IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 WP(C).No. 29212 of 2010(B) PETITIONER: --------------- ST.JOSEPH'S BOYS HIGHER SECONDARY SCHOOL, KOZHIKODE - 673 032, REPRESENTED BY ITS MANAGER, FR.XAVIER VELIKAKOM. BY ADV. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS RESPONDENTS: --------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 1 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, SANTHI NAGAR, THIRUVANANTHAPURAM 1. 3. THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, REGIONAL OFFICE, KOZHIKODE 1. 4. FR.K.T.DEVASSIA, PRINCIPAL, ST.JOSEPH'S BOYS HIGHER SECONDARY SCHOOL, KOZHIKODE - 673 032. 5. SRI.JOSHY ANTONY, HSST (BOTANY), ST.JOSEPH'S BOYS HIGHER SECONDARY SCHOOL, KOZHIKODE - 673 032. R5 BY ADV. SRI.K.T.SHYAMKUMAR GOVERNMENT PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 29212 OF 2010 B ------------------------------------------------------ Dated this the 8th day of October, 2010 JUDGMENT The petitioner is St.Joseph's Boys Higher Secondary School, Kozhikode, represented by its Manager. The fourth respondent was appointed as Principal of the School on 6.1.2006. It is stated that at that time, no qualified person was available in the School for appointment as Principal and therefore, the fourth respondent was placed in the position of Principal. The fifth respondent made a claim for the post of Principal. The Manager rejected that claim. The fifth respondent filed W.P.(C) No.22492 of 2006 and three other Writ Petitions, which were disposed of by the common judgment dated 21.5.2008, directing the Manager to appoint the fifth respondent as Principal. The Manager filed W.A.Nos.1172, 1747, 1766 and 1779 of 2008 challenging the decision of the learned single Judge. The Writ Appeals were disposed of as per Ext.P2 judgment dated 29.10.2009, by which, the judgment of the learned single Judge was reversed and the Manager was directed to consider the claim of the fifth respondent herein (Sri.Joshy Antony) for W.P.(C) NO.29212 OF 2010 :: 2 :: appointment to the post of Principal in accordance with law, in the light of the amended Rules and also “having regard to the conditions obtained on the date of occurrence of the vacancy”. It was also held that if nobody was qualified as on the date of occurrence of the vacancy, the claim of the person who became qualified first has to be considered. 2. Pursuant to Ext.P2 judgment in the aforesaid Writ Appeals, the Manager considered the claim of the fifth respondent and it was rejected by Ext.P3 order dated 28.4.2010. As per Ext.P4 proceedings dated 28.4.2010, the Manager appointed the fourth respondent as Principal with effect from 17.2.2009. As per Ext.P7 proceedings dated 12.8.2010, the Regional Deputy Director, Higher Secondary Education, rejected the proposal for approval of appointment of the fourth respondent. The petitioner has challenged Ext.P7 order in this Writ Petition. 3. Sri.K.T.Shyamkumar appeared for the fifth respondent. He submitted that the petitioner has an effective alternative remedy of filing an appeal before the Director of Higher Secondary Education. The counsel for the fifth respondent relied on G.O.(MS) W.P.(C) NO.29212 OF 2010 :: 3 :: No.162/91/G.Edn. dated 1.10.1991 in this regard. He also submitted that even after insertion of Chaper XXXII in the Kerala Education Rules, as the provisions in the Rules do not provide for an appeal, G.O.(MS)No.162/91/G.Edn. dated 1.10.1991 would continue to be in operation to the limited extent of providing venue for filing appeals and review petitions. The counsel also relied on the judgment in W.P.(C) No.17054 of 2004, wherein it was held thus: “7. I shall first consider the question of maintainability of the petition before the Government, in which the impugned order has been passed. Ext.P7 is G.O.(MS) No.162/91/G.Edn. dated 1.10.1991 issued by the Government regarding fees, syllabus, working days, special fee, procedure for staff fixation, approval of appointment of teachers and related matters in higher secondary schools, which contains a provision for filing an appeal and review against approval of appointment of HSSTs. On the other hand Chapter XXXII of K.E.R., which was introduced on 12.11.2001, prescribes only the method of appointment and qualifications of teachers and non-teaching staff in aided higher secondary schools. Ext.P7 Government Order and Chapter XXXII of KER do not deal with the same subject. In respect of the matters covered by the said G.O., no Rules have been framed by the Government W.P.(C) NO.29212 OF 2010 :: 4 :: yet. That G.O. has not been superseded by any rules or other G.Os. On the other hand, even after the introduction of Chapter XXXII in KER, the Government had, in subsequent Government orders and circulars, namely G.O.(MS) Mno.75/2002/G.Edn. dated 17.4.2002, Circular No.45417/T3/2005/G.Edn. dated 11.8.2005, G.O.(MS) No.377/2005/G.Edn. dated 15.10.2005 and Circular No.Acd.B1/25400/HSE/2005 dated 24.11.2005, specifically referred to Ext.P7 G.O. (MS)162/91, which would go to show that the said G.O. holds the field in respect of the matters referred to therein even after introduction of Chapter XXXII of KER. It is settled law that an executive decision can regulate a field not occupied by a statutory rule. In Ext.P7, in respect of approval of appointment of higher secondary school teachers, an appeal is provided to the Director and a review to the Government. Of course, as pointed out by the learned Senior Counsel appearing for Smt.Jeeji, that was at a time when the D.E.O. was the authority for approving such appointments and there was no Director of Higher Secondary Education then. Therefore, the Director mentioned therein is the Director of Public Instruction. Even then I am of opinion that in the absence of any other provision for aggrieved persons to approach a higher authority in respect of appointments in Higher Secondary Schools, the review jurisdiction conferred on the Government by the said W.P.(C) NO.29212 OF 2010 :: 5 :: Government Order must survive. Therefore, I hold that the Government has jurisdiction to entertain review petitions against orders of the Director of Higher Secondary Education in respect of appointments in Higher Secondary Schools. I also would take this opportunity to again impress upon the Government the necessity to frame comprehensive rules regarding the Higher Secondary Schools in the State in line with the KER, which opinion has been expressed in other judgments also, in which direction the Government has not taken any action so far.” 4. In the light of the judgment in W.P.(C) No.17054 of 2004, I am inclined to accept the contention of the fifth respondent that the petitioner has an effective alternative remedy of filing an appeal before the Director. 5. On 23.9.2010, when the Writ Petition came up for admission, an interim direction to maintain status quo was passed. Such an order was passed only to avoid the difficulties that would be caused to the teachers, if the fourth respondent was not permitted to draw salary. The learned counsel for the petitioner submitted that the petitioner is prepared to file an appeal before the Director within W.P.(C) NO.29212 OF 2010 :: 6 :: a period of one month from today and that, in the facts and circumstances, status quo order may be kept in tact for a period of one month. The submission made by the learned counsel for the petitioner is just and reasonable. Accordingly, the Writ Petition is disposed of as follows: a) The petitioner is free to file an appeal challenging Ext.P7 order before the Director of Higher Secondary Education within a period of one month from today. If such an appeal is filed, the Director of Higher Secondary Education shall consider and dispose of the same, as expeditiously as possible and, at any rate, within a period of three months from the date of receipt of the appeal, after affording an opportunity of being heard to the petitioner, respondents 4 and 5 and any other affected party. b) The direction to maintain status quo shall continue for a period of one month from today. c) The petitioner would be free to apply for interim orders before the Director of Higher Secondary Education. The Director of W.P.(C) NO.29212 OF 2010 :: 7 :: Higher Secondary Education may pass such interim orders as may be found necessary, in the facts and circumstances of the case. d) The petitioner shall produce a certified copy of the judgment and a copy of the Writ Petition before the Director of Higher Secondary Education. (K.T.SANKARAN) Judge ahz/