IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 WA.No. 177 of 2010() -------------------- (Against the judgment dated 11.1.2010 in O.P.No.4114/2001 of this Court) APPELLANT(S): ADDL.5TH RESPONDENT --------------------------------- T.HARIDAS, HIGHER SECONDARY SCHOOL TEACHER (MATHS), SAHODARAN MEMORIAL HIGHER SECONDARY SCHOOL, CHERAI, ERNAKULAM DISTRICT. BY ADV. SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN RESPONDENT(S): PETITIONER & RESPONDENTS 1 TO 4 ---------------------------------------------- 1. LIJA.M.B, HIGHER SECONDARY SCHOOL TEACHER (MATHS), SAHODARAN MEMORIAL HIGHER SECONDARY SCHOOL, CHERAI, ERNAKULAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR, HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 4. THE MANAGER, SAHODARAN MEMORIAL HIGHER SECONDARY SCHOOL, V.V.SABHA EDUCATIONAL AGENCY, CHERAI, ERNAKULAM DISTRICT. WA.No. 177 of 2010() 2 5. C.K.GEETHA, H.S.A., SAHODARAN MEMORIAL HIGHER SECONDARY SCHOOL, CHERAI, ERNAKULAM DISTRICT. ADV.SRI.M.V.BOSE FOR R1 SR.G.P.SRI.BENNY GERVASIS FOR R2 & R3 SR.ADV. SRI.S.P.ARAVINDAKSHAN PILLAY FOR R4 SMT.N.SANTHA FOR R4 SRI.S.A.ANAND FOR R4 SRI.PETER JOSE CHRISTO FOR R4 SRI.N.D.PREMACHANDRAN FOR R5 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 4/03/2010, THE COURT ON 23.3.2010 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ------------------------------------------------------- W.A. No.177 of 2010 ------------------------------------------------------- Dated this the 23rd day of March, 2010 JUDGMENT Ravindran, J. The appellant is the fifth respondent in O.P.No.4114 of 2001. The first respondent in the appeal is the petitioner and respondents 2 to 5 are respondents 1 to 4 respectively therein. For the sake of convenience the parties are referred to as they are arrayed in the writ petition. The brief facts of the case are as follows: 2. The Higher Secondary course was sanctioned in the Sahodaran Memorial Higher Secondary School by Ext.P1 Government order dated 13.5.1998. By that order, the Government, inter alia, stipulated that 25% of the vacancies of Higher Secondary School Teachers in Aided Higher Secondary Schools shall be reserved for appointment from qualified High School Assistants and Primary School Teachers and the remaining 75% of vacancies shall be filed up by direct recruitment. It was also stipulated that if qualified teachers are not available for appointment in the 25% quota reserved for in-service candidates, the said vacancies shall also filled up by direct recruitment. It was further stipulated that direct recruitment shall be made by a staff selection committee consisting of the Manager or his representative, the Principal of the school and a Government nominee W.A.No.177/2010 2 from the panel of officers consisting of the Deputy Director of Education, the District Educational Officer of the area concerned and the DIET Principal of the district concerned. The Manger was given the option to select a nominee from the said three categories of officers. 3. The fourth respondent in the writ petition was working as High School Assistant (Mathematics) in Sahodaran Memorial Higher Secondary School. She was therefore entitled to be considered for appointment as Higher Secondary School Teacher (Mathematics) [HSST (Mathematics) for short] in the 25% quota reserved for in- service candidates. However, overlooking her claim, the Manager appointed the petitioner in the writ petition by direct recruitment from the open market as HSST (Mathematics) by Ext.P2 order dated 24.8.1998. The fourth respondent challenged that appointment by filing O.P.No.17606 of 1998 in this Court. The fourth respondent had before moving this Court, filed a representation before the Director of Higher Secondary Education complaining about the appointment of the petitioner and a copy thereof was produced and marked as Ext.P8 therein. In O.P.No.17606 of 1998, the fourth respondent challenged the appointment of the petitioner and sought consequential reliefs including a declaration that she is entitled to be appointed as HSST (Mathematics) in terms of Ext.P1 Government order, in preference to W.A.No.177/2010 3 the petitioner. By judgment delivered on 14.9.1998 this Court disposed of O.P.No.17606 of 1998 by directing the Director of Higher Secondary Education to pass appropriate orders on Ext.P8 representation dated 25.8.1998 submitted by the fourth respondent after notice to and hearing her, the Manager and the petitioner in the present writ petition. This Court also directed that till a decision is taken in the matter, the appointment of the petitioner in the present writ petition shall not be approved. 4. Pursuant to the directions issued by this Court in O.P.No.17606 of 1998, the Director of Higher Secondary Education heard the parties and passed Ext.P3 order dated 13.1.2000. The Director of Higher Secondary Education held that the appointment of the petitioner was in violation of Ext.P1 Government order dated 13.5.1998 and cannot therefore be approved. The Manager was directed to consider the claim of the fourth respondent for appointment as HSST (Mathematics) in accordance with law. On a perusal of the files, the Director of Higher Secondary Education noticed that the petitioner was appointed pursuant to the interview held on 24.4.1998 though the Higher Secondary course was sanctioned in the school only by Ext.P1 Government order dated 13.5.1998. The Director of Higher Secondary Education also held that the fourth respondent had a W.A.No.177/2010 4 preferential right for appointment as HSST (Mathematics) by virtue of the provisions contained in Ext.P1 Government order dated 13.5.1998. The petitioner or the Manager did not challenge Ext.P3 order. When the Manager did not implement Ext.P3 order, the fourth respondent submitted a representation to the Manager requesting him to implement Ext.P3 order. She thereafter filed O.P.No.8419 of 2000 in this Court seeking implementation of Ext.P3. While matters stood thus, there was a change in the Manager and the new Manager implemented Ext.P3 order by appointing the fourth respondent as HSST (Mathematics) by Ext.P6 proceedings dated 30.1.2001. The petitioner thereupon filed O.P.No.4114 of 2001 in this Court on 5.2.2001 seeking the following reliefs: “(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 W.A.No.177/2010 5 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.” She contended that Ext.P6 order was issued without notice to her and behind her back and that it runs counter to the decision rendered by the Apex Court on 14.11.2000 in M.M.Dolichan v. State of Kerala ((2001) 1 SCC 151) as per which all appointments made till that date were directed to be regularised. She also contended that after Ext.P3 order was passed the Manager had issued a notification inviting applications for appointment as HSST (Mathematics), that an interview was conducted on 3.3.2000 in which the petitioner and respondents 4 and 5 participated, that in the said interview the fourth respondent secured lesser marks than her and therefore for that reason also the fourth respondent cannot replace her. 5. Respondents 3, 4 and 5 filed separate counter affidavits resisting the writ petition. The third respondent Manager contended that as Ext.P6 order was issued by him in implementation of Ext.P3 order which has become final, it is perfectly in order. He contended that in such circumstances, as he was only giving effect to Ext.P3 order, passed by the Director of Higher Secondary Education after hearing all the parties, there was no necessity for him to hear the W.A.No.177/2010 6 petitioner before issuing Ext.P6. He also contended that as the petitioner's appointment was illegal, she cannot claim the benefit of the decision of the Apex Court in M.M.Dolichan and others (Supra). The fourth respondent filed a counter affidavit contending that when the writ petitioner was appointed on 24.8.1998 her claim was overlooked and that she had a superior claim for appointment as HSST (Mathematics). She contended that Ext.P6 is beyond challenge for the reason that it is an order issued in implementation of Ext.P3 order passed by the Director of Higher Secondary Education. As regards the interview held on 3.3.2000, she contended that though an interview was conducted, the selection committee did not make any recommendation and that among the three candidates who were interviewed on 3.3.2000, she was the only candidate entitled to be appointed in the 25% quota reserved for in-service candidates and that the petitioner and the fifth respondent were not eligible to be appointed in the 25% quota reserved for in-service candidates. She also questioned the authenticity of Ext.P9 tabulation sheet. 6. The fifth respondent-appellant filed a counter affidavit contending that when the petitioner was appointed as HSST (Mathematics) by Ext.P2 order dated 24.8.1998, the only claimant was the fourth respondent and that he was not in the picture. He stated W.A.No.177/2010 7 that he was appointed as HSST (Mathematics) by Ext.R5(a) order dated 23.7.1999 after an interview was conducted by a duly constituted selection committee on 22.7.1999. A copy of the minutes of the selection committee was produced as Ext.R5(c). It was contended that neither the petitioner nor the fourth respondent had participated in the interview held on 22.7.1999 and therefore, the petitioner cannot object to her appointment. He also contended that his appointment by Ext.R5 (a) order dated 23.7.1999 was approved by the Director of Higher Secondary Education by Ext.R5 (d) order dated 4.11.2003 with effect from 23.7.1999 subject to the outcome of O.P.No.4114 of 2001 (from which this writ appeal arises) and that later by Ext.R5 (f) order dated 18.7.2004 his appointment was approved as HSST (Mathematics) (Full time) with effect from 15.7.2000 till the post exists. The petitioner filed a reply affidavit contending that the fifth respondent's appointment was not preceded by any selection made by a duly constituted selection committee, that in view of the illegality in the said appointment, the Manager issued Ext.P10 notification inviting applications for various posts including the post of HSST (Mathematics), that pursuant to Ext.P10, the petitioner and respondents 4 and 5 participated in the interview and that in that selection she stood first, the fifth respondent stood second and the W.A.No.177/2010 8 fourth respondent stood third. She also contended that in view of the superior claim of the fourth respondent, she has to be accommodated in the first vacancy and in view of her performance in the interview held on 3.3.2000, she has to be accommodated in the second vacancy in preference to the fifth respondent. 7. O.P.No.8419 of 2000 was initially heard and disposed of along with O.P.No.4114 of 2001 by a common judgment delivered on 7.11.2007. The claim of the petitioner in O.P.No.8419 of 2000 (the fourth respondent in O.P.No.4114 of 2001) for appointment as HSST (Mathematics) in the vacancy against which the petitioner in O.P.No. 4114 of 2001 was appointed was upheld. In other words, this Court upheld the direction issued by the Director of Higher Secondary Education in Ext.P3 order directing the Manager to appoint the fourth respondent as HSST (Mathematics) in the place of the petitioner. As the Manager had complied with the said order and appointed the fourth respondent as HSST (Mathematics), this Court disposed of O.P.No.8419 of 2000 by declaring that she is entitled to continue as HSST (Mathematics). O.P.No.4114 of 2001 was disposed of by directing the Director of Higher Secondary Education to consider the inter-se claim of the petitioner and the fifth respondent for appointment as HSST (Mathematics) against the second vacancy. W.A.No.177/2010 9 8. The fifth respondent thereafter filed R.P.No.339 of 2008 seeking a review of the judgment in O.P.No.4114 of 2001. By order passed on 19.6.2008 the review petition was allowed and the judgment delivered on 7.11.2007 in O.P.No.4114 of 2001 was recalled. In the meanwhile, pursuant to the judgment delivered on 7.11.2007 in O.P.No.4114 of 2001, the Director of Higher Secondary Education issued order No.HCD-A1/26163/HSE/2007 dated 9.4.2008 upholding the claim of the petitioner. O.P.No.4114 of 2001 was thereafter again heard and disposed of on 11.1.2010. The learned single Judge held that the petitioner who had secured better marks than the fifth respondent in the interview held on 3.3.2000 is entitled to be appointed as HSST (Mathematics) in the vacancy against which the fifth respondent was initially appointed. The learned single Judge held that on equitable considerations also, the petitioner is entitled to be preferred over the fifth respondent. The writ petition was accordingly disposed of upholding the order dated 9.4.2008 passed by the Director of Higher Secondary Education and by directing the Manager to accommodate the fifth respondent in the next arising vacancy. The fifth respondent aggrieved thereby has filed this writ appeal. W.A.No.177/2010 10 9. We heard Sri.P.J.Elvin Peter, the learned counsel appearing for the appellant, Sri. Vinod Madhavan, the learned counsel appearing for the first respondent, Sri.Benny Gervasis, the learned Senior Government Pleader appearing for respondents 2 and 3, Sri.S.P.Aravindakshan Pillay the learned counsel appearing for the fourth respondent and Sri.N.D.Premachandran, the learned counsel appearing for the fifth respondent. We have also gone through the pleadings and the materials on record including the relevant files that were made available by the learned Senior Government Pleader. Though the Manager was also directed to make available the relevant files, the Manager made available only the minutes of the meeting of the selection committee held on 22.7.1999 in which the fifth respondent was selected, the tabulation sheet disclosing the marks awarded to various candidates in the interview held on 22.7.1999 and also a copy of the order dated 23.7.1999 issued by the Manager appointing the fifth respondent-appellant as HSST (Mathematics). 10. The learned counsel on both sides agreed that the claim of the fourth respondent for appointment as HSST (Mathematics) in the place of the writ petitioner cannot now be questioned as Ext.P3 order has attained finality and has been implemented. The judgment of the learned single Judge in O.P.No.8419 of 2000 filed by the fourth W.A.No.177/2010 11 respondent, to which all are parties, has also become final. Therefore, the fourth respondent's entitlement to be appointed as HSST (Mathematics) in Sahodaran Memorial Higher Secondary School in preference to the other two rival claimants cannot be disputed. A provisional list of Government and Aided Schools in which the Higher Secondary course was proposed to be started during the year 1998-99 was published by G.O. (Ms) No.204/97/G.Edn. dated 12.6.1997. By that order, the Government also ordered verification of the facilities available in the schools mentioned therein. Based on the verification reports submitted by the authorised officers, the Government issued Ext.P1 order dated 13.5.1998 according sanction for starting the Higher Secondary course in 95 Government schools and 178 Aided schools including the Sahodaran Memorial High School. By that order, the Government also prescribed the modalities for appointment. It was stipulated that 25% of the vacancies shall be reserved for appointment from qualified High School Assistants and Primary School Teachers. Though the remaining 75% of the vacancies were earmarked for direct recruitment, it was stipulated that such vacancies shall be filled up only by a staff selection committee consisting of three members namely, the Manager or his representative, the Principal of the school and a Government nominee. It is not in dispute that the W.A.No.177/2010 12 first vacancy of HSST(Mathematics) had to be filled up by an in-service candidate. However, the Manager filled up that vacancy by appointing an outsider namely, the writ petitioner. The Manager attempted to sustain that appointment by contending that the operation of Ext.P1 Government order has been stayed by the Apex Court and therefore the appointment of an outsider from the open market cannot be questioned by an in-service candidate. He also contended that the petitioner was selected in the interview held on 24.4.1998. In view of the fact that Ext.P3 order issued by the Director of Higher Secondary Education upholding the claim of the fourth respondent has been given effect to by the Manager by issuing Ext.P6 proceedings and the rights of the parties stand concluded by the decision of this Court in O.P.No.8419 of 2000, the appointment of the petitioner by Ext.P2 appointment order dated 24.8.1998 pursuant to the interview held on 24.4.1998 cannot confer any right on her. The interview was also evidently not one conducted by the staff selection committee in terms of Ext.P1 Government order. 11. The petitioner and the fifth respondent-appellant are both candidates from the open market. The fifth respondent-appellant claims that he was appointed against the second vacancy of HSST (Mathematics) that was notified as per Annexure A1 notice dated W.A.No.177/2010 13 10.6.1999 and that he was selected in the interview held on 22.7.1999. It is not in dispute that Annexure A1 notice produced along with the writ appeal, whereby the Manager invited applications from the open market for appointment as HSST (Mathematics) was not published in the newspaper dailies. It is evident from Annexure A1 itself that it was published only in the notice board of the school. The fact that the fifth respondent-appellant was the sole applicant for the post of HSST (Mathematics) is evident from Ext.R5(c) minutes of the selection committee. It is pursuant to the said selection that he was appointed by Ext.R5(a) order dated 23.7.1999. His appointment was approved by Ext.R5(d) order dated 4.11.2008 as HSST (Mathematics) (Junior) with effect from 23.7.1999 till the post exists subject to the outcome of O.P.No.4114 of 2001 from which this writ appeal arises. Therefore, approval of his appointment was only provisional. Later, after the post of HSST (Mathematics) was sanctioned with effect from the academic year 2000-2001, the appointment of the fifth respondent was approved as HSST (Mathematics) by Ext.R5(f) order dated 18.7.2004. That approval was also on a temporary and provisional basis and that order of approval was issued at a time when O.P.Nos.8419 of 2000 and 4114 of 2001 were pending in this Court. Therefore, the mere fact that the appointment of the fifth respondent- W.A.No.177/2010 14 appellant was approved on a provisional basis cannot confer on him the right to continue to hold the post. 12. The petitioner had even in the writ petition stated that that in the interview held on 3.3.2000 the petitioner and the fifth respondent-appellant had participated. Ext.P9 tabulation sheet was also produced to contend that in the interview she came first, the fifth respondent came second and the fourth respondent came third. Later, along with the reply affidavit, the petitioner produced Ext.P10 notice published by the Manager in a newspaper daily inviting applications for appointment to various teaching posts including the post of HSST (Mathematics). Though the appellant contended that he did not participate in the interview held on 3.3.2000 and was only summoned by the Manager to the venue of the interview without being informed that an interview to select a teacher was going on, the files disclose that an interview for appointing a HSST (Mathematics) was conducted on 3.3.2000. The Manager had after conducting the interview on 3.3.2000 pursuant to the notification dated 30.1.2000 published in Mathrubhumi daily, sent a letter dated 5.6.2000 to the Director of Higher Secondary Education. The said letter reads as follows: “As directed by you in the above referred order of yours an interview was held on 3.3.2000 pursuant to notification dated 30.1.2000 in Mathrubhumi daily. In the interview Smt.Lija.M.B. scored the maximum W.A.No.177/2010 15 marks and Sri.Haridas.T. came out second. The performance of Smt.C.K.Geetha in the interview was far from satisfactory. It is worth mentioning that Smt.Geetha was posted in the L.P.Section earlier as she was found to be unsuitable for conducting classes in the U.P.Section. On the basis of the results in the interview it was decided to appoint Smt.Lija.M.B. and Sri.T.Haridas as lecturers in Mathematics with effect from 1.6.2000 and accordingly appointment orders have been issued appointing Smt.Lija.M.B. and Sri.Haridas on a adhoc basis subject to the final outwars (sic for outcome) of Civil Appeal Nos.7159- 7177 of 1999 of the Honourable Supreme Court of India and of O.P.No.8419/2000 pending before the Honourable High Court of Kerala. This is for your kind consideration and necessary action in the matter for the approval of the above appointments.” Along with that letter, the Manager had also enclosed Ext.P9 tabulation sheet bearing the signature and seal of the Manager, the Principal of the school and the District Educational Officer, Ernakulam. The tabulation statement also discloses that besides the said three persons a subject expert namely, Prof.Ranjan Abraham was also present and that the petitioner, fourth respondent and fifth respondent-appellant were interviewed by the said committee on 3.3.2000. The petitioner secured the highest marks (248 in all), the fifth respondent-appellant came second scoring 243 marks and the fourth respondent came third scoring 181 marks. However, as the fourth respondent was entitled to be appointed as HSST (Mathematics) in the 25% quota reserved for in- service candidates, the mere fact that she had participated in the W.A.No.177/2010 16 interview held on 3.3.2000 for open market candidates cannot operate to her detriment. 13. It is evident from the contents of the letter dated 5.6.2000 sent by the Manager to the Director of Higher Secondary Education that the petitioner and the fifth respondent had participated in the interview held on 3.3.2000 and that the petitioner was ranked first in the interview. In such circumstances, we are in agreement with the learned Single Judge that the fifth respondent-appellant must give way to the petitioner. We are also in agreement with the learned Single Judge that the appointment of the fifth respondent-appellant by Ext.R5 (a) order dated 23.7.1999 was not in order for the reason that the interview held on 22.7.1999 in which he was selected was not validly held after publishing a notification inviting applications for appointment by direct recruitment. Annexure A1 notice dated 10.6.1999 produced along with the writ appeal fortifies the said conclusion. That must have been the reason why the Manager issued Ext.P10 notice in a leading vernacular newspaper daily inviting fresh applications and conducted an interview on 3.3.2000. In our opinion, the fifth respondent who had participated in the interview cannot be heard to contend that no interview was conducted on 3.3.2000. We are also in agreement with the learned single Judge that on equitable W.A.No.177/2010 17 considerations also, the petitioner who came first in the interview held on 3.3.2000 and was appointed against the first vacancy though irregularly should get precedence over the fifth respondent for appointment against the second vacancy. The view taken by the learned single Judge is, in our opinion, a perfectly reasonable view and cannot be said to be perverse warranting interference in appeal. The learned single Judge has also safe-guarded the rights of the fifth respondent-appellant by directing that he should be accommodated in the next arising vacancy. The Manager has not chosen to challenge the said direction and is bound by it. For the reasons stated above, we hold that there is no merit in the writ appeal. The writ appeal fails and is accordingly dismissed. The parties shall bear their respective costs. K.BALAKRISHNAN NAIR Judge P.N.RAVINDRAN Judge vaa