IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 WP(C).No. 11078 of 2008(R) -------------------------------------- PETITIONER(S): ---------------------- SABITHA SURENDRAN H.S.A (MATHS) CAPT.N.P.PILLAI MEMORIAL V H S SCHOOL, KATTACHIRA, PALLICKAL P.O., KAYAMKULAM, ALAPPUZHA DISTRICT. BY ADV. SRI.S.PRAKASH RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, GENERAL EDUCATION (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA, ALAPPUZHA P.O 3. THE DISTRICT EDUCATIONAL OFFICER, MAVELIKKARA, MAVELIKKARA P.O. 4. THE MANAGER, CAPT.N.P.PILLAI MEMORIAL V H S SCHOOL, KATTACHIRA, PALLICKAL P.O KAYAMKULAM, ALAPPUZHA DISTRICT. 5. P.ARJUNAN, H.S.A (SANSKRIT), CAPT N.P.PILLAI MEMORIAL V H S SCHOOL, KATTACHIRA, PALLICKAL P.O., KAYAMKULAM, ALAPPUZHA DISTRICT. GOVERNMENT PLEADER SRI.T.T.MOHAMMED FOR R1 TO R3 ADV. SRI.S.SUBHASH CHAND FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/11/2008, ALONG WITH WPC NO. 15943 OF 2008 AND WPC NO. 19101 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 11078/2008-R APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SENIORITY LIST OF THE STAFF AS ON 01/01/2003. EXT.P2: COPY OF THE SENIORITY LIST OF THE STAFF AS ON 01/01/2006. EXT.P3: COPY OF THE ORDER NO.B2/5840/06 DATED 07/02/07 OF THE DEO MAVELIKKARA (3RD RESPONDENT). EXT.P4: COPY OF THE ORDER NO.B3/8595/07/K. DIS DATED 12/06/2007 OF THE DDE MAVELIKKARA (2ND RESPONDENT). EXT.P5: COPY OF THE JUDGMENT IN W.P.(C). NO. 27412/07 DATED 14/09/2007 OF THIS HONOURABLE COURT. EXT.P6: COPY OF THE ORDER DATED 31/01/2008 OF THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R5(a): COPY OF THE RELEVANT PORTION OF THE SENIORITY LIST AS ON 01/01/2006. EXT.R5(b): COPY OF THE OBJECTION DATED 23/02/2006 SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.4. EXT.R5(c): COPY OF THE OBJECTION DATED 30/02/2006 SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.3. EXT.R5(d): COPY OF THE JUDGMENT DATED 17/10/2006 PASSED BY THIS HONOURABLE COURT IN W.P.(C). NO. 20148/2006. EXT.R5(e): COPY OF THE ORDER DATED 07/02/2007 PASSED BY RESPONDENT NO.2. EXT.R5(f); COPY OF THE JUDGMENT DATED 04/04/2007 PASSED BY THIS HONOURABLE COURT IN W.P.(C). NO. 11791/2007. //TRUE COPY// P.A. TO JUDGE Rs/ ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).Nos.11078/08,19101/08 & 15943/08 ----------------------------------------------------------- Dated this the 4th day of November, 2008 JUDGMENT The issue raised in these writ petitions being common, these cases are disposed of by this judgment. 2. WP(c).No.15943/2008 has been filed by the Manager of Captain N.P.P.M VHSS, Kattachira, Pallickal, Kayamkulam. The issue raised is regarding the conflicting claims of respondents 2 and 3 therein for the post of Headmaster of the School. The second respondent Sri.P.Arjunan is the petitioner in WP(c).No.19101/08 and the 3rd respondent Smt. Sabitha Surenderan is the petitioner in WP(c).No.11078/2008. For the sake of convenience, I will refer to the facts as are stated in WP(c). No.11078/08. WP(c).Nos.11078/08 & connt 2 3. Ext.P1 in this writ petition is a seniority list prepared for the year 2003 in which the 2nd respondent Sri. P. Arjunan is at serial No.21 and the 3rd respondent Smt. Sabitha Surendran is at Sl.No.17. Following retirements, the seniority was revised and Ext.P2 seniority list of 2006 is the latest. In that seniority list, the 2nd and 3rd respondents are at Sl.Nos.13 and 10 respectively. 4. It is stated that against the seniority assigned to the 2nd respondent, he had filed a representation to the first respondent and thereafter filed a writ petition before this court as WP(c).No.20148/06. That writ petition was disposed of by judgment dated 17.10.2006 directing the first respondent to dispose of the representation filed by the 2nd respondent, objecting to Ext.P2 seniority list. The representation was eventually rejected by the first respondent and there upon, he filed an appeal against the said order. Later he filed a writ petition before this court as WP(c).No.11791/07 for an expeditious consideration of his WP(c).Nos.11078/08 & connt 3 appeal. 5. Accordingly, the Deputy Director before whom the appeal was filed, heard and disposed of the appeal ordering revision of the seniority list assigning seniority to respondents 2 and 3 at serial Nos.6 and 9 respectively. The appellate order passed by the Deputy Director was challenged in WP(c).No.27412/2007 filed by the 3rd respondent who had in the meanwhile filed a revision also. That writ petition was disposed of directing that the revision be disposed of on an expeditious basis. 6. Accordingly, by Ext.P3 order in WP(c). No.15943/2008 the revision was rejected. It is against Ext.P3 order passed by the Government, WP(c). No.11078/2008 has been filed by the 3rd respondent herein. Though the petitioner, 2nd respondent herein who has also filed WP(c).No.19101/08 has a case that following Ext.P3 order a revised seniority list was prepared and published by the Manager, that is disputed by the petitioner herein. WP(c).Nos.11078/08 & connt 4 7. While so, a vacancy of Headmaster arose in the school with effect from 1.4.2008 on the retirement of Sri. Muralidharan Nair. Despite the revision of seniority ordered by the Deputy Director, which was also confirmed by the Government in Ext.P3 the petitioner herein appointed the 3rd respondent as Headmaster by Ext.P4 order, overlooking the seniority of the 2nd respondent. He sought approval from the first respondent and thereafter also submitted Ext.P5 to the first respondent which is more in the nature of a complaint against the 2nd respondent containing the allegations against him and explaining as to why despite his seniority, the 3rd respondent was chosen for the post of Headmaster. In spite of it, the first respondent rejected approval by Ext.P6 and the reason stated is that in the matter of appointment of the 3rd respondent, the second respondent's seniority as confirmed by Ext.P3 has been overlooked. It is challenging Ext.P6 the Manager has filed this writ petition. WP(c).Nos.11078/08 & connt 5 8. The 2nd respondent has filed WP(c).No.19101/2008, mainly praying that he should be appointed as Headmaster following the Deputy Director's order, which was also confirmed by Government in Ext.P3. 9. The learned Senior counsel appearing for the petitioner in WP(c).No.15943/08, asserted the right of the Manager to appoint a person other than the senior claimant. According to him, going by Rule 44 Chapter XIV-A KER, such departure is permissible and certain extent of elasticity has been conceded in favour of the Manager. 10. It was also his case that in Ext.P5 submitted to the DEO, he has shown special reasons as to why a senior claimant has been overlooked and the 3rd respondent was appointed. It is stated that none of the special reasons were considered by the first respondent while rejecting approval to the appointment of the 3rd respondent. Counsel relied on the judgment of this court reported in Narayana Menon V. Manager, P.V.S. Highschool(1983(4) KLT 896) and WP(c).Nos.11078/08 & connt 6 Aleyamma V. State of Kerala(1988(1)KLT Short Note case No.79) in support of the contention. 11. On the other hand the counsel for the 2nd respondent who has also filed WP(c).No.19101/08 and the learned Government Pleader canvassed for the position that, going by the provisions contained in Rule 44 Chapter XIV-A KER seniority alone can be the basis and exception to the rule is only to the cases of minority of educational institutions and to the cases were the senior most claimant relinquished the claim. Counsel for the 2nd respondent placed reliance on the judgment reported in C.G. John V. State of Kerala (2005(3)KLJ 322). 12. Having considered the rival contentions raised by the parties, I must confess that, I am inclined to accept the plea raised by the 2nd respondent, duly supported by the learned Government Pleader. Rule 44 of Chapter XIV-A KER shows that appointment of a Headmaster shall be ordinarily according to the seniority from the seniority list WP(c).Nos.11078/08 & connt 7 prepared and maintained in terms of the rule. The word 'ordinarily' in my view has to be understood in the context of the note attached to the said rule, which provides that, whenever the Manager intends to appoint a person as Headmaster other than the senior most claimant, the Manager shall obtain a written consent from such senior most claimant renouncing his claim permanently. The note further provides that such consent shall have the approval of the Educational Officer concerned. 13. This rule has been interpreted by this court in various judgments and it has been held that the restrictions imposed in the matter of appointment of Headmaster is inapplicable only to the minority educational institutions. Therefore as I understand the rule, apart from the two exceptions indicated above, viz. minority institutions and cases where relinquishment has been given, in all other cases, seniority has to be the basis. This precise argument has been accepted by the Division Bench of this court in WP(c).Nos.11078/08 & connt 8 C.G. John V. State of Kerala (2005(3)KLJ 322), wherein para 6 it has been held as follows. "There is no contention that she had not been qualified. Rule 44(1)Chapter XIV-A of the Kerala Education rules obliges the Manager, while making appointment to the post of Headmaster, to follow the seniority of the incumbents concerned, ordinarily. Of course, going by the Note under Sub-rule (1) of Rule 44, the Manager can prefer a junior incumbent provided, the senior incumbent consents for that. Therefore, appointment of a junior incumbent can be made only after obtaining consent from the senior most eligible incumbent. The note further provides that "such consent shall have the approval of the Education Officer concerned." Thus consent is a pre-requisite to prefer a junior incumbent. Such consent shall be an efficacious one. It shall always have the WP(c).Nos.11078/08 & connt 9 approval. Then alone it will be an efficacious consent. Therefore, such approval to the consent is a pre-requisite, so far as the Manager is concerned to overlook the seniority." 14. As far as the judgments relied on by the learned senior counsel for the petitioner are concerned, in my view, that cannot be of any assistance, especially in view of the Division Bench judgment referred to above. That apart in the decision in Narayana Menon V. Manager, P.V.S. Highschool(1983(4) KLT 896) reference is not seen made to the note that has been incorporated to rule 44 of Chapter XIV-A KER. In so far as the judgment in Aleyamma V. State of Kerala(1988(1)KLT Short Note case No.79) is concerned, that was rendered in the context of a minority educational institution. Therefore, the principle laid down therein cannot be applied to the facts of this case. For the above reasons, I do not find any reason to interfere with the Ext.P6 order passed by the DEO. WP(c).Nos.11078/08 & connt 10 15. True the learned counsel for the 2nd respondent raised a preliminary objection that since statutory remedies are available against Ext.P6, this court should not entertain a challenge on the merits of this order. But however, having regard to the fact that these writ petitions were admitted and arguments on both sides were heard on merit, I do not think it is proper to relegate the parties to pursue the alternate remedies that are available at this belated stage. Therefore WP(c).Nos.15943/08 and 11078/08 will stand dismissed and O.P.No.19101/2008 will stand allowed. As a necessary consequence, petitioner in WP(c). No.19101/08 will be appointed as Headmaster in Captain N.P.P.M VHSS, Kattachira, Pallickal, Kayamkulam. This shall be done as expeditiously as possible and at any rate within 3 weeks from the date of production of a copy of the judgment. ANTONY DOMINIC JUDGE vi. WP(c).Nos.11078/08 & connt 11