IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 WP(C).No. 30005 of 2005(V) PETITIONER(S): M. ANANDAVALLY AMMA, HIGHER SECONDARY SCHOOL TEACHER IN SANSKRIT, BOYS HIGHER SECONDARY SCHOOL, KARUNAGAPPALLY, KOLLAM DIST. BY ADV. SRI.ELVIN PETER P.J. SRI.S.RAMESH SRI.P.N.SANTHOSH SRI.NAVEEN.T SRI.T.G.SUNIL (PRANAVAM) SRI.C.X.ANTONY BENEDICT RESPONDENT(S) : 1. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM. 2. THE MANAGER, BOYS HIGHER SECONDARY SCHOOL, KARUNAGAPPALLY, KOLLAM DIST. 3. BINDU R.SEKHAR, PRINCIPAL (NOT APPROVED), BOYS HIGHER SECONDARY SCHOOL, KARUNAGAPPALLY, KOLLAM DIST. 4. GEETHA BABU, HIGHER SECONDARY SCHOOL TEACHER IN ENGLISH, BOYS HIGHER SECONDARY SCHOOL, KARUNAGAPPALLY, KOLLAM DIST. ADV. SRI.N.SUGATHAN FOR R3 SMT.R.SEEMA FOR R3 SRI.BENOY THOMAS FOR R4 SRI.S.P.ARAVINDAKSHAN PILLAY FOR R2 SMT.N.SANTHA SRI.PETER JOSE CHRISTO FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/03/2010, ALONG WITH WPC NO. 21153 OF 2006 THE COURT, ON 17/05/2010, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 30005/2005. --------------------------------------------------------------------- EXT.P1 TRUE COPY OF ORDER DT. 2-6-2003. EXT.P2 ORDER DT. 23-6-2003 EXT.P3 CIRCULAR DT. 17-7-2003. EXT.P4 ORDER OF APPOINTMENT DT. 18-8-2003. EXT.P5 REPRESENTATION DT. 1-3-2004. EXT.P6 REPRESENTATION DT. 17-4-2004. EXT.P7 JUDGMENT IN W.P.C. NO. 18773/2004. EXT.P8 ODER DT. 25-4-2005. EXT.P9 JUDGMENT IN W.A.NOS. 460 & 469/2000. EXT.P10 JUDGMENT DT. 28-11-2003. EXT.P11 ORDER DT. 20-11-2004. RESPONDENTS' EXHIBITS: -------------------------------------- EXT.R3(a) ORDER DT. 30-10-2002. EXT.R3(b) ORDER DT. 30-10-2002. EXT.R3(c) GOVT. ORDER DT. 21-5-2002. EXT.R3(d) GOVT. ORDER DT. 16-12-2003. EXT.R3(e) GOVT. ORDER DT. 14-6-2004. EXT.R3(f) NOTICE DT. 10-10-2005. EXT.R3(g) GOVT. ORDER DT. 11-2-2005. EXT.R3(h) GOVT. ORDER DT. 6-1-2006. EXT.R3(i) DO. DT. 27-3-2009. EXT.R3(j) LETTER DT. 20-7-2006. EXT.R3(k) LETTER DT. 3-8-2006. EXT.R4(a) GOVT. ORDER DT. 6-1-2006. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-= W.P(C) Nos. 30005/2005 and 21153/2006 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-= Dated this, the 17th day of May 2010. J U D G M E N T Since in these writ petitions common issues arise, they were heard together and are being disposed of by this common judgment. For convenience, I shall refer to the rank of parties and Exhibits as obtaining in W.P. (C) No. 30005 of 2005, unless the context requires otherwise. 2. In these two writ petitions, three Higher Secondary School Teachers (HSST for short), viz. Smt. M. Anandavally, (the petitioner in W.P. (C) No. 30005 of 2005) Smt. Bindu R. Sekhar (the 3rd respondent in W.P. (C) No. 30005 of 2005 and the 4th respondent in W.P. (C) N0. 21153 of 2006) and Smt. Geetha Baby(the 4th respondent in W.P. (C) No. 30005 of 2005 and the petitioner in W.P. (C) No. 30005 of 2005) of the Boys’ Higher Secondary School, Karunagappally, which is an aided school, vie with each other for the post of Principal of the school. All three of the same started their careers as High School Assistants in schools under the same educational agency, when the school was a High School. Smt. M. Anandavally started as a part time H.S.A. (Sanskrit) on 8-12-1983. She was appointed as a regular H.S.A. (Sanskrit) on 9-2-1989 in the Girls High School, Karunagappally, another school under the same educational agency. Smt. Bindu R. Sekhar was appointed as an H.S.A. (Malayalam) in the Girls High School, Karunagappally on 8-6-1992 and Smt. Geetha Baby was appointed as H.S.A. (English) in the Boys’ High Secondary School, Karunagappally, on 7-6-1993. During the academic year W.P.C. Nos. 30005/05 & 21153/06 -: 2 :- 2000-2001, the Government sanctioned higher secondary courses in the school and the school became the Boys’ Higher Secondary School, Karunagappally. Smt. M. Anandavally was appointed by transfer as Higher Secondary School Teacher (Junior) [HSST (Junior) for short] in Sanskrit on 1-9-2000, since there were not enough periods in the school for a full time post. Smt. Bindu R. Sekhar was appointed as Higher Secondary School Teacher (Junior) in Malyalam on 16-8-2000 and Smt. Geetha Baby was appointed as Higher Secondary School Teacher in English with effect from 16-8-2000. While so the Manager of the school, by Ext. P4 order dated 18-8-2003, promoted and appointed Smt. Bindu R. Sekhar as the principal of the school. Contending that Smt. Bindu R. Sekhar did not have the qualifications prescribed by rules and she alone was qualified for the post at that time, Smt. M. Anandavally filed Ext. P5 representation dated 1-3-2004 before the manager and Ext. P6 representation dated 17-4-2004 before the 1st respondent- Director of Higher Secondary Education. By Ext. P7 judgment in W.P. (C) N0. 18773 of 2004, this Court directed the 1st respondent to consider and pass orders on Ext. P6. The 1st respondent, in compliance with Ext. P7 judgment passed Ext. P8 order after hearing all the three teachers, by which the 1st respondent held that the appointment of Smt. Bindu R. Sekhar was not after a valid selection process as contemplated by the special rules and directed the manager to submit fresh proposal for appointment of Principal after following the formalities laid down in the special rules. That order is under challenge in W.P. W.P.C. Nos. 30005/05 & 21153/06 -: 3 :- (C) No. 30005 of 2005, at the instance of Smt. M. Anandavally. She contends that as on 18-8-2003, when the manager decided to fill up the post, out of the three teachers, the petitioner was the only qualified Higher Secondary School teacher having the prescribed experience qualification of 12 years teaching experience and therefore she was entitled to be appointed to the post in preference to the other two. 3. Originally this court granted an interim stay of Ext. P8 for two weeks, which was being extended from time to time. But by order dated 4-4-2006, this court modified the interim order as follows: “Heard. 2. Having regard to the facts and circumstances and also keeping in view the direction contained in Ext.P8 as well as the circular bearing Acd.B1/11646/HSE/2003 dated 25/2/2006, the Manager of the school is directed to complete the process of selection to the post of Principal in Boys' Higher Secondary School, Karunagappally, Kollam District. It is made clear that the petitioner and all other HSSTs/HSAs who are eligible to participate in the selection process will be entitled to apply for the post in response to the notification which is stated to have been issued already. The Manager shall complete the selection process by appointing the Selection Committee as provided under Rule 5 Chapter XXXII KER. The result of the selection shall not be declared. Appointment shall be made only after obtaining orders from the court. The interim order dated October 26, 2005 will stand modified to the above extent.” 4. Pursuant to the same, the manager conducted a selection process by constituting a selection committee as per rules, who recommended Smt. Bindu R. Sekhar for appointment by Ext. P2 proceedings dated 28-4-2006 in W.P. (C) N0. 21153 of 2006. W.P.C. Nos. 30005/05 & 21153/06 -: 4 :- Thereafter the manager moved this court for further orders regarding making appointment pursuant to the selection and this court passed two orders on 10-7-2006 and 20-7-2006 as follows; 10-7-2006 “Learned counsel for the Manager/respondent No.2 submits that the Selection Committee has completed the selection process. However, the result has not been declared in view of the direction issued by this court on April 4, 2006. Heard learned counsel for the parties. Respondent No.2 is directed to publish the result of selection within 3 days from today. Call on 13.07.2006. 20-7-2006 Spoke. Heard learned counsel for the parties further. The manager will be free to make appointment pursuant to the selection. However, it is made clear that the appointment, if any, made by the manager will be subject to the result of the writ petition. Call on 25.07.2006” Pursuant to the said order the manager appointed Smt. Bindu R. Sekhar as principal of the school. Challenging the proceedings of the selection committee and consequent appointment of Smt. Bindu R. Sekhar, Smt. Geetha Baby filed W.P. (C) N0. 21153 of 2006. Subsequently, by Ext P6 Government Order in that writ petition, the Special Rules were amended retrospectively, which amendment also has been challenged in that writ petition, by getting the writ petition amended appropriately. She also challenges note to Rule 6 (1) (3) of the unamended Chapter XXXII of the Kerala Education Rules which equates experience as W.P.C. Nos. 30005/05 & 21153/06 -: 5 :- HSST with experience as HSST (Junior), as arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India. 5. As I have briefly noted above, Smt. Anandavally would contend that, since the qualifications have to be reckoned as on the date of occurrence of vacancy viz. 18-8-2003, she being the only candidate having 12 years’ teaching experience as H.S.A. and HSST put together, which was the qualification prescribed by the rules as on that date, she was entitled to be appointed as the principal to the complete exclusion of all other HSSTs of the school. She would contend that as laid down by a Division Bench of this Court in Shaji V. Ramachandran 2003 (2) KLT 814, the post of principal came into existence as soon as the Special Rules came into force on 12-11-2001 and therefore Smt. Anandanvally being the only qualified HSST having the required number of years of experience as HSA/HSST as on the date of filling up of the post viz. 18-8-2003, she alone could have been validly appointed as principal of the school by the manager. She would also rely on the Full Bench decision of this court in Aided Higher Secondary School Teachers Association V. State of Kerala, 2005 (1) KLT 94, to contend that after the Special Rules came into force 12-11-2001, a HSST having the prescribed qualifications as per the Special Rules only could have been appointed as principal, in which case she alone could have been appointed as the principal. She would further submit that since she was the only qualified person available as on the date of occurrence of the vacancy and she was not found unfit to hold W.P.C. Nos. 30005/05 & 21153/06 -: 6 :- the post, the Director ought to have directed the manager to appoint her as principal instead of directing the manager to select a person after observing the formalities of conducting a selection process. 6. Smt. Bindu R. Sekhar would contend that as on 18-8- 2003, Smt. Anandavally was only a HSST (Junior) and since as per the Special Rules, the feeder category for promotion was Higher Secondary School Teacher and not Higher Secondary School Teacher (Junior), she could not have been even considered for promotion. Even now there are only 12 periods for Sanskrit, which warrants only one post of HSST (Junior) in the school and therefore Smt. Anandavally was appointed only as an HSST (Junior). It is pointed out that it was only on 2-6-2005, Smt. Anandavally was approved as an HSST retrospectively with effect from 1-9-2000, that too not because she was actually entitled to such approval, since there were not sufficient periods in Sanskrit in the school warranting appointment of an HSST, but as a concession, which fact was made clear in Ext. P1 (The date of Ext. P1 is wrongly corrected therein as 2-6-2003 instead of 2-6-2005). The correct copy of Ext. P1 has been produced by Smt. Bindu R. Sekhar as Ext. R4(c) along with her counter affidavit in W.P. (C) 21153/2006). On the other hand, Smt. Bindu R. Sekhar, although originally appointed only as an HSST (Junior) in Malayalam on 16-8-2000, on increase in periods in Malayalam during 2001-2002, she was appointed as HSST on 16- 7-2001, which appointment was approved by Ext. R3(b) order of the 1st respondent on 30-10-2002. But later her appointment as W.P.C. Nos. 30005/05 & 21153/06 -: 7 :- HSST was approved retrospectively with effect from 16-8-2000, by Ext. P1 dated 2-6-2005. Without disputing the fact that as on 18-8-2003, she did not have the 12 years of experience prescribed for promotion as Principal, she would contend that as the senior most HSST in the school she was entitled to be put in charge of principal as per Exts. R3(c), R3(d) and R3(e) Government orders governing the issue. She would further contend that the post of principal was not sanctioned even in 2005 as evidenced by Ext. R3(g) Government order, which stated that creation of the post of principal would be considered separately. She would contend that the post of Principal in aided higher secondary schools in Kerala was created only by Ext. R3 (h) Government Order dated 6-1-2006, from which date only the vacancy can be stated to have arisen. Therefore the manager could have validly appointed a principal for the school only after the Government sanctioned the post of principal, in which case, the order of the Director and the consequent selection and appointment of principal of the school, made as permitted by this court by the interim orders is perfectly valid and proper, since as on that date, she was fully qualified for promotion as Principal. 7. Smt. Geetha Baby would contend that she was the senior-most Higher Secondary School Teacher of the school, she having been appointed as HSST (English) in the school as early as on 16-8-2000, whereas Smt. Anandavally and Smt. Bindu R. Sekhar were only HSST (Junior) till 2-6-2005 and 16-7-2001 respectively and were retrospectively approved as HSST with effect from 16-8-2000 and 1-9-2000 respectively on 2-6-2005. W.P.C. Nos. 30005/05 & 21153/06 -: 8 :- According to her, as per note 3 of Rule 6 (1) (3) of Chapter XXXII of KER, for promotion to the post of Principal, preference shall be given based on the teaching experience at Higher Secondary School level and therefore, she having the longest period of service as HSST in the school, she should have been preferred to the other two teachers for promotion as Principal. She would contend that equating experience as HSST with experience as HSST (Junior) is arbitrary and discriminatory and violative of Articles 14 and 16 of the Constitution of India. She would challenge Ext P6 amendment to the Special Rules giving retrospectivity to the same for the same reason. 8. Smt. Anandavally would contend that since her appointment as HSST has been approved retrospectively with effect from 1-9-2000, for all legal purposes, including promotion to the post of Principal, she must be treated as having been appointed as HSST with effect from that date only and no distinction can be drawn on the basis of the fact that the same was done retrospectively on 2-6-2005. 9. Elaborate arguments were advanced by the parties on the issues raised and I have considered the contentions of the parties in detail, with reference to the pleadings and arguments advanced. 10. I would deal with one contention raised by Bindu R. Sekhar first. Her contention that the vacancy of Principal would arise only when the Government sanctioned the post would not stand legal scrutiny now, in view of the decision of the Division Bench in Shaji’s case (supra). In that decision, the Division W.P.C. Nos. 30005/05 & 21153/06 -: 9 :- Bench has held thus in paragraph 23: “23. As already noticed R.3 provides that “the service of every aided Higher Secondary School shall consist of all or any of the . . . . . categories of posts as the Director may sanction.” The post of Principal is a solitary post in category 1. Categories 2 and 3 relate to the appointment school teachers in two different scales. These relate to 39 subjects. Thus, the Rule clearly provides that there shall be a Principal and teachers. So far as the sanction of the post is concerned, in our view, the Director has no discretion in the matter of office of the Principal. He can only make a choice in respect of the other categories whereby he can lay down that there may be no teacher to teach the subjects like German, Latin, Russian languages or those in which the number of students is not adequate. However, it shall not be open to the Director to say that the School shall function without a Principal who alone can be the Academic and Administrative Head. In view of this position, the contention that the appointment of the 6th respondent cannot be approved, as the post of Principal has not been sanctioned, is wholly untenable. It cannot be sustained.” Therefore I have to deal with the issue on the basis that the post of Principal was available in the school for filling up with effect from the date of coming into force of the Special Rules on 12-11- 2001. 11. Before amendment by Ext. P6 order in W.P(C) No. 21153/2006, Rule 4 (1) of Chapter XXXII of the KER prescribed the method of appointment to the post of Principal of Aided Higher Secondary Schools thus: ------------------------------------------------------------------------------------------------ Sl.No. Category Method of appointment ------------------------------------------------------------------------------------------------ 1. Principal (1) By promotion from category 2 under the respective educational agency. OR (2) By transfer from qualified Headmasters of Aided High W.P.C. Nos. 30005/05 & 21153/06 -: 10 :- Schools under the respective educational agency. Note:(i) The post of Principal will be a selection post and appointment to the post shall be made on the basis of the recommendation of a selection committee consisting of the Manager or his nominee as chairman, a selection grade Lecturer or Reader or Principal of a college nominated by the Manager and Government representative as members. The Government representative shall be nominated by the Manager from among the Officers of Higher Secondary Education Department not below the rank of a Deputy Director or Officers of the Government not below the rank of a Deputy Collector. (ii) Preference shall be given to Aided Higher Secondary School Teachers having teaching experience at the Higher Secondary School level. (iii) The post shall be filled up by the methods specified in item (i) and (ii) above in the ratio 2:1. If qualified candidates are not available for appointment to a vacancy by any one of the methods specified above, such vacancies shall be filled up by the other method.” Going by the same, the feeder category for promotion to the post of Principal is category 2, which is Higher Secondary School Teacher. The post of Higher Secondary School Teacher (Junior) is included as category 3 in the Special Rules. Therefore, as per the Special Rules, Higher Secondary School Teacher (Junior) W.P.C. Nos. 30005/05 & 21153/06 -: 11 :- cannot be considered for promotion to the post of Principal. It is not disputed before me that as on 18-8-2003, Smt. Anadavally was still a Higher Secondary School Teacher (Junior), her appointment having been approved as HSST with retrospective effect from 1-9-2000 only by Ext. P1 order of the Government on 2-6-2005. That too, not because she was legally entitled for such approval, but only as a concession granted by the Government. Whatever that be, as on 18-8-2003, when the Manager promoted Smt. Bindu R. Sekhar as Principal, Smt. Anadavally could not have been validly considered for the post of Principal since as on that date she was still a HSST (Junior). I derive support for this conclusion from the decision of the Supreme Court in Union of India and others V. M. Bhaskar and others, (1996) 4 Supreme Court Cases 416, in paragraph 15 of which it is held thus: “15. The aforesaid decision has been challenged in this appeal by the Union of India by contending that 2 years' period of experience has to be reckoned, not from 11-10-1988, but from 21-9-1989. There is no dispute that the eligibility condition is 2 years' experience in Grade II. Now, this respondent having really started working in Grade II pursuant to the order of 21-9-1989, he could not have gained experience prior to the date he had joined pursuant to this order. The mere fact that his promotion in Grade II was notionally made effective from 11-10-1988 cannot be taken to mean that he started gaining experience from that day, because to gain experience one has to work. Notional promotions are given to take care of some injustice, inter alia, because some junior has come to be promoted earlier. But we entertain no doubt that the person promoted to higher grade cannot gain experience from the date of the notional promotion; it has to be from the date of the actual promotion. “ W.P.C. Nos. 30005/05 & 21153/06 -: 12 :- The Supreme Court has again held thus in paragraphs 10 and 14 of the decision in Prasad V. Manager, P.M.D.P. School, 2007 (2) KLT 583 (SC): “10. For the time being, we may assume that in view of fact that he had also acquired the qualification of B.Ed in April 1989, his case also could be considered in terms of R.45; although it is well-settled principles of law that the note appended to a statutory provision or the subordinate legislation must be read in the context of the substantive provision and not in derogation thereof. Five years' teaching experience for appointment to the post of Headmaster was a sine qua non. Such teaching experience was to be 'teaching experience' and not a deemed teaching experience. xx xx xx 14. Indisputably, Appellant was on study leave for the period 1.6.1991 to 28.02.1993. During the said period, he was not teaching. He did not gain any teaching experience during the said period. If the said period is excluded for the purpose of computing teaching experience as envisaged under R.45 of the Rules, the question of his being considered for promotion to the post of Headmaster would not arise. Eligibility condition must be satisfied before a person is considered for promotion/appointment in respect of a particular post.” 12. Qualifications for the post of Principal in Aided Higher Secondary Schools are prescribed in Rule 6 (1) of the Special Rules thus: -------------------------------------------------------------------------------------------------------- Category Method of Qualifications appointment --------------------------------------------------------------------------------------------------------- 1. Principal By promotion (1) Master's Degree with not less than 50% marks from any Universities in Kerala or a qualification recognized as equivalent thereto by any University in Kerala. W.P.C. Nos. 30005/05 & 21153/06 -: 13 :- (2) B.Ed. Degree from any Universities in Kerala or a qualification recognized as equivalent thereto by any University in Kerala. (3) Minimum approved teaching experience of 12 years at Higher Secondary level under the same Educational Agency. Note:-1. In the absence of persons having qualification as specified above, approved teaching experience at High School/Upper Primary/Lower Primary Schools under the same educational agency shall be considered. 2. Such experience shall be reckoned only for qualifying Service and shall not be reckoned for seniority. 3. Such persons must possess a minimum service of six years as Higher Secondary School Teacher (Senior/Junior). By Transfer (1) Master's Degree with not less than 50% marks from any of the Universities in Kerala or a qualification recognized as equivalent thereto by any University in Kerala. (2) B.Ed. Degree from any of the Universities in Kerala W.P.C. Nos. 30005/05 & 21153/06 -: 14 :- or qualification recognized as equivalent thereto by any University in Kerala. (3) Minimum approved teaching experience of 12 years under the same Educational Agency.” As per the said rule, minimum approved teaching experience of 12 years is a requisite qualification for the post. Admittedly, as on 18-8-2003, neither Smt. Bindu R. Sekhar nor Smt. Geetha Baby had the prescribed experience qualification for the post of Principal. Therefore, even if the manager had complied with the selection procedure prescribed, the appointment of Smt. Bindu R. Sekhar could not have been validly approved. Probably that is why neither Smt. Bindu R. Sekhar nor Smt. Geetha Baby challenged Ext. P8. Therefore although not for the reason stated in Ext. P8, the direction to conduct a fresh selection is correct otherwise. As such I do not find any merit in the challenge against Ext. P8. Therefore it is not now necessary to reverse the direction of this Court permitting the manager to conduct a fresh selection in accordance with law. 13. The next question to be considered then is as