Kerala High Court
Dr.Mathew P.Abraham vs The Corporate Manager
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
TUESDAY, THE 5TH DAY OF FEBRUARY 2013/16TH MAGHA 1934
WP(C).No. 23391 of 2009 (T)
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PETITIONER(S):
--------------------------
DR.MATHEW P.ABRAHAM, HEAD MASTER,
(UNDER ORDER OF REVERSION AS H.S.A)
ST.THOMAS HIGHER SECONDARY SCHOOL, ERUVELLIPRA,
THIRUMOOLAPURAM P.O., THIRUVALLA.
BY ADV. SRI.S.MUHAMMED HANEEFF
RESPONDENT(S):
----------------------------
1. THE CORPORATE MANAGER,
CATHOLIC EDUCATIONAL AGENCY, MARY GIRI, THIRUVALLA,
PATHANAMTHITTA DISTRICT.
2. REGIONAL DEPUTY DIRECTOR,
HIGHER SECONDARY EDUCATION, CORPORATION BUILDING,
PALAYAM, THIRUVANANTHAPURAM.
3. DIRECTOR OF HIGHER SECONDARY EDUCATION,
HOUSING BOARD BUILDING, SANTHI NAGAR,
THIRUVANANTHAPURAM.
4. STATE OF KERALA,
REP.BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM.
5. SR.LITTLE FLOWER, PRINCIPAL,
ST.THERESAS CONVENT G.H.S., CHENGAROOR, MALLAPPALY,
PATHANAMTHITTA DISTRICT.
R1 BY SRI.ABRAHAM VAKKANAL,SENIOR ADVOCATE
ADV. SRI.PAUL ABRAHAM VAKKANAL
SRI.DIJO SEBASTIAN
R2 TO R4 BY GOVERNMENT PLEADER SRI.NOUSHAD THOTTATHIL
R5 BY ADV. SRI.S.SUBHASH CHAND
SMT.M.P.MARY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 05-02-2013, ALONG WITH WPC.NO. 35145/2009 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sts
WP(C)NO.23391/2009
APPENDIX
PETITIONER'S EXHIBITS:
P1 COPY OF THE JUDGMENT DATED 8/10/2003 IN W.A.NO.1537/2003 OF DIVISION
BENCH OF THIS HON'BLE COURT
P2 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE
4TH RESPONDENT DATED 3/8/2009
RESPONDENT'S EXHIBITS: NIL
/TRUE COPY/
P.S.TO.JUDGE
sts
A.M.SHAFFIQUE, J
* * * * * * * * * * * * *
W.P.C.No.,23391 & 35145 of 2009
and 22248, 24631 of 2010
----------------------------------------
Dated this the 5th day of February 2013
J U D G M E N T
W.P.C.24631 of 2010 is filed by Dr.Mathew P.Abraham (hereinafter referred as the Petitioner) who is working as Head Master at St.Thomas H.S.S., Eruvellipra. He was issued with a memo of charges and statement of allegations and placed under suspension. After conducting an enquiry he was dismissed from service. Ext.P6 is the enquiry report by the Deputy Director of Education. Ext.P7 is the proceedings of the Corporate Manager and Disciplinary authority imposing penalty of reversion to the lower post of H.S.A (PS) in the St.Mary's High School Anikadu. The punishment was approved by the Director of Public Instruction as per Ext.P8. The petitioner preferred a revision to the Government and by Ext.P9 order the punishment was interfered on the ground that the punishment given was disproportionate to W.P.C.No.23391/09 2 & conn.cases the charges proved. The punishment of reversion was modified to that of barring three annual increments with cumulative effect. The entire proceedings of initiation of disciplinary action, the enquiry report and the action taken by the management, the disciplinary authorities and the Government are challenged in this writ petition.
2. W.P.C.No.22248 of 2010 is filed by the Corporate Manager (hereinafter referred as 'the Management') challenging Ext.P22 (Ext.P9 in W.P.C.No.24631 of 2010) order passed by the Government interfering with the punishment imposed on the Petitioner.
3. W.P.C.Nos.23391 of 2009 and 35145 of 2009 are filed by Dr.Mathew P.Abraham claiming benefit of a compromise judgment passed in W.A.No.1537 of 2003 produced as Ext.P1. Earlier the claim of the petitioner to the post of H.S.S.T (Hindi) was in dispute. Petitioner claimed to be the senior most teacher to be appointed to the said post. Overlooking the petitioner, the management appointed W.P.C.No.23391/09 3 & conn.cases Smt.Anima Lukose as H.S.S.T (Hindi). This was challenged by the petitioner before the Educational authorities and the claim of the petitioner was upheld. Petitioner filed O.P.No.11949 of 2002 for implementing the order. The management and Smt.Anima Lukose filed writ petitions before this Court as O.P.Nos.14156 of 2002 and 16469 of 2002 challenging the said orders which were dismissed and O.P.No.11949 of 2002 was allowed, against which an appeal was filed by Smt.Anima Lukose as W.A.No.1537 of 2003. In the meantime, the management entered into an agreement dated 18/09/2003 with the petitioner. The petitioner withdrew his claim as the senior most for being appointed to the said post. Writ Appeal was disposed on 08/10/2003 recording that since the petitioner has already withdrawn his claim the appointment of Smt.Anima Lukose shall be continued. Further the Division Bench observed that the parties shall be bound by the agreement as noticed in the Writ Appeal. It is the case of the petitioner that in the W.P.C.No.23391/09 4 & conn.cases agreement it was agreed by the management that the petitioner was the senior most in the HSST section under the corporate management for appointment as Principal, as and when vacancy arises.
4. W.P.C.No.23391 of 2009 was filed by the petitioner on the allegation that overlooking the said agreement Sr.Little Flower was appointed to the post of Principal of the Higher Secondary school of the same management, in a vacancy that had arisen subsequent to the said agreement. This, according to the petitioner, is in violation of Ext.P1 (Writ Appeal No.1537/2003) judgment and the agreement.
5. W.P.C.No.35145 of 2009 is also filed by the petitioner when another vacancy had arisen and L.Thomas Kutty was appointed as Principal on 01/04/2008. The averments and allegations in both these writ petitions are same in so far as it relates to a claim based on the judgment in the Writ Appeal. However in this writ petition the petitioner contends that the disciplinary proceedings was W.P.C.No.23391/09 5 & conn.cases initiated against him only for denying him the benefit of Writ Appeal judgment and the agreement entered into between the management and the petitioner.
6. All these writ petitions are decided together since the disputes raised by the parties in all these cases relates to common issues.
7. First of all, I shall deal with the validity of the disciplinary proceedings and the punishment imposed against the petitioner and its proportionality.
8. The management contented that the petitioner was involved in 17 acts of misconducts which were all proved after an enquiry by the Deputy Director of Education. According to them though a major penalty could have been imposed, they have taken a lenient view and reverted the petitioner to HSA. According to them the enquiry was conducted by the department representative in accordance with the procedure and they have given evidence regarding the misconducts that have been alleged and they have W.P.C.No.23391/09 6 & conn.cases produced sufficient materials to prove the same and it was wrong on the part of the Government to have interfered with the punishment especially when the management had only taken a lenient view in the matter and even though the charges proved were enough to dismiss him from service, the management had only reverted him to the position of HSA.
9. But on the other hand, the contention of the petitioner is that when notice of enquiry was issued by the Enquiry Officer, he had submitted a letter requesting for adjournment as he was going abroad to visit his wife. But without granting any adjournment they proceeded with the enquiry. Still further, as per Rule 75 of Chapter XIV A of Kerala Education Rules (KER) the disciplinary enquiry has to be conducted strictly in accordance with the procedure prescribed under the said Rule. The contention of the petitioner is that despite having stated in the enquiry report that evidence was recorded, there is no record of such W.P.C.No.23391/09 7 & conn.cases proceedings and the Enquiry Officer has acted on the dictates of the management. Therefore according to the petitioner the enquiry itself is bad in law which cannot give rise to any disciplinary proceedings or punishment as the case may be. The petitioner also has a case that the disciplinary proceeding was initiated against him with the mala fide intention of refusing him the benefit of the compromise which forms part of the Writ Appeal judgment.
10. Primarily the question to be considered is whether the enquiry was properly conducted. Rule 75 is the relevant provision to conduct enquiry. I had the advantage of verifying the records relating to the enquiry. As rightly contended by the learned counsel for the petitioner, it is not seen that any statement of witnesses had been recorded though it was mentioned in the enquiry report that witnesses were examined. This by itself would show that the enquiry was not properly conducted as the rule clearly indicates that if witnesses are examined their statements W.P.C.No.23391/09 8 & conn.cases are to be recorded by the Enquiry Officer and that it should form part of the records. This irregularity goes to the root of the matter and if the proceedings of the Enquiry Officer does not contain any such statement, it can only be assumed that the Enquiry Officer had not complied with the procedure prescribed under Rule 75 of Chapter XIVA of KER in relation to conducting an enquiry for imposing a major penalty. For that reason itself, I am inclined to hold that the whole enquiry proceedings is bad in law and is liable to be set aside. Consequently, the punishment is liable to be set aside and a fresh enquiry is to be conducted after giving an opportunity to the petitioner to adduce evidence and the Enquiry Officer should complete the enquiry in strict compliance of Rule 75 of Chapter XIVA of KER.
11. In regard to the contentions urged with reference to the other writ petitions, the point to be considered is whether on the basis of the judgment in the Writ Appeal, the petitioner had a rightful claim to be the senior most HSST W.P.C.No.23391/09 9 & conn.cases and entitled to be the principal in the vacancy arising after the Writ Appeal judgment.
12. W.P.C.No.23391 of 2009 was filed when it was alleged that overlooking the said agreement Sr.Little Flower was appointed as Principal of HSST. The 5th respondent in her counter affidavit inter alia states as follows:
"Smt. Lilly Kutty Thomas, HM cum Principal of the above school had retired from service on 31/5/2004. Consequently a vacancy of HM had arisen in the High School Section and a vacancy of Principal had arisen in the Higher Secondary Section. Thereupon, the Manager has promoted Sr.Mary V.T. as HM and respondent No.5 was promoted and appointed as Principal with effect from 1/6/2004. The said appointment of respondent No.5 as Principal was approved with effect from 01/06/2004 by order dated 31/1/2007 of the Director of the Higher Secondary Education. However, the petitioner has chosen to challenge my appointment as Principal with effect from W.P.C.No.23391/09 10 & conn.cases 01/06/2004 by way of submitting Ext.P2 representation dated 03/08/2009 and thereafter by the above writ petition filed on 14/8/2009. So much so, the writ petition is vitiated by inordinate delay, laches and negligence on part of the petitioner.
13. Since the 5th respondent was appointed in a vacancy which had arisen on 1/6/2004 and the petitioner had challenged the said appointment only on 11/08/2009, there is delay and laches on the part of the petitioner. Hence W.P.C.No.23391 of 2009 is only to be dismissed on the ground of delay and laches.
14. W.P.C.No.35145 of 2009 is filed when L.Thomas Kutty was appointed as Principal on 01/04/2008. The only question to be considered is whether the appointment of L.Thomas Kutty overlooking the claim of the petitioner was justified or not. This apparently depends upon the question whether the judgment in the Writ Appeal gives any special right to the petitioner to claim the said post of Principal W.P.C.No.23391/09 11 & conn.cases HSST.
15. The main contention urged by the management is that the agreement could be implemented only when a vacancy of Principal arises as per Rule 4 of Chapter XXXII of KER, and only after appointing two HSSTs as Principal, a Head Master or HSA can be given appointment as Principal. Therefore, according to them, petitioner can aspire for the post of Principal only when the next vacancy arises. That apart the agreement was the outcome of a mutual mistake. Even if the petitioner is to be treated as senior HSST, he does not have the requisite six years teaching experience as HSST as per Rules. The management refers to the last paragraph of the agreement which inter alia stipulates that the conditions of the agreement shall be enforced subject to the Rules of the KER. The 5th respondent in his counter affidavit, contended that :
"Rule 4 Chapter XXXII of KER prescribes the method of appointment to various categories of posts. The source of W.P.C.No.23391/09 12 & conn.cases appointment to the category of Principal are by promotion from Higher Secondary School teachers (category 2) under the respective educational agency or by transfer from qualified Head Masters of Aided Schools under the respective education agency. The above rule was amended by SRO No.287/2009 and notes (i) and (ii) were deleted with effect from 06/01/2006. Under note (iii) it has been prescribed that the post of principal shall be filled up by the methods mentioned above in the ratio 2:1. The above ratio of 2:1 is applicable to both minority and non minority aided institutions. As the vacancy of Principal had arisen with effect from 01/04/2008 on account of retirement of HM cum Principal, going by the above ratio, the vacancy is filled up by way of promotion from category No.2 namely Higher Secondary School teachers. Respondent No.5 was thus fully qualified and he is continuing as an approved Principal of the institution with effect from 01/04/2008 onwards." W.P.C.No.23391/09 13
& conn.cases
16. On the other hand, it is argued by the learned counsel for the petitioner that under Article 30 (1) of the Constitution of India, a minority institution has got the right to appoint a person of their choice as the head of the institution. Since the claim is with respect to appointment of a person as Principal of HSST, the management has the option to appoint any person overlooking the seniority. In that view of the matter, the learned counsel for the petitioner also relies upon various judgments which inter alia permits the management to make such appointments. Reference is made to the appointment to the category of Principal as provided under Rule 4 of Chapter XXXII of KER prior to the amendment read as under:
"4. Method of appointment:-
Appointment to the various categories specified in Column (2) of the Table below shall be made by the method of appointment specified against each in column (3) thereof-
W.P.C.No.23391/09 14
& conn.cases
TABLE
Sl.No. Category Method of Appointment
[1] [2] [3]
1 Principal (1) By promotion from category 2 under the
respective educational agency.
OR
(2) By transfer from qualified Headmasters of Aided High Schools under the respective educational agency.
Note:-
(i) The post of Principal will be a selection post and appointment to the post shall be made on the basis of the recommendation of a selection committee consisting of the Manager or his nominee as Chairman, a selection grade Lecturer of Reader or principal of a College nominated by the Manager and Government representative as members. The Government representative shall be nominated by the Manager from among the Officers of Higher Secondary Education Department not below the rank of a Deputy Director or Officers of the Government not below the rank of a Deputy Collector.
(ii)Preference shall be given to Aided Higher Secondary School Teachers having teaching experience at the Higher Secondary School level.
(iii)The post shall be filled up by the methods specified in item (i) and (ii) above in the ration 2 : 1. If qualified candidates are not available for appointment to a vacancy by any one of the methods specified above, such vacancies shall be filled up by the other method.
Note (i) and (ii) were subsequently deleted with effect from 06/01/2006. W.P.C.No.23391/09 15 & conn.cases
17. The contention is that the right of minorities to establish and administer educational institutions of their choice is a constitutional right guaranteed under Article 30 (1) of the Constitution of India which includes appointment of teaching staff as well as Head Master or Principal of their choice and such power cannot be whittled down by other laws. A reference is also made to the judgments in Kurian Lizy v. State of Kerala [2006(4) KLT 264 FB], Malankara Syrian Catholic College v. Jose [2007(1) KLT 22[SC], Belsi v. Corporate Management of Latin Catholic Schools [2010(2) KLT 134 (FB)] and Belsi v. Corporate Management of Latin Catholic Schools reported in 2010 (2) KLT 260.
18. These judgments are relied upon for the proposition that as far as the appointment of Head Master or Principal is considered minority management is free to appoint any person of their choice if he or she possesses the required qualification prescribed under the Statute. W.P.C.No.23391/09 16 & conn.cases Therefore the whole contention of the petitioner is that in so far as he has the required qualification to be appointed as Principal as envisaged under Rule 6 of Chapter XXXII of KER, the ratio provided under Note (iii) of Rule 4 has no application and it is open for the management to appoint the petitioner. That right had been denied now and two persons were appointed after the judgment in W.A.No.1537 of 2003.
19. The question therefore to be considered is whether the petitioner is entitled for appointment as the Principal of HSST in the light of the agreement referred to in the Writ Appeal judgment. If, as a matter of fact, the management of the school being a minority institution is entitled to appoint any person of their choice as Principal if they have the required qualification, definitely the agreement referred to in the Writ Appeal judgment is enforceable under law.
20. The Petitioner has a case that it is to avoid making him the Principal of HSST or to perform the terms of the W.P.C.No.23391/09 17 & conn.cases agreement that the disciplinary proceedings have been initiated against him. This however is a matter to be considered during enquiry. The Enquiry Officer shall specifically consider the question as to whether the disciplinary action is taken only to avoid the right of the petitioner to seek appointment as the Principal of HSST. But, still it has to be considered whether the petitioner had a rightful claim when a vacancy of Principal in HSST arose after the judgment in the Writ Appeal and whether the management was under obligation to appoint the petitioner to the post of Principal of HSST. This depends upon the enforceability of the agreement which had been confirmed by this Court in the Writ Appeal. If the agreement is void, despite the fact that it has the seal of court, it does not become enforceable. The question therefore is whether it is void or not.
21. The argument advanced by the learned counsel for the petitioner seems to be justifiable. It is clear from the W.P.C.No.23391/09 18 & conn.cases judgments referred by the learned counsel for the petitioner that the minority institutions have a right to appoint Principal or Headmaster of their choice and they are not bound by the ratio prescribed under the Rules.
22. The law laid down in the following judgments would clarify the point.
(i) In Malankara Syrian Catholic College v. Jose (2007 (1) KLT 22 SC) Supreme Court held as under:
"17. In TMA Pai (supra), this Court made it clear that a minority institution does not cease to be so, merely on receipt of aid from the State or its agencies. In other words, receipt of aid does not alter the nature or character of the minority educational institution receiving aid. Art.30(1) clearly implies that any grant that is given by the State to the minority institution cannot have such conditions attached to it which will in any way dilute or abridge the rights of the minorities to establish and administer educational institutions"
W.P.C.No.23391/09 19
& conn.cases "27. It is thus clear that the freedom to choose the person to be appointed as Principal has always been recognized as a vital facet of the right to administer the educational institution. This has not been, in any way, diluted or altered by TMA Pai.
Having regard to the key role played by the Principal in the management and administration of the educational institution, there can be no doubt that the right to choose the Principal is an important part of the right of administration and even if the institution is aided, there can be no interference with the said right. The fact that the post of the Principal/ Headmaster is also covered by State aid, will make no difference".
(ii) In Kurian Lizy v. State of Kerala (2006 (4) KLT 264 FB) full bench of this court held as under:
"We, thus, hold that the management of a minority educational institution would have freedom to appoint Headmaster or Principal. W.P.C.No.23391/09 20 & conn.cases R.44(1) of the Rules of 1959 would have no control over the powers conferred under Art.30(1) of the Constitution, although such institution has necessarily to evolve a rationale procedure for selection of the Headmaster or Principal".
23. The learned counsel for the 5th respondent relied upon the judgments in Aided Higher Secondary School Teachers Association v. State of Kerala (2005(1) KLT
94), Prasanna Kumari v. State of Kerala (ILR 2006 (1) Ker 371) and Malankara Syrian Catholic College v. Jose (2007 (1) KLT 22 SC). The first two judgments will have no application to the facts of the present case as those judgments does not consider the right of minority institutions to appoint Headmaster or Principal of the school or college, which is covered by the judgment in Malankara Syrian Catholic College case (supra). Though the management could have exercised their choice and appointed the 5th respondent, they have promised to provide W.P.C.No.23391/09 21 & conn.cases that oppurtunity while entering into the agreement with the petitioner which has the seal of court in the writ appeal judgment and enforceable. Therefore, as contended by the management and 5th respondent, the ratio 2:1 under Note
(iii) of Rule 4 of Chapter XXXII of KER has no application and they cannot get shelter under the said provision to deny the benefit of the agreement to the petitioner.
24. When the management has placed him as the senior most in HSST, even going by the ratio, he should have been considered as the eligible person to be appointed in the first arising vacancy. The only question is whether the petitioner was qualified. Petitioner has a B.Ed. Degree which is one of the qualification to become Principal of HSST. The only problem faced by the management is the ratio to be followed in terms with the provisions of KER. This can be waived as far as the management is concerned going by the principles laid down by the judgments stated above. That apart as per the agreement the whole intention was to W.P.C.No.23391/09 22 & conn.cases appoint the petitioner as Principal in the next arising vacancy and he is considered as the senior most in HSST section. When the management has placed him as the senior most in HSST, even going by the ratio, he should have been considered as the eligible person to be appointed in the first arising vacancy. That being the situation, the judgment referred to in the writ appeal is clearly enforceable and the management is bound to act accordingly. Failure to act in terms of the writ appeal judgment definitely gives a right to the petitioner to seek the directions as prayed for.
25. Petitioner was denied that opportunity on account of two factors; one the agreement not being enforceable and two the pendency of the disciplinary proceedings. If the disciplinary proceedings is found in favour of the petitioner it is not in dispute that he was entitled to be appointed to the said post. Therefore taking into consideration the aforesaid factors, the question is whether during the pendency of such disciplinary proceedings, he is entitled to make a claim for W.P.C.No.23391/09 23 & conn.cases becoming Principal of HSST. As matters stand today there is a memo of charges issued against the petitioner and an enquiry is yet to begin in view of my finding in the other writ petitions. That being the situation, if on enquiry if it is found that the petitioner is not responsible for the alleged misconducts and no punishment is imposed on him which results in any disqualification, definitely petitioner can stake a claim in respect of the appointment as Principal HSST, since the vacancy had admittedly arisen on 01/04/2008 when L.Thomas Kutty had been appointed. Hence the rights of the petitioner can be decided only after the enquiry is completed.
26. In the result, the above writ petitions are disposed of as follows:
i) W.P.C.No.24631/2010 is allowed. Exts.P6, P7, P8 and P9 are set aside. There shall be a direction to the 1st respondent to conduct fresh enquiry in the matter through the departmental authorities in the light of the observations W.P.C.No.23391/09 24 & conn.cases made above. The entire disciplinary proceedings shall be completed within a period of three months. During the enquiry the petitioner shall be given an opportunity to file additional pleadings and also adduce evidence in the matter and cross-examine the witnesses cited on behalf of the management. All documents pertaining to the enquiry shall be furnished to the petitioner.
ii) In view of the setting aside the enquiry report and disciplinary proceedings in W.P.C.No.24631 of 2010, W.PC 22248 of 2010 does not require any specific order since the order of the Government which is produced as Ext.P22 in the case is already set aside in W.P.C.No.24631 of 2010 and fresh enquiry is ordered.
iii) W.P.C. No.23391 of 2009 is dismissed.
iv) W.P.C No.35145 of 2009 is allowed with the following directions:
Subject to the result in the disciplinary proceedings against the petitioner, the Management shall appoint the W.P.C.No.23391/09 25 & conn.cases petitioner to the post of Principal HSST with effect from 01/04/2008.
sd/-
(A.M.SHAFFIQUE, JUDGE) jsr W.P.C.No.23391/09 26 & conn.cases W.P.C.No.23391/09 27 & conn.cases