IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 177 of 2010()
1. T.HARIDAS,
... Petitioner
Vs
1. LIJA.M.B,
... Respondent
2. STATE OF KERALA,
3. THE DIRECTOR,
4. THE MANAGER,
5. C.K.GEETHA, H.S.A.,
For Petitioner :SRI.ELVIN PETER P.J.
For Respondent :SRI.S.P.ARAVINDAKSHAN PILLAY
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :23/03/2010
O R D E R
K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.
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W.A. No.177 of 2010
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Dated this the 23rd day of March, 2010
JUDGMENT
Ravindran, J.
The appellant is the fifth respondent in O.P.No.4114 of 2001.
The first respondent in the appeal is the petitioner and respondents 2
to 5 are respondents 1 to 4 respectively therein. For the sake of
convenience the parties are referred to as they are arrayed in the writ
petition. The brief facts of the case are as follows:
2. The Higher Secondary course was sanctioned in the
Sahodaran Memorial Higher Secondary School by Ext.P1 Government
order dated 13.5.1998. By that order, the Government, inter alia,
stipulated that 25% of the vacancies of Higher Secondary School
Teachers in Aided Higher Secondary Schools shall be reserved for
appointment from qualified High School Assistants and Primary School
Teachers and the remaining 75% of vacancies shall be filed up by
direct recruitment. It was also stipulated that if qualified teachers are
not available for appointment in the 25% quota reserved for in-service
candidates, the said vacancies shall also filled up by direct recruitment.
It was further stipulated that direct recruitment shall be made by a
staff selection committee consisting of the Manager or his
representative, the Principal of the school and a Government nominee
W.A.No.177/2010 2
from the panel of officers consisting of the Deputy Director of
Education, the District Educational Officer of the area concerned and
the DIET Principal of the district concerned. The Manger was given the
option to select a nominee from the said three categories of officers.
3. The fourth respondent in the writ petition was working as
High School Assistant (Mathematics) in Sahodaran Memorial Higher
Secondary School. She was therefore entitled to be considered for
appointment as Higher Secondary School Teacher (Mathematics)
[HSST (Mathematics) for short] in the 25% quota reserved for in-
service candidates. However, overlooking her claim, the Manager
appointed the petitioner in the writ petition by direct recruitment from
the open market as HSST (Mathematics) by Ext.P2 order dated
24.8.1998. The fourth respondent challenged that appointment by
filing O.P.No.17606 of 1998 in this Court. The fourth respondent had
before moving this Court, filed a representation before the Director of
Higher Secondary Education complaining about the appointment of the
petitioner and a copy thereof was produced and marked as Ext.P8
therein. In O.P.No.17606 of 1998, the fourth respondent challenged
the appointment of the petitioner and sought consequential reliefs
including a declaration that she is entitled to be appointed as HSST
(Mathematics) in terms of Ext.P1 Government order, in preference to
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the petitioner. By judgment delivered on 14.9.1998 this Court
disposed of O.P.No.17606 of 1998 by directing the Director of Higher
Secondary Education to pass appropriate orders on Ext.P8
representation dated 25.8.1998 submitted by the fourth respondent
after notice to and hearing her, the Manager and the petitioner in the
present writ petition. This Court also directed that till a decision is
taken in the matter, the appointment of the petitioner in the present
writ petition shall not be approved.
4. Pursuant to the directions issued by this Court in
O.P.No.17606 of 1998, the Director of Higher Secondary Education
heard the parties and passed Ext.P3 order dated 13.1.2000. The
Director of Higher Secondary Education held that the appointment of
the petitioner was in violation of Ext.P1 Government order dated
13.5.1998 and cannot therefore be approved. The Manager was
directed to consider the claim of the fourth respondent for appointment
as HSST (Mathematics) in accordance with law. On a perusal of the
files, the Director of Higher Secondary Education noticed that the
petitioner was appointed pursuant to the interview held on 24.4.1998
though the Higher Secondary course was sanctioned in the school only
by Ext.P1 Government order dated 13.5.1998. The Director of Higher
Secondary Education also held that the fourth respondent had a
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preferential right for appointment as HSST (Mathematics) by virtue of
the provisions contained in Ext.P1 Government order dated 13.5.1998.
The petitioner or the Manager did not challenge Ext.P3 order. When
the Manager did not implement Ext.P3 order, the fourth respondent
submitted a representation to the Manager requesting him to
implement Ext.P3 order. She thereafter filed O.P.No.8419 of 2000 in
this Court seeking implementation of Ext.P3. While matters stood
thus, there was a change in the Manager and the new Manager
implemented Ext.P3 order by appointing the fourth respondent as
HSST (Mathematics) by Ext.P6 proceedings dated 30.1.2001. The
petitioner thereupon filed O.P.No.4114 of 2001 in this Court on
5.2.2001 seeking the following reliefs:
“(i) to call for the entire records which led to Ext.P6
and to quash the same by the issuance of a writ
of certiorari or any other writ, direction or order;
(ii) to issue a writ of mandamus compelling the
respondents to retain the petitioner as Higher
Secondary School Teacher (Maths) in the 3rd
respondent school in preference to the 4th
respondent.
(iii) to pass any other order or direction as this Hon’ble
Court may deem fit and proper in the nature and
circumstances of the case.
(iv) to award the cost of the petitioner in these
proceedings.
(v) to call for the entire records which led to Ext.P3
W.A.No.177/2010 5
and to quash the same by the issuance of a writ
of certiorari or any other writ, direction or order;
(vi) to issue a direction that the petitioner’s services
are not liable to be terminated retaining a Junior
like 5th respondent in service.”
She contended that Ext.P6 order was issued without notice to her and
behind her back and that it runs counter to the decision rendered by
the Apex Court on 14.11.2000 in M.M.Dolichan v. State of Kerala
((2001) 1 SCC 151) as per which all appointments made till that date
were directed to be regularised. She also contended that after Ext.P3
order was passed the Manager had issued a notification inviting
applications for appointment as HSST (Mathematics), that an interview
was conducted on 3.3.2000 in which the petitioner and respondents 4
and 5 participated, that in the said interview the fourth respondent
secured lesser marks than her and therefore for that reason also the
fourth respondent cannot replace her.
5. Respondents 3, 4 and 5 filed separate counter affidavits
resisting the writ petition. The third respondent Manager contended
that as Ext.P6 order was issued by him in implementation of Ext.P3
order which has become final, it is perfectly in order. He contended
that in such circumstances, as he was only giving effect to Ext.P3
order, passed by the Director of Higher Secondary Education after
hearing all the parties, there was no necessity for him to hear the
W.A.No.177/2010 6
petitioner before issuing Ext.P6. He also contended that as the
petitioner’s appointment was illegal, she cannot claim the benefit of
the decision of the Apex Court in M.M.Dolichan and others (Supra).
The fourth respondent filed a counter affidavit contending that when
the writ petitioner was appointed on 24.8.1998 her claim was
overlooked and that she had a superior claim for appointment as HSST
(Mathematics). She contended that Ext.P6 is beyond challenge for
the reason that it is an order issued in implementation of Ext.P3 order
passed by the Director of Higher Secondary Education. As regards the
interview held on 3.3.2000, she contended that though an interview
was conducted, the selection committee did not make any
recommendation and that among the three candidates who were
interviewed on 3.3.2000, she was the only candidate entitled to be
appointed in the 25% quota reserved for in-service candidates and
that the petitioner and the fifth respondent were not eligible to be
appointed in the 25% quota reserved for in-service candidates. She
also questioned the authenticity of Ext.P9 tabulation sheet.
6. The fifth respondent-appellant filed a counter affidavit
contending that when the petitioner was appointed as HSST
(Mathematics) by Ext.P2 order dated 24.8.1998, the only claimant was
the fourth respondent and that he was not in the picture. He stated
W.A.No.177/2010 7
that he was appointed as HSST (Mathematics) by Ext.R5(a) order
dated 23.7.1999 after an interview was conducted by a duly
constituted selection committee on 22.7.1999. A copy of the minutes
of the selection committee was produced as Ext.R5(c). It was
contended that neither the petitioner nor the fourth respondent had
participated in the interview held on 22.7.1999 and therefore, the
petitioner cannot object to her appointment. He also contended that
his appointment by Ext.R5 (a) order dated 23.7.1999 was approved by
the Director of Higher Secondary Education by Ext.R5 (d) order dated
4.11.2003 with effect from 23.7.1999 subject to the outcome of
O.P.No.4114 of 2001 (from which this writ appeal arises) and that
later by Ext.R5 (f) order dated 18.7.2004 his appointment was
approved as HSST (Mathematics) (Full time) with effect from
15.7.2000 till the post exists. The petitioner filed a reply affidavit
contending that the fifth respondent’s appointment was not preceded
by any selection made by a duly constituted selection committee, that
in view of the illegality in the said appointment, the Manager issued
Ext.P10 notification inviting applications for various posts including the
post of HSST (Mathematics), that pursuant to Ext.P10, the petitioner
and respondents 4 and 5 participated in the interview and that in that
selection she stood first, the fifth respondent stood second and the
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fourth respondent stood third. She also contended that in view of the
superior claim of the fourth respondent, she has to be accommodated
in the first vacancy and in view of her performance in the interview
held on 3.3.2000, she has to be accommodated in the second vacancy
in preference to the fifth respondent.
7. O.P.No.8419 of 2000 was initially heard and disposed of along
with O.P.No.4114 of 2001 by a common judgment delivered on
7.11.2007. The claim of the petitioner in O.P.No.8419 of 2000 (the
fourth respondent in O.P.No.4114 of 2001) for appointment as HSST
(Mathematics) in the vacancy against which the petitioner in O.P.No.
4114 of 2001 was appointed was upheld. In other words, this Court
upheld the direction issued by the Director of Higher Secondary
Education in Ext.P3 order directing the Manager to appoint the fourth
respondent as HSST (Mathematics) in the place of the petitioner. As
the Manager had complied with the said order and appointed the
fourth respondent as HSST (Mathematics), this Court disposed of
O.P.No.8419 of 2000 by declaring that she is entitled to continue as
HSST (Mathematics). O.P.No.4114 of 2001 was disposed of by
directing the Director of Higher Secondary Education to consider the
inter-se claim of the petitioner and the fifth respondent for
appointment as HSST (Mathematics) against the second vacancy.
W.A.No.177/2010 9
8. The fifth respondent thereafter filed R.P.No.339 of 2008
seeking a review of the judgment in O.P.No.4114 of 2001. By order
passed on 19.6.2008 the review petition was allowed and the
judgment delivered on 7.11.2007 in O.P.No.4114 of 2001 was
recalled. In the meanwhile, pursuant to the judgment delivered on
7.11.2007 in O.P.No.4114 of 2001, the Director of Higher Secondary
Education issued order No.HCD-A1/26163/HSE/2007 dated 9.4.2008
upholding the claim of the petitioner. O.P.No.4114 of 2001 was
thereafter again heard and disposed of on 11.1.2010. The learned
single Judge held that the petitioner who had secured better marks
than the fifth respondent in the interview held on 3.3.2000 is entitled
to be appointed as HSST (Mathematics) in the vacancy against which
the fifth respondent was initially appointed. The learned single Judge
held that on equitable considerations also, the petitioner is entitled to
be preferred over the fifth respondent. The writ petition was
accordingly disposed of upholding the order dated 9.4.2008 passed by
the Director of Higher Secondary Education and by directing the
Manager to accommodate the fifth respondent in the next arising
vacancy. The fifth respondent aggrieved thereby has filed this writ
appeal.
W.A.No.177/2010 10
9. We heard Sri.P.J.Elvin Peter, the learned counsel appearing
for the appellant, Sri. Vinod Madhavan, the learned counsel appearing
for the first respondent, Sri.Benny Gervasis, the learned Senior
Government Pleader appearing for respondents 2 and 3,
Sri.S.P.Aravindakshan Pillay the learned counsel appearing for the
fourth respondent and Sri.N.D.Premachandran, the learned counsel
appearing for the fifth respondent. We have also gone through the
pleadings and the materials on record including the relevant files that
were made available by the learned Senior Government Pleader.
Though the Manager was also directed to make available the relevant
files, the Manager made available only the minutes of the meeting of
the selection committee held on 22.7.1999 in which the fifth
respondent was selected, the tabulation sheet disclosing the marks
awarded to various candidates in the interview held on 22.7.1999 and
also a copy of the order dated 23.7.1999 issued by the Manager
appointing the fifth respondent-appellant as HSST (Mathematics).
10. The learned counsel on both sides agreed that the claim of
the fourth respondent for appointment as HSST (Mathematics) in the
place of the writ petitioner cannot now be questioned as Ext.P3 order
has attained finality and has been implemented. The judgment of the
learned single Judge in O.P.No.8419 of 2000 filed by the fourth
W.A.No.177/2010 11
respondent, to which all are parties, has also become final. Therefore,
the fourth respondent’s entitlement to be appointed as HSST
(Mathematics) in Sahodaran Memorial Higher Secondary School in
preference to the other two rival claimants cannot be disputed. A
provisional list of Government and Aided Schools in which the Higher
Secondary course was proposed to be started during the year 1998-99
was published by G.O. (Ms) No.204/97/G.Edn. dated 12.6.1997. By
that order, the Government also ordered verification of the facilities
available in the schools mentioned therein. Based on the verification
reports submitted by the authorised officers, the Government issued
Ext.P1 order dated 13.5.1998 according sanction for starting the
Higher Secondary course in 95 Government schools and 178 Aided
schools including the Sahodaran Memorial High School. By that order,
the Government also prescribed the modalities for appointment. It
was stipulated that 25% of the vacancies shall be reserved for
appointment from qualified High School Assistants and Primary School
Teachers. Though the remaining 75% of the vacancies were
earmarked for direct recruitment, it was stipulated that such vacancies
shall be filled up only by a staff selection committee consisting of three
members namely, the Manager or his representative, the Principal of
the school and a Government nominee. It is not in dispute that the
W.A.No.177/2010 12
first vacancy of HSST(Mathematics) had to be filled up by an in-service
candidate. However, the Manager filled up that vacancy by appointing
an outsider namely, the writ petitioner. The Manager attempted to
sustain that appointment by contending that the operation of Ext.P1
Government order has been stayed by the Apex Court and therefore
the appointment of an outsider from the open market cannot be
questioned by an in-service candidate. He also contended that the
petitioner was selected in the interview held on 24.4.1998. In view of
the fact that Ext.P3 order issued by the Director of Higher Secondary
Education upholding the claim of the fourth respondent has been given
effect to by the Manager by issuing Ext.P6 proceedings and the rights
of the parties stand concluded by the decision of this Court in
O.P.No.8419 of 2000, the appointment of the petitioner by Ext.P2
appointment order dated 24.8.1998 pursuant to the interview held on
24.4.1998 cannot confer any right on her. The interview was also
evidently not one conducted by the staff selection committee in terms
of Ext.P1 Government order.
11. The petitioner and the fifth respondent-appellant are both
candidates from the open market. The fifth respondent-appellant
claims that he was appointed against the second vacancy of HSST
(Mathematics) that was notified as per Annexure A1 notice dated
W.A.No.177/2010 13
10.6.1999 and that he was selected in the interview held on
22.7.1999. It is not in dispute that Annexure A1 notice produced
along with the writ appeal, whereby the Manager invited applications
from the open market for appointment as HSST (Mathematics) was
not published in the newspaper dailies. It is evident from Annexure A1
itself that it was published only in the notice board of the school. The
fact that the fifth respondent-appellant was the sole applicant for the
post of HSST (Mathematics) is evident from Ext.R5(c) minutes of the
selection committee. It is pursuant to the said selection that he was
appointed by Ext.R5(a) order dated 23.7.1999. His appointment was
approved by Ext.R5(d) order dated 4.11.2008 as HSST (Mathematics)
(Junior) with effect from 23.7.1999 till the post exists subject to the
outcome of O.P.No.4114 of 2001 from which this writ appeal arises.
Therefore, approval of his appointment was only provisional. Later,
after the post of HSST (Mathematics) was sanctioned with effect from
the academic year 2000-2001, the appointment of the fifth respondent
was approved as HSST (Mathematics) by Ext.R5(f) order dated
18.7.2004. That approval was also on a temporary and provisional
basis and that order of approval was issued at a time when
O.P.Nos.8419 of 2000 and 4114 of 2001 were pending in this Court.
Therefore, the mere fact that the appointment of the fifth respondent-
W.A.No.177/2010 14
appellant was approved on a provisional basis cannot confer on him
the right to continue to hold the post.
12. The petitioner had even in the writ petition stated that that
in the interview held on 3.3.2000 the petitioner and the fifth
respondent-appellant had participated. Ext.P9 tabulation sheet was
also produced to contend that in the interview she came first, the fifth
respondent came second and the fourth respondent came third. Later,
along with the reply affidavit, the petitioner produced Ext.P10 notice
published by the Manager in a newspaper daily inviting applications for
appointment to various teaching posts including the post of HSST
(Mathematics). Though the appellant contended that he did not
participate in the interview held on 3.3.2000 and was only summoned
by the Manager to the venue of the interview without being informed
that an interview to select a teacher was going on, the files disclose
that an interview for appointing a HSST (Mathematics) was conducted
on 3.3.2000. The Manager had after conducting the interview on
3.3.2000 pursuant to the notification dated 30.1.2000 published in
Mathrubhumi daily, sent a letter dated 5.6.2000 to the Director of
Higher Secondary Education. The said letter reads as follows:
“As directed by you in the above referred order of
yours an interview was held on 3.3.2000 pursuant to
notification dated 30.1.2000 in Mathrubhumi daily.
In the interview Smt.Lija.M.B. scored the maximumW.A.No.177/2010 15
marks and Sri.Haridas.T. came out second. The
performance of Smt.C.K.Geetha in the interview was
far from satisfactory. It is worth mentioning that
Smt.Geetha was posted in the L.P.Section earlier as
she was found to be unsuitable for conducting classes
in the U.P.Section. On the basis of the results in the
interview it was decided to appoint Smt.Lija.M.B. and
Sri.T.Haridas as lecturers in Mathematics with effect
from 1.6.2000 and accordingly appointment orders
have been issued appointing Smt.Lija.M.B. and
Sri.Haridas on a adhoc basis subject to the final
outwars (sic for outcome) of Civil Appeal Nos.7159-
7177 of 1999 of the Honourable Supreme Court of
India and of O.P.No.8419/2000 pending before the
Honourable High Court of Kerala. This is for your
kind consideration and necessary action in the matter
for the approval of the above appointments.”
Along with that letter, the Manager had also enclosed Ext.P9 tabulation
sheet bearing the signature and seal of the Manager, the Principal of
the school and the District Educational Officer, Ernakulam. The
tabulation statement also discloses that besides the said three persons
a subject expert namely, Prof.Ranjan Abraham was also present and
that the petitioner, fourth respondent and fifth respondent-appellant
were interviewed by the said committee on 3.3.2000. The petitioner
secured the highest marks (248 in all), the fifth respondent-appellant
came second scoring 243 marks and the fourth respondent came third
scoring 181 marks. However, as the fourth respondent was entitled to
be appointed as HSST (Mathematics) in the 25% quota reserved for in-
service candidates, the mere fact that she had participated in the
W.A.No.177/2010 16
interview held on 3.3.2000 for open market candidates cannot operate
to her detriment.
13. It is evident from the contents of the letter dated 5.6.2000
sent by the Manager to the Director of Higher Secondary Education
that the petitioner and the fifth respondent had participated in the
interview held on 3.3.2000 and that the petitioner was ranked first in
the interview. In such circumstances, we are in agreement with the
learned Single Judge that the fifth respondent-appellant must give
way to the petitioner. We are also in agreement with the learned
Single Judge that the appointment of the fifth respondent-appellant by
Ext.R5 (a) order dated 23.7.1999 was not in order for the reason that
the interview held on 22.7.1999 in which he was selected was not
validly held after publishing a notification inviting applications for
appointment by direct recruitment. Annexure A1 notice dated
10.6.1999 produced along with the writ appeal fortifies the said
conclusion. That must have been the reason why the Manager issued
Ext.P10 notice in a leading vernacular newspaper daily inviting fresh
applications and conducted an interview on 3.3.2000. In our opinion,
the fifth respondent who had participated in the interview cannot be
heard to contend that no interview was conducted on 3.3.2000. We
are also in agreement with the learned single Judge that on equitable
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considerations also, the petitioner who came first in the interview held
on 3.3.2000 and was appointed against the first vacancy though
irregularly should get precedence over the fifth respondent for
appointment against the second vacancy. The view taken by the
learned single Judge is, in our opinion, a perfectly reasonable view and
cannot be said to be perverse warranting interference in appeal. The
learned single Judge has also safe-guarded the rights of the fifth
respondent-appellant by directing that he should be accommodated in
the next arising vacancy. The Manager has not chosen to challenge
the said direction and is bound by it.
For the reasons stated above, we hold that there is no merit in
the writ appeal. The writ appeal fails and is accordingly dismissed.
The parties shall bear their respective costs.
K.BALAKRISHNAN NAIR
Judge
P.N.RAVINDRAN
Judge
vaa