Kerala High Court
V.P.Jayaraj vs State Of Kerala on 20 October, 2015
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
THURSDAY, THE 25TH DAY OF FEBRUARY 2016/6TH PHALGUNA, 1937
WP(C).No. 19948 of 2013 (P)
----------------------------
PETITIONER:
------------------
V.P.JAYARAJ
NOW WORKING AS HEADMASTER
DESABANDHU HIGHER SECONDARY SCHOOL, THACHAMPARA
PALAKKAD DISTRICT.
BY ADVS.SRI.BINOY THOMAS
SRI.PAULSON THOMAS
RESPONDENTS:
----------------------
1. STATE OF KERALA
REPRESENTED BY THE SECRETARY
GENERAL EDUCATION DEPARTMENT, SECRETARIAT
THIRUVANANTHAPURAM, PIN:695 001.
2. DIRECTOR OF HIGHER SECONDARY EDUCATION
HOUSING BOARD BUILDING, THIRUVANANTHAPURAM
PIN-695 001.
3. REGIONAL DEPUTY DIRECTOR,
HIGHER SECONDARY EDUCATION, EDAPPALLY, ERNAKULAM
PIN:682 024.
4. MANAGER,
DESABANDHU HIGHER SECONDARY SCHOOL, THACHAMPARA
PALAKKAD, PIN:678 051.
Addl.5. THE REGIONAL DEPUTY DIRECTOR
HIGHER SECONDARY EDUCATION, MALAPPURAM.
[ADDL.R5 IS SUO MOTU IMPLEADED AS PER ORDER DATED 20.10.2015.]
BY GOVERNMENT PLEADER SMT. M.J. RAJASREE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-02-2016,
ALONG WITH WP(C) NOS.6590/2014 & 8097/2014, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO.19948 OF 2013-P
APPENDIX
PETITIONER'S EXHIBITS :-
-----------------------------------
EXT.P1 - COPY OF THE M.SC. DEGREE CERTIFICATE ISSUED BY THE
MADURAI KAMARAJ UNIVERSITY.
EXT.P2 - COPY OF THE EQUIVALENCY CERTIFICATE ISSUED BY THE
MAHATHMA GANDHI UNIVERSITY.
EXT.P3 - COPY OF THE B.SC. [MATHEMATICS] DEGREE CERTIFICATE.
EXT.P4 - COPY OF THE B.ED. DEGREE CERTIFICATE.
EXT.P5 - COPY OF THE APPOINTMENT CUM APPROVAL ORDER OF THE
PETITIONER AS HEADMASTER W.E.F. 01.04.2010.
EXT.P6 - COPY OF THE REPRESENTATION TO THE MANAGER DATED
01.08.2012 SEEKING APPOINTMENT AS PRINCIPAL.
EXT.P7 - COPY OF THE JUDGMENT IN WP(C) NO.26055 OF 2012.
EXT.P8 - COPY OF THE ORDER NO.ACD.A2/53601/HSE/2013 DATED
29.01.2013.
EXT.P9 - COPY OF THE HEARING NOTICE DATED 09.05.2013.
EXT.P10 - COPY OF THE GO(RT) NO.2948/2013/G.EDN. DATED 16.07.2013.
EXT.P11 - COPY OF THE GO(MS) NO.43/2005/G.EDN. DATED 11.02.2005.
EXT.P12 - COPY OF THE GO(MS) NO.11/2006/G.EDN. DATED 06.01.2006.
EXT.P13 - COPY OF THE GO(MS) NO.211/2011/G.EDN. DATED 24.10.2011.
EXT.P14 - COPY OF THE GO(MS) NO.76/2013/G.EDN. DATED 23.02.2013.
EXT.P15 - COPY OF THE GO(MS) NO.211/2013/G.EDN. DATED 15.07.2013.
EXT.P16 - COPY OF THE REPRESENTATION DATED 29.07.2013.
EXT.P17 - COPY OF THE ADDENDUM GO(MS) NO.26/2014/G.EDN.
DATED 01.02.2014.
EXT.P18 - COPY OF THE REPRESENTATION GIVEN TO THE MANAGER
BY THE PETITIOINER DATED 06.02.2014.
EXT.P19 - COPY OF THE NEWS PAPER ADVERTISEMENT IN
JANMABHOOMY DATED 06.02.2014.
EXT.P20 - COPY OF THE JUDGMENT REPORTED IN 2013 (4) KLT 257.
[CONTD...]
WP(C).No. 19948 of 2013 (P) 2
EXT.P21 - COPY OF THE ORDER OF THE REGIONAL DEPUTY DIRECTOR
DATED 17.08.2012.
EXT.P22 - COPY OF THE ORDER ISSUED BY THE RDD GIVING CHARGE
OF PRINCIPAL W.E.F. 16.07.2013.
EXT.P23 - COPY OF THE ORDER DATED 15.12.2014 IN SLP NO.31167 OF
2014 FILED BY MANAGER.
EXT.P24 - COPY OF THE STAFF FIXATION ORDER AS AVAILABLE IN 2014.
EXT.P25 - COPY OF THE ORDER GO(MS) NO.290 OF 2006
DATED 02.12.2016.
RESPONDENTS' EXHIBITS:-
---------------------------------------
EXT.R1(A) - COPY OF THE ORDER NO.GB2/DISC. ACTION/18/03-04/4683
PBVR DATED 19.04.2004 ISSUED BY THE KSE BOARD.
//TRUE COPY//
P.A. TO JUDGE
sp
C.R.
K. VINOD CHANDRAN, J.
---------------------------------------
W.P(C). Nos.19948 of 2013-P, 8097-J
&
6590 of 2014-W
---------------------------------------
Dated this the 26th day of February, 2016
JUDGMENT
The three writ petitions more or less agitate the same cause, but on different aspects. For convenience, WP(C) No.19948 of 2013 is referred to unless otherwise specifically noticed. The petitioner is a Headmaster in the High School section under the 4th respondent. The 4th respondent was granted Higher Secondary Section in the academic year 2010-2011 by Ext.P13 dated 24.10.2011. Teaching posts were sanctioned in many aided Higher Secondary Schools, including the 4th respondent W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 2 School. 146 posts of Principals were also sanctioned. The sanction related back to the date 06.08.2011.
2. At the time when the Government Order was issued, there were none qualified in the Higher Secondary section to be posted as Principal, since the minimum experience required is 12 years as a Higher Secondary School Teacher (HSST) as per Chapter XXXII of the Kerala EducationRules,1959(KER). Though the petitioner was initially appointed as Principal, when HSSTs joined the School, the petitioner was reverted as Headmaster and one of the HSSST (Juniors) was appointed as Teacher-in-charge, on the senior HSST relinquishing her claim. The said teacher-in-charge, one Smitha P. has filed WP(C) No.8097 of 2014, claiming that she is W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 3 entitled to be continued for reason of the Headmaster of the High School not being qualified as on the date of arising of the vacancy of Principal. The apprehension of the said teacher is also that, if the HM of the High School is posted as Principal of the Higher Secondary Section, herself, a HSST (Junior) would be thrown out for want of sufficient periods.
3. The petitioner in WP(C) No.19948 of 2013, the Headmaster, took a Post Graduation in Maths as on 03.04.2012. It was at that point, the petitioner staked a claim for the Principal's post, especially since an HSST (Junior) was continued as in-charge. The claim was rejected and it was agitated before the Educational Authorities and eventually Ext.P10 order was W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 4 passed, rejecting the claim. The rejection at Ext.P10 was based on Exts.P11 & P12 orders, which mandated that the Headmaster appointed as Principal should teach at least 16 hours in the Higher Secondary section.
4. Ext.P11 G.O(MS) No.43/05/G.Edn. dated 11.02.2005 prescribed that the teaching hours of qualified Headmaster turned Principal would be 16 periods per week. Ext.P12 G.O.(MS) No.11/06/G.Edn. dated 06.01.2006, in implementation of Ext.P11, mandated that the post of Principal will be carved out from the existing strength of HSST's and there would be no new posts sanctioned. In the 4th respondent School, the post of HSST's as per the sanctioned strength is filled. If the petitioner is promoted as Principal, then the W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 5 Principal would have to be continued as an additional post without any teaching duties. The G.O.s at Exts.P11 & P12 would stand against the petitioner's claim, is the finding in Ext.P10.
5. This Court is unable to countenance such a finding, in view of the statutory rules made under Chapter XXXII. Rule 4 of Chapter XXXII prescribes the method of appointment. The feeder category for the post of Principal is 'by promotion' from Higher Secondary School Teachers or 'by transfer' from qualified Headmasters of aided High Schools under the respective educational agency. Note III of Serial No.1 of the Table under Rule 4 also prescribes that the post of Principal shall be filled up from the feeder category in the ratio W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 6 of 2:1, ie. when two successive vacancies of Principal are filled from the Higher Secondary section, the third vacancy should go to the Headmaster of the High School, if he or she is so qualified to be appointed as Principal. It is also specified in the said Note that if qualified hands are not available in either of the two methods, then the other method shall be resorted to.
6. Here, admittedly none are available under the HSST category for promotion to the category of Principal, since under Rule 6 of Chapter XXXII, such promotion would require minimum approved teaching experience of 12 years at Higher Secondary level under the same educational agency. Then, necessarily on a vacancy arising to the post of Principal, the W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 7 other method would have to be resorted to, if there is a qualified hand available. The other method is 'by transfer' from qualified Headmaster of the aided High School under the respective educational agency. The petitioner herein is continuing as a Headmaster in the aided High School under the educational agency and he is qualified to be appointed as Principal on 03.04.2012, the date on which he acquired Post Graduation.
7. The mere fact that the HM did not have a qualification on 06.08.2011, when the vacancy itself arose would not stand against him, since there is no other qualified Teacher appointed to that post. If there was a qualified HSST appointed to the post of Principal, then the mere fact that the Headmaster acquired W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 8 qualification later, making him eligible to be considered for the post of Principal in the Higher Secondary section, would not automatically enable him to be promoted. This is so since the HSST already promoted would have a vested right to continue, till superannuation.
8. But herein, an unqualified Teacher was continued as in-charge. Though the in-charge is continued, the vacancy remains as such and is not filled up, till a regular hand is appointed. The petitioner having subsequently qualified to be posted as Principal, could very well stake a claim to that vacant post, which is now occupied by an un-qualified hand, whose appointment is temporary. The said claim is also permissible under the statutory rules, W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 9 more specifically under Chapter XXXII KER.
9. Ext.P10 proceeds on the premise that Exts.P10 & P11 required a Headmaster transferred as Principal to teach 16 hours and in the circumstance of there being no posts available of HSST in the Higher Secondary section, wherein the petitioner could be accommodated so as to teach 16 hours, there could be no promotion granted to the petitioner. This would in fact result in the executive orders interdicting the claim under the statutory rules, which is not permissible.
10. A similar situation was considered by the Hon'ble Supreme Court in Ext.P23, wherein a Government Order of the year 2004 was relied on to frustrate the claim of an unqualified Teacher, continued as Principal-in-charge. The W.P(C). Nos.19948 of 2013-P, 8097-J & 6590 of 2014-W 10 Hon'ble Supreme Court directed that in the event of there being no qualified HSST's, then the second method of 'by transfer' appointment of Headmaster has to be resorted to. Therein also it was held that the G.O. relied on,is in conflict with the statutory rule and cannot be found to have validly substituted the substantive rule, which in no uncertain terms prescribed a procedure for promotion to the post of Principal. The said binding precedent squarely applies herein.
11. Apposite would be reference to paragraph 10 of a Division Bench decision in Thomas v. State of Kerala [2013 (4) KLT 257], which is extracted hereunder:
b