IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 WA.No. 68 of 2009() ------------------- AGAINST THE JUDGEMENT IN OP.18591/2000 Dated 12/12/2008 .................... APPELLANT: RESPONDENT NO: 4 -------------------------------------------------- THE CORPORATE MANAGER THE CORPORATE EDUCATIONAL AGENCY DIOCESE OF MANATHAVADY, BISHOP HOUSE, MANANTHAVADY, WAYANAD DISTRICT 670 645. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENTS: PETITIONER & REPONDENT NOS: 1 TO 3 & 5 --------------------------------------------------------------------------------------------------- 1. K.V.VARKEY, HIGH SCHOOL ASSISTANT ST.JOSEPH'S HIGH SCHOOL, KALLODY EDAVAKA PO, WAYANAD 670 645. 2. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,THIRUVANANTHAPURAM. 3. THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM. 4. THE DISTRICT EDUCATIONAL OFFICER WAYANAD. 5. SR.ANNAMMA M.D., HEADMISTRESS ASSUMPTION GIRLS HIGH SCHOOL S.BATHERY , WAYANAD DISTRICT. BY ADV SHRI. S. EASWARAN FOR R1 R2 TO 4 BY GOVT. PLEADER SHRI. P.K. RAVIKRISHNAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ W.A NO: 68 OF 2009 ----------------------------------------------------------------------------------- Dated this the 9th January, 2009. JUDGMENT BALAKRISHNAN NAIR, J. Fourth respondent in the original petition is the appellant. First respondent herein was the petitioner. The writ petition was filed challenging Ext.P8 order of the Government dated 14.6.2000 reviewing Ext.P6 order of the Government dated 21.1.2000. The brief facts of the case are the following:- 2. The first respondent and fifth respondent were high school assistants under the schools managed by the appellant. When a vacancy of Headmaster arose in Assumption Girls High School, Sulthan Bathery, though first respondent was the senior qualified hand, he was superseded and the fifth respondent was appointed as Headmaster by the manager as per Ext.R4(d) order dated 1.6.1998. The said appointment was approved for one year from 1.6.1998 to 31.5.1999. It was followed by Ext.R4(e) order of the manager appointing the fifth respondent from 1.6.1999 in a retirement vacancy. The earlier appointment was in a leave vacancy. The later appointment as per Ext.R4(e) was approved by W.A. No: 68/2009 2 the educational officer without any time limit. 3. The first respondent took up his grievance of supersession before the statutory authorities. The Director of Public Instruction upheld the contention of the first respondent. It was affirmed by the government also by Ext.P6 order passed in the revision filed by the manager under Rule 92 of Chapter XIVA KER. Later the appellant-Manager preferred Ext.P7 review petition under Rule 93. The said review petition was considered and allowed by the government by Ext.P8. Challenging Ext.P8 the first respondent filed O.P. 18591/2000. The appellant-Manager tried to justify the supersession of the first respondent and the preference given to the fifth respondent on the ground that the school concerned is a minority educational institution and therefore the rule of seniority in the matter of appointment of Headmaster under Rule 44 of Chapter XIVA KER is not applicable to his School. All the authorities initially declined to accept that contention. The statutory authorities declined to accept the contention of the appellant for the reason that he failed to produce any evidence to substantiate his claim. Along with Ext.P7 review application certain additional materials were produced. Based on those materials the government reviewed Ext.P6 and passed Ext.P8 order. W.A. No: 68/2009 3 4. First respondent contended that a review petition under Rule 93 will lie only against original orders passed by the government and not against an order passed in revision under Rule 92 like Ext.P6. It was also contended that first respondent is the senior qualified hand and therefore in the absence of any special grounds he should have been appointed. Therefore, the writ petition was filed seeking mainly the following reliefs:- “a) issue a writ of certiorari or other appropriate writ, directions or orders calling for the records leading upto Ext.P8 order of the 1st respondent; and b) quashing Ext.P8 order of the 1st respondent; c) issue a writ of mandamus or other appropriate writs, directions or orders compelling respondents 1 to 4 to promote and appoint the petitioner as the Headmaster of one of the schools under the Corporate Educational Agency of the 4th respondent in preference to his juniors like the 5th respondent under threat of Rule 7 of Chapter III of the Kerala Education Rules, 1959; d) compel respondents 1 to 4 in recognition and implementation of the claim of the petitioner as seniormost High School Assistant in the schools under the corporate management of the 4th respondent for promotion and appointment as Headmaster in one of the schools in the corporate educational agency of the 4th respondent;” 5. The appellant resisted the original petition by filing a detailed counter affidavit and also producing Exts.R4(a) to R4(c) to show that the schools managed by the appellant are minority educational institutions and therefore strict rule of seniority is not W.A. No: 68/2009 4 applicable in the matter of making appointment to the pivotal post of Headmaster. The manager also produced Exts.R4(d) and R4(e) appointment orders as per which fifth respondent was appointed. The learned Single Judge after hearing both sides held that Ext.P8 is passed without jurisdiction as no review will lie against an order passed in revision. Accordingly it was quashed. Learned Judge also gave further directions to appoint the first respondent/petitioner as Headmaster with effect from 18.2.1998 till 30.6.2001, the date on which the said respondent was superannuated from service. 6. The appellant feeling aggrieved by the said judgment has preferred this writ appeal. Learned counsel Mr. Grashious Kuriakose who appeared for the appellant raised the following points:- 7. The educational institution concerned is a minority institution and therefore, learned Judge ought not to have held otherwise and intervened in the matter of appointment to the post of Headmaster. Even assuming the appointment of the fifth respondent is bad, the same will not result in automatic appointment of the first respondent. Therefore the direction given to appoint the first respondent is bad in law. At any rate it is prayed that the observations of the learned Judge which will have W.A. No: 68/2009 5 the effect of denying minority status of the appellant school may be vacated. 8. We heard the learned counsel Mr. S.Easwaran for the first respondent. 9. Rule 93, it is well settled, does not confer any power on the government to review an order passed in revision. Therefore we hold that the learned single Judge has rightly quashed Ext.P8 order. 10. In this case we would proceed on the assumption that the petitioner's school is a minority educational institution and, therefore, if found necessary in the interest of the institution, the manager can supersede a senior teacher and appoint a junior as Headmaster. But going by Exts.R4(d) and R4(e) appointment orders we find that no such power has been invoked while making the appointment. But on the contrary, it is stated that there is no qualified teachers existing under the service of the educational agency and, therefore the fifth respondent is appointed. The relevant portion of Ext.R4(d) order reads as follows:- “Certified that there is no qualified teacher existing in service under this educational agency, who is eligible for promotion to the vacancy for which the above appointment is made.” The same declaration is made in Ext.R4(e) also. So, going by those W.A. No: 68/2009 6 orders we notice that the fifth respondent has been appointed on the ground that she is the only qualified teacher in the educational agency or rather the seniormost teacher among the qualified hands. The orders do not mention anything about the exercise of minority right and appointing a suitable hand in the place of the senior hand who is considered ineligible. But when the matter was challenged appellant-Manager has taken the stand that in fact the appointment was made in exercise of the minority right available under Art.30(1) of the Constitution of India. Since the appellant does not have any such case in the appointment orders, the said contention could not have been accepted by any of the statutory authorities. Therefore, we find nothing wrong with the stand taken by the Director of Public Instruction or that of the government, at the first instance, in favour of the first respondent. Therefore, we are not justified in interfering with the judgment of the learned single Judge wherein the above orders of the statutory authorities are upheld. 11. The next point to be considered is whether the order of the learned single Judge directing appointment of the first respondent as Headmaster and the further direction to grant him consequential benefits are correct. Learned counsel for the W.A. No: 68/2009 7 appellant vehemently contended that the said order is bad. But we notice that nowhere in the pleadings of the appellant, he has a case that the writ petitioner is an unsuitable person by reason of bad character or for some other ground. So, when the manager does not invoke the minority right and claims to have made appointment by seniority, the first respondent could not have been superseded or overlooked. Therefore, we feel nothing wrong with the judgment of the learned single Judge to promote the first respondent and also to grant him consequential benefits. We also hold that the further direction to recover any loss suffered by the government as a result of appointment of the first respondent, from the manager is also legal and valid. 12. Learned counsel for the appellant submitted that even assuming Ext.P8 is without jurisdiction this Court may not interfere with the same as the same advances justice and if it is quashed it will have the effect of resurrecting Ext.P6 order. In support of that learned counsel relied on the decision of the Apex Court in Mohammed Swalleh and others v. IIIrd Additional District Judge, Meerut and another (AIR 1988 S.C.94). But we think that the said decision does not have any application to the facts of the case. In fact resurrection of Ext.P6 renders justice to the seniormost hand. W.A. No: 68/2009 8 13. In the result the writ appeal is devoid of any merit and it is accordingly dismissed. But it is clarified that whether the appellant's educational institution is a minority institution or not is kept open and anything observed in the judgment under appeal will not bind the appellant in raising that contention before the statutory authorities or in any other proceedings. K.BALAKRISHNAN NAIR Judge K. SURENDRA MOHAN Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: