Abey Daniel vs State Of Kerala
2021 Latest Caselaw 1394 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

             THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

                                   &

                 THE HONOURABLE MR. JUSTICE GOPINATH P.

    THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942

                           WA.No.1784 OF 2018

 AGAINST THE JUDGMENT DATED 21.05.2018 IN WP(C) 13064/2017(G) OF
                      HIGH COURT OF KERALA

APPELLANT/PETITIONER:

             ABEY DANIEL
             AGED 46 YEARS,
             S/O.VERY RT. A. DANIEL COR EPISCOPA,
             HSST, ST. GREGORIOUS HIGHER SECONDARY SCHOOL,
             P.O.PULAMON,
             KOTTARAKKARA, KOLLAM DIST. 690531

             BY ADV. SRI.R.K.MURALEEDHARAN

RESPONDENTS/RESPONDENTS :

      1      STATE OF KERALA
             REPRESENTED BY SECRETARY TO GENERAL EDUCATION
             DEPARTMENT,
             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-695033.

      4      THE MANAGER,MMC CORPORATE MANAGEMENT SCHOOLS,
             CATHOLICATE ARAMANA, DEVALOKAM, KOTTAYAM-686038.

      5      G. KOSHY,ST. GREGORIOUS HIGHER SECONDARY SCHOOL, P.O.
             PULAMON, KOTTARAKKARA, KOLLAM DISTRICT-691531.


OTHER PRESENT:

             SRI. A.J. VARGHESE-SR. G.P.

THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11-01-2021, THE
COURT ON 14-01-2021 DELIVERED THE FOLLOWING:
 W.A.No.1784/2018                           2




                                   JUDGMENT

              Dated this the            14th day of January 2021

       Gopinath, J.

This writ appeal is filed challenging the judgment of a learned

single Judge of this Court in W.P.(C)No.13064/2017. The appellant was

the writ petitioner. The Documents/Exhibits referred to in this

judgment are in the manner that they are marked in the Writ Petition.

The writ petition was filed challenging Ext.P10 order dated 29.3.2017

issued by the 1st respondent and for a direction commanding the 4 th

respondent (Educational Agency) to conduct a fresh selection to the

post of Principal of the St. Gregorious Higher Secondary School,

Kottarakkara, Kollam District.

2. The appellant challenged the appointment of the 5 th

respondent as Principal of the School to a vacancy which arose from

1.4.2008. The Manager decided to appoint the 5 th respondent as the

Principal. According to the appellant, the School had not maintained a

seniority list of Higher Secondary Teachers, which prompted him to

approach this Court by filing W.P.(C)No.13178/2012 and following the

directions issued by this Court, a draft seniority list (Ext.P1) was

prepared, though the same is not yet approved as required under the

provisions of the Kerala Education Rules.

3. The 5th respondent was appointed as Principal by the

Manager for the period from 1.4.2008 to 31.3.2013. It is not disputed

before us that the appellant was not qualified for appointment as

Principal on 1.4.2008. The appellant contends that he had the

requisite 12 years of teaching experience in 2010 and was, therefore,

eligible to be considered for promotion after the tenure of the

appointment of the 5th respondent is completed on 31.3.2013. The 5th

respondent raised a claim that limiting his appointment to the period

up to 31.3.2013 was incorrect in law as he was appointed to a

substantive vacancy.

4. The appellant filed W.P.(C)No.25603/2012 for a direction

to conduct fresh selection to the post of Principal after the tenure of

the 5th respondent is over on 31.3.2013. The 5 th respondent filed

W.P.(C)No.27462/2012 praying for a direction to pass orders on a

representation filed by him to consider the extension of his

appointment beyond 31.3.2013. The Manager/Educational Agency

also raised a claim that they are entitled to minority status and

therefore, they are entitled to appoint a person of their choice, as

Principal from amongst the qualified hands. This Court through

Ext.P4 judgment dated 10.12.2012 directed the Regional Deputy

Director of Higher Secondary Education (the 3rd respondent) to

consider the rival claims. Through Ext.P6 order, the 3 rd respondent

found that the tenure of the 5 th respondent had to be extended. The

appellant, therefore, challenged that order through

W.P.(C)No.11739/2013 and through judgment dated 6.6.2016, this

Court set aside Ext.P6 order and directed the 3 rd respondent to

reconsider the matter. The 3rd respondent, thereafter passed Ext.P8

order finding that the 5th respondent was not entitled to extension in

tenure and that a fresh selection had to be conducted. This order of the

3rd respondent (Ext.P8) was challenged in revision by the 5 th respondent

before the Government. He also approached this Court by filing W.P.

(C)No.30188/2016 which was disposed of by Ext.P9 judgment directing

the Government to consider and pass orders on the revision petition

and further directing that pending consideration of the matter by the

Government, the order of the 3rd respondent (Ext.P8) shall remain

stayed. The Government in compliance with the directions contained in

the judgment in W.P.(C)No.30188/2016 issued Ext.P10 order finding

inter alia that the action of the Manager in appointing the 5 th

respondent for a specified period was incorrect in law and that the

appellant was not qualified as on 1.4.2008 to challenge the selection

and appointment of the 5th respondent with effect from 1.4.2008. The

Learned Single Judge, on a consideration of the matter, dismissed the

Writ Petition.

5. We have heard Sri. R.K. Muralidharan learned counsel for

the appellant and the learned Government Pleader for respondents 1 to

3. The learned counsel for the appellant with reference to Ext.P1 draft

seniority list contends that the appointment of the 5 th respondent as

Principal even on 1.4.2008 was illegal in the light of the fact that

there was a senior claimant (one Chinnamma K.G.), who was

admittedly qualified on the date of occurrence of the vacancy. He

would contend with reference to Ext.P5 that the claim of the minority

status is bogus and ought to be rejected. He would contend that his

claim for consideration for promotion to the post of Principal could

have been considered at least after 31.3.2014, the date on which the

aforesaid Chinnamma K.G would have retired on superannuation if she

had been appointed as Principal on 1.4.2008.

6. The learned Government Pleader would refer to Ext.P10

order and contend that it is not open to the appellant to raise any

challenge to the appointment of the 5 th respondent as the appellant was

not qualified to be appointed as Principal on 1.4.2008, the date on

which the 5th respondent was appointed as such. He would contend

that even without going into the question as to whether the educational

institution had the right to claim the protection afforded to minority

institutions under the Constitution of India, a challenge at the instance

of the appellant to the appointment of the 5 th respondent cannot be

sustained.

7. We have considered the rival contentions. We are of the

view that the contention raised by the learned Government Pleader is

well-founded. The appellant was admittedly not qualified on 1.4.2008.

He has two claims as against the appointment of the 5 th respondent.

The first claim is that if any person had to be appointed as Principal on

1.4.2008, the Manager ought to have appointed the

aforesaid Chinnamma K.G., as she was qualified and senior to the 5 th

respondent. The second claim as against the 5 th respondent is that he

was appointed only for the period from 1.4.2008 to 31.3.2013 and

therefore, that a fresh selection had to be conducted after 31.3.2013.

He contends further that since he was qualified as on 31.3.2013, his

candidature also should have been considered after 31.3.2013. We are

of the view that the contentions as aforesaid raised on behalf of the

appellant must fail. Firstly, the appellant was not qualified for

appointment/promotion as Principal as on 1.4.2008, the date on

which the 5th respondent was appointed. The appellant cannot be

heard to contend that Chinnamma K.G., ought to have been appointed

as Principal. This is because the said person has not chosen to

challenge the appointment of the 5th respondent. Secondly, going by

the pleadings in the writ petition, the appellant had a claim only for

the conduct of a fresh process of selection after the term of the

appointment of the 5th respondent expired on 31.3.2013. Therefore,

the claim of the appellant essentially hinges on the question as to

whether the appointment of the 5 th respondent from 1.4.2008 till

31.3.2013 alone was valid when the appointment was to a substantive

vacancy. The Government in Ext.P10 order has found that limiting

the appointment of the 5th respondent from 1.4.2008 to 31.3.2013

alone was against the mandate of the Kerala Education Rules. No

Rule or provision has been pointed out which enables the Manager to

make an appointment for a particular term although the appointment

was to a substantive vacancy. We believe that limiting the term of the

appointment of the 5th respondent up to 31.3.2013 was a mistake

committed by the Manager and that the 5th respondent, therefore, has

the right to continue as Principal till the date of his retirement. We

cannot at the instance of the appellant adjudicate the question as to

whether Smt. Chinnamma K.G ought to have been appointed as

Principal in the place of the 5th respondent. Still, further, the

appointment of the 5th respondent was effective from 1.4.2008. The

appointment was not challenged by the appellant within a reasonable

time. Therefore, the challenge to the appointment of the 5th

respondent was at any rate barred by delay and laches. For all these

reasons, we feel that the view taken by the learned single Judge is

completely justified and warrants no interference in an intra court

appeal under Section 5 of the Kerala High Court Act. However, we

make it clear that we have not, in these proceedings, examined the

question as to whether the educational institution in question is

entitled to claim minority status. The Writ Appeal fails and is

accordingly dismissed. No costs. Sd/-

A.M.SHAFFIQUE

JUDGE

sd/-

GOPINATH P.

JUDGE

acd