IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 27TH JULY 2011 / 5TH SRAVANA 1933 WP(C).No. 23697 of 2008(U) -------------------------- PETITIONER: ----------------- LIZAMMA THOMAS D/O. Y.THOMAS, AGED 44 YEARS, L.M.U.P.SCHOOL, PONVILA, TRIVANDRUM DISTRICT BY ADV. SRI.V.A.MUHAMMED SRI.M.SAJJAD RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT TRIVANDRUM 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, TRIVANDRUM-14 3. SRI.K.SASIDHARAN ADDITIONAL DIRECTOR (ACADEMIC) OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION JAGATHY, TRIVANDRUM. 4. THE ASSISTANT EDUCATIONAL OFFICER TRIVANDRUM NORTH, TRIVANDRUM. 5. THE MANAGER LUTHERAN SCHOOLS, CONCORDIA HIGH SCHOOL COMPOUND PEROOKKADA, TRIVANDRUM. 6. SMT. R.SREE LATHAKUMARI CONCORDIA LUTHERAN U.P. SCHOOL PEROOKKADA, TRIVANDRUM. BY GOVERNMENT PLEADERSMT.NISHA BOSE FOR R1, R2 & R4 SRI.D.KISHORE FOR R5 ADV. SRI.S.P.ARAVINDAKSHAN PILLAY FOR R6 SMT.N.SANTHA FOR R6 SRI.S.A.ANAND FOR R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/07/2011, ALONG WITH WPC NO. 32218 OF 2008, WPC NO. 8909 OF 2009 & WPC NO. 15415 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.23697/08 PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE ORDER NO.C/3612/06.L.DIS. OF THE ASST.EDL.OFFICER DT.18.5.07. EXT.P2 : COPY OF THE ORDER NO.C/3974/05 OF THE -DO DT.24.11.07. EXT.P3 : COPY OF THE NOTE SUBMITTED BY THE MANAGER DT.15.2.08. EXT.P4 : COPY OF THE NOTE SUBMITTED BY THE PETITIONER DT.15.3.08. EXT.P5 : COPY OF THE CERTIFICATE DT.26.4.06. EXT.P6 : COPY OF THE CERTIFICATE (ACCOUNT TEST(L) ) DT.26.4.06. EXT.P7 : COPY OF THE ORDER NO.F1/88860/07/DPI/K.DIS. OF THE ADDL.DIRECTOR DT.25.3.08. EXT.P8 : COPY OF THE COMMUNICATION NO.C/138/08 OF THE ASST.EDUL.OFFICER DT.1.4.08. EXT.P9 : COPY OF THE REVISION PETITION ALONG WITH THE STAY PETITION FILED BEFORE THE GOVERNMENT DT.3.4.08. EXT.P10 : COPY OF THE JUDGMENT OF THIS COURT IN W.P.(C)NO. 11929/08 DT.8.4.08. EXT.P11 : COPY OF THE NOTE SUBMITTED BY THE PETITIONER DT.4.7.08. EXT.P12 : COPY OF THE GO(RT)NO.3320/2008/G.EDN. OF THE GOVERNMENT DT.19.7.08. EXT.P13 : COPY OF THE DECISION REPORTED IN 2003(1) KLT 60 DT.28.11.02. RESPONDENT'S EXHIBITS: EXT.R5(a) : COPY OF RELEVANT EXTRACT OF ORDER NO.304/05-06 DT.2.6.05. EXT.R5(b) : COPY OF APPOINTMENT ORDER DT.2.6.05 OF SHRI JACOB SAJI AS HEADMASTER OF CLUPS, PEROORKADA. EXT.R5(c) : COPY OF ORDER NO.987/06007 DT.9.8.06 OF THE MANAGER. EXT.R5(d) : COPY OF ORDER NO.C/3612/06/L.DIS. DT.18.5.07 OF THE 4TH RESPONDENT. EXT.R5(e) : COPY OF PROCEEDINGS NO.C/3974/05 DT.24.11.07 OF THE 4TH RESPONDENT. EXT.R5(f) : COPY OF ORDER NO.149/07 DT.17.12.07 OF THE MANAGER. EXT.R5(g) : COPY OF COMMUNICATION NO.149/07 DT.17.12.07 OF MANAGER TO THE 4TH RESPONDENT. EXT.R5(h) COPY OF ORDER NO.F/1/88860/67/DPI/K.DIS. DT.25.3.08 OF ADDITIONAL DIRECTOR(ACADEMIC) EXT.R5(i) COPY OF GO(RT)3320/2008/G.EDN. DT.19.7.08 OF 1ST RESPONDENT. EXT.R5(j) COPY OF ORDER NO.F/30404/08/DPI/K.DIS. DT.5.8.08 OF 2ND RESPONDENT. EXT.R5(k) COPY OF PROCEEDINGS NO.48016/H1/08/G.EDN. DT.5.8.08 OF THE 1ST RESPONDENT. EXT.R5(l) COPY OF COMMUNICATION DT.26.8.08 OF THE 4TH RESPONDENT. EXT.R5(m) COPY OF SHOW CAUSE NOTICE NO.GF/1/27271/08 DT.30.8.08 OF THE 2ND RESPONDENT EXT.R5(n) EXT.R5(o) COPY OF EXPLANATION DT.16.9.08 SUBMITTED BY THE RESPONDENT BEFORE THE 2ND RESPONDENT. EXT.R5(p) COPY OF ORDER NO.27271/08/DPI DT.22.10.08 OF THE 2ND RESPONDENT. EXT.R5(q) COPY OF APPROVED ORDER OF AEO. ******** EXT.R6(a) : COPY OF B.A.DEGREE CERTIFICATE. EXT.R6(b) COPY OF THE B.ED.DEGREE CERTIFICATE. EXT.R6(c) COPY OF CERTIFICATE OF DEPARTMENTAL TESTS DT.31.5.03. EXT.R6(d) COPY OF CERTIFICATE OF DEPARTMENTAL TESTS DT.31.5.03. EXT.R6(e) COPY OF LETTER NO.C/3974/05 DT.4.8.2006 ADDRESSED TO THE CORPORATE MANAGER OF LUTHERAN SCHOOLS. EXT.R6(f) COPY OF ORDER NO.987/2006-07 DT.9.8.06 OF THE MANAGER. EXT.R6(g) COPY OF ORDER NO.149/07 DT.17.12.07 OF THE MANAGER. EXT.R6(h) COPY OF PETITION DT.29.12.07. EXT.R6(i) COPY OF GOVERNMENT LETTER NO.24905/H1/08/G.EDN. DT.30.5.08 ADDRESSED TO THE MANAGER. EXT.R6(j) COPY OF LETTER NO.C./1657/08 DT.4.6.08 OF THE CHIEF INFORMATION OFFICER OF THE OFFICE OF THE AEO, NEDUMANGAD. EXT.R6(k) COPY OF LETTER NO.C/138/08 DT.5.8.08 OF THE ASSISTANT EDUCATIONAL OFFICER, THIRUVANANTHAPURAM. EXT.R6(l) COPY OF THE LETTER NO.287/08 DT.18.8.08 OF THE MANAGER. EXT.R6 (m) COPY OF NOTICE NO.F1/21271/08 DT.30.8.08 OF THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTION (ACADEMIC) EXT.R6(n) COPY OF ORDER NO.304/05-06 DT.2.6.05 OF THE MANAGER. EXT.R6(o) COPY OF ORDER NO.ET(5)/41227/04/DPI/K.DIS. DT.19.11.06 OF THE ADDITIONAL DIRECTOR(GENERAL), DIRECTORATE OF PUBLIC INSTRUCTION. //TRUE COPY// P.A. TO JUDGE dsn T.R.RAMACHANDRAN NAIR, J. ------------------------------------- W.P.(C)Nos.23697/08-U, 32218/08-I, 8909/09-G & 15415/11-B. -------------------------------------------------- DATED THIS THE 27TH DAY OF JULY, 2011 J U D G M E N T All these Writ Petitions concern the dispute regarding appointment to the post of Headmaster in different vacancies in the school managed by the Corporate Educational Agency, namely Lutheran Schools. 2. W.P.(C)No.23697/08 is filed challenging the orders passed by the Director of Public Instruction as well as by the Government produced as Exhibits P7 and P12 whereby the claim of the 6th respondent therein has been accepted for promotion to the post of Headmistress in a vacancy which arose on 2.6.2005. 3. W.P.(C)No.8909/09 and W.P.(C)No.15415/11 are filed by the petitioner, who has been appointed as Headmaster of the same school in a subsequent vacancy consequent on the death of one Shri David Solomon. In W.P.(C)No.32218/08 the challenge is against the order disqualifying the petitioner,who was the Manager of the school for not implementing the orders issued in favour of the 5th respondent. W.P.(C)No.23697/08 & con.cases -2- 4. The necessary facts for the disposal of the Writ Petitions are the following: 5. A vacancy arose in C.L.U.P.School, Peroorkada consequent on promotion of one Smt.Kanakambika on 2.6.2005. One Jacob Saji was promoted in that vacancy as evident from Exhibit P2 order produced in W.P.(C)No.32218/08. The 5th respondent Smt.R.Sreelatha Kumari raised an objection against the same before the Assistant Educational Officer and the Assistant Educational Officer issued a communication to the Manager which is produced along with her counter affidavit in W.P.(C)No.23697/08 pointing out about her claim as Exhibit R6 (e). Thereafter the Manager issued an order promoting Smt.Sreelatha Kumari. It appears that as subsequent disputes arose and with regard to the right of Managership, an objection was raised regarding the non-approval of appointment of the Manager which resulted in the Assistant Educational Officer rejecting the grant of approval of the said appointment(Ext.P1 in W.P.(C)No.23697/08). Subsequently, one Shri David Solomon who was already a Headmaster was brought into the school and Smt.Sreelatha Kumari was directed to continue as UPSA and the W.P.(C)No.23697/08 & con.cases -3- vacancy which arose due to the transfer of Shri David Solomon was filled up by one Shri Jacob Saji. This is evident from Exhibit P3 order produced in W.P.(C)No.32218/08. 6. These orders were under challenge before the Director of Public Instruction by way of an appeal by Smt.Sreelatha Kumari and the Director of Public Instruction upheld her claim as evident from Exhibit P7 produced in W.P.(C)No.23697/08. Thereafter the matter was finally disposed of by the Government in an appeal filed by the petitioner in W.P.(C)No.23697/08. The Government ultimately accepted the claim of Smt.Sreelatha Kumari and it was found that the approval was rejected only because of the management dispute. Relying upon Rule 9(1) of Chapter XIV-A KER, it was held that the said claimant was entitled for grant of approval with a further direction to approve the seniority list. 7. The Manager is before this Court in W.P.(C) No.32218/08, as already noticed, challenging the order Exhibit P18 disqualifying him in the light of the fact that orders granting promotion to Smt.Sreelatha Kumari, upheld by the Director of Public Instruction and by the Government were not implemented. W.P.(C)No.23697/08 & con.cases -4- 8. First I will deal with the claim of the petitioner in W.P. (C)No.23697/08. The petitioner therein is senior to the 6th respondent. The 6th respondent had acquired test qualification earlier than the petitioner therein. The certificates evidencing the acquisition of test qualification by the petitioner therein have been produced as Exhibits P5 and P6. According to the petitioner, as she had acquired the test qualification and as she was already senior to the 6th respondent, the action of the Manager in overlooking her claim cannot be justified. It is pointed out that the Director of Public Instruction in Exhibit P7 order found against the said petitioner only for the reason that at the time of promotion of Smt.Sreelatha Kumari, no objection was raised by the petitioner. 9. In the counter affidavit filed by the 6th respondent it is pointed out that the petitioner was not qualified as on 2.6.2005, the date of occurrence of vacancy. The examination to which the petitioner passed the above test commenced only on 1.7.2005 and the result was published only on 28.10.2005. Therefore it is pointed out that the petitioner became qualified only on 28.10.2005 and as she was not qualified as on 2.6.2005, she was W.P.(C)No.23697/08 & con.cases -5- not entitled to be promoted against that vacancy. It is pointed out that subsequent order passed by the Manager transferring Shri David Solomon was also under challenge before the Director of Public Instruction. 10. Therefore, the short question is whether the petitioner had acquired the qualification as on the date of occurrence of vacancy. Going by the admitted pleadings, it can be seen that she was not qualified as on the date of occurrence of vacancy. The learned counsel for the petitioner submitted that in the light of Rule 28(bbb)of Kerala State and Subordinate Services Rules, the petitioner's qualification ought to have been accepted. Evidently, the said contention cannot be raised by the petitioner since all the required conditions of the said Rules are not attracted herein. The only question is whether as on the date of occurrence of vacancy she was qualified. Even going by her own pleadings before the Government, namely Exhibit P11, according to the petitioner, she passed the Account Test(Lower) and KER test as on 26.4.2006. Even if it is considered that the results were published as on 28.10.2005 as revealed from the counter affidavit of the 6th respondent, then also she is out of reckoning. W.P.(C)No.23697/08 & con.cases -6- In that view of the matter, the claim of the petitioner therein cannot be accepted. Therefore the finding that the petitioner has no right for being promoted as Headmistress as on 2.6.2005 do not call for any interference. It is pointed out that she was subsequently promoted in a vacancy which arose in 2008. Therefore the said Writ Petition does not deserve any merit. 11. As far as W.P.(C)No.32218/08 is concerned, the Manager is before this Court aggrieved by the disqualification proceedings. It is contended by the learned counsel for the petitioner that the provisions of Rule 7 of Chapter III of KER requires issuance of show cause notice and conduct of due enquiry. It is pointed out that the petitioner has not disobeyed any of the directions issued by the authorities concerned. But, he has shown cause by submitting Exhibit P17. It is pointed out that none of the relevant aspects were considered while issuing Exhibit P18 order. 12. Exhibit P18 order shows that a show cause notice was issued to the Manager. The Director of Public Instruction found that the reply furnished by the Manager is not satisfactory. W.P.(C)No.23697/08 & con.cases -7- 13. Evidently, the proceedings under 7(3) of Chapter III of KER will visit adverse civil consequences to the Manager concerned. Therefore, it was incumbent upon the authorities concerned to conduct a due enquiry. Even going by the provisions of Rule 7(1), different grounds have been stated which may invite disqualification as far as the Managership of a school is concerned. They are, mismanagement, malpractice, corruption or maladministration, gross negligence of duty or disobedience of Departmental instruction on the part of the Manager or denial of appointment to a qualified thrownout teacher who has a rightful claim for reappointment by virtue of his/her holding the post earlier or denial of promotion to a teacher who is a rightful claimant for promotion by the Manager or conviction of the Manager for an offence involving mortal turpitude. The provision enables the authorities concerned to take action and issue a declaration after conducting due enquiry. Of course, herein, the charges against the Manager included non-implementation of the orders passed by the authorities concerned in favour of the promotee. The petitioner had offered an explanation as evident from Exhibit P17. Whether the Manager should have been W.P.(C)No.23697/08 & con.cases -8- disqualified for non-compliance could have been decided only after conducting due enquiry. 14. The learned Government Pleader submitted that a show cause notice was issued. Evidently, the show cause notice is a condition precedent for taking action in the matter. That was complied with. But the absence of due enquiry in the matter will vitiate the proceedings. But because of subsequent developments, the matter has become academic now as it is pointed out that the election subsequently conducted resulted in Shri C.H.Alfred getting the Managership. But still, the learned counsel for the petitioner submitted that Exhibit P18 will act as a permanent disqualification. Exhibit P18 cannot therefore survive and the same is quashed to the extent of disqualifying the petitioner permanently. The said Writ Petition is allowed to that extent. 15. W.P.(C)Nos.8909/09 and 15415/11 are filed by the same petitioner. The petitioner herein is an undergraduate, but he is senior to the 4th respondent Smt.Sreelatha Kumari, in the seniority list. The petitioner contends that he was appointed as Headmaster in the vacancy caused due to the death of one Shri W.P.(C)No.23697/08 & con.cases -9- David Solomon on 12.2.2009 in Concordia U.P.School. Evidently, the petitioner's claim for appointment arises in the light of the amendment to Rule 45 of Chapter XIV-A KER effected from 30.1.2008 . But, the petitioner had no claim for promotion against the vacancy which arose on 2.6.2005, since under the unamended Rule as against a graduate claimant, he could not have established his claim successfully even though he was senior to the 4th respondent going by the provisional seniority list, which has been approved as on today. His case appears to be that the claim of the 4th respondent was wrongly accepted by the Department and by the Government and therefore the 4th respondent is not entitled for promotion. One of the aspects raised is that another senior qualified hand Smt.C.H.Latha Kumari was available and therefore the 4th respondent could not have been successfully pursued her claim before the Director of Public Instruction and before the Government. 16. I have already upheld the orders passed by the Director of Public Instruction and by the Government while considering W.P.(C)No.23697/08. Evidently, the petitioner's claim arises only after the amendment of the rules namely as on W.P.(C)No.23697/08 & con.cases -10- 30.1.2008. The petitioner's claim appears to be that he was promoted in the vacancy caused due to the death of Shri David Solomon in a subsequent vacancy and therefore as on that date, he was qualified and therefore his promotion should be sustained. 17. The learned counsel for the 4th respondent submitted that the 4th respondent's claim was from 2.6.2005 and actually the petitioner cannot have any grievance against the 4th respondent. It is also submitted that the 4th respondent has no objection with regard to the claim of the petitioner for appointment in any of the subsequent vacancies and the vacancy consequent on the death of Shri David Solomon. 18. Even though the learned counsel for the petitioner vehemently contended that while promoting the 4th respondent, the claim of one Smt.C.H.Latha Kumari was not considered, it is pointed out by the learned counsel for the 4th respondent and the learned counsel appearing for the Manager that she had filed a Writ Petition as W.P.(C)No.3452/09 challenging the orders in favour of Smt.Sreelatha Kumari and the same was dismissed as withdrawn. It is pointed out that she has now been promoted to the vacancy of Headmistress which has arisen in June 2011. The W.P.(C)No.23697/08 & con.cases -11- orders under challenge are Exhibits P4 and P7, by which the orders in favour of the 4th respondent have been directed to be implemented. The challenge against these orders and Exhibit P2 order passed by the Government in favour of the 4th respondent, at the instance of the petitioner, who has no claim for promotion in the vacancy which arose on2.6.2005, cannot obviously survive. For all these reasons W.P.(C)No.8909/09 fails. 19. In W.P.(C)No.15415/11 also the challenge is against the very same orders passed by the Director of Public Instruction and by the Government. As already found, the petitioner has no claim to the vacancy which arose on 2.6.2005. In that view of the matter, the said Writ Petition is without any merit. But, if the petitioner has got any complaint that any juniors of him other than Smt.Sreelatha Kumari have been accommodated as Headmaster in any other vacancy as against his claim which has arisen after 30.1.2008, namely amendment of Rule 45, it is upto the petitioner to raise the grievance before the authorities concerned. W.P.(C)Nos.23697/08, 8909/09 and 15415/11 are dismissed. W.P.(C)No.32218/08 is allowed to the extent of the disqualification of the petitioner as Manager. In the light of the W.P.(C)No.23697/08 & con.cases -12- dismissal of Writ Petition Nos.23697/08, 8909/09 and 15415/11 , the Manager of the school will take necessary action for implementing the directions issued by the Government and by the Director of Public Instruction. The learned counsel appearing for the 4th respondent- Smt.Sreelatha Kumari prayed that a direction may be issued to disburse the salary and other benefits to her. The benefits can be claimed after joining and getting approval, for which she can move the departmental authorities. No costs. Sd/-(T.R.RAMACHANDRAN NAIR, JUDGE) dsn