Case: D. Sarojakumari Vs. R. Helen Thilakom

1. Respondent No.6, Management of Church of South India, is running a number of schools in the State of Kerala. We are concerned with two schools, i.e., Samuel LMS High School, Parassala and the Light to the Blind School, Varkala. Respondent No.1 was working asMusic Teacher in the Light to the Blind School, Varkala.2. The Management of the Samuel LMS High School, Parassala, invited applications for filling up the post of Music Teacher on direct recruitment basis. The Appellant and Respondent No.1 both applied for the said post. The appellant was appointed as Music Teacher on 12.07.1999 in Samuel LMS High School, Parassala. Though Respondent No.1 had applied for being considered for appointment as Music Teacher in the Samuel LMS High School, but after she was not selected in the process of direct recruitment, she raised a plea that since the Management of both the schools are same, she was entitled to be promoted as Music Teacher on the basis of her seniority in the Light to the Blind School, Varkala. In this regard, she first filed a petition before the District Educational Officer who accepted her petition and held that the case of Respondent No.1 was covered under Rule 43 of Kerala Education Rules (for short KER). The appellant filed an appeal which was rejected by the Deputy Director, Education. Thereafter, a revision petition was filed and the main ground raised by Respondent No.6 herein was that the two Schools were separate units. It was contended that the Samuel LMS High School was run for all children, whereas the Light to the Blind School, Varkala, was meant only for differently abled children. It was pointed out that Respondent No.6 had never maintained a common seniority list for these two schools and this was never challenged by Respondent No.1 or any other member of the staff. The Director, Public Instruction held that both schools had different identities and Rule 43 was not applicable. Respondent No.1, thereafter, filed a representation which was rejected by the State Government in which it was held that these two schools were separate units and Respondent No.6 had been treating the schools run by them for specially challenged children as separate entities.3. Respondent No.1, thereafter, filed a writ a petition in the High Court of Kerala. An objection was raised that since Respondent No.1 herein had taken part in the selection process, she could not, after being not selected, be permitted to turn around and claim that the process of direct recruitment could not have been resorted to by the Management of Samuel LMS High School. This objection was overruled by the High Court only on the ground that there can be no estoppel against a statute and the appellant could not be debarred from filing a writ petition. On merits it was held that both the schools formed one unit and, therefore, Respondent No.1 was entitled for promotion in the Samuel LMS High School. The two writ appeals filed by the present appellant were dismissed.

Reasoning:
The law is well settled that once a person takes part in the process of selection and is not found fit for appointment, the said person is estopped from challenging the process of selection.The Kerala High Court did not note the above mentioned judgments and ignored the well settled position of law in rejecting the specific plea raised by the appellant herein that the appellant could not raise the issue that no direct recruitment should have been conducted once she had applied for and taken part in the selection process by direct recruitment.11. As far as the present case is concerned an advertisement was issued by Respondent No.6 inviting applications for the post of Music Teacher in Samuel LMS High School. Respondent No.1 did not raise any objection at that stage that the post could not be filled in by direct recruitment and she should be considered for promotion. Not only that, she in fact, applied for the post and took part in the selection process. After having taken part in the selection process and being found lower in merit to the appellant, she cannot at this stage be permitted to turn around and claim that the post could not be filled in by direct recruitment. The reasoning of the learned Single Judge in rejecting the objection is not in consonance with the law laid down by this Court. In view of this we need not go into the other issues raised.