IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 OP.No. 4114 of 2001(M) ---------------------------------- PETITIONER: ------------------- LIJA.M.B., HIGHER SECONDARY SCHOOL TEACHER(MATHS), SAHODARAN MEMORIAL HIGHER SECONDARY SCHOOL, CHERAI, ERNAKULAM DISTRICT. BY ADVS. MR.M.V.BOSE, MR.CHERIAN VARGHESE, MR.VINOD MADHAVAN, SMT.NISHA BOSE. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. THE MANAGER, SAHODARAN MEMORIAL HIGHER SECONDARY SCHOOL, V.V. SABHA EDUCATIONAL AGENCY, CHERAI, ERNAKULAM DISTRICT. 4. C.K. GEETHA, H.S.A., SAHODARAN MEMORIAL HIGHER SECONDARY SCHOOL, CHERAI, ERNAKULAM DISTRICT. O.P. NO.4114/2001-M: *ADDL.R5 IMPLEADED: 5. T. HARIDAS, HIGHER SECONDARY SCHOOL TEACHER (MATHS), SAHODARAN MEMORIAL HIGHER SECONDARY SCHOOL, CHERAI, ERNAKULAM DISTRICT. *ADDL.R5 IS IMPLEADEDAS PER ORDER DTD. 22/02/2001 IN C.M.P.NO.8127/2001. R1 & R2 BY GOVERNMENT PLEADER MR. DILIP MOHAN, R3 BY MR.K.P.DANDAPANI, SENIOR ADVOCATE, R4 BY SMT.V.P.SEEMANDINI, SENIOR ADVOCATE, ADV. MR.N.D.PREMACHANDRAN, R5 BY MR.GOVIND K.BHARATHAN, SENIOR ADVOCATE, ADV.MR.C.P.KUNJHIKANNAN. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 11/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 4114/2001-M: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE G.O.(MS).NO.162/98 G. EDN. DTD. 13/05/1998. EXT.P.2: COPY OF THE APPOINTMENT ORDER DTD. 24/08/1998 ISSUED TO PETITIONER. EXT.P.3: COPY OF THE ORDER OF THE R.2. DTD. 13/01/2000. EXT.P.4: COPY OF THE ORDER DTD. 03/12/1998 OF THE SUPREME COURT OF INDIA IN SPECIAL LEAVE TO APPEAL (CIVIL) NOS.18236 & 18237/1998. EXT.P.5: COPY OF THE ORDER OF THE SUPREME COURT DTD. 14/11/2000 IN CIVIL APPEAL NOS.7154-55 OF 1999. EXT.P.6: COPY OF THE ORDER DTD. 30/01/2001 OF THE MANAGER, V.V. SABHA EDUCATIONAL AGENCY, CHERAI. EXT.P.7: COPY OF THE COUNTER AFFIDAVIT DTD. 10/06/2000. EXT.P.8: COPY OF THE ORDER OF THE HONOURABLE SUPREME COURT OF INDIA DTD. 07/12/1999 IN CIVIL APPEAL NOS. 7159-7177 OF 1999. EXT.P.9: COPY OF THE TABULATION SHEET. EXT.P.10: COPY OF THE NOTIFICATION PUBLISHED IN NEWS PAPER, INSISTING APPLICATION FOR PREPARATION OF RANK LIST FOR APPOINTMENT OF EXISTING/ARISING VACANCIES OF HSST IN MATHEMATICS. RESPONDENTS' EXHIBITS: EXT.R4.A: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DT. 14/09/98 IN O.P. NO. 17606/1998. EXT.R5.A: COPY OF THE APPOINTMENT ORDER DTD. 23/07/99. EXT.R5.B: COPY OF THE TABULATION SHEET RELATING TO THE 5TH RESPONDENT'S APPOINTMENT. EXT.R5.C: COPY OF THE PROCEEDINGS DTD. 22/07/1999. EXT.R5.D: COPY OF THE ORDER DTD. 04/11/2003 NO. ACD.A6/19455/01/HSE. EXT.R5.E: COPY OF THE ORDER DTD. 27/12/2001 NO.ACD.A6/19455/01/HSE. EXT.R5.F: COPY OF THE ORDER DTD. 18/07/2004 NO. ACD. A6/19455/01/HSE. //TRUE COPY// P.A. TO JUDGE. Prv. S.SIRI JAGAN, J. ================== O.P.No.4114 of 2001 ================== Dated this the 11 th day of January, 2010 J U D G M E N T In the Higher Secondary School managed by the 3 rd respondent two vacancies of HSST (Mathematics) arose on 24.8.1998 and 28.7.1999. When the 1998 vacancy arose, selection was made to that vacancy by direct recruitment and the petitioner was selected and appointed to that post. The 4 th respondent herein, who was a teacher working in the high school section of the said school, challenged that appointment claiming that the said vacancy ought to have been filled up by transferring her in the 25% quota prescribed for teaches of the same school. While that dispute was pending, the second vacancy, which arose in 1999 was filled up. In the selection process for filling up that vacancy, the only person considered and selected was the 5 th respondent herein and he was appointed. Later, by Ext.P3 order, the Director of Higher Secondary Education, upheld the claim of the 4 th respondent for appointment to the vacancy which arose on 25.8.1998 by transfer in the 25% quota set apart for teachers of the same school. In accordance with the same, the manager issued Ext.P6 order appointing the 4 th respondent replacing the petitioner. The petitioner filed this original petition challenging the said order. 2. Subsequently, the petitioner amended the original petition incorporating a challenge to the appointment of the 5 th respondent in o.p.4114/01 2 the second vacancy which arose in 1999 also. In the meanwhile, the 4 th respondent herein filed O.P.No.8419/2000 for implementation of Ext.P3 order. Both writ petitions were heard together and by judgment dated 7.11.2007, I upheld Ext.P3 and the right of the 4 th respondent herein to be appointed by transfer to the vacancy which arose on 24.8.1998. As between the petitioner and the 5 th respondent I held that since in Ext.P9 selection process the 5 th respondent secured less marks than the petitioner, there is considerable merit in the contention raised by the petitioner in relation to the retention of the 5 th respondent as Higher Secondary School Teacher (Maths) in preference to the petitioner. Accordingly, I directed the 2 nd respondent to consider the inter se claim of the petitioner and the 5 th respondent for retention as Higher Secondary School Teacher (Maths) in the school. In accordance with that finding, O.P.No.8419/2000 was allowed. It would be advantageous to quote that judgment herein. The same reads thus: 'The petitioner is an aspirant for appointment as Higher Secondary School Teacher (Maths) in the Sahodaran Memorial Higher Secondary School, Cherai, Ernakulam District. She is challenging appointments of 4th and 5th respondents in preference to the petitioner. The 4th respondent was a High School Assistant working in the same school which was upgraded as Higher Secondary School. After up-gradation of the school as a Higher Secondary School, the manager appointed the petitioner as a Higher Secondary School Teacher in Maths. The same was challenged by the 4th respondent by filing O.P.No.17606 of 1998 in which the Director of Higher Secondary Education was directed to consider the claim of the 4th respondent. The Director of Higher Secondary Education considered the claim of the 4th respondent and passed Ext.P3 order whereby, it was found that the 4th respondent was entitled to be promoted in the 25% vacancies reserved for appointment o.p.4114/01 3 by promotion from among teachers of the school. Pursuant to Ext.P3 order, the Manager passed Ext.P6 order appointing the 4th respondent terminating the service of the petitioner with effect from 24.8.1998. The petitioner originally challenged EXts.P3 and P6 orders. Later on in a subsequent vacancy which arose both the petitioner as well as the 5th respondent competed. However, the 5th respondent was appointed in preference to the petitioner. Now the petitioner challenges the appointment of the 5th respondent also by amending the original petition. As per the amended original petition, following are the reliefs prayed for by the petitioner. “(i) to call for the entire records which led to Ext.P6 and to quash the same by the issuance of a writ of certiorari or any other writ, direction or order; (ii) to issue a writ of mandamus compelling the respondents to retain the petitioner as Higher Secondary School Teacher (Maths) in the 3rd respondent school in preference to the 4th respondent. (iii) to pass any other order or direction as this Hon’ble Court may deem fit and proper in the nature and circumstances of the case. (iv) to award the cost of the petitioner in these proceedings. (v) to call for the entire records which led to Ext.P3 and to quash the same by the issuance of a writ of certiorari or any other writ, direction or order; (vi) to issue a direction that the petitioner’s services are not liable to be terminated retaining a Junior like 5th respondent in service.” 2. I have heard the learned counsel for the petitioner, the learned Government pleader, the learned counsel for the 3rd respondent- Manager as also the learned counsel for respondents 4 and 5. Ext.P1 is the Government order regulating appointments of the Higher Secondary School teachers in newly sanctioned Higher Secondary Schools in the Government of Kerala. As per the same, 25% vacancies were to be reserved for appointment from qualified High School Assistants and Primary School Teachers. The remaining 75% of the posts in aided Higher Secondary Schools were to be done by the management. If qualified teachers were not available for appointment in the 25% vacancies set apart for appointment from qualified High School Assistants and Primary School Teachers, the management was entitled to fill up those vacancies also by direct recruitment. 3. Going by Ext.P1 Government order, first the claim of teachers in the school for appointment in the 25% vacancies has to be o.p.4114/01 4 considered. The 4th respondent was the only teacher entitled to such appointment as she was fully qualified. Therefore without appointing her, the manager could not have resorted to direct recruitment in the post of Higher Secondary School Teacher (Maths). As such, I do not find any infirmity in Exts.P3 and P6 orders. Although the petitioner would contend that in view of Ext.P5 Supreme Court order, the petitioner is entitled to continue by virtue of her original appointment, I am not satisfied that the petitioner can raise such a contention. Such order would be applicable only to those persons whose appointments have not been challenged by a competing claimant. In this case a competing claimant had challenged the appointment of the petitioner and this Court had directed the Director of Higher Secondary Education to consider that claim pursuant to which only Exts.P3 and P6 orders have been passed. Therefore the petitioner cannot now challenge the appointment of the 4th respondent as Higher Secondary School Teacher (Maths). 4. It is a different question altogether when it comes to the appointment of the 5th respondent. The 5th respondent is also a direct recruit. In the selection proceedings both the petitioner as well as the 5th respondent participated. The petitioner has produced Ext.P9 which is the tabulation sheet of marks awarded to the candidates, who participated in the selection which is not disputed. Going by Ext.P9, the 5th respondent secured less marks than the petitioner. That being so, I find considerable merit in the contentions raised by the petitioner in relation to the retention of the 5th respondent as Higher Secondary School Teacher (Maths) in preference to the petitioner. 5. In the above circumstances, I direct the 2nd respondent to consider the inter se claim of the petitioner and the 5th respondent for retention as Higher Secondary School Teacher (Maths) in the School. Orders in this regard shall be passed within a period of two months from the date of receipt of a copy of this judgment after affording an opportunity of being heard to the petitioner, the 3rd respondent- Manager and the 5th respondent. O.P.No.8419 of 2000 O.P.No.8419/2000 is filed by the 4th respondent in the other original petition seeking implementation of Ext.P3 order. In view of my finding that the 4th respondent is entitled to be appointed as Higher Secondary School Teacher (Maths) in preference to the petitioner, the 3rd respondent manager is bound to implement Ext.P3 order. It is submitted that the Manager has already implemented the order and the petitioner is continuing as such. Therefore no separate orders are necessary in that regard except to declare that the petitioner in this original petition is entitled to continue as Higher Secondary School Teacher in the school.' Thereafter, the 5th respondent herein filed R.P.No.339/2008 in this original petition contending that there is a factual mistake in the o.p.4114/01 5 judgment and therefore, the judgment in this original petition is liable to be reviewed. Since all parties agreed before me that there is a mistake in the judgment, I recalled my judgment in O.P.No.4114/2001 and posted the original petition for hearing. It is pursuant to the same, this original petition has come up for hearing before me. 3. Now the contention raised before me by the 5 th respondent is that in the selection proceedings for appointment to the second vacancy which arose on 28.7.1999, the petitioner never participated and after a due selection process, the 5 th respondent was appointed. Therefore, the finding in the judgment that Ext.P9 is the selection process for appointment to the second vacancy is clearly wrong. It is submitted that Ext.P9 is the result of a selection process unnecessarily conducted by the manager for both vacancies together and all candidates including the petitioner and respondents 4 and 5 were considered, and since the petitioner and the 5 th respondent secured highest marks in that order, both were allowed to continue in the two vacancies. It is thereafter, Ext.P3 order was passed upholding that the 4 th respondent was entitled to be appointed to the vacancy which arose in 1998 by transfer in the 25% quota earmarked for qualified teachers of the same school. Therefore, it has become necessary to decide as to who is entitled to be retained in the second vacancy which arose in 1999. According to the 5 th respondent, in so far as in the original o.p.4114/01 6 selection proceedings for that vacancy the petitioner did not participate, the petitioner cannot stake any claim for accommodation in that vacancy, since the 5 th respondent was validly appointed to that vacancy, which has been approved also by the educational authority by Ext.R5D proceedings. 4. The contention of the 5 th respondent is strongly disputed by the petitioner. According to her, she has a superior claim to the 2 nd post, since she was ousted from the 1 st post for no fault of hers. The manager, realising that the selection and appointment to the two vacancies were made not in accordance with the procedure prescribed, made a proper selection for both the vacancies together, in which, the petitioner was ranked above the 5 th respondent, but since there were two vacancies both were accommodated, the petitioner in the 1 st vacancy and the 5 th respondent in the 2 nd vacancy. When by order of the departmental authorities the 4 th respondent is to be appointed in the first vacancy, the petitioner ought to have been accommodated in the vacancy held by the 5 th respondent, in accordance with the rank in the rank list prepared in the selection process, is the contention of the petitioner. 5. Since when the 1999 vacancy arose the petitioner was already working as a HSST (Maths) in that school, she had no occasion to apply for that vacancy. But later on, as is evident from o.p.4114/01 7 Ext.P7 counter affidavit of the manager filed in O.P.No.8419/2000, as the appointment to the two posts was not after a selection procedure as contemplated by the interim orders of the Supreme Court of India in Civil Appeal Nos.7159-7177 of 1999 relating to appointments of Higher Secondary School Teachers in Kerala State, the manager conducted a fresh selection process by issuing Ext.P10 notification inviting applications, in which, the petitioner, respondents 4 and 5, and others participated and marks were awarded to the candidates as per Ext.P9 tabulation sheet and since there were two vacancies, the petitioner and the 5 th respondent who secured the highest marks in that order were allowed to continue in the two vacancies available. The petitioner would submit that now that this Court has held that the 4 th respondent is legally entitled to be appointed to the vacancy which arose in 1998 in the 25% quota, the next vacancy should be filled up by the person who secured the highest marks in the selection proceedings as evidenced by Ext.P9, which evidently is the petitioner. Therefore, notwithstanding the mistake in the judgment, the same direction as issued in that judgment should hold good is her contention. 6. I have considered the rival contentions in detail. 7. As far as the 4 th respondent is concerned, her right to be appointed in the vacancy which arose on 24.8.1998 in the 25% quota o.p.4114/01 8 cannot now be disputed either by the petitioner or the 5 th respondent. Therefore, I am not inclined to make any change in my judgment regarding the claim of the 4 th respondent, especially since the judgment in O.P.No.8419/2000 has not been sought to be reviewed or modified by anybody. Therefore, the only question which needs to be considered in this original petition now is as to, as between the petitioner and the 5 th respondent, who is entitled to be retained in the second vacancy which arose on 28.7.1999. 8. It is true that when a vacancy arose on 28.7.1999, the manager conducted a selection process as evidenced by Exts.R5B and R5C produced by the 5 th respondent. I find that in the tabulation sheet, the only person considered for the post was the 5 th respondent and nobodyelse. That would go to show that, such selection was not after issuing a notification inviting applications. In Ext.R5D proceedings the Director of Higher Secondary Education approved that appointment only subject to the outcome of this original petition. Therefore, the right of the 5 th respondent to hold that post is open to be decided in this original petition notwithstanding the approval of that appointment. Even before the claim of the 4 th respondent was finalised by Ext.P3 order, the manager felt that appointments to both the vacancies were not in accordance with the procedure prescribed by the Supreme Court in the interim orders passed and he decided to conduct a fresh o.p.4114/01 9 selection process by issuing Ext.P10 notification inviting applications. Admittedly, the petitioner, the 4 th respondent and the 5 th respondent participated in the selection process. The petitioner came on top in terms of marks. The 5 th respondent came second and, therefore, they were permitted to occupy the two vacancies. The 5 th respondent willingly participated in the selection process, which must be deemed to be accepting the fact that the earlier selection process was not in accordance with the procedure prescribed by the Supreme Court of India and the Government. Therefore, the 5 th respondent cannot at this point of time disown Ext.P9 or the action of the manager in conducting a fresh selection process, since only those validly appointed could continue in accordance with the interim orders of the Supreme Court and the final judgment passed by the Supreme Court in the cases pending before the Supreme Court in respect of appointments of HSSTs in Higher Secondary Schools in Kerala, which is popularly referred to as “Dolichan's case”. It is all the more so, when in the first selection process conducted for the second vacancy the petitioner could not have taken part, in so far as she was already a higher secondary school teacher in the same school, though the same was under challenge by the 4 th respondent. As such, I am of opinion that the 5 th respondent cannot now raise any preferential claim for holding the second vacancy by virtue of the selection process pursuant to o.p.4114/01 10 which he was originally appointed. When both the petitioner and the 5 th respondent together participated in the selection process as evidenced by Ext.P9, the petitioner scored more marks than the 5 th respondent, which would go to show that the petitioner was superior in merit to the 5 th respondent. On the ground of equity also, the petitioner is entitled to hold the second vacancy, in view of the peculiar circumstances leading to the dispute. In such circumstances, I do not think that despite the mistake pointed out by the 5 th respondent in the judgment dated 7.11.2007, the ultimate decision is in any way wrong. In the above circumstances, the original petition is disposed of in the same terms as in the judgment dated 7.11.2007. Consequently, order No.Acd.A1/ 26163/HSE/2007 dated 9.4.2008 passed by the Director of Higher Secondary Education pursuant to the said direction is upheld and the same would govern the issue involved. However, I direct that the 5 th respondent be accommodated in the next arising vacancy in the school, to do complete justice to all parties, taking into account the fact that the situation arose not because of any fault of the 5 th respondent also. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.4114/01 11 S.SIRI JAGAN, J. ================== O.P.No.4114 of 2001-J ================== J U D G M E N T 11 th January, 2010