IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 WP(C).No. 16176 of 2008(A) -------------------------------- PETITIONER: -------------- THOMASKUTTY.K, S/O.V.T.KURIAKOSE, EATTIKKAL PAZHAYAPEEDIKAYIL HOUSE, THURUTHICAD PO, THIRUVALLA (PRINCIPAL-IN- CHARGE, ST.THOMAS HIGHER SECONDARY SCHOOL, ERUVELLIPRA). BY MR.S.SUBHASH CHAND, ADVOCATE. RESPONDENTS: ------------------ 1. STATE OF KERALA REP.BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION/HIGHER SECONDARY EDUCATION,GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. DIRECTOR OF HIGHER SECONDARY EDUCATION, OFFICE OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SANTHINAGAR, TRIVANDRUM. 3. THE REGIONAL DEPUTY DIRECTOR, OFFICE OF THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, CORPORATION BUILDING, 4TH FLOOR, PALAYAM, TRIVANDRUM. 4. THE CORPORATE MANAGER, EDUCATIONAL AGENCY- CATHOLIC ARCH DIOCESE OF THIRUVALLA, THIRUVALLA- 689 101. BY MR.ABRAHAM VAKKANAL, SENIOR ADVOCATE FOR R4 MR.PAUL ABRAHAM VAKKANAL, ADVOCATE, FOR R4 MR.ARUL KUMAR.P, ADVOCATE, FOR R4. MR.BIJIMON C.CHERIAN, ADVOCATE, FOR R4. MR.LOWEL CHERIAN, ADVOCATE, FOR R4. MR. V.T.K. MOHANAN, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2009, ALONG WITH WP(C) No.17567 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.16176/2008 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF THE RELEVANT PAGES OF THE SERVICE BOOK OF THE PETITIONER INDICATING TERMS OF THE AFORESAID APPROVED APPOINTMENTS. EXT. P2 : COPY OF the ORDER DTD. 21.11.2003 ISSUED BY RESPONDENT No.2 BY WHICH APPOINTMENT OF the PETITIONER AS HSST (MATHS) WAS APPROVED. EXT. P3 : COPY OF APPOINTMENT ORDER DTD. 1.4.08 BY WHICH THE PETITIONER WAS PROMOTED AND APPOINTED AS PRINCIPAL OF ST. THOMAS HIGHER SECONDARY SCHOOL, ERUVELLIPRA. EXT. P4 : COPY OF ORDER DTD.18.4.08 ISSUED BY RESPONDENT No.3. EXT. P5 : COPY OF GOVERNMENT CIRCULAR BEARING No.23184/T1/2006G. DTD. 20.5.06. EXT. P6 : COPY OF THE NOTIFICATION BEARING G.O.(P) No.93/2009/GLE DTD. 27.3.2009 ISSUED BY RESPONDENT No.1. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. -------------------------------------------- W.P.(C) Nos.16176 & 17567 OF 2008 -------------------------------------------- Dated this the 16th day of September, 2009. J U D G M E N T These two writ petitions are at the instance of the respective petitioners, claiming appointment as Principal of Higher Secondary School under the 4th respondent-Management. As far as W.P.(C) No.17567/2008 is concerned, the petitioner had been a party to an earlier dispute which culminated in Exhibit P4 judgment by a Division Bench of this Court. The relevant facts leading to the dispute decided by the Division Bench are therefore material, to be stated herein. 2. The petitioner in W.P.(C) No.17567/2008 had raised a claim for appointment to the post of H.S.S.T (Hindi) in a vacancy which arose in the year 2000. One Smt.Anima Lukose was ranked as rank No.1 and the petitioner in W.P.(C) No.17567/2008 was ranked as rank No.2. The matter was considered at the instance of the said petitioner by the Director of Higher Secondary Education. W.P.(C) Nos.16176 & 17567/08 2 3. The order passed by the Director of Higher Secondary Education was the subject matter of challenge in O.P.No.14156/2002 by the Management, in O.P.No.16469/2002 by Smt.Anima Lukose. The common judgment therein is produced as Exhibit P2 herein. The petitioner in W.P.(C) No.17567/2008 had also filed O.P.No.11949/2002 which was allowed by the said common judgment and the other two writ petitions were dismissed. Smt.Anima Lukose had filed Writ Appeal No.1537 of 2003 against Exhibit P2 judgment. While the writ appeal was pending, a compromise was entered into between the parties according to which the petitioner in W.P.(C) No.17567 of 2008 had withdrawn his claim. The relevant clauses of the agreement are contained in Exhibit P3. The Division Bench dismissed the Writ Appeal as withdrawn clarifying that the parties shall be bound by the agreement as noticed therein. 4. The petitioner is relying upon clause (iii) of Exhibit P3 agreement which provides that “hereafter as an when vacancy arises, the 1st party will appoint the 2nd party as the Principal in W.P.(C) Nos.16176 & 17567/08 3 any one of the Higher Secondary schools under the Management”. 5. A vacancy in the post of Principal arose in the St.Thomas H.S.School, Eruvellipra, Thirumoolapuram on 01.04.2008 wherein the 4th respondent in W.P.(C) No.17567/2008, who is the petitioner in W.P.(C) No.16176/2008, was appointed. The petitioner in W.P.(C) No.17567/2008 seeks for issuance of a writ of mandamus directing the 1st respondent to appoint the petitioner as Principal of the school with effect from 01.04.2008 as agreed by the Manager in Exhibit P3 and for a direction not to approve the appointment of the 4th respondent. 6. In the writ petition filed by the 4th respondent, the challenge is against Exhibit P4 order passed by the Regional Deputy Director of Higher Secondary Education whereby the proposal for approval was not accepted as he has not completed 12 years of service as H.S.S.T. It was made clear in Exhibit P4 that the petitioner therein will be permitted to act as Principal in charge with effect from 01.04.2008 just to draw and disburse the salary of HSS section of the school. W.P.(C) Nos.16176 & 17567/08 4 7. By an interim order dated 30.05.2008 in W.P.(C)No.16176 of 2008, this Court directed that the petitioner shall be permitted to act as Principal in charge as stated in Exhibit P4 not only for the purposes mentioned in Exhibit P4 but for the purpose of admitting students and for the purpose of issuing transfer certificates and other certificates to the students for a period of one month. Since the issues are related, namely that of the appointment of the Principal in a vacancy which arose on 01.04.2008, these writ petitions are disposed of by a common judgment. 8. Heard the learned counsel for the petitioner in W.P.(C)No.17567/2008 Sri.S.Muhammed Haneef, learned counsel for the petitioner in W.P.(C)No.16176/2008 Sri.S.Subhash Chand and the learned Senior Counsel appearing for the Manager Sri.Abraham Vakkanal. 9. The Management opposes the claim of the petitioner in W.P.(C) No.17567/2008 by pointing out that the petitioner can be appointed in the vacancy only subject to the Rules and as specified in clause (viii) of Exhibit P3 itself. It is pointed out that W.P.(C) Nos.16176 & 17567/08 5 the relevant Rule namely, Rule 4 of Chapter XXXII of Kerala Education Rules provides the methods of appointment to the post of Principal of a Higher Secondary School, which are shown below: “(1) By promotion from category 2 under the respective educational agency. OR (2) By transfer from qualified Headmasters of Aided High Schools under the respective educational agency”. Note (iii) therein is to the following effect: “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”. 10. Therefore, it is pointed out that the vacancy can be filled up only as per the ratio namely, 2:1 and hence the turn of the Headmaster for appointment as Principal would arise only after giving promotions to two H.S.S.Ts as Principals. There is only one Higher Secondary School under the management in the Boys unit. The vacancy which arose on 01.04.2008 is the first W.P.(C) Nos.16176 & 17567/08 6 vacancy of Principal which has arisen after the Rules came into force and that has to be filled up by giving promotion to a qualified H.S.S.T by selection as provided in the Rules. Accordingly, the selection was conducted and the petitioner in W.P.(C) No.16176/2008 was appointed. 11. It is also contended by the Management, as evidenced by paragraph 17 of the counter affidavit, that under the Management in the Boys Unit, there is only one Higher Secondary School viz. St.Thomas HSS, Eruvellipra and the girls unit under the Management is a separate wing for all purposes and service conditions and for which, separate seniority list for appointment/ promotion is maintained. 12. The petitioner in W.P.(C) No.16176/2008 has filed an I.A.No.9523/2009 producing Exhibit P6, the amendment to Chapter XXXII of K.E.R as per G.O.(P) No.93/2009/GLE dated 27.03.2009. Going by the amended rule, in the absence of persons having minimum approved teaching experience of 12 years at Higher Secondary level under the same Educational Agency, approved teaching experience at High School/Upper W.P.(C) Nos.16176 & 17567/08 7 Primary/Lower Primary Schools under the same Educational Agency shall be considered. Note 3 of the amended rules provides that a person having minimum service of six years as Higher Secondary School Teacher (Senior/Junior) could be appointed. It is also specified in Note 1 that 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. This amendment as per Exhibit P6 is retrospective from 06.01.2006. 13. Reliance is also placed on the decision of a learned Single Judge of this Court in G.Prasannakumary vs. State of Kerala and another (ILR 2006(1) Kerala 371) to the effect that teaching experience required, for appointment by promotion as Principal from among Higher Secondary School Teachers, need not be at High School or Higher Secondary level. 14. The issue will have to be considered by the statutory authority itself in the light of the amendment to the rules. Learned counsel for the petitioner in W.P(C) No.16176/2008 W.P.(C) Nos.16176 & 17567/08 8 submits that the petitioner was appointed as H.S.S.T (Maths) from 05.11.2001 and he has completed the required number of six years of service as specified in Note 3 of the amended rules. As pointed out already, in G.Prasannakumary vs. State of Kerala and another (ILR 2006(1) Kerala 371) it was held that the teaching experience required, for appointment by promotion as Principal from among Higher Secondary School Teachers, need not be at High School or Higher Secondary level. 15. Therefore, the basis under which Exhibit P4 order was passed is not sustainable. The same is quashed. The matter will be reconsidered by the 3rd respondent in W.P.(C) No.16176/2008 after hearing all the parties. The claim of the petitioner in W.P.(C) No.17567/2008 will also be considered while passing fresh orders in the matter. The contentions of the petitioner as disputed by the Management and the petitioner in W.P.(C)No.16176/2008 will have to be gone into by the 3rd respondent. It is also pointed out by the learned counsel appearing for the 4th respondent in W.P.(C)No.17567/2008 that by W.P.(C) Nos.16176 & 17567/08 9 Exhibit R4(a) dated 31.07.2009, the Management has imposed a penalty of reduction to the lower post to H.S.A (PS) on the petitioner therein and this fact also will be a relevant one. As against it, learned counsel for the petitioner submits that the matter is pending in appeal before the Director of Public Instruction. All the relevant aspects will be considered by the 3rd respondent-Regional Deputy Director while passing fresh orders. The respective petitioners and the Management will be heard before passing fresh orders. Appropriate orders shall be passed, after considering the various aspects including the amendment of the Rules relied upon by the learned counsel for the petitioner in W.P.(C) No.16176/2008, within a period of two months from the date of receipt of a copy of this judgment. Till orders are passed, the interim order dated 30.05.2008 in W.P.(C) No.16176/2008 will continue in force. These writ petitions are disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp