IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 W.A.No. 2540 of 2009 ------------------------------------------ AGAINST THE JUDGEMENT IN WPC.37381/2008 Dated 01/10/2009 .................... APPELLANT(S)//PETITIONERS:- ---------------------- 1. ARAVUKAD KSHETHRAYOGAM, PUNNAPPRA.PO, ALAPPUZHA REP.BY ITS SECRETARY,K.MOHANAN, AGED 52 YEARS,S/O.KUNJU PANIKKAN, THAMAREZHATHU HOUSE, PUNNAPRA, ALAPPUZHA. 2. P.T.SUMITHRAN,AGED 42 YEARS, S/O.THANKAPPAN, THE MANAGER, ARAVUKAD HIGHER SECONDARY SCHOOL, PUNNAPRA,ALAPPUZHA-4. BY ADV. SRI. KRB. KAIMAL, SENIOR ADVOCATE SRI. B.UNNIKRISHNA KAIMAL RESPONDENT(S): RESPONDENTS -------------------------- 1. STATE OF KERALA, REP.BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTI0NS, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCTIONAL OFFICER, ALAPPUZHA. 4. SMT.SOPHIA.M,SHEELA NIVAS,ASHRAMAM WARD, AVALOOKUNNU.PO, ALAPPUZHA DISTRICT. 5. SMT.V.ASHA, HIGH SCHOOL ASSISTANT, ARAVUKAD HIGHER SECONDARY SCHOOL, PUNNAPRA.PO, ALAPPUZHA-4. R1 TO R3 BY GOVT. PLEADER SMT. R. BINDU. R4 BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA, SRI.PETER JOSE CHRISTO SRI.S.A.ANAND, R5 BY ADVS. SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI, SRI.BRIJESH MOHAN, SMT.DHANYA CHANDRAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14/12/2009, ALONG WITH W.A. NO. 2534 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. ------------------------------ W.A.Nos.2540 and 2534 of 2009 ------------------------------ Dated this, the 14th day of December, 2009 JUDGMENT Balakrishnan Nair, J. These appeals are directed against the common judgment of the learned Single Judge dated 1.10.2009 disposing of W.P.(C) No.36400/08 filed by the appellant in W.A.No.2534 of 2009 and W.P.(C) No.37381/08 filed by the appellants in W.A.No.2540 of 2009. W.A.No.2540 of 2009: This Writ Appeal is treated as the main case for the purpose of referring to the parties and the exhibits. The appellants were the writ petitioners. They were respectively the Aravukad Kshethrayogam, which is the educational agency of Aravukad Higher Secondary School and the Manager of the said school, elected by the Kshethrayogam. 2. The brief facts of the case are the following: Aravukad Bhagavathy temple belonged to the Komarthussery WA Nos.2540 & 2534/09: - 2 - family. The temple along with its assets including the aforementioned school were brought under the management of the Kshethrayogam and Ext.P1 bye-laws govern the management of the said Kshetrayogam. Clause 4 of Ext.P1 mentions about the territorial area of Aravukad Bhagavathy Temple. Clause 115(b) of Ext.P1 says that when vacancy arises in the post of teacher in the educational institution, the members of Komarthussery family shall be preferred for appointment, provided they are qualified. 3. A vacancy in the post of High School Assistant (Hindi) arose in the school in 2004. The Manager invited applications. The 4th respondent was one of the applicants for the post. But, the Manager appointed the 5th respondent, by Ext.P8 order dated 12.12.2006. However, the District Educational Officer, by Ext.P9 order dated 20.4.2007 declined to approve the said appointment. The approval was rejected on the ground that the appointment was made by a Manager, who was not approved by the Department. The Manager appealed. But, the Deputy Director, by Ext.P10 order dated WA Nos.2540 & 2534/09: - 3 - 5.11.2007, affirmed the order of the D.E.O. The 5th respondent filed a revision against these orders before the Government. In the meantime, the 4th respondent approached this Court feeling aggrieved by the non-consideration of her claim by the Manager. She claimed that she is a member of the Komarthussery family and therefore, entitled to preference in the matter of appointment. This Court, by Ext.P11 judgment directed the said respondent to raise her claim before the Government, when it considers the revision filed by the 5th respondent. The Government heard all the parties and passed Ext.P13 order dated 20.11.2008, upholding the claim of the 4th respondent, based on the finding that she is a member of the Komarthussery family and directing to appoint her as H.S.A. (Hindi) with prospective effect. Feeling aggrieved by Ext.P13, the appellants herein preferred the Writ Petition. 4. The learned Single Judge, after hearing both sides, dismissed the Writ Petition. The learned Single Judge took the view that the finding that the 4th respondent is a WA Nos.2540 & 2534/09: - 4 - member of Komarthussery family entered by the Government is a finding of fact, which cannot be disturbed in the proceedings under Article 226 of the Constitution of India. In that view of the matter, the Writ Petition was dismissed. Challenging the said decision, this appeal is preferred by the writ petitioners. 5. The learned Senior Counsel, Sri.K.R.B.Kaimal, who appeared for the appellants, submitted that a close reading of sub-clause (b) of clause 115 of Ext.P1 Bye-laws would show that members of the family, who are residing within the area mentioned in clause 4 of Ext.P1 alone are entitled to claim preference. In this case, admittedly, the 4th respondent is presently residing at Alappuzha, which is outside the area mentioned in clause 4. Therefore, she is ineligible for preference. Secondly, it is submitted that the 4th respondent is not qualified for appointment. She claimed that she is having B.Ed. as evident from Ext.P7 application. But, she is neither a graduate in Hindi nor she has B.Ed. in Hindi. Going by the claim of the 4th respondent now made in WA Nos.2540 & 2534/09: - 5 - this appeal, she is having the qualification of Rashtrabasha Praveen of Dakshina Bharata Hindi Prachar Sabha, which is equivalent to B.A.(Hindi) as per Rule 2(2)(b)(iv) of Chapter XXXI of the Kerala Education Rules. She does not have any of the training qualification mentioned in the said rule. The claim raised before this Court is that she is having an equivalent qualification. But, the said rule does not provide for equivalent qualification. Therefore, the Government should not have issued a direction to appoint the 4th respondent, without examining whether she is qualified or not. Thirdly, it is submitted that this Court by Ext.P11 judgment allowed the 4th respondent to produce the records available with her before the Government to show that she is a member of the Komarthussery family. But, she has produced documents, which were procured subsequently. The same is not permissible, going by Ext.P11, it is submitted. 6. We also heard learned counsel Sri.Jaju Babu, who appeared for the 5th respondent, and who has filed the connected writ appeal. The learned counsel adopted the contentions of the learned Senior Counsel, Sri.K.R.B.Kaimal WA Nos.2540 & 2534/09: - 6 - and further submitted that the 5th respondent has been working since her appointment in 2006. The 4th respondent is not qualified and she can be preferred for appointment if only other things are equal and not otherwise. 7. We heard Sri.S.P.Aravindakshan Pillay, who appeared for the 4th respondent. He submitted that 4th respondent is having a training qualification, which is treated as equivalent to B.Ed. in Hindi, by virtue of G.O.(Ms) No.88/1998/G.Edn. dated 17.3.1998. Further, it is pointed out that lack of qualification was never canvassed before the Government or before the learned Single Judge. Therefore, the said contention ill-comes from the mouth of the appellants. The learned counsel for the 4th respondent further submitted that if there is a member of the Komarthussery family, who is qualified, he/she must be appointed first and only thereafter, a candidate from the open market can be considered. The learned Single Judge has rightly interpreted that provision. The contention that once a member of the family moves out of the area mentioned in clause 4 of Ext.P1, he will become disqualified is irrational, it is submitted. WA Nos.2540 & 2534/09: - 7 - 8. We also heard the learned Government Pleader, who supported Ext.P13. She also made available to us the files of the Government, leading to Ext.P13. 9. Clause 115(b) of Ext.P1, which requires interpretation, reads as follows, on translation:- “When vacancies of teachers arise in the educational institution, applications submitted by members, who are qualified, of Komarthussery family within the area of the temple, shall be preferred.” Thus, if a qualified hand, who is a member of the family applies, he has to be considered for appointment, in preference to a candidate from open market. The preference contemplated under the above clause, shall apply, even if other things are not equal. The point in dispute is, to get preference, whether the members of the Komarthussery family should reside within the area of the temple or whether they need be members of Komarthussery family, which is a family within the area of the Aravukad temple. We think, the latter is intended by the above quoted rule. The possibility of WA Nos.2540 & 2534/09: - 8 - a family by name Komarthussery to be found in other places cannot be ruled out. So, the adjectival words 'within the area of the temple' apply to the family and not to the members, and further, it cannot be assumed that the members of the family, on moving out from the area of the temple, will become disqualified, was the intention of the framers of the bye-laws. The view that the members of the Komarthussery family even if they reside outside the area of the temple are eligible to get preference, cannot be said to be irrational. Being members of the Komarthussery family is important and not their place of residence. We, therefore, find it difficult to accept the contentions of the appellants. The contention that the 4th respondent should not have produced new records from the village officers to prove her claim regarding membership of the family is also not tenable. So, we think that the view taken by the learned Single Judge that there is no reason to interfere with the finding of the Government in this regard, is unassailable. We affirm the same. 9. Even if the 4th respondent is entitled to be preferred for appointment, she can be appointed, if only she is WA Nos.2540 & 2534/09: - 9 - qualified. No authority had occasion to consider whether she was qualified or not. In this case, we think it is a matter, which should be decided by the D.E.O. Accordingly, the 3rd respondent is directed to consider the claim of the 4th respondent that she is qualified for appointment as H.S.A. (Hindi), within one month from the date of receipt of a copy of this judgment. Before taking the decision, the 3rd respondent shall afford an opportunity of being heard to the appellants as also respondents 4 and 5. On communication of the decision of the D.E.O., if the same is in favour of the 4th respondent, the Manager shall forthwith appoint the 4th respondent as H.S.A.(Hindi) in the school with effect from the date of Ext.P13. But, her approval from the date of Ext.P13 will be notional and she will be eligible to claim salary only from the date of decision of the D.E.O. in her favour. If the 4th respondent is found to be not qualified, there is no reason for not approving the appointment of the 5th respondent. In that event, the D.E.O. shall pass appropriate orders approving the appointment of the 5th respondent. In case the 4th respondent is held to be qualified and thereupon, she is appointed as WA Nos.2540 & 2534/09: - 10 - H.S.A.(Hindi) with effect from the date of Ext.P13, the period, the 5th respondent has actually worked up to that date, shall be approved by the 3rd respondent for the limited purpose of payment of salary to her. Further, for appointment in future vacancies, as against open market candidates, she shall be entitled to preference. With the above directions, the Writ Appeal is disposed of. W.A.No.2534 of 2009: The judgment in W.A.No.2540 of 2009 will govern this case also. The Writ Appeal is disposed of accordingly. Sd/- K. Balakrishnan Nair, Judge. Sd/- P. Bhavadasan, Judge. DK. (True copy)