Thomas K.L. H.S.S.T. (Malayalam) Vs. State of Kerala Represented by Its Secretary and Others - Court Judgment

1. Since the subject matter involved in both the writ petitions are common, relating to appointment of Principal in a Higher Secondary School, both the cases were considered together and disposed through common judgment. The 6th respondent in WP(C) No. 13196/2010, who was appointed as Principal, is the petitioner in WP(C) No.24638/2010. The petitioner in WP(C).No.13196/2010 is a rival claimant, who is challenging the appointment. Reference of the parties and exhibits are made as in the order in WP(C).13196/2010.

2. The petitioner as well as respondents 6 to 9 were teachers working in different schools under the 5^th respondent management. The petitioner is working as High Secondary School Teacher (Malayalam) in the Marthoma Higher Secondary School, Pathanamthitta. Ext.P1 order of appointment of the petitioner as HSST was approved by the second respondent as per Ext.P2. When a vacancy of Principal arose, applications were invited from qualified Higher Secondary School Teachers, vide Ext.P4 letter issued by the 5th respondent. Last date for receipt of application stipulated therein was 20.1.2010, before 5 p.m. According to the petitioner, he was eligible for appointment and submitted application within the time stipulated. Eventhough an interview was scheduled on 9.2.2010, the 5th respondent had postponed the same. Initially, only 4 persons including the petitioner were invited for the interview. But the 6th respondent, who was not an applicant, was invited for interview conducted subsequently, and she was appointed overlooking claim of the petitioner.

3. Contention of the petitioner is that, the 6th respondent was not a High Secondary School Teacher, but only a Headmaster of a High School under the same management. By virtue of Ext.P4 notification applications were invited only from Higher Secondary School Teachers. From Ext.P6 information furnished by the 5th respondent it is clear that, only 4 persons applied for the post and the 6th respondent was not an applicant. But the management considered 6 persons, 4 candidates of HSST and 2 candidates of Headmasters and the 6th respondent was selected. In Ext.P6 it is stated that, appointment of the 6th respondent is made in the light of GO(P) No.93/09/GIE .Edn. dt. 27.3.2009 (Ext.P3). On coming to know about the steps for appointment of the 6th respondent, the petitioner submitted Exts.P8 and P9. The 4th respondent had rejected approval of the appointment of 6th respondent, through Ext.P10 stating the reason that, the 6th respondent is qualified for teaching in the subject of English and as per the staff fixation order there are 2 posts of HSST and one post of HSST (Junior) in English which remains already filled up. Hence there is no enough periods available for teaching, if the 6th respondent is posted as Principal, as required in the Government order dated 6.11.2006. The 6th respondent is challenging the rejection of approval of her appointment in WP(C) 24638/10. (Ext.P10 proceedings is produced as Ext.P4 in WP(C).No.24638/2010).

4. The method of appointment and qualification prescribed in Rule 4 and 6 of Chapter XXXII of the Kerala Education Rules is relevant in the context. The method or appointment of Principal is (i) by promotion from the category of Higher Secondary School Teachers under the respective educational agencies and (ii) by transfer from qualified Headmasters of aided schools under the respective educational agencies. The qualifications prescribed for the post of Principal are (i) Masters Degree with not less than 50% marks from any universities in Kerala or a qualification recognised as equivalent thereto by any of the Universities in Kerala (ii) B.Ed degree from any of the Universities in Kerala or a qualification recognised as equivalent thereto by any of the Universities in Kerala, (iii) Minimum approved teaching experience of 12 years at Higher Secondary level under the same educational agency. According to the petitioner, he being a candidate holding M.A. degree in Malayalam with B.Ed degree in the same subject and having teaching experience of more than 12 years at Higher Secondary School level, is fully qualified for promotion to the post of Principal. But the 6th respondent was not qualified since she is not having Masters degree and B.Ed degree in the same subject. Learned counsel for petitioner had also pointed out that Rule 1 (f) of Chapter XXXII prescribes that, Principal means “a teacher who acts as the academic and administrative head of the Higher Secondary School.” Since the 6t respondent was not a teacher of Higher Secondary School, she is not qualified for appointment, is the contention. The petitioner had also challenged the method of appointment followed by the 5^th respondent consequent to Ext.P4 notification. It is contended that the 6th respondent was not at all an applicant and the appointment was given even without following any fair procedure of selection. Hence the writ petition is filed seeking to quash the appointment of the 6th respondent, and inter alia for a direction for appointment of the petitioner as Principal of the Higher Secondary School.

5. A further contention raised by the petitioner is that, after prescribing a method or procedure for appointment and after starting the selection process, the 5th respondent was not entitled to deviate from such method at their whims and fancies. It is also contended that, the Masters Degree obtained by the 6th respondent is not from any of the Universities in Kerala and it was not recognized as an equivalent qualification by any of the Universities in Kerala. Referring to the relevant Government Order which insists that the Principal of a Higher Secondary School also should teach for the number of periods specified, it is contended that the 6th respondent being a person not qualified for the post of Higher Secondary School Teacher cannot be appointed as Principal.

6. In the counter affidavit of the 5th respondent it is contended that, the appointment was made only in accordance with Rule 4 of Chapter XXXII of the KER. In the notes to Rule 4 it is prescribed that the post of Principal should be filled up by promotion of Higher Secondary School Teachers under the respective agency and by transfer from Headmasters of High Schools under the respective agency, in the ratio 2:1. According to the 5th respondent there were six Higher Secondary Schools under the said educational agency and there are total 6 posts of Principal available. 4 posts has to be filled up by promotion of Teachers of Higher Secondary Schools and 2 posts have to be filled up by transfer appointment of Headmasters of the High Schools under the said agency. But except in case of the appointment in dispute, principals in all other 5 schools were appointed by promoting Higher Secondary School Teachers. It is stated that a further vacancy of Principal which arose in another Higher Secondary School at Thiruvalla on 31.3.2010 was also filled up through appointment by transfer from among qualified Headmasters. It is contended that the appointment of the 6th respondent was effected by transfer from the quota earmarked for Headmasters of High School and the 6th respondent was fully qualified for such appointment as prescribed in Rue 6 of Chapter XXXII KER. According to 5th respondent, the 6th respondent possess qualification of M.A. Degree in English in which he had secured more than 50% marks. Ext.R5(a) is the provisional Degree Certificate of M.A. in English obtained from the Annamalai University. It is contended that the said University was recognized by the University Grants Commission (UGC) and is included in their schedule. The list of Universities recognized and published by the UGC was also produced by the 5th respondent. Exhibit R5(c) is a letter issued by the Annamalai University which will indicate that the UGC had recognized the said University for the purpose of appointment as teachers. Ext.R5(d) is copy of the certificate of B.Ed. obtained by the 6th respondent from the University of Kerala. It is stated that the 6th respondent was first appointed as High School Assistant in Physical Science under the 5th respondent on 24.6.1998. Thereafter she was appointed as HAS (Physical Science) on different spells in short term vacancies. The 6th respondent is having regular continuous service as HSA from 15.7.1996 onwards under the corporate management of the 5th respondent, which service was approved by the educational authority. She was promoted as Headmistress on 3.5.2006, which was approved by the educational authority and she was continuing as such. Hence it is contended that the 6th respondent was fully qualified for appointment as Principal in the Higher Secondary School.

7. In the counter affidavit of the 6th respondent it is contended that the post in question have to be filled up either by promotion from among the Higher Secondary School teachers or by transfer from qualified Headmasters of the High Schools under the same educational agency. Since the Principals in all other 5 schools under the 5th respondent was appointed through promotion of HSST, the present post need to be filled up by transfer appointment in accordance with Rule 4 of Chapter XXXII KER. The 6th respondent was fully qualified for such appointment and there is no illegality in the appointment made by the 5th respondent, is the contention. With respect to qualification it is contended that, even the Educational Officer had found that the 6th respondent is fully qualified to teach the subject of English in the Higher Secondary School, despite the fact that the approval was rejected for other reasons.

8. Refuting contentions in the counter affidavits the petitioner had filed a detailed reply affidavit. It is specifically emphasized that Rule 1(f) of Chapter XXXII read with the Government Order G.O.(MS).290/06-G.Edn. dt.2/12/06 mandates that a Principal appointed in a Higher Secondary School should be a teacher who should teach the students of that school, and therefore a person who is not having necessary educational qualification for appointment as a teacher in the Higher Secondary School cannot be considered as a person eligible for appointment as Principal. Therefore the appointment of the 6th respondent, being an unqualified person for the post, cannot be sustained, is the contention.

9. Heard; Sri.V.Philip Mathews, learned counsel for petitioner, Sri.Bechu Kurian Thomas, learned counsel for the 6th respondent and Sri.Elvin Peter, learned counsel for the 5th respondent Management. Two main issues arising for consideration are;

(i). Whether the 6th respondent was qualified for appointment as Principal of the Higher Secondary School? and,

(ii) Whether the appointment of the 6th respondent was made through due process of selection drawn in a fair and reasonable manner?

10. It is undisputed that the vacancy of Principal in the Higher Secondary School under the 5th respondent need to be filled up either by promotion of a Higher Secondary School teachers working under any of the schools under the 5th respondent or by transfer appointment of a Headmasters/Headmistress of any high schools under the 5th respondent. It is evident that Rule 4 prescribes the ratio of 2:1 among the two streams. It is also undisputed that there are 6 Higher Secondary Schools under the 5th respondent management and at the time when the appointment was made the posts of Principals in 5 other schools were occupied by promotees from Higher Secondary School teachers. Hence it cannot be disputed that the post in question need to be filled up by transfer appointment of eligible Headmasters/Headmistress of any High Schools under the 5th respondent. It is an admitted fact that as per Ext.P4, applications were invited only from Higher Secondary School teachers and that the 6th respondent was not an applicant. It is pertinent to note that Ext.P4 is not a notification published inviting applications to the post of Principal. But it is only an internal communication issued by the 5th respondent to the heads of the institutions under its management. Ext.P4 indicates that, applications were invited for appointment of Principal from among the Higher

Secondary School teachers, who is having required qualifications. Exhibits P5 and P6 will reveal that pursuant to Ext.P4 only 4 applications were received and only those 4 persons were invited for the interview scheduled on 9.2.2010. But it is stated that the interview scheduled was postponed in view of Ext.P3 Government Order. Subsequently the interview was conducted on 1.3.2010 with six candidates including the 6th respondent. With respect to a specific query regarding selection procedure, the answer in Ext.P6 is as follows:-

“The governing board considered 6 candidates for the post of Principal, 4 HSSTs and 2 HSHMs. 2HMs are Mrs. Lalamma Varghese, TMTHS, Thalavadi and Mr. George C. Mathews, TMTHSS, Venmoni. Out of the above 6 candidates Mrs. Lalamma Varghese, HM, TMTSS, Thalavadi was selected as Principal.”

Therefore it is evident that the selection was made from among the 2 candidates of HMs. According to respondents 5 and 6 even though applications were invited only from Higher Secondary School teachers, before conducting the interview it was realised that the post should be filled up by transfer appointment of Headmasters, in view of the mandatory requirement under Rule 4. Therefore the eligible Headmasters available under the 5th respondent were also included in the interview and the senior among them was selected to the post. From the above facts it is evident that it was for complying with the ratio of 2:1 prescribed under Rule 4 that the appointment from among the Headmasters of High Schools under the 5th respondent was made.

11. In this context, questions posed for consideration is as to whether there was any deviation from the selection process, originally initiated by the 5th respondent. Sri. V. Philip Mathews raised vehement contentions that the 5th respondent ought to have followed fair and reasonable process of selection and the change of method adopted, midway after initiating the process, is absolutely illegal and unsustainable. Since the 6th respondent was never an applicant and since there was no applications invited from Headmasters, consideration of the 6th respondent and her selection was totally illegal and unsustainable, is the contention. Per contra, Sri.Bechu Kurian Thomas and Sri. Elvin Peter, contended that there is absolutely no irregularity with respect to the selection process. It is contended that the 5th respondent has got every right to appoint a Principal of their own choice from among the qualified candidates available. They pointed out that the educational institutions under the 5th respondent, being minority institutions, as envisaged under Article 30 (1) of the Constitution of India, there is liberty to pick and choose persons from among qualified hands for appointment as head of the institutions. In this regard reliance was placed on the ruling reported in N. Ammad Vs. Manager, EMJAY High School and others ((1998) 6 SCC 674), wherein it is observed that, the selection and appointment of Headmaster in a school is the prime matter of appointment under the educational institutions, the post being a key post in the running of a school. He is the hub on which all the spokes of the school are set around, whom they rotate to generate result. A school is personified through its Headmaster and he is the focal point on which outsiders look at the school. A bad Headmaster can spoil the entire institution. An efficient and honest Headmaster can improve it by leaps and bounds. The functional efficacy of a school very much depends upon the efficiency and dedication of its Headmaster. This pristine precept remains unchanged despite many changes taking place in the structural pattern of education over the years. If the management of the school is not given very wide freedom to choose the personnel for holding such key post, subject of course to restrictions regarding qualifications to be prescribed by the State, the right to administer the school would get much diminished. The Hon’ble Supreme Court held that the management of a minority has got right to choose a qualified person as the Headmaster of the school, and such right is well insulated under the protective cover of Article 30(1) of the Constitution of India and it cannot be chiseled out through any legislative act or executive rule except for fixing up qualifications and conditions of service for the post. The rulings reported in (2010 (8) SCC 49) is also cited to canvass the above position. Even though counsel for the petitioner had raised a contention that nothing is produced to prove approval of minority status for the 5th respondent management, he is not in a position to deny the fact that the educational institutions under management of the 5th respondent are institutions run by minority community and that they are entitled for protection provided under Article 30(1).

12. Another attempt made on behalf of the petitioner is to establish that, since no qualified hands in the quota of Headmasters were available, the post ought to have been filled up by promoting any HSST. Since the disputed question regarding qualification of the 6th respondent is dealt with separately, this point will be answered separately.

13. With respect to the lack of fair and reasonable selection process, Sri. V. Philip Mathews had cited a Full Bench decision of this court in Kurian Lizy Vs. State of Kerala (2006 (4) KLT 264 (F.B.). It is contended that even with respect to a minority educational institution wherein freedom to appoint Headmaster of their own choice is conferred, there is necessity to evolve a reasonable procedure for selection. This court held that all the minority educational institutions which propose to select the best person to the post of Headmaster/Principal of a School or College as the case may be, ignoring seniority in the feeder category, should frame and publish regulations or bye-laws containing a transparent procedure, governing such selection. Strong contentions were raised that the management was not at liberty to deviate after prescribing a particular method of selection and after the selection process has stated. The decisions of this court in Udayan Vs. Kerala Agro Machinery Corporation Ltd. (2011 (3) KLT 952 (F.B.)) and in Sharafudeen Kunju S. and others Vs. Manoharan Pillai and others (2011 (1) KHC 849) were also produced for canvassing the above position. In the former case it is held that where the recruitment rules prescribes only a particular qualification, the appointing authority cannot insist on any additional qualification for the same. In that decision it is stated that recruiting agency is not vested with any power to deviate from the prescribed qualification prescribed in the notification issued for the purpose of recruitment. In the latter case it is stated that the selection process contained in the notification issued cannot be altered subsequently based on any other reasoning. The counsel also placed reliance on another decision of this court in Joymon F. Vs. Asha Sindhu and others (2010 (3) ILR (Kerala) 183). In that case it was held by a Division Bench that, eventhough the rules do not provide any criteria for appointment by transfer, the Manager is bound to follow principles of equity and good conscience and the decision shall not be arbitrary. The decisions of the Hon’ble apex court reported in 2005 (8) SCC 618 and 2010 (2) SCC 772 was also cited to canvass the position that procedural fairness and regularity in the matter of selection is indispensable.

14. While considering the question as to whether there was any illegality, irregularity or impropriety in the selection process, the first and foremost aspect to be considered is as to whether the post was open for appointment by promotion from among HSST. The vacancy ought to have been earmarked for appointment by transfer from among the qualified Headmasters in the High Schools under the 5th respondent. It is true that Ext.P4 internal communication was sent by the 5th respondent to the head of institutions under its management. But such internal communication cannot be considered as a notification issued prescribing the method of appointment or declaring a selection process through which the appointment is to be made. The petitioner has no contention that apart from the two persons participated in the interview, there was any, other eligible candidates available from the stream of Headmasters/Headmistress, qualified for appointment. Even assuming that any such person was available, nobody has come with any protest or claim. The petitioner cannot be heard raising such a contention. Selection of the 6th respondent from among the two candidates available cannot be challenged, because admittedly the 6th respondent has got seniority among the two. The petitioner being a person not coming within the stream of Headmasters, cannot raise any valid contention regarding the procedure for selection or its fairness and regularity. No deviation from the method of recruitment formulated or adopted can be agitated by the petitioner with respect to the appointment, under the above circumstances. Therefore I hold that the selection of the 6th respondent cannot be assailed on such counts.

15. On the question of eligibility and qualification of the 6th respondent it is contended that, going by definition of Principal in Rule 1(f) of Chapter XXXII KER, the Principal should be a teacher who acts as academic and administrative head. Since the 6th respondent is not qualified for appointment as ‘Higher Secondary School teacher’, she is not eligible for appointment as Principal, is the contention. Per contra, learned counsel for the 6th respondent pointed out that, the definition is only to the effect that he/she should be a ‘teacher’ and not a ‘teacher in the Higher Secondary School’. It is also contended that, even assuming (without admitting) the contention that principal should be a teacher having qualification for appointment as HSST, the 6th respondent has got such qualifications, as prescribed under Rule 6 (2)(ii)(2) of Chapter XXXII KER. Contention of the petitioner is that the 6th respondent has got Masters Decree in English, whereas she has B.Ed. Degree only in Physical Science. But according to the 6th respondent it will not disqualify her to be an HSST, as per the Rule quoted above.

16. Another point raised is regarding recognition of the Masters Degree obtained from the Annamalai University. Referring to Subramanian Vs. State of Kerala (2000 (3) KLT 351) learned counsel for the 6th respondent pointed out that Annamalai University is a recognized University. He had also produced a copy of the extract of the list of courses approved by the Kerala University in which the Masters Degree (M.A.) is seen recognized for all purposes. The petitioner also raised a contention that the 6th respondent is not a qualified teacher in the concerned subject in which there is vacancy in the school. Since it is clarified through the relevant Rules and Government Orders that the Principal of a Higher Secondary School shall teach students for specified periods, is contention is raised that the 6th respondent is not eligible, because there is no vacancy available in the concerned subject in which the 6th respondent is qualified. This question will be dealt with separately in W.P. (c) No. 24638/2010 wherein challenge against the rejection of approval is raised.

17. In WP(C).No.24638/2010, the 6th respondent (petitioner in that case) is challenging Ext.P4 (Ext.P10 in WP(C).13196/10). The Educational Officer had rejected approval of appointment stating that, as per the staff fixation order two posts of HSST and one post of HSST (Junior) in the subject of English remain filled up. Hence the 6th respondent cannot be appointed as Principal as no enough periods are available for teaching the subject of English, in view of the Government Order dt.16.11.2006. In G.O.(MS) No.290/06 G.Edn. dt. 2.12.2006 it is specified that, qualified Headmasters who were promoted from HSST will have to teach for 16 periods. But when the ratio of 2:1 between the HSST and Headmasters is followed, there may not be vacancy available in the subject of the promoted Headmaster in the HSS concerned. In order to rectify this anomaly the Government have ordered for creation of supernumerary posts of Higher Secondary School Teacher (Jr.) to accommodate the junior most Higher Secondary School Teacher (Jr.), who will be thrown out due to shortage of teaching periods consequent to appointment of Headmaster and his handling of 16 hours of teaching period. So also it is directed that exemption to Principals from teaching need be issued in cases where the Higher Secondary Section does not have the subject of the Headmaster turned Principal. Through the said Government order the Director of Higher Secondary Education was directed to take appropriate actions in time to abolish such supernumerary posts of Higher Secondary School Teacher (Jr.) created as and when the Headmaster turned Principal quits office. Further the Director was given instruction to ensure that the ratio 2:1 being maintained strictly, at the time of granting approval for appointment of Principals in the Higher Secondary Schools.

18. On behalf of Government it is contended that Ext.P6 Government Order refers only with respect to implementation of G.O(MS) 43/05 G.Edn. dt.11.2.2005 and that creation of supernumerary post contemplated therein is not applicable with respect to future appointments. But Sri.Bechu Kurian Thomas, learned counsel for the 6th respondent, contended that even in Ext.P6 Government Order the Director of Higher Secondary Education was given instructions to ensure that 2:1 ratio is maintained strictly. Therefore the contention that such a procedure is not applicable with respect to any further appointments, deserves no merit.

19. Considering the terms of Ext.P6 Government Order, I am of the opinion that the case at hand is a typical illustration of the situation anticipated. The procedure ought to have been adopted is to created supernumerary posts of Higher Secondary School Teacher (Jr.) in the subject of English in order to protect the junior most teacher. Therefore I am of the view that the rejection of approval could not be sustained. On the other hand the respondents need be directed to follow the procedure as contemplated under Ext.P6 and to grant approval of appointment of the 6th respondent as Principal, by creating supernumerary posts of HSST (Junior) in order to retain the junior most among the HSST (Junior) who will be thrown out by virtue of the appointment.

20. It is noticed that by virtue of an interim order of this court dt. 10.8.2010 reversion of the 6th respondent was stayed. Subsequently by virtue of order dt.9.12.2010, direction was issued for payment of salary to her as applicable to the Headmaster, without prejudice to any of the contentions in the writ petition.

21. Under the above mentioned circumstances the writ petitions are disposed of on the following terms:

(i) The challenge in WP(C).13196/2010 against appointment of the 6th respondent as Principal of the Higher Secondary School under the 5th respondent management, is repelled and the said writ petition is hereby dismissed.

(ii) WP(C).24638/2010 is allowed and Ext.P4 in that writ petition is hereby quashed. The 3^rd respondent therein is directed to reconsider the matter of approval of appointment of the petitioner therein (6threspondent in WP(C.13196/2010 as Principal, with effect from the date of appointment, adopting procedure contemplated under Ext.P6 Government Order, (G.O.(MS). 290/06/G.Edn. dated 02-12-2006), by creating supernumerary posts of Higher Secondary School Teachers (Jr.) order to retain the juniormost among the Higher Secondary School Teachers (Jr.) in the subject of English under the 5threspondent management. The needful in this regard shall be done at the earliest possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. Needless to observe that the petitioner will be eligible for all benefits from the date of appointment, once the approval is granted.