Kerala High Court
O.Prasannakumary vs The Director Of Higher Secondary on 15 December, 2005
Author: Pius C.Kuriakose
Bench: Pius C.Kuriakose
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 18782 of 2004
1. O.PRASANNAKUMARY, HIGHER SECONDARY
... Petitioner
Vs
1. THE DIRECTOR OF HIGHER SECONDARY
... Respondent
2. THE MANAGER, M.S.M.HIGHER SECONDARY
3. S.ANIL KUMAR, HIGHER SECONDARY SCHOOL
4. K.J.THULASI BAI, PRINCIPAL-IN-CHARGE,
For Petitioner :SRI.C.P.SUDHAKARA PRASAD
For Respondent :SMT.V.P.SEEMANDINI
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated : 15/12/2005
O R D E R
PIUS C.KURIAKOSE, J.@@ j ...................................@@ j W.P.(C) NO.18782 OF 2004@@ j ...................................@@ j DATED THIS THE 15th DECEMBER, 2005.@@ j @@ j JUDGMENT@@ jEEEEEEEE .SP 2 .PL 53 ((HDR 0
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W.P.(C)18782 OF 2004 )) .HE 1 The following two questions arise for decision in this case:-
1. Whether the manager is bound, on the terms of@@ i G.O.(MS)No.162/98/G.Edn. dated 13.5.1998 governing the appointment of Higher Secondary School Teachers in schools where Higher Secondary course is newly sanctioned, to make appointments to the quota of 25% reserved for existing teachers in the school before he makes appointment to the remaining 75% posts by direct recruitment?
2. Whether the minimum teaching experience of 12@@ i years which is one of the qualifications required for appointment of Principals in Higher Secondary Schools by promotion of Higher Secondary School Teachers, can include teaching experience at the U.P.S.A. level also?
2. The petitioner was appointed as U.P.S.A. in M.S.M.High School, Chathinamkulam on 29.7.1985 and the school became a Higher Secondary School with effect from 27.8.1998. For appointment to the various posts in the Higher Secondary School, the Selection Committee constituted by the Manager prepared a select list containing the names of 9 persons including the petitioner. The only person from the existing teachers in the school amongst those 9 persons was the petitioner. The petitioner in this context relies on Ext.P1 G.O. and claims on the basis of Ext.P1 that 25% of the vacancies in the Higher Secondary School are to be reserved for being filled up by High School Assistants and Primary School teachers and only the remaining 75% posts can be filled up by direct recruits. According to the petitioner, only after appointing her could the manager have appointed anybody else from the select list. But instead of doing so, what the manager did was to appoint the 3rd respondent as H.S.S.T. (Physics) on 27.8.1998. Thereafter only the petitioner was appointed as H.S.S.T. (Economics) and Ext.P2 is the appointment order given to her. Petitioner's appointment was approved only as a part-time H.S.S.T. and Ext.P3 is the approval order. Complaining about the priority given to the 3rd respondent and also about her approval being only as a part-time H.S.S.T., the petitioner filed Ext.P4 representation which was directed to be disposed of by this Court in Ext.P5 judgment. But the 1st respondent-Director of Higher Secondary Education rejected Ext.P4 by passing Ext.P6. Petitioner relies on Ext.P7 judgment of a Division Bench of this Court and Ext.P8 judgment of a Single Judge and contends that the law is settled by the decisions of this Court that whether the post is full-time or not, persons like the petitioner are entitled to have their appointment as full-time H.S.S.T. in Economics approved by the 1st respondent. According to the petitioner, the reasoning in Ext.P6 based on the number of periods available in the Subject is patently illegal. The petitioner then refers to the Special Rules governing the method of appointment and qualifications of teachers and non-teaching staff in aided Higher Secondary Schools which were notified by G.O.(P)331/2001/G.Edn. dated 9.11.2001, published in the Gazette on 12.11.2001, introducing Chapter XXXII to the Kerala Education Rules. The petitioner points out that as per the Special Rules, appointment to the post of Principal of Higher Secondary Schools has to be made from Higher Secondary School Teachers and also by transfer of Headmasters in the ratio 2:1. One of the additional qualifications for appointment of Principal of Higher Secondary Schools is minimum approved teaching experience of 12 years and preference is to be given to teaching experience at the Higher Secondary School level. Ext.P9 G.O. (G.O.(MS)No.338/2003/G.Edn. dated 16.12.2003) issued by the Government in implementation of the Special Rules regarding appointment of Principals of Higher Secondary Schools is also produced by the petitioner who points out that qualification and experience in teaching as per the Special Rules will be required while making transfer postings from H.S.As. also. The petitioner has also produced Ext.P10 G.O. dated 14.6.2004 which provides that in the absence of persons with 12 years' teaching experience, the seniormost H.S.S.T. will be put in charge of the Principal. It is alleged that the 4th respondent is presently working as the Principal in charge of the Higher Secondary School and she being unqualified is to be replaced by a Higher Secondary School Teacher as per the Special Rules and Exts.P9 and P10. Petitioner claims that among the H.S.S.Ts. in the school, she is the only qualified H.S.S.T. having qualifications educational and experiencewise. The petitioner has come to know that instead of appointing her who is qualified as per the Rules and also as per Exts.P9 and P10, the manager has sent up a proposal seeking permission to appoint the 3rd respondent as Principal and is making an attempt to get permission from the 1st respondent for replacing the 4th respondent. It is on these allegations that the petitioner has raised grounds A to E and filed the Writ Petition for the following reliefs:-
1. issue a writ of certiorari or any other@@ i appropriate writ, direction or order calling for the records relating to Ext.P3 to the extent it gives approval of appointment of the petitioner to the post of part-time H.S.S.T. with effect from 28.8.1998 and Ext.P6, and quashing the same;
2. issue a writ commanding the 2nd respondent to@@ i appoint the petitioner as full-time H.S.S.T. in Economics with effect from 27.8.1998 in preference to the 3rd respondent and a further direction to the 1st respondent to approve the same;
3. issue a declaration that the petitioner is@@ i entitled to be appointed as full-time H.S.S.T. in preference to the 3rd respondent and based on that all consequential benefits be made available to the petitioner;
4. command respondents 1 and 2 to appoint the@@ i petitioner as Principal forthwith; and
5. issue a declaration that the petitioner is@@ i entitled to be appointed as Principal replacing the 4th respondent;
3. The present manager of the school has filed a counter affidavit. It is conceded that in the select list of H.S.S.Ts. prepared by the Assistant Director, Higher Secondary Education, on the basis of an interview held in the school on 26.8.1998, there were 9 candidates including the petitioner. The petitioner was transferred on the basis of the said selection and re-appointed as H.S.S.T. (Economics) with effect from 28.8.1998 and was allowed to join duty on that day itself. The petitioner was the only qualified hand available in the school for appointment by transfer in the 25% quota. But in the staff fixation order for 1998-99, there was only a part-time post of H.S.S.T. sanctioned for Economics.
Ext.R2(a) is the staff fixation order. But for Physical Science, there was a full-time post against which the 3rd respondent was appointed on 27.8.1998. The various selectees were appointed on different dates. Interpreting clause 2(i) of Ext.P1, the counter affidavit contends that it is not obligatory that the manager should fill up the vacancies set apart for the 25% inservice candidates first. The petitioner could have been appointed only as a part-time Higher Secondary School teacher as per the staff fixation order and she has been approved only as a part-time Higher Secondary School teacher. A full-time post was sanctioned in the school for Economics only on 15.7.1999 and immediately thereafter she was appointed to that post with effect from 15.7.1999. The manager has not acted illegally.
4. To this counter affidavit, the petitioner has filed a reply affidavit. Along with this reply affidavit, the petitioner has produced Ext.P11 copy of G.O.(MS)No.351/2004/G.Edn. dated 20.11.2004 by which full-time benefit has been given to former H.S.As. like the present petitioner who were appointed by transfer as H.S.S.Ts. on the basis of Ext.P1 G.O. with effect from the dates of their appointments. It is pointed out that on the basis of Ext.P11 the petitioner has been given full time salary eversince her date of first appointment itself. The reply affidavit blames the manager for not having divulged this aspect. The reply affidavit reiterates the contentions of the petitioner earlier and contends that since she was the only qualified person to be appointed as H.S.S.T. from the teachers working in the school, she is the one who should have been appointed first and is entitled to get seniority over the 3rd respondent in the category of H.S.S.T. The reply affidavit points out further that 12 years' teaching experience is essential for appointment to the post of Principal of Higher Secondary School. The 3rd respondent has teaching experience only from 27.8.1998. The petitioner has teaching experience from 29.7.1985 onwards. The experience from 29.7.1985 to 27.8.1998 is as U.P.S.A. Thereafter, the experience is as H.S.S.T. No other teacher has 12 years' teaching experience. If the manager wanted to abide by the law, he should have appointed the petitioner as the Principal by this time. Along with the reply affidavit Ext.P12 G.O. is produced by which unqualified Headmasters who are functioning as Principal in charge are ordered to be reverted back to High Schools. On the basis of Ext.P12, the manager was bound to appoint the petitioner as Principal. The petitioner points out that she has educational qualification for holding the post of Principal. She has passed Account Test (Higher) which she claims is a higher qualification. It is pointed out that as per the Special Rules, Account Test (Lower) is a qualification required for declaration of probation as Principal.
5. I have heard the submissions of Sri.C.P. Sudhakara Prasad, Senior Counsel on behalf of the petitioner and Smt.V.P.Seemanthini, Advocate for respondents 2 to 4. I have also heard the submissions of Sri.M.A.Thomaskutty, learned Government Pleader for .PL 57 the 1st respondent-Director. Learned Senior Counsel and Smt.V.P.Seemanthini addressed arguments on the basis of the pleadings of their respective clients and the documents produced by them. Learned Government Pleader would to a certain extent support the submissions of Sri.Sudhakara Prasad and agree that the 12 years' minimum teaching experience required for promotion as per Rule 6 of Chapter XXXII, K.E.R. can include U.P.S.A. service also.
6. I find more force in the submissions of Sri.C.P.Sudhakara Prasad than those of Smt.V.P. Seemanthini. Ext.P1 G.O. was in currency at the time when selection to the post of H.S.S.Ts. was made at M.S.M. Higher Secondary School, Chathinamkulam. It was not disputed before me that appointment to the post of H.S.S.Ts. in the school should have been made at that time on the basis of Ext.P1 G.O. It is clause 2 of Ext.P1 which is relevant as far as this case is concerned. Clause 2 of Ext.P1 reads as follows:-
"2. The posts of Higher Secondary School@@ i teachers in Government Higher Secondary Schools and Aided Higher Secondary schools will be filled up as follows:-
i. 25% vacancies will be reserved for@@ i CCCCCCCCCCCCCCCCCCCCCCCCCC appointment from qualified High School Assistants@@ CCCCCCCCCCC and Primary School Teachers.
ii. The remaining 75% of posts in Government@@ i schools will be filled up by direct recruitment through the Public Service Commission........ iii. Appointments to the 75% vacancies earmarked@@ i for direct recruitment in the Aided Higher Secondary Schools will be done by the management. If qualified teachers are not available for appointment as mentioned in item (i) above, the management will fill up such vacancies also by direct recruitment. Selection of candidates for direct recruitment in Aided Higher Secondary Schools will be done by a staff selection committee consisting of the Manager or his representative, the Principal of the school and a Government nominee from the panel of officers consisting of Deputy Director, Education, D.E.O. of the area and DIET Principal of the district. The management can select a nominee from among the above officers. The above officers are permitted to attend the staff selection committee meeting without further sanction."
The manager states in the counter affidavit filed by him that according to the selection which was conducted as per Ext.P1, 9 persons were selected and the petitioner is the second in the select list. She significantly was the only person from amongst the existing teachers in the .PL 55 school who was selected. That means that she was the only person who was selected in the 25% quota reserved as per sub-clause (i) of clause (2). The argument of Smt.Seemanthini was that Ext.P1 only says that 25% of the vacancies should be reserved for qualified High School Assistants and Primary School Teachers and that it does not say that the appointment should be given first to candidates who come within the above quota. Even though at first blush it would appear that the above argument is correct, a careful scrutiny will reveal that there is no much substance in it. 75% of posts intended for direct recruitment is to be identified after 25% of the available vacancies are reserved for the High School Assistants and Primary School Teachers, and the reservation directed as per Ext.P1 is reservation for appointment. Significantly, Ext.P1 will show that a reference to staff selection committee is necessary only in the case of direct recruitment under the 75% quota and not for appointment of inservice candidates under the 25% quota. Of course, the Supreme Court has in certain interim orders passed in M.M.Dolichan's case (AIR 2001 SC@@ EEEEEEEEEEEEEE
216) taken the view that even for inservice candidates, selection will be justified. At any rate, it is very clear on a reading of Ext.P1 that the management is expected to keep in mind the provision in Ext.P1 that 25% .PL 57 vacancies shall be reserved for inservice candidates whenever the management makes appointment to the vacancies of H.S.S.Ts. Later, when the Special Rules were introduced through Chapter XXXII K.E.R. also, it has been insisted that in the matter of appointment of H.S.S.T. (Junior) in subjects, qualified High School Assistants and other teachers should be given 25% reservation. It is clear from Ext.P1 that if there are vacancies, the manager is bound to fill up the vacancies from amongst the candidates eligible for reservation under the 25% quota for inservice candidates at least simultaneously with the appointment of candidates who are being directly recruited. At the time when selection was conducted in this case by the manager, there were 9 vacancies out of which at least 2 should have been filled up by qualified High School Assistants and Primary School Teachers. In this school, the petitioner was the only qualified High School Assistant eligible for appointment under the 25% quota reserved as per Ext.P1. But when it came to the question of giving appointment, what the manager did was to appoint the 3rd respondent first on 27.8.1998 as H.S.S.T. (Physical Science) and to appoint the petitioner only secondly, i.e., on the next day, 28.8.1998, as H.S.S.T. (Economics). As a result of this, the 3rd respondent could gain seniority over the petitioner in H.S.S.T. service.
.PL 53
7. The manager has yet another justification for appointing the petitioner only after he had appointed the 3rd respondent. As per the staff fixation order, the post which had been sanctioned for Economics was only a part-time post and the Director also ultimately approved the petitioner's appointment only as H.S.S.T. part-time. According to me, the manager of all persons is not entitled to raise such a contention. The manager as per Ext.P2 had appointed the petitioner also as H.S.S.T. and not as H.S.S.T.Part-time. Some of the other 9 selectees who were appointed subsequent to the appointment of the petitioner had been given appointments as H.S.S.Ts. against sanctioned full-time posts. At any rate, this ground is no longer relevant in view of the judgments of this Court Exts.P7 and P8 to the effect that persons like the petitioner are entitled for full-time benefits irrespective of periods of work available and the Government also has later by issuing Ext.P11 order granted the benefit of full-time scale of pay to all Higher Secondary School Teachers appointed by transfer from among qualified H.S.As./U.P.S.As./L.P.S.As, irrespective of the periods of teaching as in the case of Government Higher Secondary School Teachers. Thus, the petitioner has already become eligible for regularisation of her service as H.S.S.T. Full-Time from the date of her first appointment.
8. Under the above circumstances, I find no difficulty to hold that the petitioner was entitled to be appointed as H.S.S.T. Full Time on 27.8.1998 itself along with the 3rd respondent.
9. The next question which arises in this case is regarding the post of Principal. No regular Principal has been appointed for this school through selection process. The 4th respondent has been given placement as Principal in charge and is continuing as such. Exts.P9 and P10 are the relevant Government Orders pertaining to placement of Principal in Higher Secondary Schools. Through Ext.P9, the Special Rules under Chapter XXXII K.E.R. are being implemented. It is clear from Exts.P9 and P10 that the persons eligible are only those persons who are qualified as per the Special Rules to be Principals of Higher Secondary Schools. Rule 4 of Chapter XXXII, K.E.R. deals with the method of appointment and provides for two methods. The first method is by promotion from Higher Secondary School Teachers and the second method is by transfer from qualified Headmasters of aided High Schools under the respective Educational Agency. It is to be noted that the post shall be filled up by methods (i) and (ii) in the ratio 2:1 and if qualified hands 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. We will be more concerned in this case with Rule 6 which lays down the qualifications. The qualifications prescribed for appointment by promotion, the first method under Rule 4 are the following:-
" (1) Master's Degree with not less than 50%@@ i 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@@ i or a qualification recognised as equivalent thereto by any University in Kerala. (3) Minimum approved teaching experience of 12@@ i EEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEE years.@@ EEEEEE Note:- Preference shall be given based on the@@ i teaching experience at Higher Secondary level."
But if it is the second method of appointment, i.e., the transfer method which is to be resorted to, there is a slight difference in qualifications. The third qualification of teaching experience will be as follows:-
"Minimum approved teaching experience of 12 years@@ i of Higher Secondary/High School level."
It is clear from Rule 6 that for both methods of appointment as Principal, 12 years' teaching experience is an essential qualification. It was conceded before me that the 4th respondent, the person presently holding charge as Principal is not qualified to be appointed as regular Principal, whether it be under the Special Rules or under Exts.P9 or P10. The cause of action which is highlighted by the petitioner is that the manager is making a move to displace the 4th respondent by giving placement of Principal to the 3rd respondent. According to the petitioner, she is the only qualified person in the school as per the Special Rules, to be appointed as Principal by promotion and therefore the manager's move to give placement to the 3rd respondent is illegal. I feel that the petitioner's grievance in this regard is a legitimate one. As per the judgment of the Full Bench of this Court in Aided Higher Secondary School Teachers'@@ EEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEE Association v. State of Kerala (2005 (1) KLT 94), after@@ EEEEEEEEEEEEEEEEEEEEEEEEEEEEEEE the coming into force of the Special Rules, appointment of Principal shall be in accordance with the Special Rules and persons who are not qualified as per the Special Rules are not entitled to continue as Principal. Therefore, the 4th respondent is liable to be removed from her present placement. The manager is yet to to initiate selection process for the selection and appointment of a regular Principal in the school. The contest will therefore be over the post of Principal in charge. The contestants in this school can only be the petitioner and the 3rd respondent. It is clear that the 3rd respondent does not have the qualification of 12 years' teaching experience which is required as per Rule 6 of the Special Rules. The petitioner has more than 12 years of teaching experience. But her teaching experience prior to 1998 is as UPSA only.
10. Smt.Seemanthini would argue very strongly that the teaching experience which is contemplated as per Rule 6 for appointment as Principal is teaching experience at the High School level and Higher Secondary School level and not teaching experience at the Upper Primary school level. She relied on Ext.P12 for this argument. But I am not inclined to accept this argument. What the Government has done through Ext.P12 is only to give a clarification for the expression "seniormost Higher Secondary School Teacher" employed in Ext.P10, i.e., when there is a contest between two H.S.S.Ts. over seniority, then to determine such seniority, the teaching experience at the Higher Secondary School level as well as High School level will be taken into account. But, in the instant case, the contest is between the petitioner who is qualified as per Rule 6 of the Special Rules, having teaching experience and the 3rd respondent who does not have teaching experience as prescribed by Rule
6. When Rule 6 is carefully examined, it will be seen that when it comes to the first mode of appointment of Principal, i.e., promotion from H.S.S.Ts., the third qualification is mentioned as minimum teaching experience of 12 years and it is not insisted that the teaching experience should be at the High School or Higher Secondary school level. But when it comes to the second mode of appointment, i.e., by transferring qualified High School Headmasters, then it is clearly provided that minimum teaching experience of 12 years shall be at the High School or Higher Secondary School level. It is to be noticed that one of the alternative methods for appointment of Higher Secondary School Teacher and Higher Secondary School Teacher (Junior) under Rule 4 is by transfer posting of qualified U.P.S.As. and L.P.S.As. Under these circumstances, the argument of Mr.Sudhakara Prasad that the minimum teaching experience of 12 years which is necessary when Principals are appointed by promotion from the cadre of Higher Secondary School Teachers can also be teaching experience at the U.P.S.A. level is only to be accepted, more so since the language of the rule does not admit of any ambiguity, though from the point of view of academicians it would have been ideal if it was insisted that the teaching experience should be at the High School/Higher Secondary School level.
11. The manager has not initiated regular selection process for appointment to the post of Principal, obviously in view of the reason that financial sanction for the post of Principal has not been formally issued by the Government. But as noticed by a Division Bench of this Court in Shaji v. Ramachandran (2003 (2)@@ EEEEEEEEEEEEEEEEEEEEEE KLT 814), the functions of the academic and administrative chief of a Higher Secondary School can be discharged only by a Principal whose method of appointment and qualifications are prescribed by the Special Rules themselves. Therefore, the non-sanctioning of the post of Principal shall not stand in the way of either the management or the Department in the matter of selection process being initiated and regular appointment made to the post of Principal.
The above discussions will lead this Writ Petition to the following result:-
1) Ext.P6 will stand quashed.@@ i
2) Ext.P3, to the extent it grants approval to@@ i the appointment of the petitioner only with effect from 28.8.1998 and that too in the post of H.S.S.T. Part-time, will also stand quashed.
3. It is declared that the petitioner is@@ i entitled to be appointed as Full Time H.S.S.T. (Economics) with effect from 27.8.1998 itself and there will be a direction to the manager to appoint the petitioner as H.S.S.T. (Economics) with effect from 27.8.1998 and to the Director of Higher Secondary Education, to grant approval to the said appointment.
4. There will be a further declaration that the@@ i petitioner is entitled to be placed as Principal in charge replacing the 4th respondent in preference to the 3rd respondent and the manager will give placement to the petitioner displacing the 4th respondent. The petitioner will continue to hold that place till such time as the 2nd respondent-manager initiates selection process and appoints a regular Principal in the M.S.M. Higher Secondary School, Chathinamkulam, in terms of Rules 4 and 6 of Chapter XXXII of the Kerala Education Rules.
5. The manager will initiate regular selection@@ i process for the appointment of a Principal within six months of the petitioner replacing the 4th respondent on the basis of the above directions. The Writ Petition is allowed as above.
(PIUS C.KURIAKOSE, JUDGE) tgl/-
.PA ((HDR 0 )) .HE 2 .JN ........L.......T.......T.......T.......T.......T.......T.......T.....J PIUS C.KURIAKOSE, J.
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O.P.NO. OF 2000
JUDGMENT
23RD NOVEMBER, 2005
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