Kerala High Court
N.S. Brahmanandan Nair vs State Of Kerala on 15 October, 2019
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 15TH DAY OF OCTOBER 2019 / 23RD ASWINA, 1941
WP(C).No.1803 OF 2012(A)
PETITIONER/S:
N.S. BRAHMANANDAN NAIR
AGED 52 YEARS
HEADMASTER,
LENDON MISSION SOCIETY HIGHER SECONDARY SCHOOL,
AMARAVILA,THIRUVANANTHAPURAM,PIN-695111.
BY ADVS.
SRI.M.V.THAMBAN
SRI.B.BIPIN
SRI.R.REJI
SMT.THARA THAMBAN
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT,
DEPARTMENT OF GENERAL EDUCATION,
GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001.
2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION
HOUSING BOARD BUILDING,
SANTHI NAGAR,THIRUVANANTHAPURAM-695001.
3 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY
EDUCATION,
CORPORATION BUILDING, PALAYAM,THIRUVANANTHAPURAM,PIN-
695001
4 THE MANAGER
HIGHER SECONDARY SCHOOL,
(LENDON MISSION SOCIETY SCHOOL),LMS COMPOUND,
THIRUVANANTHAPURAM,PIN-695033.
5 SRI.JUSTIN JAYAKUMAR
PRINCIPAL IN-CHARGE,LMS HIGHER SECONDARY
SCHOOL,CHEMBOOR,THIRUVANANTHAPURAM-695001.
R1 TO R3 SMT. MARY BEENA JOSEPH, SENIOR GOVERNMENT
PLEADER
WP(C).No.1803 OF 2012(A) 2
R5 SRI. B. UNNIKRISHNA KAIMAL
R4 SRI. R.J. PRADEEP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
15-10-2019, THE COURT ON 15-10-2019 DELIVERED THE FOLLOWING:
WP(C).No.1803 OF 2012(A) 3
JUDGMENT
This writ petition is filed by the petitioner seeking the following reliefs:-
"i) To issue a writ of certiorari, or other writ or order calling for the records leading upto Exhibit P13 and quash Exhibits P5 and P11.
ii) To issue a declaration that the post of Principal in the LMS Higher Secondary School, Chemboor in Thiruvananthapurm under 4th respondent Corporate management is to be filled by transfer appointment from among the qualified Headmasters under the same educational agency and also to declare that the petitioner is entitled to transfer appointment as Principal in LMS Higher SecondarySchool, Chemboor, Thirucananthapuram, w.e.f. 1.4.2011 with all consequential benefits and also to declare that the 4th respondent has not been conferred any minority status by any competent authority as on 01.04.2011 and to further declare that any minority status conferred after 01.04.2011 will not affect the claim of the petitioner as it will not have retrospective effect and further that the statutory Rule 4 in chapter 32 K.E.R. cannot be violated even by a minority institution and to issue a still further declaration that the Note 3 to Rule 5 has direct the application in the matter of implementing the ratio provided for in rule 4 Chapter XXXII K.E.R.
iii) to issue a writ of mandamus or other writ or order directing the respondents 1 to 4 to appoint the petitioner as Principal in the vacancy that arose on 01.04.2011 in the LMS Higher Secondary School, Chemboor, Thriruvananthapuram and approve the same with all consequential benefits."WP(C).No.1803 OF 2012(A) 4
2. Petitioner at the time of filing of the writ petition was working as Headmaster in one of the High School under the 4th respondent Corporate Management. According to the petitioner, there are three Higher Secondary Schools and six High Schools under the 4th respondent management. The posts of Principals in three Higher Secondary Schools were filled up by following Rule 4 of Chapter XXXII of KER. That is, by following the ratio of 2:1 between Higher Secondary School Teachers and qualified High School Headmasters. Accordingly, two Principals are to be promoted from Higher Secondary School Teachers and one by transfer appointed from High School Headmaster. One Sri.Isaih Thanka Boss, retired on superannuation with effect from 31.03.2011 from LMS Higher Secondary School, Chemboor in Thirvananthapuram. Therefore, the post of Principal became vacant from 01.04.2011 in that school. The dispute is as to how the said vacant post of Principal is to be filled up. As per the Rules, the post has to be filled by a qualified WP(C).No.1803 OF 2012(A) 5 Headmaster following the ratio of 2:1 as provided under Rule 4 of Chapter XXXII KER. According to the petitioner, since petitioner is the only qualified Headmaster for transfer appointment as Principal under the 4th respondent Corporate Management, he applied for the post. But, his request was rejected as per Ext.P5 by the Corporate Management on the ground that, the said post is to be filled up by a Higher Secondary School Teacher, as it is the 4th post. According to the management, the 4th and 5th posts will also go to Higher Secondary School Teachers and the petitioner can aspire for the 6th vacancy only. The case projected by the petitioner is that, the said approach made by the management is against the Rules and if the view taken by the manager is accepted, there will be only one Higher Secondary School Teacher turned Principal for many years and that is not the intention of the Rule makers.
3. Earlier, petitioner has approached this Court by filing W.P.(C) No.16197/2011, which was WP(C).No.1803 OF 2012(A) 6 disposed of by Ext.P9 judgment directing the 1st respondent Government to pass orders on Ext.P8 representation submitted by the petitioner. However, Government has declined the claim raised by the petitioner as per Ext.P11. It is also the case of the petitioner that, the contention raised by the 4th respondent that they have got the minority status conferred already and therefore they are entitled to make appointment of their choice, cannot be sustained under law. It is also submitted that the interpretation made to Rule 4 by the Government is directly against Note 3 to Rule 5 KS and SSR part II and various judgments of this Court. It is in this background this writ petition is filed.
4. A detailed counter affidavit is filed by the 1st respondent justifying the stand adopted in Ext.P11 order. Among other contentions it is said that, the management of the school has submitted a proposal for the appointment of the 5th respondent that is Sri. Justin Jayakumar, who is the senior WP(C).No.1803 OF 2012(A) 7 most HSST as Principal of the school without considering the seniority for the reason that by virtue of special minority rights of communities envisaged under Article 30(1) of the Constitution of India, the management is entitled to do so. It is also submitted that, the Government has issued the order in accordance with Rule 4 of Chapter XXXII KER and Article 30 of the Constitution of India for minority rights. The school has got minority status only with effect from 01.04.2011 and on examination of the various facts, Government has found the ratio in the case of Sri. N.S.Brahmanandan Nair will be applicable in the next turn only. The Headmaster can claim the 6th vacancy only after the turn of the two Higher Secondary School Teachers. Therefore, according to the Government, petitioner has not made out any case justifying interference by this Court under Article 226 of the Constitution of India.
5. A reply affidavit is filed by the petitioner reiterating the stand adopted in the WP(C).No.1803 OF 2012(A) 8 writ petition.
6. I have heard learned counsel for the petitioner, learned Government Pleader as well as the respective counsel appearing for respondents 4 and 5 and perused the pleadings and documents on record.
7. In the backdrop, the sole question emerges for consideration is whether any manner of interference is warranted to Ext.P11 order passed by the State Government. In my considered opinion, after discussing Rule 4 of Chapter XXXII KER, the Government has proceeded to consider the case on the basis of the minority status of the Corporate Management on and with effect from 14.09.2011. It is also stated that the contention that the minority status was given to the institution only after 01.04.2011 is totally baseless, since as per the Government Order dated 08.03.2001, the Government have accepted the minority right of the management in another case, whereas the certificate issued by the Minority Commission as per order WP(C).No.1803 OF 2012(A) 9 dated 14.09.2011, minority status was granted to an institution run by the society. Therefore the totality of the circumstances, only solidify the claim made by the management in minority status. However, on a perusal of Rule 4 of Chapter XXXII it is clear that, the method of appointment is in the ratio of 2:1 by promotion from category II under the respective educational agency and by transfer from qualified Headmasters of Aided High schools under the respective Educational Agency. Category II under Rule 3 of Chapter XXXII deals with Higher Secondary School Teachers in various discipline. The ratio 2:1 is prescribed for the promotion from teachers under Category II and Headmaster of Aided High Schools under the respective Educational Agency. There is no other method of appointment prescribed to the post of Principal of the Higher Secondary School. So also the qualification contained under Rule 6 of Chapter XXXII, reads thus:-
"Qualifications:- No person shall be eligible for appointment to the category in column (2) in the table below under the method specified in column WP(C).No.1803 OF 2012(A) 10 (3) unless he possesses the Qualifications prescribed in the corresponding entry in column (4) there of.
Sl Category Method of Qualifications No. Appointment (1) (2) (3) (4)
1. Principal By Promotion (1) Master's Degree with not less than 50% marks from any Universities in Kerala or a qualification recognised as equivalent thereto by any University in Kerala.
(2) B.Ed. Degree from any Universities in Kerala or a qualification recognised as equivalent thereto by any University in Kerala.
(3)Minimum approved teaching experience of 12 years at Higher Secondary Level under the same Educational Agency."
On a reading of the qualification also, I do not find any provision for making any appointment, on the basis that the Corporate Educational Agency has minority status.
8. Taking into account all these aspects, I am of the considered opinion that, there is force in the claim raised by the petitioner. However fact remains, petitioner retired from the service as WP(C).No.1803 OF 2012(A) 11 early as on 31.05.2015. But learned counsel for the petitioner submitted that, petitioner is entitled to raise necessary monetary claims on the basis of the entitlement of the petitioner to the post on and with effect from 01.04.2011.
9. In that view of the matter, I am of the firm opinion that, the subject issue is to be re- considered by the Government, taking into account Rules 4 & 6 of Chapter XXXII KER. Therefore, I quash Ext.P11 and direct the State Government to re-consider the matter thus enabling the petitioner to make any claim with respect to the fixation of pension and other benefits and take a decision at the earliest and at any rate, within three months from the date of receipt of a copy of this judgment, after providing a notice of hearing to the petitioner, Corporate Management and the 5th respondent, that is Sri. Justin Jayakumar.
Sd/-
SHAJI P.CHALY
hmh JUDGE
WP(C).No.1803 OF 2012(A) 12
APPENDIX
PETITIONER'S/S EXHIBITS
EXHBIT P1 TRUE COPY OF THE REPRESENTATION DATED
28.12.2010
EXHIBIT P2 TRUE COPY OF THE REPRESENTATION ON 16.02.2011
SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT EXHIBIT P3 TRUE COPY OF THE REPRESENTATION ON 24.03.2011 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 04.04.2011 TO THE 3RD RESPONDENT EXHIBIT P5 TRUE COPY OF THE LETTER NO.D/119/HSS/2011 DATED 04.05.2011 EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 13.05.2011 BEFORE THE 4TH RESPONDENT EXHIBIT P7 TRUE COPY OF THE REPRESENTATION TO THE 2ND RESPONDENT ON 16.05.2011 EXHIBIT P8 TRUE COPY OF THE REPRESENTATION BEFORE THE 1ST RESPONDENT ON 04.06.2011 EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 16.06.2011 IN WPC NO.16197/2011-Y EXHIBIT P10 TRUE COPY OF THE LETTER DATED 29.06.2011 EXHIBIT P11 TRUE COPY OF THE GO(RT)NO.5747/2011 G.EDN.
DATED 22.12.2011 WP(C).No.1803 OF 2012(A) 13 EXHIBIT P12 TRUE COPY OF THE APPOINTMENT ORDER IN RESPECT OF THE 5TH RESPONDENT ON 01.06.2011 EXHIBIT P13 TRUE COPY OF THE LETTER NO.D/224/HSS/2011 DATED 13.06.2011.
RESPONDENT'S/S EXHIBITS NIL