IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 WP(C).No. 34228 of 2007(Y) ------------------------------------------- PETITIONER(S): ------------------------- THE MANAGER, K.R.G.P.M.HIGHER SECONDARY SCHOOL, ODANAVATTAM, KOTTARAKKARA, KOLLAM DISTRICT. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): -------------------------- 1. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM. 2. SMT.MARY JOHN, HSST, K.R.G.P.M. HIGHER SECONDARY SCHOOL, ODANAVATTAM, KOTTARAKKARA, KOLLAM DISTRICT. 3. SREELEKHA.H., PRINCIPAL, K.R.G.P.M. HIGHER SECONDARY SCHOOL, ODANAVATTAM, KOTTARAKKARA, KOLLAM DISTRICT. GOVERNMENT PLEADER SMT. T.B.REMANI FOR R1 ADV. SRI.SATHISH NINAN FOR R2 SRI.SANTHOSH MATHEW FOR R2 SRI.S.P.ARAVINDAKSHAN PILLAY FOR R.3 SMT.N.SANTHA FOR R.3 SRI.S.A.ANAND FOR R.3 SRI.PETER JOSE CHRISTO FOR R.3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/12/2008 ALONG WITH WPC NO. 1812 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.34228/2007 Y APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PROCEEDINGS NO.ACD.B3/12035/HSE/1004 DTD. 1/08/2004 ISSUED BY THE 1ST RESPONDENT. EXT.P2: COPY OF THE NOTIFICATION NO.01/2005 DTD. 18/01/2005. EXT.P3: COPY OF THE PROCEEDINGS NO.B3/19268/HSE/2004 DTD.1/2/2005 ISSUED BY THE 1ST RESPONDENT. EXT.P4: COPY OF THE NOTIFICATION NO.66/2005 DTD. 22/12/2005. EXT.P5: COPY OF THE REPRESENTATION FILED BY THE 2ND RESPONDENT BEFORE THE SECRETARY, DEPARTMENT OF GENERAL EDUCATION, TRIVANDRUM. EXT.P6: COPY OF THE G.O.(RT)NO.3443/2006/G.EDN. DTD. 7/08/2006. EXT.P7: COPY OF THE INTERIM ORDER IN WP(C) NO.25633/2006 DTD. 29/09/2006. EXT.P8: COPY OF THE G.O.(RT) NO.123/2007/G.EDN. DTD. 9/01/2007. EXT.P9: COPY OF THE JUDGMENT IN WP(C)NO.25633/2006 DTD.5/3/2007. EXT.P10: COPY OF THE WRITTEN SUBMISSION GIVEN BY THE MANAGER. EXT.P11: COPY OF THE MEMO NO.ACD.B3/20444/HSE/04 DTD. 10/04/2007. EXT.P12: COPY OF THE ORDER NO.ACD.B3/20444/HSE DTD. 16/07/2007. EXT.P13: COPY OF THE JUDGMENT IN WP(C)NO.23985/07 DTD.16/08/2007. EXT.P14: COPY OF THE ORDER NO.ACD.B3/20444/HSE/04 DTD. 1/11/2007. EXT.P15: COPY OF THE MINUTES OF THE STAFF SELECTION COMMITTEE HELD ON 27/07/1993. EXT.P16: COPY OF THE ORDER NO.E2/9915/93/DVHSE DTD.14/09/1993. EXT.P17: COPY OF THE ORDER NO.L1/1921/2006 DTD. 5/05/2006. EXT.P18: COPY OF THE CIRCULAR NO.23184/T1/2006/G.EDN. DTD. 20/05/2006. Kss ..2/- ...2...... WPC.NO.34228/2007 Y RESPONDENT'S EXHIBITS: EXT.R2(1): COPY OF THE G.O.(MS) NO.338/2003/G.EDN. DTD. 16/12/2003. EXT.R2(2): COPY OF THE LETTER NO.ACD.B3/12035/HSE/2004 DTD. 1/08/2004. EXT.R2(3): COPY OF THE G.O.(MS) NO.11/2006/G.EDN. DTD. 6/01/2006. EXT.R2(4): COPY OF THE CIRCULAR NO.ACD.B1/11646/HSE/2003 DTD. 25/02/2006. EXT.R2(5): COPY OF THE CIRCULAR NO.23184/T1/2006/G.EDN. DTD. 20/05/2006. EXT.R2(6): COPY OF THE LETTER NO.5/06 DTD. 7/01/2006. EXT.R2(7): COPY OF THE ARGUMENT NOTE SUBMITTED BY THE 3RD RESPONDENT. EXT.R2(8): COPY OF G.O.(MS) NO.460/95/G.EDN. DTD. 26/09/1995. /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J. ----------------------------------------------- W.P.(C) No.34228 of 2007 (Y) & W.P.(C) No. 1812 of 2008 (N) ----------------------------------------------- Dated this the 4th day of December, 2008 J U D G M E N T The controversy raised in these writ petitions is in relation to the appointment to the post of Principal of K.R.G.P.M. Higher Secondary School, Odanavattam, Kottarakkara. 2. The petitioner in WP(C) No.34228/2007 is the Manager of the School and the petitioner in WP(C) No.1812/2008 is the candidate, who was selected. Since the issue is common, both these writ petitions were heard together and are disposed of by this judgment. For the sake of convenience, reference will be made to the facts as pleaded in WP(C) No.34228/2007. 3. The school was initially a High School and was upgraded as Higher Secondary School in 1998. According to the Manager, the 2nd respondent, Smt.Mary John, was appointed as the Principal by order dated 03/06/2004. But, approval was rejected by the 1st respondent as per Ext.P1 order. That order was challenged by the Manager in WP(C) No.29839/2004, wherein this Court ordered a fresh selection. Accordingly, the Manager issued Ext.P2 notification W.P.(C)Nos.34228/2007 & 1812/2008 -2- on 18/01/2005, inviting applications from the willing teachers for “placement in the post of Principal” apparently for the reason that the post of Principal was sanctioned only much later, on 06/01/2006. It is seen that copy of Ext.P2 was served on, among others, the 2nd respondent also. The 2nd respondent did not express her willingness in response to Ext.P2 and also did not appear for the interview that was held on 27/01/2005. According to the Manager, on account of the non-availability of eligible candidates, none was selected. But, however, the 3rd respondent, being the senior most among the applicants, was put in charge of the post of Principal. This was approved by the 1st respondent as per Ext.P3, which shows that additional charge was given to the 3rd respondent. 4. The above adhoc arrangement continued and in the meanwhile, the post of Principal was again notified by Ext.P4 dated 22/12/2005. Ext.P4 notification, according to the Manager, was published in the notice board and applications were to be submitted within 14 days from the date of notification. Irrespective of the publication, as admitted by the Manager, copy of Ext.P4 was served on individual teachers, including the 2nd & 3rd respondents, and the 2nd respondent had acknowledged its receipt on W.P.(C)Nos.34228/2007 & 1812/2008 -3- 02/01/2006. In response to Ext.P4, the 2nd respondent submitted her application on 07/01/2006. But, however, on the ground that the application was belated, the same was rejected by the petitioner by Ext.R2(6) proceedings dated 07/01/2006 itself. It was in the meanwhile, that on 06/01/2006, post of Principal was created in the school by Ext.R2(3) notification. The candidates whose applications were accepted were called for an interview by a selection committee on 09/01/2006 and the 3rd respondent, the daughter-in-law of the Manager, was found to be the suitable candidate to be appointed as Principal. She was, accordingly, appointed and approval of the 1st respondent sought for was pending. 5. While so, by Ext.P5 dated 18/03/2006, the 2nd respondent lodged a complaint before the Secretary to Government, General Educational Department, who is not a respondent in this writ petition, against rejection of her application and the selection process adopted by the Committee. On receipt of Ext.P5, a hearing was scheduled on 29/03/2006 and the Manager was telegraphically intimated of the same. According to the Manager, he received notice on 29/03/2006, and due to paucity of time, he sought an adjournment. Accordingly, the hearing was rescheduled to W.P.(C)Nos.34228/2007 & 1812/2008 -4- 20/04/2006, when the parties were heard. Thereafter, the Secretary to Government issued Ext.P6 order dated 07/08/2006 setting aside the selection held on 09/01/2006 and ordered fresh selection. Ext.P6 was challenged by the Manager in WP(C) No.25633/2006, and by Ext.P7 order this Court stayed further proceedings pursuant to Ext.P6. 6. During the pendency of the above writ petition, the Government issued Ext.P8 order dated 09/01/2007 reviewing Ext.P6, but however ordering fresh selection, considering the claim of the 2nd respondent as well. That order was again challenged by the Manager in WP(C) No.3183/2007. Both the aforesaid writ petitions were heard and disposed of by Ext.P9 judgment setting aside Exts.P6 and P8, and directing the 1st respondent herein to consider the approval application made by the Manager, with notice to the parties. It is stated that on receipt of the notice, the petitioner submitted Ext.P10 argument notes on 10/04/2007, when the Joint Director heard all the parties. Thereafter, the 1st respondent issued Ext.P12 order dated 16/07/2007, setting aside the selection held on 09/01/2006, and ordering fresh selection. 7. Ext.P12 order was again challenged by the Manager in WP(C) No.23985/2007. That writ petition was disposed of by W.P.(C)Nos.34228/2007 & 1812/2008 -5- Ext.P13 judgment setting aside Ext.P12 and directing the 1st respondent to hear and decide the matter afresh. Accordingly, parties were heard on 23/10/2007, and by Ext.P14 dated 01/11/2007, the Director passed the following order :- “The crux of the bone contention is whether Smt.Mary John and Smt.Sreerekha.H. were qualified to the post of Principal as on 06/01/2006. Smt.Mary John entered service as HSA on 01/08/1978 and was appointed as HSST w.e.f. 01/11/1999. Thus she had 27 years of continuous service as on 06/01/2006. On the other hand, Smt.Sreerekha, had worked as UPSA from 06/07/1992 (two months & ten days) to 17/09/1992 at SKVHSS, Thrikkannamangal in a leave vacancy. From 16/08/1993 to 03/07/1994, she had worked on a consolidated pay of Rs.1000/- which can not be reckoned for approved teaching service for the selection of Principal. She was sanctioned basic pay of Rs.1,640/- in the scale of pay Rs.1640-2900 w.e.f.04/07/1994. She was continuing in that scale of pay from 04/07/1994 to 26/08/1998 till she got appointment as HSST (Chemistry) in the same school and continuing as such. Thus she had completed the requisite 12 years teaching experience only on 24/04/2006. From the above mentioned facts and circumstances, it is clear that Smt.Mary John was the only qualified teacher to be considered for selection to the post of Principal on the date of occurrence of vacancy, ie.06/01/2006. Therefore, the selection and appointment of Smt.Sreerekha.H. on 09/01/2006 was void. In normal course it may seem innocent that the Manager need not have any bias or prejudice towards Smt.Mary John. But the fact that Smt.Sreerekha happens to be the daughter-in-law of the Manager reveals the real 'mens rea' behind the 'actus reus' of the Manager in avoiding Smt.Mary John from occupying the post of the Principal. That the selection committee comprising of at least W.P.(C)Nos.34228/2007 & 1812/2008 -6- a few eminent personalities including Government officials was carried away by the machinations of the Manager and thereby overlooking the fact that the candidate whom they had selected to the post of Principal did not possess the minimum qualifying service of 12 years approved teaching service causes consternation in the minds of those who believe in fair play and justice. In the circumstances, it is evident beyond doubt that the selection and appointment of Smt.Sreerekha is void. Hence, the Manager is directed to conduct a fresh selection process by issuing notice and granting reasonable time to all those who are qualified to be considered for the post of Principal in his school on the date of occurrence of vacancy ie. 06/01/2006.” It is challenging Ext.P14, both the Manager and the appointee have filed WP(C) Nos.34228/2007 and 1812/2008 respectively. 8. Learned counsel for the petitioner in WP(C) No.34228/2006 raised two contentions. Firstly, he contended that the basis on which the 3rd respondent has been held to be ineligible for the post of Principal in the vacancy that arose on 06/01/2006 is that the period from 16/08/1993 to 03/07/1994, when she had worked on a consolidated pay of Rs.1,000/-, cannot be reckoned as approved teaching service for the selection of Principal. It is stated that in the light of Exts.P15 to P18 this finding is erroneous. It is also contended that the 2nd respondent, who had not submitted the application in time in response to Ext.P4, was not entitled to W.P.(C)Nos.34228/2007 & 1812/2008 -7- challenge the proceedings of selection held on 09/01/2006, and that therefore, Ext.P14 is erroneous. 9. Learned counsel for the petitioner in WP(C) No.1812/2008 generally adopted the submissions made on behalf of the Manager. 10. On behalf of the 2nd respondent, the learned counsel contended that the service on consolidated pay during the period from 16/08/1993 to 03/07/1994 is not liable to be reckoned as teaching service. According to the learned counsel, during that period, her work load was only 3 hours per week, and it was therefore, that the said period was excluded. It is contended that the service during the aforesaid period is inferior to even the categories of service which are excluded by Ext.P18, and therefore, its exclusion in Ext.P14 cannot be faulted. In so far as the rejection of the application is concerned, it is stated that Ext.P4 was serviced on her only on 02/01/2006, and that immediately thereafter she submitted her application on 07/01/2006. According to her, the application was submitted within the permissible time and therefore, its rejection was erroneous. She would argue that the whole selection process was wangled in such a manner to ensure the selection of the petitioner in WP(C) No.1812/2008, who is none W.P.(C)Nos.34228/2007 & 1812/2008 -8- other than the daughter-in-law of the Manager. 11. From the above facts, the issue what arises for consideration is the correctness of the finding in Ext.P14 that the service rendered by the 3rd respondent during the period from 16/08/1993 to 03/07/1994 is liable to be excluded while reckoning her eligibility. The other issue that needs to be considered is the correctness of the action of the petitioner in WP(C) No.34228/2008 in rejecting the application made by the 2nd respondent in response to Ext.P4. 12. In so far as the period from 16/08/1993 to 03/07/1994 is concerned, it is true that the service rendered by the 3rd respondent was on consolidated pay. Ext.P15 is the minutes of the Selection Committee, which selected the 3rd respondent for appointment on consolidated pay. From Ext.P16 proceedings of the 1st respondent, it is seen that her appointment on consolidated pay with effect from 13/08/1993 was approved by the Director. By Ext.P17 proceedings of the Assistant Director, pay of the 3rd respondent is notionally refixed with effect from 16/08/1993. Ext.P18 is the Government order dated 20/05/2006, which clarifies that 12 years approved teaching experience for appointment to the post of Principal of an aided Higher Secondary School means W.P.(C)Nos.34228/2007 & 1812/2008 -9- approved teaching experience at Lower Primary, Upper Primary, High School, Vocational Higher Secondary and Junior Lecturer level except the teaching experience as Guest Lecturers or on daily wages and on contract basis. 13. From Exts.P15 to P17, I am not able to bring the appointment of the 3rd respondent on consolidated pay into any of the excluded categories mentioned in Ext.P18. Although it was contended before me that qualitatively the appointment on consolidated pay is similar to appointment on contract basis, so long as the Government have not made such an equation, I do not think this Court will be justified in undertaking that exercise. Thus, the experience on consolidated pay does not fall into any of the excluded categories in Ext.P18 and if that be so, the exclusion of the service rendered by the 3rd respondent during the period from 16/08/1993 to 03/07/1994 cannot be upheld. 14. The other issue that remains to be considered is whether the 2nd respondent was entitled to challenge the selection proceedings held on 09/01/2006 in pursuance to Ext.P4. The learned counsel for the petitioner contended that she having not made a valid application in response to Ext.P4 notification is not entitled to dispute the correctness of the selection process. This W.P.(C)Nos.34228/2007 & 1812/2008 -10- submission is made on the basis that the application made by the 2nd respondent was a belated one and therefore its rejection by Ext.R2(6) is valid. 15. As already seen, according to the Manager, Ext.P4 notification dated 22/12/2005 was published in the notice board. As per the notification, application should be made within 14 days from the date of notification, and the interview was scheduled on 09/01/2006. However, the Manager admits that this notice was individually served on the eligible teachers including the 2nd respondent, who had acknowledged its receipt on 02/01/2006. It was thereafter, she submitted her application on 07/01/2006. According to the Manager, the 14 days period should be reckoned from 22/12/2005. In my view this restricted interpretation now attempted is an erroneous one. If the intention of the Manger was to count 14 days from the date of notification, he need not have served it on the individual teachers. Once the Manager has given individual notice, the manager had the obligation to give, if not 14 days from the date of service of the notification, at least reasonable period to enable the teachers to make applications. In this case, on service of Ext.P4 notification, the 2nd respondent submitted her application, on the 5th day of service of notification on her. In view of this, I am not W.P.(C)Nos.34228/2007 & 1812/2008 -11- in a position to agree with the Manager that the application so made by the 2nd respondent was a belated one warranting its rejection on that ground. Therefore the rejection of the application submitted by the 2nd respondent by Ext.R2(6) proceedings on 07/01/2006 cannot be approved. Necessarily therefore, the 2nd respondent also has to be considered as an eligible candidate and is entitled to participate in the selection process. 16. In view of my findings on the aforesaid two contentions, raised by the learned counsel for the petitioner, though I set aside Ext.P14 in WP(C) No.34228/2007, which is produced as Ext.P9 in WP (C) No.1812/2008, I direct the Manager to conduct a fresh selection by considering all those, who have submitted valid applications in response to Ext.P4 notification including the respondents 2 & 3 herein, and make appointments to the post of Principal of the School as expeditiously as possible, at any rate, within six weeks of receipt of a copy of this judgment. Needless to say that the status quo as on date will be maintained in the meanwhile. These writ petitions are disposed of as above. (ANTONY DOMINIC, JUDGE) jg