IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 WP(C).No. 15585 of 2007(E) ----------------------------------- PETITIONERS: --------------------- 1. THE MANAGER, MSM HIGHER SECONDARY SCHOOL, KALLINGAPARAMBU, KALPAKAMCHERRY. 2. P.V.PAULOSE, PRINCIPAL, MSM HIGHER SECONDARY SCHOOL, KALLINGAPARAMBU, KALPAKAMCHERRY. BY ADVS. SMT.S.KARTHIKA SMT.K.P.GEETHA MANI MR.M.R.ANISON MR.T.R.RAJESH MR.M.S.UNNIKRISHNAN RESPONDENTS: ---------------------- 1. STATE OF KERALA, REP.BY ITS SECRETARY TO GOVT., GENERL EDUCATION DEPARTMENT, TRIVANDRUM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, TRIVANDRUM. 3. THE REGIONAL DEPUTY DIRECTOR OF HIGHER EDUCATION, KOZHIKODE. BY GOVERNMENT PLEADER MR. DILIP MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 15585 of 2007(E) APPENDIX PETITIONERS'EXHIBITS: EXT.P1 - TRUE COPY OF THE ORDER DATED 1.4.1998. EXT.P2 - TRUE COPY OF THE MARK LIST ISSUED FROM THE MADURAI KAMRAJ UNIVERSITY. EXT.P3 - TRUE COPY OF THE DEGREE CERTIFICATE ISSUED FROM THE MADURAI KAMARAJ UNIVERSITY DTD. 12.3.2003. EXT.P4 - TRUE COPY OF THE ELIGIBILITY CERTIFICATE ISSUED BY THE KERALA UNIVERSITY DATED 31.5.2002. EXT.P5 - TRUE COPY OF THE G.O.(MS) NO. 43/2005/G.EDN. DATED 11.2.2005. EXT.P6 - TRUE COPY OF THE G.O.(MS) NO. 423/2005/E.EDN. DATED 28.11.2005. EXT.P7 - TRUE COPY OF THE CIRCULAR NO. ACD. B1/11648/HSE/2003. EXT.P8 - TRUE COPY OF THE COVERING LETTER DATED 1.8.2006. EXT.P9 - TRUE COPY OF THE G.O.(MS) NO. 290/2006/G/EDN. DATED 2.12.2006. EXT.P10 - TRUE COPY OF THE RELEVANT PAGE OF THAT SALARY BILL CONTAINING THE ENDORSEMENT. EXT.P11 - TRUE COPY OF THE ORDER DATED 5.6.2007. // TRUE COPY // PA TO JUDGE rhs S.SIRI JAGAN, J ---------------------------------------- W.P(C) No.15585 of 2007 ---------------------------------------- Dated this the 29th day of June, 2009 J U D G M E N T The 1st petitioner is the Manager of an aided Higher Secondary School and the 2nd petitioner is the principal appointed by the 1st petitioner, to the Higher Secondary School. The issue involved in this writ petition is eligibility of the 2nd petitioner for approval in the post of Principal with effect from the date of appointment and disbursal of salary in that post. Higher Secondary section was sanctioned in the school in the year 1991. The 2nd petitioner joined the school prior to that date on 15.3.1982 as a UPSA. He was promoted as HSA in June, 1983. He was promoted as Head Master on 1.4.1998 by Ext.P1 order. While he was continuing so, the 2nd petitioner obtained Post Graduate Degree on 4.4.2002. Therefore, with effect from that date the 2nd petitioner was qualified for being considered for appointment as principal of the school. While so, pursuant to the full bench decision of this court in Aided Higher Secondary School Teachers Association v. State of Kerala 2005(1) KLT 1994, the Government passed Ext.P5 Government Order W.P(C) No.15585 of 2007 -2- whereby it was stipulated as follows in clause V: “V. In Aided Higher Secondary Schools: (i) The Aided Higher Secondary School Managers will take immediate steps to give placement in the post of Principal strictly in accordance with Special Rules if the same has not been made so far. (ii) The Headmasters who were qualified as on 12.11.2001 for the post of Principal and continuing as Principal will be allowed to continue. (iii) The Headmasters who are continuing as Principals without the requisite qualification on the date of coming into force of the Special Rules, will be reverted immediately as Headmaster.” Subsequently, by Ext.P6 Government Order, the Government clarified Ext.P5 thus: “In partial modification of the directions contained in the Government Order read as 6th paper above Government are pleased to issue the following further orders: In the Government Orders as 6th paper above, Sub Clauses (ii) and (iii) under Para V stands deleted and are substituted by the following: V(ii): The qualified Headmasters who are continuing as Principals on the date of the judgment ie. 4.11.2004 will be allowed to continue as Principal. V(iii) The Headmasters who are continuing as Principals without the requisite qualifications will be reverted immediately as Headmasters.” 2. The Director of Higher Secondary Education issued Ext.P7 circular directing all managers of aided Higher Secondary W.P(C) No.15585 of 2007 -3- Schools to appoint principals and to submit proposals for approval of their appointment to the Regional Deputy Directors concerned. The 1st petitioner, Manager conducted selection for appointment of principal of the school and the selection committee constituted for the purpose selected the 2nd petitioner for appointment as principal. By Ext.P8 order, the 2nd petitioner was appointed as principal with effect from 1.8.2006. However, the salary bill of the 2nd petitioner for the month of May, 2007 was returned on the ground that the petitioner did not possess the qualifications prescribed for the post of principal as on the date of coming into force of the special rules, which is 12.11.2001. It is at that time the petitioner filed the writ petition challenging Ext.P10, whereby the salary bill was returned. Subsequently, by Ext.P11 order the Regional Deputy Director refused approval for the appointment of the 2nd petitioner as principal on the ground that as on the date of special rules coming into force, the 2nd petitioner was not qualified for the post of principal. Petitioners have amended the writ petition incorporating a challenge against Ext.P11 also. Accordingly, as per the amended writ petition petitioners seek the following W.P(C) No.15585 of 2007 -4- reliefs: “a) to issue a writ of certiorari or other appropriate writ order or direction to quash Ext.P10 endorsement made by the 3rd respondent in Ext.P10 salary bill, since such endorsement was made by the 3rd respondent without authority of law and against Exts.P5, P6 and P9 orders issued by the Government; aa) to issue a writ of mandamus or other appropriate writ, order or direction to quash Ext.P11 order, since the same is issued in violation of petitioner's fundamental right under Article 14, 16 and 21 of the Constitution of India; b) to issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to continue to pay the salary and other allowances attached to the post of the 'HM turned Principal' to the 2nd petitioner from 1.5.2007 onwards, and to continue to pay the same, until the 2nd respondent approves the 2nd petitioner's appointment to the regular post of Principal made by the selection committee, (as can be seen from Ext.P8 order); c) to issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to continue to pay the salary and other allowances attached to the post of 'HM turned Principal' to the 2nd petitioner based on Exts.P5, P6 and P9 orders until his appointment as Principal by Ext.P8 order is approved by the 2nd respondent;” 3. A counter affidavit has been filed in which the reasoning is that by Ext.P7 circular, the Managers were directed to appoint principals before 31.3.2006, which has not been done by the 1st petitioner and therefore the 2nd petitioner's appointment as principal is not in order. The reason given in Exts.P10 and P11 that the 2nd petitioner did not have the qualification prescribed W.P(C) No.15585 of 2007 -5- for the post of principal on the date of coming into force of the special rules is also reiterated. 4. I have considered the rival contentions in detail. 5. It is not disputed before me that on 1.8.2006 when the 2nd petitioner was appointed as principal, he was fully qualified for appointment to the post of principal. The respondents have no case that there is any other candidate who has preferential claim to be appointed as principal. As such the application of Ext.P5, P6 or P7 does not arise at all in the matter of appointment of the 2nd petitioner as principal. What has to be looked into is whether as on the date of appointment of the petitioner namely 1.8.2006, he was qualified to hold the post of principal. Simply because the Manager did not appoint the principal before 31.3.2006 as directed in Ext.P7, the school cannot be asked to be without a principal forever. At some point of time, a duly qualified principal has to be appointed for the school. The 1st petitioner Manager has appointed a duly qualified principal namely the 2nd petitioner with effect from 1.8.2006, after complying with the selection procedure prescribed. That being so, that appointment could not have been W.P(C) No.15585 of 2007 -6- validly rejected on the reasons stated in Exts.P10 and P11. 6. In the above circumstances, Ext.P10 and P11 are totally unsustainable. Accordingly, they are quashed. The 1st petitioner, Manager is directed to resubmit the proposal for approval of the 2nd petitioner as principal of the school with effect from 1.8.2006, along with a certified copy of this judgment before the 3rd respondent. The 3rd respondent shall pass orders approving appointment of the 2nd petitioner with effect from 1.8.2006, within one month from the date of receipt of the proposal from the 1st petitioner. The arrears of salary due to the 2nd petitioner on account of such approval shall be disbursed to him within another month from the date of approval of his appointment. The writ petition is allowed as above. S.SIRI JAGAN, JUDGE rhs