IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 25TH FEBRUARY 2009 / 6TH PHALGUNA 1930 WP(C).No. 11803 of 2006(E) ---------------------------------------- PETITIONER(S): ------------------------ 1. C.V.ISSAC, AGED 50 YEARS, S/O.VARGHESE, PRINCIPAL, V.H.M.HSS, MORAYUR P.O., MALAPPURAM DISTRICT. 2. JOSEPH JOHN, AGED 53 YEARS, S/O.JOHN, PRINCIPAL, MAR THOMA HSS, CHUNGATHARA P.O., MALAPPURAM DISTRICT. BY MR.ABRAHAM VAKKANAL, SENIOR ADVOCATE, BY ADV.MR.PAUL ABRAHAM VAKKANAL, MR.ARUL KUMAR.P. RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, THIRUVANANTHAPURAM-1. 3. REGIONAL DEPUTY DIRECTOR, (HSE), REGIONAL DIRECTORATE, G.L.P.L., PARAPPIL CAMPUS, KALLAI P.O., KOZHIKODE-673 003. BY GOVERNMENT PLEADER MR. T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.11803/2006 E APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF FULL BENCH JUDGMENT IN W.P.C.NO.20391/03 SERIES DTD. 04/11/2004. EXT.P2: COPY OF THE G.O.(MS) NO.423/05 ZG.EDN. DTD. 26/11/2005. EXT.P3: COPY OF THE G.O.(MS) NO.11/06 G.EDN. DTD. 06/01/2006. EXT.P4: COPY OF THE CIRCULAR NO.ACD. B1/11646/HSE/2003 ISSUED BY R2 DTD. 25/02/2006. EXT.P5: COPY OF THE LETTER ISSUED BY THE MANAGER VHM HSS TO R2 DTD. 07/03/2006. EXT.P5(A): COPY OF THE LETTER ISSUED BY THE MANAGER, VHM HSS TO R2 DTD. 18/09/2000. EXT.P5(B): COPY OF THE PROCEEDINGS OF SELECTION COMMITTEE OF VHM HSS DTD. 26/07/2000. EXT.P6: COPY OF LETTER ISSUED BY THE MANAGER, MAR THOMA HSS, CHUNGATHARA DTD. 09/03/2006. EXT.P6(A): COPY OF MINUTES OF THE SELECTION COMMITTEE OF MAR THOMA HSS DTD. 23/09/2004. EXT.P6(B): COPY OF THE APPOINTMENT ORDER ISSUED BY R2 TO THE 2ND PETITIONER DTD. 12/01/2004. EXT.P7: COPY OF THE ORDER NO.ACD.A2/1309/HSE/05(1) ISSUED BY R2 DTD. 31/03/2005. EXT.P8: COPY OF REPRESENTATION BY THE PETITIONER'S ORGANISATION DTD. 20/03/2006. EXT.P9: COPY OF THE REPRESENTATION BY THE PETITIONERS DTD. 02/04/2006. EXT.P10: COPY OF THE REMINDER PETITION BY THE PETITIONERS DTD. 17/04/2006. EXT.P11: COPY OF THE ORDER NO.A1/2045/06 DTD. 21/05/2007. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss P.N.RAVINDRAN, J. ====================================== W.P.(C)No.11803 of 2006 ====================================== Dated this the 25th day of February 2009 JUDGMENT The petitioners are Aided School Teachers. The second petitioner has retired from service on attaining the age of 55 years, after this writ petition was filed. The dispute relates to their appointment to the post of Principal of Higher Secondary School. The brief facts of the case are as follows:- 2. The first petitioner was appointed as Headmaster of the V.H.M.High School, Morayur in Malappuram District with effect from 14.7.1999. The said appointment was approved by the District Educational Officer, Malappuram. The Higher Secondary course was sanctioned in the V.H.M Higher Secondary School, Morayur during the academic year 2000-2001. After the Higher Secondary course was introduced, the management of the school constituted a selection committee, consisting of the Manager, the Principal of the school and the Principal of the Diet, which is the selection committee prescribed in G.O.(MS) No.162/98/G.Edn. dated 13.5.1998 to select higher secondary school teachers by direct recruitment. The selection committee that met on 26.7.2000 selected the first petitioner for appointment as Principal of the VHM Higher Secondary School, Morayur. The Manager of the school thereupon sent Ext.P5(a) letter dated 18.9.2000 to the District Educational Officer, Malappuram enclosing along with it a copy of the minutes of the Selection Committee and requested him to approve the appointment. At that point of time, the Directorate of Higher Secondary Education had not been formed. 3. The second petitioner was appointed as Headmaster in Mar Thoma W.P.(C)No.11803 of 2006 2 Higher Secondary School, Chungathara on 20.12.2003 and that appointment was approved by the District Educational Officer, Malappuram. On 12.1.2004, he was given charge of the Principal of Mar Thoma Higher Secondary School, Chungathara. Thereafter, a selection committee was constituted in terms of Chapter XXXII of the Kerala Education Rules. The selection committee that met on 23.9.2004 recommended the name of the second petitioner for appointment as Principal and he was appointed with effect from 12.1.2004. The Manager thereupon forwarded the minutes of the selection committee to the Regional Deputy Director of Eduction, Kozhikode for approval. In the meanwhile, a series of writ petitions were filed in this Court by Headmasters claiming appointment as Principals of Higher Secondary Schools, wherever the High Schools where they were Headmasters had been upgraded as Higher Secondary Schools. The Writ Petitions were referred to a Division Bench and thereafter to a Full Bench of this Court. By judgment delivered on 4.11.2004, in Aided Higher Secondary School Teacher's Association v State of Kerala (2005(1) KLT 94) the Full Bench held as follows:- “It is pointed out that some of the Headmasters who were qualified as on the date of coming into force of the Rules, though not appointed in the ratio prescribed as per the Rules, and are continuing even today should be given an equitable relief. It is true that Headmasters who were re designated as Principals on the basis of ad hoc orders and are not educationally qualified, have to go back as Headmasters. They will continue as Headmasters of High School Division up to standard 10 and they cannot claim to be the Principals of Higher Secondary Schools. But those Headmasters who are educationally qualified when Special Rules framed and are continuing as Principal even today shall be allowed W.P.(C)No.11803 of 2006 3 to continue, but their ratio has to be adjusted in the subsequent or other vacancies. But that benefit is not available to those Headmasters who are not continuing as on today as Principals and those Headmasters who were not educationally qualified when relevant rules came into force. After framing of the rules recruitment has to be made strictly as per the statutory rules. Hence those persons appointed or placed as Principals after statutory rules came into force have to vacate the office. We also make it clear that the post of Principal is compulsory in the Higher Secondary Schools as without the head of the institution, it cannot function. Post of Principal is an essential pivotal post. Therefore, Government is directed to give sanction and approval to the post of Principal expeditiously so that no Higher Secondary School shall work without a regular Principal. That post is made compulsory as per the Rules and classified as category No.1. We also direct the Managers to make appointment of Principal strictly on the basis of the rules framed as per Chapter XXXII and submit the matter for approval to the Government. It is for the Government to fix the scale of pay of Principal. It can be on a special scale of pay or special allowance to that of a Senior Higher Secondary School Teacher in category No.11. These are matters of policy and we are not making any direction regarding fixation of scale of pay. If the appointments are made as per the Rules, that should be approved, if not already approved. The services of Headmasters who are continuing without the requisite qualification as prescribed under Chapter XXXII on the date of coming into force of the Rules, should be terminated forthwith and they will go back as Headmasters. Management and Educational Authority are also directed to see that appointments are made strictly as per the Rules after enforcement of the Statutory Rules." 4. To give effect to the decision of the Full Bench, the Government issued G.O.(MS)No.43/2005/G.Edn. dated 11.2.2005 wherein it was inter alia stipulated that Headmasters who were qualified as on 12.11.2001 for the post of Principal and are continuing as Principal will be allowed to continue. The said Government Order was later amended by Ext.P2 order dated 26.11.2005 by substituting the date 12.11.2001 with the date 4.11.2004. The relevant portion of the W.P.(C)No.11803 of 2006 4 Government Order dated 11.2.2005 as amended by Ext.P2 which reads as follows: V. In Aided Higher Secondary Schools; i) The Aided Higher Secondary School Managers will take immediate steps to give placement in the post of Principal strictly in accordance with Special Rules if the same has not been made so far. ii) The Headmasters who were qualified as on 4.11.2004 for the post of Principal and continuing as Principal will be allowed to continue. iii) The Headmasters who are continuing as Principals without the requisite qualification will be reverted immediately as Headmasters. 5. The grievance voiced by the petitioners is that though they have been discharging duty as Principals since 26.7.2000 and 12.1.2004 respectively, their appointments have not been approved and they have not been given the emoluments attached to the post of Principal. After this writ petition was filed, the second petitioner retired from service on 31.3.2008 on attaining the age of superannuation. The appointment of the first petitioner was later approved by Ext.P11 order dated 21.5.2007, with effect from 6.1.2006, the date on which a scale of pay was sanctioned to Principals of Higher Secondary Schools by Ext.P3 Government order. The appointment of the second petitioner is yet to be approved. 6. I have heard Sri.Abraham Vakkanal, the learned Senior Advocate appearing for the petitioners and Sri.T.T.Muhamood, the learned Government W.P.(C)No.11803 of 2006 5 Pleader appearing for the respondents. Though this writ petition was filed on 25.4.2006 and notice has been served on the respondents, they have not chosen to file a counter affidavit till date. The learned Senior Advocate appearing for the petitioners contends relying on paragraph-8 of the decision of the Full Bench of this Court in Aided Higher Secondary School Teacher's Association v State of Kerala (supra) that as the petitioners were appointed in accordance with the selection procedure prevailing on 26.7.2000 and 12.1.2004 respectively and as they possess the qualifications and were in service on 4.11.2004 as Principals, their appointments are liable to be approved. The learned Senior Advocate contends that the first petitioner was selected before Chapter XXXII was incorporated in the KER by the selection committee constituted in terms of G.O.(MS)No.162/98/G.Edn. dated 13.5.1998 that the second petitioner was selected by the selection committee constituted in accordance with Chapter XXXII of KER and that as they were discharging duties as Principal prior to and on 4.11.2004, their appointments are liable to be approved with effect from the dates on which they were appointed after selection. Per contra, the learned Government Pleader appearing for the respondents contends that the post of Principal was sanctioned in Higher Secondary Schools only with effect from 6.1.2006 by Ext.P3 Government Order and therefore the petitioners can claim approval of their appointment as Principals only with effect from 6.1.2006. 7. I have considered the submissions made at the Bar by the learned W.P.(C)No.11803 of 2006 6 counsel appearing on either side. The eligibility of the petitioners for appointment as Principals is not in dispute. There is no dispute that the minutes of the selection committee had been forwarded to the educational authorities, immediately after the selection was made. However the appointment of the first petitioner is now approved with effect from 6.1.2006 by Ext.P11 order. The second petitioner's appointment has not yet been approved though he retired from service on 31.3.2008 on attaining the age of sueprannuation. On the materials available, I am of the opinion that as the first petitioner was selected before Chapter XXXII was introduced in the Kerala Education Rules by a duly constituted selected committee, the first petitioner is entitled to have his appointment as Principal approved with effect from 26.7.2000. Though the learned Government Pleader contends that such approval can only be with effect from the date of Ext.P3 Government order, in the light of the decision of the Full Bench to which the State of Kerala is also a party, I am not inclined to accept the said contention. The Full Bench of this Court has held that Higher Secondary Schools cannot function without a Principal and that the post is compulsory as per the rules. The second petitioner was selected after Chapter XXXII was introduced in the Kerala Education Rules. Therefore the first petitioner is entitled to have his appointment as Principal approved with effect from 26.7.2000. The selection committee met on 23.9.2004. Even earlier, with effect from 12.1.2004, he was discharging the duties of Principal. Therefore as the second petitioner was selected in accordance with the provisions contained in Chapter XXXII of the W.P.(C)No.11803 of 2006 7 KER, his appointment is also liable to be approved at least with effect from 23.9.2004, the date on which he was selected by the selection committee as Principal of the school. 8. In the view that I have taken, I dispose of the writ petition with the following directions: The competent authority among the respondents shall within three months from the date of receipt of a copy of this judgment, pass orders approving the appointment of the first petitioner as Principal, VHM Higher Secondary School with effect from 26.7.2000 and that of the second petitioner as Principal, Mar Thoma H.S.S. with effect from 23.9.2004. The respondents shall also disburse to the petitioners, the salary and allowances at the applicable rates within two months thereafter. The terminal benefits payable to the second petitioner shall also be fixed and disbursed within a further period of three months thereafter. The writ petition is disposed of as above. P.N.RAVINDRAN, JUDGE css/