificate, for endorsement of additional qualification in the service book and that the same was forwarded to the D.E.O. by the Principal. She further claims that the same was returned by the D.E.O. for want of original degree certificate. She received the original degree certificate dated 26.7.2000, which also she claims to have entrusted to the Principal for endorsement in the service book immediately on receipt. However, the additional qualification was endorsed in the service book only on 10.10.2000. 3. In the meanwhile, a vacancy of HSST (Maths) arose in the Higher Secondary section of the school. The Manager claims to have requested the Principal of the school for a list of qualified HSAs for appointment to the post by a letter dated 19.9.2000. w.p.c.16786/04 & cc. 3 The Principal claims to have verified the service records of all HSAs of the school and reported that there are no qualified HSAs for appointment as HSST (Maths) by letter dated 22.9.2000. The Manager claims to have issued a notification inviting applications for appointment by direct recruitment pursuant to which a selection committee constituted for the purpose is said to have met on 29.9.2000 and selected Smt.Jeeji for appointment to the post. On 3.10.2000, the Manager claims to have appointed Smt.Jeeji to that post. Smt.Beena Rani claims that no such appointment was made and that on 11.10.2000 she submitted a representation before the Manager for appointment to the existing vacancy of HSST (Maths). Since the same did not evoke any response from the Manager, she submitted a petition dated 22.1.2001 before the Director of Higher Secondary Education, stating that from 4.1.2001 a teacher has started teaching in the school as HSST (Maths), but she was not marking her attendance since appointment order was not issued to her. On receipt of the petition, Smt.Jeeji is stated to have marked attendance retrospectively from 3.10.2000. Smt.Beena Rani filed an appeal before the Director of Higher Secondary Education against the w.p.c.16786/04 & cc. 4 appointment of Smt.Jeeji. Pursuant to judgment in O.P.No.1883/2002 that appeal was disposed of by the Director rejecting her contentions. Smt.Beena Rani filed a review petition before the Government, which was allowed by the Government by order dated 7.1.2004 directing the Manager to appoint Smt.Beena Rani in the vacancy that existed in 2000 and to appoint Smt.Jeeji in the next arising vacancy. That order is produced as Ext.P9 in both writ petitions. In her writ petition, Smt.Jeeji is challenging that order and in the other Smt.Beena Rani seeks direction to implement that order. 4. Both the Principal and Manager have filed counter affidavits in W.P(C).No. 17054/2004 disputing the averments of Smt.Beena Rani. According to them, she submitted her degree certificate only on 9.10.2000, which was forwarded to the D.E.O. with her service book and the same was recorded in the service book on that day itself. They have submitted that Smt.Beena Rani had not submitted either the provisional certificate or the original degree certificate as alleged by her immediately after 22.12.1999 or 26.7.2000. They would point out that in her representation dated 11.10.2000, the petitioner had no case to w.p.c.16786/04 & cc. 5 that effect. According to the Principal, on receipt of the request from the Manager, on 19.9.2000, he verified the service book of all HSAs and having found none of them qualified for appointment as HSST (Maths), that fact was intimated to the Manager on 22.9.2000. The Manager would submit that on receipt of the letter from the Principal, immediate steps were initiated for appointment by direct recruitment, for which the selection committee constituted for the purpose met on 29.9.2000 and selected Smt.Jeeji, who was appointed by him on 3.10.2000. According to him, the appointment order was forwarded to the Director of Higher Secondary Education, but approval was delayed on account of the claim raised by Smt.Beena Rani and ultimately, on passing of order dated 17.6.2002 by the Director rejecting Smt.Beena Rani's claim approval was also granted. Smt.Jeeji challenges Ext.P9 order on the same contentions. 5. Smt.Jeeji and the Manager would also contend that the review petition filed by Smt.Beena Rani before the Government is not maintainable on introduction of Chapter XXXII of the KER, relating to appointment of Higher Secondary School w.p.c.16786/04 & cc. 6 Teachers, which does not contain any provision for filing such a review petition. Ext.P7 order relied upon by Smt.Beena Rani in her writ petition which contains a provision for filing an appeal and a review does not survive after introduction of Chapter XXXII in the K.E.R. is their contention. 6. I have considered the rival contentions in detail. 7. I shall first consider the question of maintainability of the petition before the Government, in which the impugned order has been passed. Ext.P7 is G.O. (MS) No.162/91/G.Edn. dated 1.10.1991 issued by the Government regarding fees, syllabus, working days, special fee, procedure for staff fixation, approval of appointment of teachers and related matters in higher secondary schools, which contains a provision for filing an appeal and review against approval of appointment HSSTs. On the other hand Chapter XXXII of K.E.R, which was introduced on 12.11.2001, prescribes only the method of appointment and qualifications of teachers and non-teaching staff in aided higher secondary schools. Ext.P7 Government Order and Chapter XXXII of KER do not deal with the same subject. In respect of the matters covered by the said G.O., no Rules have been framed by the w.p.c.16786/04 & cc. 7 Government yet. That G.O. has not been superseded by any rules or other G.Os. On the other hand, even after the introduction of Chapter XXXII in KER, the Government had, in subsequent Government orders and circulars, namely G.O.(MS) No.75/2002/G.Edn dated 17.4.2002, Circular No.45417/T3/ 2005/G.Edn. dated 11.8.2005, G.O.(MS) No.377/2005/G.Edn. dated 15.10.2005 and Circular No. Acd. B1/25400/HSE/2005 dated 24.11.2005, specifically referred to Ext.P7 G.O.(MS) 162/91, which would go to show that the said G.O. holds the field in respect of the matters referred to therein even after introduction of Chapter XXXII of KER. It is settled law that an executive decision can regulate a field not occupied by a statutory rule. In Ext.P7, in respect of approval of appointment of higher secondary school teachers, an appeal is provided to the Director and a review to the Government. Of course, as pointed out by the learned Senior Counsel appearing for Smt.Jeeji, that was at a time when the D.E.O. was the authority for approving such appointments and there was no Director of Higher Secondary Education then. Therefore, the Director mentioned therein is the Director of Public Instruction. Even then I am of w.p.c.16786/04 & cc. 8 opinion that in the absence of any other provision for aggrieved persons to approach a higher authority in respect of appointments in Higher Secondary Schools, the review jurisdiction conferred on the Government by the said Government Order must survive. Therefore, I hold that the Government has jurisdiction to entertain review petitions against orders of the Director of Higher Secondary Education in respect of appointments in Higher Secondary Schools. I also would take this opportunity to again impress upon the Government the necessity to frame comprehensive rules regarding the Higher Secondary Schools in the State in line with the KER, which opinion has been expressed in other judgments also, in which direction the Government has not taken any action so far. 8. Having thus held that the petition filed by Smt.Beena Rani before the Government, on which the impugned order has been passed, is maintainable, I shall move on to the contentions of the parties, on merits. 9. The fact that Smt.Beena Rani has acquired all the required qualifications for appointment as an HSST (Maths) before the date of occurrence of the vacancy is not in dispute w.p.c.16786/04 & cc. 9 before me. But arguments have been advanced before me on the question whether Smt.Beena Rani's 2nd class Master's degree has been endorsed in her service book before Smt.Jeeji was appointed to the vacancy. Smt.Beena Rani would claim that she had entrusted her provisional certificate and original degree certificate for M.Sc. with the Principal for transmission to the D.E.O. with the service book, which claim the Principal has denied. The D.E.O has not chosen to file any counter affidavit in this regard as to the correctness of the rival contentions, despite the averment that the D.E.O. has returned the provisional certificate without endorsing the same in the service book, for want of degree certificate, although the D.E.O. is a party to W.P(C).No. 17054/2004. But before going into the rival contentions in that regard, it has to be considered as to whether only the qualifications endorsed in the service book can be considered for the purpose of deciding eligibility for consideration of teachers for appointment by transfer as Higher Secondary School Teachers in the 25% quota reserved for teachers. Chapter XXXII, which prescribes the qualifications required for such appointment, does not throw any light on that issue. Rule w.p.c.16786/04 & cc. 10 33 of Chapter XIVA of the KER stipulates that “if any teacher acquires any additional qualifications during his service, particulars thereof shall be entered in the service book by the headmaster and attested by the Educational Officer.” But nowhere is it mentioned that qualifications not entered in the service book would not be considered for any purpose like appointment by transfer as HSST. Chapter XXXII of the KER which lays down the qualifications and method of appointment of HSST, does not stipulate that only qualifications endorsed in the service book of a teacher would be considered for appointment by transfer to that post. Therefore, the Principal or the Manager cannot, merely on the basis of the service books of the teachers, assume or decide that there are no qualified teachers in the School to be considered for appointment by transfer to the post of Higher Secondary School Teachers in the 25% quota set apart for appointment by transfer. In view of my decision on that point, it is not even necessary for me to go into the question as to whether the 2nd class M.Sc.(Maths) degree of Smt.Beena Rani has been endorsed in her service book before Smt.Jeeji was appointed to the vacancy or not. w.p.c.16786/04 & cc. 11 10. When there is no stipulation that only qualifications recorded in the service book alone would be considered, all teachers of the school or under the Educational Agency who possess the required qualifications are entitled to be considered and are eligible to apply for such appointment in the 25% quota reserved for appointment by transfer. How do such qualified teacher of the school apply for the post? They can apply only when they know that there is a vacancy in existence for such appointment. It cannot be assumed that the teachers of a school would be automatically aware of a vacancy in the 25% quota when the same occurs. Even if they are aware, they can apply only when applications are invited for filling up the vacancy. Therefore, as and when a vacancy in the 25% quota reserved for appointment by transfer from among qualified teachers of the school or schools under the same educational agency arises, the Principal and the Manager have a duty to notify such vacancy for information of the teachers. This can be easily done by publishing a notice regarding occurrence of vacancy and inviting applications, appropriately or by circulating such a notice among the teachers and obtaining acknowledgment w.p.c.16786/04 & cc. 12 of having circulated such notice. Otherwise, the procedure for filling up of the vacancy would not be transparent as it should be. In Ext.P2 Circular dated 24.8.2000 produced in W.P.(C) No.17054/04, it is prescribed that while forwarding the proposals for approval of appointment in Aided Higher Secondary Schools/ratification of appointment of guest teachers in Government Higher Secondary Schools, the Mangers/Principals concerned should furnish, inter alia, a certificate that “vacancies have been duly notified giving sufficient publicity insisting on pass in SET as essential qualification for the post of Higher Secondary School Teachers”. When SET qualification is required for the 25% quota for teachers and the 75% direct recruitment quota alike and the Circular does not stipulate that the Circular applies only to direct recruitment, naturally the stipulation should apply to the proposal for appointment in the 25% quota also. Therefore, due notification of the vacancy and invitation of applications from qualified teachers of the school are mandatory requirements of a valid selection procedure, in the absence of which the whole selection procedure would be vitiated. That being so, the Manager and the Principal had a duty to duly notify w.p.c.16786/04 & cc. 13 the vacancy giving sufficient publicity among the teachers of the School so that eligible teachers can apply. Admittedly, neither the Manager nor the Principal had done the same in this case. The Manager merely asked the Principal to furnish a list of qualified teacher to be appointed as H.S.S.T. (Maths) from the staff of the School by letter dated 19.9.2000. The Principal, in his counter affidavit in W.P.(C) No.17054/04 admits that he has only perused the service books of the teachers to ascertain whether any of them is qualified. Neither the Manager nor the Principal has any case that the vacancy has been duly notified among the teachers or applications have been invited. In this connection it is worthwhile to note that the Director of Higher Secondary Education also does not state that the Manager has actually complied with the procedure prescribed. He merely states that the approval of appointment has been issued on the basis of a declaration by the Manager that he had acted as per rules. He further states that the Manager is solely responsible for any irregularities, if noticed in future. I am of opinion that when this Court directed him to consider the representations of Smt.Beena Rani by judgment in O.P. No.1883 of 2002, he had a w.p.c.16786/04 & cc. 14 duty to examine whether the Manager had in fact complied with the Rules, non-compliance of which was the complaint of Smt.Beena Rani, failure to do which was a very serious lapse on his part. That being the situation, it cannot be doubted for a moment that the vacancy had not been duly notified among the teachers of the School as required under law, which itself would vitiate the selection procedure. 11. In this case, I am not satisfied even that the vacancy has been duly notified giving sufficient publicity for direct recruitment also. This is relevant because Smt.Beena Rani is eligible for applying for selection in the direct recruitment quota also. Admittedly the Manager requested for a list of qualified teachers on 19.9.2000 and the Principal replied by letter dated 22.9.2000. There is no averment by the Manager in his counter affidavit regarding the mode of notification of the vacancy for direct recruitment. The entire procedure of inviting applications, receipt of applications, scrutiny of valid applications, constitution of selection committee, requesting for departmental representative to take part in the selection committee, interview and selection, all of which are mandatory for a valid selection w.p.c.16786/04 & cc. 15 procedure, appear to have been completed within an incredibly short span of seven days! There is not even any mention as to how many persons applied and how many were called for the interview. Going by the absence of mention of any other candidates, it appears that Smt.Jeeji was the only candidate who was considered for selection. This is hardly a transparent selection by any standards or stretch of imagination. The mala fide intention of the Manager to appoint a person of his choice is more than transparent, which the selection procedure is not. I am more than satisfied that there was a deliberate attempt by the Manager to exclude Smt.Beena Rani from consideration for the post, in which design the Principal was a willing accomplice. In view of the attitude of the Principal and the Manager, I am inclined to believe the version of Smt.Beena Rani that she had entrusted the provisional certificate and degree certificate with the Principal before the selection, for endorsement in the service book, than the version of the principal to the contrary. The absence of mention about such entrustment in the representation dated 11.10.2000 is not relevant, since at that time she had no occasion to suspect that she would not be considered for w.p.c.16786/04 & cc. 16 appointment based on her additional qualification on the ground that the degree certificate has not been produced for endorsement in the service book, since she was not aware of the appointment of Smt.Jeeji. 12. Even accepting the facts as stated by the Manager and the Principal, I have no doubt in my mind that the procedure adopted by the Manager and Principal for selection of HSST (Maths) which resulted in the appointment of Smt.Jeeji in their School is vitiated. That being so, I do not find any infirmity whatsoever in Ext.P9 order of the Government directing appointment of Smt.Beena Rani in the vacancy which existed in 2000, since she is fully qualified and if the appointment was done as per law, Smt.Beena Rani would have been the one to be appointed first in the 25% quota reserved for teachers of the school. Accordingly I dismiss W.P.(C) No.16786/2004 and allow W.P.(C) No.17054/2004, directing the Manager to appoint Smt.Beena Rani in the vacancy in question with effect from 3.10.2000 and forward the proposal for approval of such appointment to the Director of Higher Secondary Education, w.p.c.16786/04 & cc. 17 within 15 days from the date of receipt of a certified copy of this judgment. The Director of Higher Secondary Education shall approve such proposal with effect from 3.10.2000, ie. the date from which Smt.Jeeji was appointed, within one month from the date of receipt of the proposal, with consequential monetary benefits arising therefrom. Arrears of salary due to Smt.Beena Rani shall be paid within one month from the date of such approval. If salary has already been paid to Smt.Jeeji, it would be open to the Director and the Government to recover the amounts so paid to Smt.Beena Rani as directed above, viz. the difference between her salary in the cadre of High School Assistant paid to her, and that in the cadre of Higher Secondary School Teacher payable to her, either from the Manager or Smt.K.R.Jeeji. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.16786/04 & cc. 18