IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 14171 of 2008(K)
1. JOY JOSEPH, H.S.S.T.MATHEMATICS,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. DIRECTOR, OF HIGHER SECONDARY EDUCATION,
3. MANAGER, VALANCHERY HIGHER SECONDARY
4. T.VIJAYA RAGHAVAN, PRINCIPAL,
For Petitioner :SMT.I.SHEELA DEVI
For Respondent :SRI.T.K.SAIDALIKUTTY
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :06/10/2010
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No.14171 of 2008-K-
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Dated this the 6th day of October, 2010.
JUDGMENT
The petitioner challenges the orders Exts.P7 and P10 and is seeking
for a declaration that he is entitled to be appointed as Principal with effect
from 12.11.2001.
2. The petitioner is working as Higher Secondary School Teacher
under respondents 2 and 3. The contest is between the petitioner and the 4th
respondent who has been appointed as the Principal of the school after a
process of selection.
3. The service particulars show that the petitioner joined the third
respondent’s school on 12.11.1981. This appointment was upto 31.3.1982
and again he was reappointed as H.S.A. Mathematics in the regular vacancy
on 1.6.1982. The said appointment was duly approved. He got appointment
as H.S.S.T. on 27.8.1998. The 4th respondent joined the school as UPSA
Malayalam and got promoted as H.S.A. Malayalam on 8.6.1989. This post
was approved with effect from 26.8.1990 and his continuous service
commenced from 26.8.1990. He was later appointed as HSST on the same
day on which the petitioner was appointed, but on a part-time basis. His
wpc 14171/2008 2
appointment as HSST was later approved with effect from 14.7.1999.
4. The petitioner is having the academic qualification M.Sc.
Mathematics, B.Ed. and M.Ed. He has passed the Account Test Lower and
Higher, KER Account Test for Executive Officers. He is also having an
additional qualification of M.A. Psychology. Th 4th respondent’s
qualification is M.A. and B.Ed. Malayalam.
5. The management initiated steps for appointment of Principal in the
light of the decision of a Full Bench of this Court in Janardhana Kidavu
v. State of Kerala (2005 (1) KLT 94). Ext.P2 is the copy of the notification
issued by the Manager. The petitioner also responded to the notification.
By Ext.P4, the 4th respondent was appointed as Principal. The
petitioner challenged the same by a representation Ext.P5. But the
appointment of the 4th respondent was approved as per Ext.P6 order. The
petitioner had been representing the matter before the second respondent
again, but his claim was rejected by Ext.P7 order. The petitioner was
canvassing the correctness of the orders, in the light of the fact that he is
senior to the 4th respondent in the post of HSST also. The first respondent
ultimately by Ext.P10 order, rejected the contentions of the petitioner. The
view taken therein is that as per Chapter XXXII K.E.R., the post of
wpc 14171/2008 3
Principal in Aided Higher Secondary Schools is a selection post. The
appointment to the post of Principal should be made on the basis of the
recommendation of the selection committee constituted as per rules. Also,
seniority alone could not be the criterion for selection. The 4th respondent
as placed first rank in the selection list and the management gave him
appointment which was approved by the Director.
6. The petitioner is relying upon various Govt. Orders, viz. Exts.P11
to P15 in support of the plea that seniority in the Higher Secondary level has
to be reckoned for the purpose of appointment of Principal.
7. The respondents have filed a counter affidavit supporting the order
passed by the Government.
8. Chapter XXXII was introduced originally as per G.O.(P)
No.331/2001/G.Edn. dated 9.11.2001 with effect from 12.11.2001. As far
as the method of appointment to the post of Principal, the rule originally
provided as follows: (i) by promotion from category 2 under the respective
educational agency; OR (ii) by transfer from qualified Headmasters of
Aided High Schools under the respective educational agency. The
qualification is provided under Rule 6 which is as follows:
wpc 14171/2008 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.
Note: Preference shall be give based on the
teaching experience at Higher Secondary
level.
By transfer (1) Master’s Degree with not less
than 50% marks from any of the
Universities in Kerala or a Qualification
recognised as equivalent thereto by
any University in Kerala
(2) B.Ed. Degree from any of the
Universities in Kerala or qualification
recognised as equivalent thereto by any
University in Kerala
(3) Minimum approved teaching experience
of 12 years of Higher Secondary/High
School level.
Note (i) to Rule 4 is also important while considering the claims of the
petitioner herein. Thereby, the selection committee has to conduct the
selection and the recommendation of the selection committee is the basis
wpc 14171/2008 5
under which the management can make the appointment.
9. Learned counsel for the petitioner submitted that the 4th
respondent is lacking minimum approved teaching experience of 12 years
as H.S.A. as well as HSST and therefore the 4th respondent was not eligible
for consideration.
10. What is provided under Rule 6 is minimum approved teaching
experience of 12 years. It is not specified whether the teaching experience
should be at the level of H.S.A. or H.S.S.T. The Note (ii) to Rule 4 provides
that preference shall be given to Aided Higher Secondary School Teachers
having teaching experience at the Higher Secondary School level. Only in
the method provided for by transfer appointment, it is provided that there
should be minimum approved teaching experience of 12 years of Higher
Secondary/High School level
11. The first question is whether the selection itself was legal or not.
Herein as far as the proceedings of the selection committee is concerned, the
main complaint raised by the petitioner is that he was not given any
preference based on his seniority. The challenge is not against the method
of selection, i.e. against the assignment of marks or criteria adopted by the
selection committee. Therefore, what is pointed out is that experience and
the seniority of the petitioner was not given due preference. The argument
wpc 14171/2008 6
is developed like this. The 4th respondent is having service as U.P.S.A. also.
In that view of the matter, it is pointed out that the preference granted to the
4th respondent above that of the petitioner, cannot be justified.
12. Learned counsel appearing for the Manager submitted that the
appointment of the 4th respondent was not on temporary basis as HSST, but
he was an HSST Junior in the light of the assignment of periods and that
will not show that he was not in the cadre of HSST. It is also pointed out
that Note 2 to Rule 4 only says that preference shall be given at the Higher
Secondary School level. There is dispute whether the term Higher
Secondary School level should mean regular service on a full time basis.
According to learned counsel for the petitioner, only a full time service
alone can be reckoned, whereas learned counsel for the Manager submitted
that there is no such distinction, going by the provisions of the rule.
13. Evidently, what is mentioned is the service at the Higher
Secondary School level. It is not specified that the teaching experience as
part time or Junior HSST is not reckonable. In that view of the matter, I
find force in the submission made by the learned counsel for the Manager.
14. Learned counsel for the petitioner submitted that the service of
the 4th respondent at U.P. level cannot help him to gain any preference. In
fact, this Court in Prasannakumari v. Director of Higher Secondary
wpc 14171/2008 7
Education (2006 (1) KLT 356), while interpreting Rule 6 of Chapter
XXXII, held that teaching experience can also be teaching experience as
U.P.S.A. also. The distinction in the wording at different parts of the
Rules have been examined and it was held thus in para 10:
“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 R.4
is by transfer posting of qualified U.P.S.As. and L.P.S.As. 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.”
wpc 14171/2008 8
Therefore, nothing turns upon the contention that teaching experience at the
U.P. school level, could not have been reckoned.
15. Mainly the petitioner’s argument is based upon the seniority he is
having. Evidently, the rules provide for a selection by a selection
committee. Of course, if the seniority alone was the criteria the petitioner
should have been selected in the normal way. All the Govt. Orders relied
upon the petitioner would have helped the petitioner to sustain the claims if
the appointment of Principal was done in terms of the Govt. Orders in force
at the relevant time. But herein, the appointment was in terms of the
provisions of Chapter XXXII, after the rules were implemented. Therefore,
the criteria, if any, provided under the Govt. Orders which were in existence
then or which were issued to clarify certain aspects, may not advance the
case of the petitioner. Going by Note 1 to Rule 4, the post is a selection
post and the appointment will have to be made on the basis of the
recommendation of the selection committee. Therefore, as the 4th
respondent was ranked first in the rank list, unless the ranking itself was
challenged on clear grounds, the authority could not have gone through the
process of selection also. In that view of the matter, the seniority alone will
not help the petitioner.
Therefore, the order passed by the Government, Ext.P11 cannot be
wpc 14171/2008 9
faulted. The view taken therein is only in terms of the settled principles.
Hence, the writ petition is dismissed. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/