Kerala High Court
Ismaiel P vs State Of Kerala
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
MONDAY,THE 14TH DAY OF JULY 2014/23RD ASHADHA, 1936
WP(C).No. 28133 of 2013 (N)
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PETITIONER(S):
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ISMAIEL P,
H.S.S.T (MALAYALAM),
KUNHALI MARAKKAR H.S.S. KOTTAKAL, KOTTAKKAL P.O.,
IRINGAL VIA., KOZHIKODE-673 521.
BY ADV. SRI.KALEESWARAM RAJ
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT
GENERAL EDUCATIONAL DEPARTMENT
THIRUVANANTHAPURAM-695 001.
2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION,
THIRUVANANTHAPURAM-695 001.
3. THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION,
KOZHIKODE-673 001.
4. THE MANAGER,
KUNHALI MARAKKAR H.S.S., KOTTAKAL, KOTTAKKAL P.O.
IRINGAL VIA., KOZHIKODE-673 521.
5. V.P.RAJALAKSHMI,
HEADMISTRESS - ADDL. CHARGE OF PRINCIPAL
KUNHALI MARAKKAR H.S.S., KOTTAKAL, KOTTAKKAL P.O.
IRINGAL VIA., KOZHIKODE-673 521.
R1 TO R3 BY SR. GOVERNMENT PLEADER SRI.M.A.FAYAZ.
R4 BY ADVS. SRI.V.A.MUHAMMED
SRI.ZUBAIR PULIKKOOL
R5 BY ADVS. SRI.P.R.SREEJITH
SRI.M.PROMODH KUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-07-2014
ALONG WITH WPC 17666/2014, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WP(C).No. 28133 of 2013 (N)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1: COPY OF THE ORDER DATED 16.8.2012 ISSUED BY THE 3RD RESPONDENT.
P2: COPY OF THE REPRESENTATION DATED 7.10.2013 SUBMITTED BY THE
PETITIONER BEFORE THE 2ND RESPONDENT.
RESPONDENT(S)' EXHIBITS NIL
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/TRUE COPY/
P.A. TO JUDGE
VPV
P.N.RAVINDRAN, J.
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W.P.(C)Nos.28133 of 2013 &
17666 of 2014
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Dated this the 14th day of July, 2014
JUDGMENT
The reliefs sought in these writ petitions are almost identical.
They were therefore heard together and are being disposed of by
this common judgment.
2. The petitioner in W.P.(C)No.28133 of 2013 entered service
as HSA in Kunhali Marakkar Higher Secondary School, Kottakkal on
31.3.1997. While in service as HSA he was appointed by transfer as
HSST (Junior) Malayalam with effect from 1.12.2011 in the 25%
quota reserved for inservice candidates. The said appointment was
approved by the Regional Deputy Director of Higher Secondary
Education, Regional Office, Kozhikode by Ext.P1 order dated
16.8.2012. Later, the post of HSST (Junior) against which the
petitioner was appointed was upgraded as HSST (Malayalam) with
effect from 23.2.2013. The petitioner in W.P.(C)No.28133 of 2013
seeks a writ in the nature of mandamus commanding the fourth
respondent Manager to appoint him as Principal of the school. In
the alternative, he seeks a writ in the nature of mandamus
W.P.(C)28133/13 & 17666/14
2
commanding the Director of Higher Secondary Education to consider
Ext.P2 representation submitted by him and to take an appropriate
decision thereon within a time limit to be fixed by this Court. The
relief sought in Ext.P2 representation is to direct the Manager to
appoint him as the Principal of Kunhali Marakkar Higher Secondary
School, Kottakkal. The main contention raised in Ext.P2 and in the
instant writ petition is that as the petitioner has nearly 18 years of
service and he possesses a post graduate degree in Malayalam and
a B.Ed. degree in Malayalam as also a pass in State Eligibility Test
(SET) and he is the senior most HSST, he is qualified to be
appointed as the Principal.
3. The petitioner in W.P.(C)No.17666 of 2014 is the Manager
of Kunhali Marakkar Higher Secondary School, Kottakkal. The fifth
respondent therein is the petitioner in W.P.(C)No.28133 of 2013.
It is stated that in view of the fact that the school is a minority
institution entitled to the protection of Article 30(1) of the
Constitution of India, the petitioner has, subject to the outcome of
W.P.(C)No.28133 of 2013, appointed the fourth respondent as
Principal of the school by Ext.P2 appointment order dated 1.4.2014,
that it was sent along with Ext.P3 covering letter dated 11.4.2014
to the Regional Deputy Director of Higher Secondary Education,
W.P.(C)28133/13 & 17666/14
3
Regional Office, Kozhikode but till date, orders have not been
passed thereon and that as a result thereof, the teaching and non-
teaching staff of the Higher Secondary School have not been paid
salary and allowances since March 2014. In this writ petition, the
petitioner seeks a writ in the nature of mandamus commanding the
third respondent to pass the pay bill of the staff of the Higher
Secondary School and to allow the fourth respondent to claim and
disburse payments.
4. The fourth respondent in W.P.(C)No.17666 of 2014, who
has been appointed as the Principal of the school by the petitioner
Manager by Ext.P2 appointment order dated 1.4.2014, entered
service as HSST (Junior) by transfer on 1.3.2014. He commenced
service as HSA only on 1.11.1997. He is admittedly junior to the
fifth respondent in service, going by the dates of appointment as
HSA and as HSST. The qualifications for the post of Principal of an
aided higher secondary school are set out in rule 6 of Chapter XXXII
of the Kerala Education Rules. Inter alia it is stipulated that the
Principal of a Higher Secondary School should have a minimum
approved teaching experience of 12 years at Higher Secondary
Level under the same agency. This applies to both appointments by
promotion and by transfer. However in the case of those appointed
W.P.(C)28133/13 & 17666/14
4
by promotion, it is stipulated that it is enough if they have six years
of service as HSST, Senior or Junior. Neither the petitioner in W.P.
(C)No.28133 of 2013 nor the fourth respondent in W.P.(C)No.17666
of 2014 possess the required length of service. In other words, as
on today both of them are ineligible to be appointed as Principal of a
Higher Secondary School. As a matter of fact none of the HSST's in
Kunhali Marakkar Higher Secondary School, Kottakkal possess the
prescribed experience qualification for appointment as Principal. In
such circumstances, I am of the opinion that the only course open
to the management will be to give charge of the Principal to the
senior most HSST in charge of the Higher Secondary section as
directed by the Government in G.O.(MS)No.161/2004/G.Edn. dated
14.6.2004. The aforesaid Government order is extracted below in
full:-
"GOVERNMENT OF KERALA
Abstract
General Education - Higher Secondary Education -
Placement of Principals in Higher Secondary School -
Senior Most Higher Secondary School Teacher - Put in
charge of Higher Secondary Section - Orders issued.
General Education (T) Department
G.O.(MS)No.161/2004/G.Edn. Dated, Thiruvananthapuram,
14.6.2004
Read:- 1.G.O.(Ms) No.338/2003/G.Edn. Dated 16-12-2003.
2. G.O.(Ms) No.134/2004/G.Edn. Dated 14-5-2004.
W.P.(C)28133/13 & 17666/14
5
ORDER
In supersession of all the orders issued in the matter of placement of principals in Higher Secondary School, Government in the Government Order read as Ist paper above ordered that eligible Higher Secondary School Teachers/Headmasters with qualifications and experience in teaching as prescribed in the Special Rules will be the Principal of Higher Secondary School in the ratio of 2:1. Subsequently in the Government Order read as second paper above Government ordered that the Principal will be the drawing and disbursing Officer of the Higher Secondary Section of the School and in the case of Aided Higher Secondary School, Principal will prepare the bills of the Higher Secondary School Teachers and get it countersigned by the District Educational Officer until Regional Offices are formed.
2. Government have subsequently noticed the situation in some schools where there are no Higher Secondary School Teacher having 12 years teaching experience for being posted as Principal. Government having examined the situation in detail order that in the case of Schools where there are no Higher Secondary School Teacher having 12 years teaching experience for placement to the post of Principals, the senior most Higher Secondary School Teacher will be put in charge of the Higher Secondary Section.
(By Order of the Governor) Secretary to Government."
5. Since none of the HSST's in Kunhali Marakkar Higher Secondary School, Kottakkal possess the prescribed experience qualification, the Manager cannot even assuming that the educational institution is a minority institution, appoint any one among the Higher Secondary School Teachers as the Principal. He can only give charge of the Higher Secondary section to the senior W.P.(C)28133/13 & 17666/14 6 most HSST. Such giving of charge will not in any way affect the minority right if any available to the institution for the reason that the giving of charge is only for the purpose of enabling payment of salary and allowances to the teaching and non-teaching staff of the Higher Secondary section.
I accordingly hold that the reliefs prayed for in the writ petitions cannot be granted. Both the writ petitions fail and are dismissed with a direction to the petitioner in W.P.(C)No.17666 of 2014 to give charge of the Higher Secondary section to the senior most HSST in Kunhali Marakkar Higher Secondary School, Kottakkal based on the date on which he/she was appointed as HSST (Senior/Junior).
P.N.RAVINDRAN JUDGE vpv These writ petitions were dismissed by judgment delivered in open Court on 14.7.2014 after hearing the learned counsel on both sides, but with a direction to the petitioner in W.P.(C)No.17666 of 2014 to give charge of the Higher Secondary section to the senior- most Higher Secondary School Teacher having regard to the date on which he was appointed as Higher Secondary School Teacher. On W.P.(C)28133/13 & 17666/14 7 the very next day, viz. 15.7.2014, Sri.Kaleeswaram Raj, learned counsel appearing for the petitioner in W.P.(C)No.28133 of 2013 submitted that the writ petition was dismissed having regard to the terms and stipulations in G.O.(MS)No.161/2004/G.Edn. dated 14.6.2004, that the Government had, by G.O.(MS)No.43/2005/ G.Edn. dated 11.2.2005, clarified paragraph 2 of G.O.(MS) No.161/2004/G.Edn. dated 14.6.2004 and stipulated that seniority has to be determined taking into account the teaching experience in the High School level as well as in the Higher Secondary School level and therefore, the writ petitions may be posted for being spoken to. These writ petitions were accordingly posted for being spoken to on 17.7.2014 and on 18.7.2014. Since I was not sitting on those days, the writ petitions were called today for being spoken to.
2. Shorn of details, the submission made by Sri.Kaleeswaram Raj, learned counsel appearing for the petitioner in W.P.(C) No.28133 of 2013 is that this Court omitted to take note of the stipulations in G.O.(MS)No.43/2005/G.Edn. dated 11.2.2005 when this Court held that the senior-most Higher Secondary School Teacher has to be given charge of the Higher Secondary section and that in the light of G.O.(MS)No.43/2005/G.Edn. dated 11.2.2005 W.P.(C)28133/13 & 17666/14 8 W.P.(C)No.28133 of 2013 ought to have been allowed and the respondents directed to give charge of the Higher Secondary section to the petitioner therein .
3. It is relevant in this context to note that if this Court has failed to take note of a relevant Government order governing the field when the writ petitions were disposed of, the remedy of the petitioners lies in moving this Court for review of the judgment dismissing the writ petitions. It is also relevant in this context to note that during the course of hearing the Government order, G.O. (MS)No.43/2005/G.Edn. dated 11.2.2005, which is now sought to be relied on, was not brought to my notice. It is also not referred to in the pleadings. In such circumstances I am of the opinion that this Court cannot vary the judgment delivered on 14.7.2014. It will be open to the petitioners in either of the writ petitions, if they are aggrieved by the judgment dismissing the writ petitions, to canvass the correctness of the judgment in appeal or take appropriate steps to seek a review of the judgment.
22nd July, 2014 Sd/-
P.N.RAVINDRAN,
JUDGE
ahg.