IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 21ST MAY 2008 / 31ST VAISAKHA 1930 WP(C).No. 16693 of 2005(K) -------------------------- PETITIONER: ------------ JOSHY ANTONY, HIGHER SECONDARY SCHOOL TEACHER (BOTANY), ST.JOSEPHS BOYS HIGHER SECONDARY SCHOOL, KOZHIKODE-32. BY ADV. SRI.K.T.SHYAMKUMAR RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, SANTHI NAGAR, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, KOZHIKODE. 4. THE MANAGER, ST.JOSEPHS BOYS HIGHER SECONDARY SCHOOL, KOZHIKODE-32. 5. REV. FR.M.J.AUGUSTIN S.J., PRINCIPAL, ST.JOSEPHS BOYS HIGHER SECONDARY SCHOOL, KOZHIKODE-32. BY ADV. SRI.V.M.KURIAN FOR R4 SRI.A.V.THOMAS FOR R4 SRI.MATHEW B. KURIAN FOR R4 SRI.K.T.THOMAS FOR R4 GOVT. PLEADER SRI. T.T. MAHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/04/2008 ALONG WITH WPC NO. 27669/2005, 29869/2005 & 22492/2006 THE COURT ON 21/05/2008, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 16693/2005. --------------------------------------------------------------------- EXT.P1 TRUE COPY OF ORDER DT. 14-6-2004. EXT.P2 ORDER DT. 11-2-2005. EXT.P3 CIRCULAR DT. 13-4-2005. EXT.P4 REPRESENTATION DT. 16-3-2005. RESPONDENTS' EXHIBITS: -------------------------------------- EXT.R4(a) ORDER DT. 19-4-2005 [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) Nos. 16693, 27669 & 29869/2005 & 22492 of 2006 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 21st April, 2008. J U D G M E N T Since these four writ petitions relate to the same subject matter, namely, appointment to the post of Principal in the St. Jopseph's Boys Higher Secondary School, Kozhikode, they have been heard together and are being disposed of by this common judgment. 2. The petitioner in W.P(C) Nos. 16693/2005, 27669/2005 and 22492/2006 is a higher Secondary School Teacher, who aspires for promotion to the post of Principal of the school and the petitioner in W.P(C) No. 29869/2005 is the Manager of the school, who contests the claim of the teacher for such promotion. For convenience, I shall refer to the rank of parties, pleadings and Exhibits as obtaining in W.P (C) No. 22492/2006, since the same are comprehensive and are sufficient for disposal of all the writ petitions. 3. The school is the only school owned by the Educational Agency. The petitioner entered the service of the school as a High School Assistant on 17-6-1992, at a time when the school was a High School. When Higher Secondary Section was sanctioned for the School, the petitioner was appointed as a Higher Secondary School teacher with effect from 24-8-1998. The petitioner possesses Masters Degree with 50% marks and B.Ed. Degree. One Rev. Fr. M.J. Augustine was originally appointed as the Principal of the school. But, he did not possess one of the prescribed qualifications, namely, Masters Degree with 50% marks. Although pursuant to the decision of this Court in A.H.S.S.T. Assn. v. State of Kerala, [2005 (2) KLT 94 (F.B)] and the Government Orders issued in accordance with the decision, the said Fr. M.J. Augustine was liable to be reverted, the Manager of the school did not do so and therefore the petitioner filed W.P.C. No. 16693/05 etc., -: 2 :- W.P(C) No. 16693/2005 seeking a direction to the Manager to revert the said Fr. M.J. Augustine and to appoint the petitioner as the Principal of the school. While so, by order dated 19-9-2005, the Manager appointed the 4th respondent as Principal of the school. According to the petitioner, the 4th respondent was appointed as H.S.A only on 9-9-1996 having continuous service as HSA only from 2-6- 1997, and as H.S.S. Teacher only with effect from 24-8-1998 and therefore did not possess the required experience qualification of 12 years prescribed for becoming eligible for promotion as Principal. Challenging the appointment of the 4th respondent as Principal of the school on the ground that he does not have the minimum approved teaching experience of 12 years prescribed for the post of Principal in Chapter XXXII of the Kerala Education Rules, the petitioner filed W.P (C) No. 27669/2005. The action of the Manager in placing the 4th respondent as the Principal of the school was also not approved by respondents 1 and 2. Challenging orders in this regard, the Manager filed W.P(C) No. 29869/2005. 4. This Court passed the following interim order in W.P(C) Nos. 16693, 27669 and 29869 of 2005: “When this matter came up today, learned counsel appearing on behalf of the parties have agreed that selection has to be made to the post of Principal of the School in terms of Chapter XXXII KER. It is also not in dispute that the petitioner (Shri Joshy Antony), by virtue of completion of 12 years of service, is eligible to be considered in terms of Chapter XXXII KER. In such circumstances, pending final decision in the Writ Petitions, there will be a direction to the second respondent Manager of the respondent School, to take expeditious steps, to see that the selection to the post of Principal in the respondent School is completed within a period of two months from today.” Pursuant to that interim order, a selection committee was constituted comprising of respondents 5 to 7, who interviewed the petitioner, who was the only qualified candidate available, for selection to the post of W.P.C. No. 16693/05 etc., -: 3 :- Principal. However, the 4th respondent-Manager, by Ext. P4 order, informed the petitioner that the selection committee did not recommend the petitioner for appointment as Principal and since the Manager did not find any reason to differ from the recommendation, it was decided that the petitioner cannot be appointed as Principal of the school. Challenging the said action of the Manager, the petitioner filed W.P(C) No. 22492/2006 seeking the following reliefs: “(i) To call for the records leading to the issuance of Exhibit P4 order issued by the 3rd respondent and quash the same by issuing a writ of certiorari or any other appropriate writ,m order or direction; (ii) declare that Selection Committee constituted under Rule 4 of Chapter XXXII of KER has no authority to hold that a qualified candidate as per Rules is not entitled for promotion in the absence of any other qualified candidate eligible for promotion to the sole vacant post of Principal of the school; (iii) issue a writ of mandamus or any other appropriate writ, order or direction directing the 3rd respondent to produce before this Honourable Court the recommendations of the selection committee constituted for appointment to the post of Principal of the school along with notes of each of the members of the selection committee; (iv) issue a writ of mandamus or any other appropriate writ, order or direction directing the 3rd respondent to appoint the petitioner in the post of Principal of St. Josephs Higher Secondary School, Kozhikode.” (Originally, the petitioner only challenged Ext. P4. A statement was filed in the writ petition on behalf of respondents 3, 4 and 5 along with which the recommendations of the three selection committee members were produced. The petitioner has thereafter amended the writ petition producing the same as Ext. P7 series and incorporating a challenge against the same also.) 5. Subsequent to amendment of the writ petition, counter affidavits have been filed by the 3rd and 5th respondents supporting the W.P.C. No. 16693/05 etc., -: 4 :- action of respondents 3 and 5 to 7, taking the stand that the school is a minority school and minority rights guarantee the right of the school to appoint a person suitable to the well being of the school and that since the selection committee has refused to recommend the petitioner for appointment, which is in accordance with the rules stipulated in Chapter XXXII of the K.E.R, their action cannot be faulted. 6. The petitioner contends that he being the only candidate possessing the qualifications prescribed by the Rules for appointment as Principal in aided Higher Secondary Schools, in the absence of any finding that he is unfit to hold the post of Principal, neither the selection committee nor the Manager could refuse to select him for appointment as Principal by promotion as contemplated in the Rules. He relies on the decisions of N.S.S. Colleges' Central Committee v. Calicut University Appellate Tribunal and others, 1998 (1) KLJ 54, A.H.S.S.T.Assn. v. State of Kerala, 2005 (1) KLT 94 (FB), Manager, S.S.H.S. School v. Lijin, 2007 (3) KLT 663, Valsala Kumari Devi v. Director, Higher Secondary Education, 2007(4) KLT 494 (S.C), Vijayamoney K.R v. Director of Higher Secondary Education, 2008(1) ILR Kerala 774 and Mohanan A.V. v. The manager, A.U.P. School and others, 2007(4) KHC 1025 in support of his contentions. 7. The Manager would contend that the right to choose a Principal of their choice is part of the right of minorities under Article 30(1) of the Constitution to establish and administer educational institution of their choice, which right would include the right to decide whether a particular candidate is suitable for the school as Principal, which alone has been done by him. He would contend that simply because the petitioner is the only qualified candidate, he does not become eligible for automatic selection and still he has to be W.P.C. No. 16693/05 etc., -: 5 :- recommended by the selection committee, which the selection committee has not chosen to do. It is contended that the fact that the selection committee has not recommended the petitioner would mean that he is unsuitable for holding the post. The further contention is that this Court cannot sit in appeal over the decision of the selection committee, in the absence of any material to show that the decision is in any way tainted by extraneous considerations or mala fide intentions. He relies on the decisions of A. Pandurangam Rao v. State of Andhra Pradesh and others, AIR 1975 SC 1922, Daloat Abasaheb Solunke and others v. Dr. B.S. Mahajan and others, (1990) 1 SCC 305, Ram Gopal Sharma v. The Deputy Director of Education (Secondary-1) U.P. and others, 1993 (7) SLR 410, Inderpreet Singh Kahlon v. State of Punjab, 2006 (3) KLT S.N.21, Case No. 34, Antony, P.A. and others v. Krishnadas, M.N. and others, 2007(1) ILR Kerala 244, Malankara Syrian Catholic College v. Jose, 2007(1) KLT 22 (S.C) and Chandramohan Nair, S. v. State of Kerala and others, 2007(2) ILR Kerala 322, in support of his contentions. 8. I have carefully considered the rival contentions in detail. 9. Now it is not disputed before me that the petitioner is the only qualified person available in the field of choice and that the 4th respondent does not possess the requisite qualifications prescribed by the Rules. Therefore, I need only consider the validity of the action of the selection committee in not recommending the petitioner and that of the Manager in deciding not to appoint the petitioner as Principal. The rule applicable is item No. 1 of the Table appended to Rule 4 of Chapter XXXII of the K.E.R, which reads thus: “Principal (1) By promotion from category 2 under the respective educational agency. OR W.P.C. No. 16693/05 etc., -: 6 :- (2) By transfer from qualified Headmasters of Aided High Schools under the respective educational agency. Note:- (1) The post of Principal will be a selection post and appointment to the post shall be made on the basis of the recommendation of a selection committee consisting of the Manager or his nominee as chairman, a selection grade Lecturer or Reader or Principal of a college nominated by the Manager and Government representative as members,. The Government representative shall be nominated by the Manager from among the Officers of Higher Secondary Education Department not below the rank of a Deputy Director or Officers of the Government not below the rank of a Deputy Collector. (ii) Preference shall be given to Aided Higher Secondary School Teachers having teaching experience at the Higher Secondary School level. (iii) 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.” The category 2 mentioned therein is Higher Secondary School teacher. Note 1 to the Rule is the only procedure prescribed for making the selection by the selection committee. The question is whether the action of the selection committee and that of the Manager in this case is in accordance with the Rule. Ext. P7 contains the proceedings of the selection committee. It appears that the 5th respondent convenor of the selection committee, who represented the Manager, gave to the members a format for awarding marks under W.P.C. No. 16693/05 etc., -: 7 :- different heads as follows: Max. Marks Min. Marks Marks awarded A. i) Qualification 1 0.50 ii) Teaching experience 1 0.50 TOTAL: (i) to (ii) 2 1.00 B. i) Contributions to teaching- innovative methods. 1 ii) Co-curricular activities 1 TOTAL: (i) to (ii) 2 1.00 C Character and Antecedent 1 0.50 D Administrative Capacity i) Administrative Experience 1 ii) General awareness of school administration. 1 iii) General attitude towards management, staff & students. 1 iv) Perception of problems and ability to tackle them. 1 v) Vision and plans for the future of the school & students. 1 TOTAL: (i) to (v) 5 2.50 GRAND TOTAL: A+B+C+D 10 5.00 The 7th respondent refused to follow the format. Respondents 5 and 6 awarded 2.75 and 2.70 marks to the petitioner and did not recommend the petitioner. The 7th respondent did not award any marks but found the petitioner “not recommendable”. The 6th respondent gave his remarks along with the mark sheet thus: “The candidate Mr. Joshy Antony himself stated that he was only 70% sincere to his teaching profession. This itself means that he had really taught only 8.4 years (12 x 70/100) out of his total teaching service of 12 years. The Principal post of H.S.S. Involves both teaching and administration. The management of those with 75% sincerity will put future of the school and students at stake in his hands despite his assurance of sincerity in the W.P.C. No. 16693/05 etc., -: 8 :- future. Further, he has failed in the selection criteria on various counts. Hence, I do not recommend him for the post of Principal.” The 5th respondent appended a letter to the mark sheet thus: “You had requested me to be the management's representative in the interview conducted on 11 August 2006 in St. Joseph's School to the post of Principal in the Higher Secondary School. Three candidates were interviewed. 1) Dr. K.T. Devassia 2) Mr. Raju Jacob and 3) Mr. Joshy Antony. The first two were rejected on the grounds that they were not qualified for the post. Mr. Joshy Antony, claimed he had the required qualification for the post of Principal and he was interviewed. The certificates were verified and various questions were put to him regarding his qualification , his administrative capability, his interest in the school, his commitment and loyalty to the institution, his vision for the school etc. My personal assessment is that though he is academically qualified and has the required years of service, he may not be a right choice to be the Principal of a school, which has a long tradition. He had been in the institution for 12 years and he did not know the history of the school. It is seen that he was irregular in coming to the school and discharging his duty as a teacher. The manager submitted a record of his periodic absence from the school. Mr. Joshy is the president of a Teachers' Association and he has to organize a lot of meeting and he is often called to attend many meeting. His absence is grossly felt in the school. He has not shown sufficient interest in any co-curricular activities of the school. He has not introduced any innovative methods of teaching other than just covering the portion by taking extra classes on holidays. Mr. Joshy had put up a write-up on the Higher Secondary Staff Notice Board giving a detailed description about the various stages of his interaction with the management with regard to the post of Principalship. This was done without the permission of the Principal-in-charge. May I say that there are insinuating statements in this write-up. I feel this sort of behaviour can affect the discipline and morale of the school. On account of the above reasons, I do not recommend him to the post of Principal in St. Joseph's Higher Secondary school, Kozhikde.” The 7th respondent gave his report thus: “In obedience to the order in the reference cited, I have W.P.C. No. 16693/05 etc., -: 9 :- participated in the Selection Committee meeting held at 10.00 a.m. Fr. Joseph Kalleppallil S.J. was the Nominee of the School Manager. He is also the Convenor of this Committee. Dr. K.M. George, Selection Grade Lecturer, Govt. Arts & Science College, Meenchanda, Kozhikode was the other member. Covenor has prepared a chart for awarding marks on various items of which none is relating to the administrative aspect and hence no marks is awarded by me in this chart. First candidate appeared before the Committee was Fr. K.T. Devassia. He is having only 9 and a half years of teaching experience. He is not having the minimum qualification for the post. Second individual appeared was Mr. Raju Jacob. He is having only 9 years of teaching experience. He is not having the minimum teaching experience of 12 years. Third candidate is Mr. Joshy Antony. He possess 12 years a 4 months teaching experience. He is Post Graduate in M.Sc. Botany and also obtained a degree in teaching (B.Ed.) the Manager's nominee and the other teaching faculty member examined this candidate by asking question on various aspects of teaching and curriculum activities. I have put in question on administrative aspects and on the function of the Principal in relation for the establishment matter. From the answer given by this candidate to the question of the other member it is found that the performance of this individual as a teacher of this school is not satisfactory and as such they feel that the selection of this candidate as Principal will be against the overall interest of the institution. Answer to my question were fairly satisfactory. This individual has admitted during the interation that due to other activities he was in the habit of availing leave and covering the teaching portions during vaccation. The impression revealed is that he was not in the habit of involving himself in all the problems and activities of the school. The majority view of the committee is not to recommend Sri. Joshy Antony to the post of Principal. Though on administrative aspects he can be recommended otherwise he is found not recommendable.” The 3rd respondent in Ext. P4 gave his decision thus: “I have carefully considered the previous conduct and records of Shri. Joshy Antony in the school. Fr. K.T. Devasia, Shri. Raju Jacob and Shri. Joshy Antony started their career in the Higher Secondary School on 24-8-1998. Raju Jacob and Joshy Antony were appointed as H.S.S.T. (Junior) while Fr. K.T. Devasia was appointed as H.S.S.T. (Senior). Taking into consideration seniority and merit, I find no reason to differ from the recommendation of the committee. It is decided that Shri. Joshy Antony is not a proper candidate and cannot be appointed as Principal of St. Joseph's Higher Secondary School, Kozhikode.” None of the three members of the selection committee specifically W.P.C. No. 16693/05 etc., -: 10 :- finds the petitioner unfit to hold the post of Principal, but only that he is not recommendable. The 6th respondent does not recommend the petitioner because he is only 70% sincere and therefore he has only 8.4 years of service! The 5th respondent mainly relies on the petitioner's habit of taking leave, failure to introduce innovative methods of teaching and publishing of a write up in the notice board without permission as reasons for not recommending the petitioner. From the report of the 7th respondent, it appears that he went along with the majority opinion although on administrative aspects he found the petitioner good for being recommended. As such, there is no specific finding by any of the members of the selection committee that the petitioner is unfit to hold the post of Principal on any valid ground. 10. I had occasion to consider a similar question in Vijayamoney's case (supra). In that case, an H.S.S.T in Sanskrit was the sole qualified candidate for selection to the post of Principal. The selection committee found her not suitable for selection. In that case, after discussing the scope of Rule 4, relying on the Supreme Court decisions in Union of India and others v. Lt. Gen. Rajendra Singh Kadyan and another, (2000) 6 SCC 698 and Valsala Kumari Devi v. Director, Higher Secondary Education, 2007 (4) KLT 494 (S.C), I held thus: “Applying those principles the eligibility for promotion of the petitioner to the post of Principal has to be decided only on the basis of her suitability. Going by the above decisions, the suitability has to be decided on the basis of the prescribed qualification and requisite experience. In this case admittedly none of the three selection committee members had any knowledge whatsoever in Sanskrit. Therefore, they could not have validly assessed the proficiency of the petitioner in Sanskrit. Admittedly, the petitioner had the requisite qualification and experience. What they have stated in Ext. P3 is only this: “This is to certify that M/s. Vijayamony, K.R is not selected for the post of HSS Principal as her performance in the interview was below satisfactory and W.P.C. No. 16693/05 etc., -: 11 :- she seemed to be not capable of handling the post of the Principal of a Higher Secondary School.” 5. Nothing is stated in the counter affidavit as to how the Selection Committee has proceeded to assess the suitability of the petitioner. It is beyond comprehension as to what the Selection Committee meant when they said that the petitioner's performance in the interview was below satisfactory when admittedly the Selection Committee members had no knowledge of Sanskrit whatsoever. The third respondent is also unable to explain to me as to how the Selection committee came to the conclusion that the petitioner is not capable of handling the post of Principal of a Higher Secondary School. Such a conclusion cannot be arrived at by merely asking questions to a candidate seeking promotion as principal in an interview. In the decision of Janki Prasad Parimoo's case (supra) the Supreme Court had occasion to consider the question of promotion to the post of Headmasters in schools. One particular paragraph of that decision is relevant for our purpose. The same reads thus: “The case of all other teachers including those who were officiating as Head Masters and Tehsil Education Officers and are eligible for promotion shall be reviewed in a proper selection made in accordance with the 1969 rules. Interviews shall not be the only test. The character rolls and the confidential records shall be taken into due consideration. If in any case the same are not available, a report or reports should be obtained from authorities who had opportunity to observe the teachers' performance and character.” Here there is no such procedure of maintaining character rolls and confidential records in an aided higher secondary schools. The question of obtaining any report from a higher officer also does not arise since this is the first time a Principal is being appointed to the 3rd respondent's school after the Higher Secondary selection started. In the above circumstances, I am not satisfied that the proceedings of the Selection Committee which led to rejection of the petitioner's candidature is sustainable in so far as they do not categorically find “the petitioner unsuitable for holding the post. Accordingly, Exts. P13 and P14 are quashed. The petitioner is the only qualified Higher Secondary School Teacher in the School whom the selection committee does not categorically find unsuitable to hold the post of Principal based on any