IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 WA.No. 267 of 2006(B) --------------------- AGAINST THE JUDGEMENT IN WPC.18782/2004 Dated 15/12/2005 .................... APPELLANTS: 3RD RESPONDENT: ---------------------------- S.ANIL KUMAR, HIGHER SECONDARY SCHOOL TEACHER IN PHYSICS, M.S.M. HIGHER SECONDARY SCHOOL CHATHINAMKULAM, KOLLAM. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENTS: PETITIONER AND RESPONDENTS 1, 2 & 4 -------------------------------------------------- 1. O.PRASANNAKUMARY, HIGHER SECONDARY SCHOOL TEACHER IN ECONOMICS, M.S.M. HIGHER SECONDARY SCHOOL, CHATHINAMKULAM, KOLLAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, THIRUVANANTHAPURAM. 3. THE MANAGER, M.S.M. HIGHER SECONDARY SCHOOL, CHATHINAMKULAM, KOLLAM. 4. K.J.THULASI BAI, PRINCIPAL IN CHARGE, M.S.M. HIGHER SECONDARY SCHOOL, CHATHINAMKULAM, KOLLAM. ADV. SRI.ELVIN PETER P.J. FOR R1 R2 BY GOVT. PLEADER SMT. R. BINDU R3 BY SR. ADV. SMT. V.P.SEEMANDINI THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/1/2009, ALONG WITH WA NO. 566 OF 2006 THE COURT COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ W.A NOS: 267 & 566 OF 2006 ----------------------------------------------------------------------------------- Dated this the 15th January, 2009. JUDGMENT BALAKRISHNAN NAIR, J. W.A.267/2006 The appellant was the third respondent in the writ petition. First respondent herein was the writ petitioner. The writ petition was filed mainly challenging Ext.P6 order of the Director of Higher Secondary Education and seeking consequential reliefs. The brief facts of the case are the following:- 2. The third respondent-Manager was running a high school. The government sanctioned higher secondary wing for the said school for the academic year 1998-99. At the relevant time the posts in the higher secondary wing were to be filled up according to Ext.P1 G.O. The said order provided that 25% of the vacancies in the higher secondary wing shall be reserved to be filled up by appointment by transfer from among qualified teachers working in the High School/U.P School. The remaining vacancies were to be filled up by the Manager from open market subject to selection by a duly constituted selection committee. The manager made W.A.Nos: 267 & 566/06 2 selections from the open market to various posts. One of the selected candidates is the appellant herein who was appointed as HSST on 27.8.1998. The first respondent/writ petitioner, who was the only qualified hand in the school for appointment by transfer was appointed on 28.8.1998. The appointment of the first respondent and others made by the manager were approved by the competent authority as per Ext.P3 on 19.7.1999. After the lapse of about five years in 2003 the first respondent preferred a complaint before the Director of Higher Secondary Education complaining that she should have been appointed on 27.8.1998 and therefore her seniority should be restored above the appellant. This Court by Ext.P5 judgment directed the Director of Higher Secondary Education to consider her claim. The said claim was rejected by Ext.P6. The writ petition was filed challenging Ext.P6 and seeking consequential reliefs. The learned Single Judge by the judgment under appeal allowed the writ petition and granted the following reliefs:- “1) Ext.P6 will stand quashed. 2) Ext.P3, to the extent it grants approval to the W.A.Nos: 267 & 566/06 3 appointment of the petitioner only with effect from 28.8.1998 and that too in the post of H.S.S.T Part-time, will also stand quashed. 3) It is declared that the petitioner is entitled to be appointed as Full Time H.S.S.T (Economics) with effect from 27.8.1998 itself and there will be a direction to the manager to appoint the petitioner as H.S.S.T (Economics) with effect from 27.8.1998 and to the Director of Higher Secondary Education, to grant approval to the said appointment. 4) There will be a further declaration that the petitioner is entitled to be placed as Principal in charge replacing the 4th respondent in preference to the 3rd respondent and the manager will give placement to the petitioner displacing the 4th respondent. The petitioner will continue to hold that place till such time as the 2nd respondent-manager initiates selection process and appoints a regular Principal in the M.S.M. Higher Secondary School, Chathinamkulam, in terms of Rules 4 and 6 of Chapter XXXII of the Kerala Education Rules. 5) The manager will initiate regular selection process for the appointment of a Principal within six months of the petitioner replacing the 4th respondent on the basis of the above directions. The writ petition is allowed as above.” 3. The third respondent in the writ petition has preferred this appeal challenging the above directions issued by the learned Single Judge. Learned counsel for the appellant submitted that the direction No:3 issued by the learned Single Judge cannot be sustained as the learned Judge has transgressed the limits of W.A.Nos: 267 & 566/06 4 jurisdiction of this Court. Learned counsel also submitted that first respondent failed to assert her rights in time. Therefore, the learned Single Judge ought to have dismissed the writ petition on the ground of delay and laches. Learned counsel also pointed out that as directed by the learned Single Judge, selection for regular appointment to the post of Principal is yet to be completed. On the strength of the interim order in this writ appeal, the appellant is put in charge of the post of Principal. The same at any rate, may not be disturbed till the selection process is over, it is submitted. 4. Learned counsel for the first respondent-writ petitioner supported the impugned judgment. Learned counsel for the appellant in the connected writ appeal (W.A.566/2006) also supported the contentions of the appellant and added that as per the staff fixation order for the relevant year there was only a part time post of HSST available in the school for the subject Economics. Therefore first respondent's claim for seniority is unsustainable. 5. We notice that the government was very liberal in allowing the managers to appoint 75% of the vacancies available in the W.A.Nos: 267 & 566/06 5 higher secondary wing from the open market. They stipulated that only 25% vacancies need be filled up by appointment by transfer from eligible teachers working in the High School/U.P. School wings. So, only after filling up 25% of the vacancies available for the transferee appointees the manager can go for direct recruitment. But in this case we notice that one of the direct recruits has been appointed first on 27.8.1998 before appointing the first respondent who was admittedly the only candidate available for appointment by transfer. The said action of the manager is highly arbitrary and irrational. Though the learned counsel for the manager tried to support his action contending that there is no stipulation in the rules that the transferee should be appointed first, the said contention is plainly untenable and ill- conceived. Only after appointing the transferee appointees it will be clear which are the vacancies available in a particular subject for direct recruitment. Further the claim of the manager that he can take his own time for filling up a teaching post is also unsustainable in law. Posts are created for the benefit of the W.A.Nos: 267 & 566/06 6 students and not for the manager to make appointments. In public interest he has to make the appointments in time so that the students get the necessary teachers. The dispute regarding the nature of the post available, whether it is full time or part time, has become irrelevant owing to subsequent developments and the same has no impact on the claim of the transferee appointee to get appointment in preference to a direct recruit. So we reject the contention of the learned counsel for the manager and uphold the direction issued by the learned Judge in favour of the first respondent. 6. We notice that the appellants have a case that there is delay from the part of the first respondent to assert her rights. We notice that the said point is not considered by the learned Single Judge. Normally it can be presumed that the same was not argued before the learned Judge. But we are not rejecting that contention on that technical ground. Normally the person who is denied a right should assert it at the earliest point of time. The first respondent's appointment was approved by Ext.P3. The said order W.A.Nos: 267 & 566/06 7 does not contain the approval relating to the appellant. Normally the teachers get a chance to know about their seniority position only when seniority list is published. In this case we notice that no seniority list was published by the manager enabling the teachers concerned to know about their seniority position. Therefore, we feel that the first respondent cannot be accused of guilty of delay and laches. Unless the seniority list is published and thereby she knows the date of effect of approval of appointment of the appellant herein, she cannot be blamed for not having taken up cudgels against his date of appointment. So, we feel that the said technical contention raised by the appellant cannot be accepted. Going by the directions issued as per the judgment under appeal we feel that the learned Single Judge has done justice. A gross injustice done by the manager to a teacher who was working in the high school wing has been redressed. Therefore, we find no reason to interfere with the same. Regarding what should be the interim arrangement till regular selection is made, the learned Judge has issued direction No:4. We find no W.A.Nos: 267 & 566/06 8 reason to interfere with the same. Therefore, the prayer of the appellant to allow him to continue in charge of the post of Principal cannot be granted. In the result the writ appeal fails and it is dismissed. W.A.566/2006 In view of the judgment in W.A.267/2006 this appeal is also dismissed. K.BALAKRISHNAN NAIR Judge K. SURENDRA MOHAN Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: