IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 29TH OCTOBER 2009 / 7TH KARTHIKA 1931 WA.No. 1172 of 2008() --------------------- AGAINST THE JUDGEMENT IN WPC.22492/2006 .................... APPELLANT: 3RD RESPONDENT: ----------------------------- THE MANAGER, ST.JOSEPH'S BOYS HIGHER SECONDARY SCHOOL, KOZHIKODE-32. BY ADV. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS RESPONDENT(S): PETITIONER/RESPONDENTS 1,2 AND 4 TO 8: ----------------------------------------------------- 1. JOSHY ANTONY, HIGHER SECONDARY SCHOOL TEACHER (BOTANY), ST.JOSEPH'S BOYS HIGHER SECONDARY SCHOOL, KOZHIKODE-32. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, SANTHI NAGAR, THIRUVANANTHAPURAM. 3. THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, KOZHIKODE. 4. REV.FR.K.T.DEVASSIA, PRINCIPAL (NOT APPROVED), ST.JOSEPH'S BOYS HIGHER SECONDARY SCHOOL, KOZHIKODE-32. 5. REV.FR.JOSEPH KALLEPILLIL, CONVENOR, SELECTION COMMITTEE, ST.JOSEPH'S BOYS HIGHER SECONDARY SCHOOL, KOZHIKODE-32. 6. DR.K.M.GEORGE, MEMBER, SELECTION COMMITTEE, SELECTION GRADE LECTURER, GOVERNMENT ARTS AND SCIENCE COLLEGE, MEENCHANTHA, KOZHIKODE. WA 1172/2008 7. E.DEVADASAN, MEMBER, SELECTION COMMITTEE, DEPUTY COLLECTOR (ELECTION) KOZHIKODE. 8. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. ADV.SRI.K.T.SHYAMKUMAR - R1 GOVT. PLEADER SMT.R.BINDU FOR R2, 3 & 8 ADV.SRI.SABU P.JOSEPH FOR R5 ADV. SRI.K.MOHAN FOR R6 SRI.S.SOMAN FOR R6 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29/10/2009, ALONG WITH W.A.NO.1766/2008 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. ------------------------------ W.A.NOS.1172, 1747, 1766 & 1779/2008 ------------------------------ Dated this, the 29th day of October, 2009 JUDGMENT Balakrishnan Nair, J. These four Writ Appeals are filed by the Manager of St.Joseph's Boys Higher Secondary School, Kozhikode, challenging the common judgment dated 21.05.2008 of the learned Single Judge, disposing of W.P.(C) Nos.16693, 27669 & 29869/2005 and 22492/2006. 2. The brief facts of the case are the following: For the purpose of referring to the exhibits, we are treating W.A.No.1172/2008, arising out of W.P.(C) No.22492/2006, as the main case. We are referring to the parties as they are arrayed in the said Writ Petition. The appellant submits, his school is recognized as a minority educational institution by the Government, by Ext.R3(a) order. Higher Secondary wing was sanctioned to the school in the academic year 1998-99. The WA No.1172/2008 & conn.cases - 2 - petitioner and the 4th respondent were High School Assistants. They were appointed as Higher Secondary School Teacher (Junior) and Higher Secondary School Teacher (Senior) respectively on 24.8.1998. Fr.M.J.Augustine was working as Principal in-charge of the school from 1.5.2000. This arrangement was made, as there was no qualified teacher in the school eligible for promotion to the post of Principal. According to the petitioner, he became qualified for appointment to the post of Principal on 2.4.2006. In the meantime, a Full Bench of this Court held that only qualified hands could be posted as Principal. In the light of the said decision, the petitioner filed W.P.(C) No.16693/2005, claiming that he may be put in charge of the post of Principal. Taking note of the Full Bench decision of this Court, Fr.M.J.Augustine was reverted and the 4th respondent was put in charge of the post of Principal by the Manager. Thereupon, the petitioner filed W.P.(C) No.27669/2005, seeking to quash the appointment of the 4th respondent and also praying that he may be promoted as Principal of the school. WA No.1172/2008 & conn.cases - 3 - 3. While so, the District Educational Officer (DEO) passed an order, directing the Manager to hand over the Treasury Bill Book, Cash Book etc., to his Personal Assistant, as, according to the said officer, there was no validly appointed Principal for the school. The Manager challenged that order by filing W.P.(C) No.29869/2005, in which the said order was produced as Ext.P7. This Court stayed the operation of the said order and allowed the 4th respondent to continue to function as Principal in-charge of the school. 4. When the Writ Petitions came up for hearing, the learned Single Judge on 15.6.2006, with the consent of the parties, passed an order directing the Manager to cause selection to the post of Principal in accordance with law, as provided in Rule 4 of Chapter XXXII of the Kerala Education Rules (KER), as it stood then. The Manager constituted a selection committee consisting of the Deputy Collector (Election), Kozhikode and two other nominees of him. The said committee considered the claim of the petitioner, as evident from Ext.P7 report and decided not to recommend him for WA No.1172/2008 & conn.cases - 4 - appointment to the post of Principal. The Manager accepted the decision of the committee by Ext.P4 order. The petitioner filed W.P.(C) No.22492/06 raising challenge against Ext.P4 and seeking consequential reliefs. Later, challenge against Ext.P7 was also incorporated in the said Writ Petition. 5. The learned Single Judge heard the Writ Petitions and disposed of the same by the common judgment dated 21.5.2008, issuing the following directions: “In the result, Exts.P4 and P7 in W.P.(C) No.22492/2006 are quashed. The petitioner being the only qualified Higher Secondary School Teacher in the school for finding whom unfit to hold the post of Principal, there is no acceptable material on record, it is declared that he is entitled to be selected for promotion as Principal of the school to the existing vacancy, which the 4th respondent is put in charge of. Appropriate orders based on such declaration in favour of the petitioner shall be passed by the Manager and forwarded to the respondents 1 and 2 in W.P.(C) No.22492/2006 within one month from the date of receipt of a copy of this judgment and the competent among respondents 1 and 2 shall pass appropriate orders on approval of the same within one month of receipt of appointment order by the 3rd WA No.1172/2008 & conn.cases - 5 - respondent. W.P.(C) Nos.16693/2005, 27669/2005 and 22492/2006 are allowed as above.” Feeling aggrieved by the above directions, the Manager has preferred these Writ Appeals. 6. When the Writ Appeals were heard, both sides brought to our notice that Rule 4 of Chapter XXXII of the KER has been amended on 27.3.2009 with retrospective effect from 6.1.2006. As a result of the amendment, Notes 1 and 2, which, inter alia, provide for a selection committee for selecting candidates for appointment to the post of Principal by promotion or by transfer, were deleted. In view of the said amendment, now the Manager on his own, without the junction of the selection committee, has to decide on the question of promotion or appointment by transfer, for filling up the post of Principal. In view of the retrospectivity given to the amendment, appointment made to the post of Principal or decision, if any, taken in the meantime regarding appointment, has to be reviewed. In this case, we find that no one can claim any vested right, as no one has been validly appointed to the post of WA No.1172/2008 & conn.cases - 6 - Principal as per the earlier Rules. 7. In view of the above position, the judgment under appeal is reversed. Without going into the merits of the rival contentions, we direct the Manager to consider the claim of the petitioner for 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. If nobody is qualified on the date of occurrence of the vacancy, the claim of the person, who became first qualified, has to be considered first. The Writ Appeals are disposed of as above. K. Balakrishnan Nair, Judge. P. Bhavadasan, Judge. nm.