Kerala High Court

Sojan Joseph vs The State Of Kerala on 15 January, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942

                      WP(C).No.16391 OF 2020(Y)


PETITIONER:

               SOJAN JOSEPH
               AGED 55 YEARS
               S/O P.K.JOSEPH, UP SCHOOL TEACHER, ST. THOMAS UP
               SCHOOL, KARUKUTTY P.O., ANGAMALY (VIA), ERNAKULAM
               DISTRICT-683 576.

               BY ADVS.
               SRI.SUNIL V.MOHAMMED
               SMT.AJITHA APPU
               SMT.M.S.NEETHUMOL
               SHRI.AADIL SHAH A.S.

RESPONDENTS:

      1        THE STATE OF KERALA
               REP. BY SECRETARY TO THE GOVERNMENT, GENERAL
               EDUCATION DEPARTMENT, SECRETARIAT,
               THIRUVANANTHAPURAM-695 001.

      2        THE ASSISTANT EDUCATIONAL OFFICER,
               ERNAKULAM DISTRICT-682 011.

      3        THE CORPORATE MANGER,
               SACRED HEART CORPORATE EDUCATIONAL AGENCY OF CMI
               SCHOOLS, RAJAGIRI, KALAMASSERY, ERNAKULAM DISTRICT-
               683 104.

      4        MATHEW V.J,
               VELIKKAKATHU HOUSE, MANAPPURAM P.O., CHERTHALA,
               ALAPPUZHA DISTRICT-688 526.

               R1-3 BY GOVERNMENT PLEADER
               R3 BY ADV. SRI.NOUSHAD THOTTATHIL
               R4 BY ADV. SRI.RAFEEK. V.K.

OTHER PRESENT:

               SRI. P.M.MANOJ - SR.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD            ON
15.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.16391 OF 2020                    2

                                 JUDGMENT

The petitioner, who is stated to be

working as an Upper Primary School Teacher

in St.Thomas UP School, Karukutty, stakes a

claim to be its Headmaster, on the ground

that he is the senior most qualified

person available for being so appointed.

The petitioner, however, expressly and

unequivocally concedes that the school in

question is a minority educational

institution and thus having the competence

to choose and appoint the head as per its

choice; but he, nevertheless, asserts,

relying on the judgment of the Hon'ble

Supreme Court M.D.Rafique v. Managing

Committee, Contai Rahamania High Madrasah

and Others [2020 (6) SCC 689], that even

when such choice is made by a minority

institution, they are bound to follow a

process of selection, which is fair, merit

based and transparent.

2. The petitioner alleges that instead

of doing so, the 3rd respondent - Corporate

Manager of the School has now appointed the

4th respondent, who is junior to him,

without making any process of selection, as

is mandated in M.D.Rafique (supra). The

petitioner, therefore, prays that the 3rd

respondent - Corporate Manager be directed

to forward the proposal of his appointment

to the 2nd respondent Educational Authority

and that the said Authority be directed to

approve his appointment, based on the

proposal to be so forwarded.

3. In response to the afore

submissions of the petitioner, as made by

his learned counsel Sri.Sunil V. Mohammed,

the learned Standing Counsel for the 3rd

respondent - Shri.Noushad Thottathil,

submitted that a counter affidavit has been

filed on record, wherein the following

averments have been made which would

limpidly establish that a comparative

assessment of the merit of both the

petitioner and the 4th respondent was made

by the Manager, before the latter was

appointed as the Headmaster.

"6. Even though the petitioner is the 2nd senior most teacher having qualification and experience to promote and appoint in the post of Head Master, this respondent considered the length of rest of service of the teachers in Exhibit P3 seniority list along with other factors to decide their suitability and excellence to prefer to promote and appoint in the post of Head Master arose at St.Mary's U.P.School, Thevara. In the selection process the 3 rd respondent specifically verified the performance of the petitioner as Head Master of St.thomas U.P.School, Karukutty with effect from 28.01.2017 to 03.10.2018 and found that it was not satisfactory and petitioner was utterly failed to improve the status of the said School achieving the confidence of the local people even he is hailing from same Taluk where the said School is situating. Due to the Heavy Division fall presently, the St.Thomas U.P. School, Karukutty, is included in the category of "Uneconomical School" with single division. The 3 rd respondent also considered the Educational Qualification of the petitioner, who is not a Graduate and not having much proficiency in English. But on the other hand 4th respondent, who is the next senior most teacher in Exhibit P-3 seniority list, who is having requisite qualifications to promote and appoint to the post of Head Master is a Graduate, having 2 years rest of service.

7.St.Mary's U.P. School, Thevara is having Malayalam and English Medium divisions studying 706 students and 21 teachers, major portion of the students are studying in English Medium. In the matter of promoting and appointing the 4th respondent as the Head Master of St.Mary's U.P.School, Thevara superseding the seniority of the petitioner, the 3rd respondent also considered that

the 4th respondent is a Graduate Teacher fully qualified to be appointed in the post of Headmaster as mandated under the statutory provisions contained in the Kerala Educational Rules, who is having 2 years rest of service is more suitable and preferable person to the post of Head Master to deal and manage the students and teachers of the English Medium Division in St.Mary's U.P School, Thevara in an excellent manner. The Minutes prepared for the selection and filling the vacant posts of Head Masters in St.Thomas U.P. School, Karukutty and St.Mary's U.P.School, Thevara by promotion is produced herewith and marked as Exhibit R3-2."

4. Shri.Noushad Thottathil further

submitted that since the petitioner is not

a graduate and not very proficient in

English and since his performance in the

earlier School was not up to the mark, the

Manager had no other option but to choose

the 4th respondent. He concluded his

submissions by saying that, in any event of

matter, this writ petition is not

maintainable, since appointment of the 4th

respondent has already been approved and

that he has taken over as the Headmaster of

the school; while the petitioner's

objections made before the 2nd respondent -

Assistant Educational Officer, namely

Ext.P6, has been rejected through Ext.R3(3)

proceedings, which he has not challenged

until now. He, therefore, prays that this

writ petition be dismissed.

5. The learned Senior Government

Pleader-Sri.P.M.Manoj, appearing on behalf

of the official respondents, affirms that

appointment of the 4th respondent has

already been approved and that this was

because the competent Authority did not

find anything against him, particularly

because the School in question is a

Minority Educational Institution.

6. The learned Senior Government

Pleader submitted that since the

petitioner's objections, namely Ext.P6, had

already been rejected through Ext.R3(3) and

since he has not challenged the same, the

competent Educational Authority was

enjoined, as per the provisions of the

Kerala Education Act and Rules, to approve

the appointment of the 4th respondent. He,

therefore, prayed that no further orders be

issued against the official respondents.

             7.    I        have        considered            the      afore

        submissions         and        have      also     evaluated       the

materials available on record.

8. It is indubitable, going by the

large amount of precedents occupying the

field, that in the case of a minority

educational institution, they are entitled

to appoint a person of their choice as its

head and this is an imperative facet of the

constitutional protection under Article

30(1) of the Constitution of India.

However, it is true that in M.D.Rafique

(Supra) the Hon'ble Supreme Court has

clarified that while doing so, merit cannot

be jettisoned and that the comparative

excellence of the person so being appointed

must also be ensured.

9. In the case at hand, as is evident

from the afore extracted averments in the

counter affidavit filed on behalf of the 3rd

respondent, the petitioner has been found

to be not fully upto speed in his

performance as a Headmaster of the earlier

School and that he is not a Graduate or

proficient in English. Of course,

Shri.Sunil V.Mohammed - learned counsel for

the petitioner contests the fact that his

client had not performed well as a

Headmaster earlier, saying that the

documents on record would prove otherwise.

10. Even if I am to find favour with

Shri.Sunil V.Mohammed on this aspect, am of

the view that since it is admitted that the

petitioner is not a graduate, the Corporate

Manager was completely without error in

having preferred the 4th respondent, who is

better qualified and who has a longer

tenure, as a Headmaster.

11. This is evident from his admission

that the petitioner is to retire in April

2021; while the 4th respondent has a minimum

of two years of service left.

12. I cannot hence find the decision of

the 3rd respondent to be in error in law,

especially because this Court, while

exercising the judicial review, can only

scrutinize if the applicable decision

making process has been followed, but

cannot go into the merits of the decision

per se, on account of the constitutional

protection available to the 3rd respondent

under Article 30(1) of the Constitution.

In the afore circumstances and for the

reasons above, I have no other option but

to dismiss this writ petition; however,

leaving liberty to the petitioner to

challenge the approval of the 4th

respondent, if he is so desirous and if

there are other reasons as per law, by

invoking the remedies as may be available

to him under the applicable Statues and

Rules.

Sd/-

DEVAN RAMACHANDRAN JUDGE MC/19.1.2020

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE CERTIFICATE DATED 21.6.1991 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION

EXHIBIT P2 TRUE COPY OF THE CERTIFICATE DATED 28.6.2003 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION

EXHIBIT P3 TRUE COPY OF THE APPROVED COMBINED SENIORITY LIST AS ON 1.1.2019 PUBLISHED BY THE CORPORATE MANAGEMENT

EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS DATED 28.1.2017 OF THE 3RD RESPONDENT PROMOTING AND POSTING THE PETITIONER AS HEADMASTER

EXHIBIT P5 TRUE COPY OF THE JUDGMENT 5.9.2018 IN WPC NO 2779/2018

EXHIBIT P6 TRUE COPY OF THE APPEAL DATED 11.5.2020 SUBMITTED BEFORE THE 2ND RESPONDENT

EXHIBIT P7 TRUE COPY OF THE NEWS REPORT APPEARED IN DEEPIKA DAILY DATED 15.08.2003.

EXHIBIT P8 TRUE COPY OF THE CERTIFICATE OF APPRECIATION ISSUED BY SARVA SIKSHA ABHIYAN DURING APRIL-MAY 2016.

EXHIBIT P9 TRUE COPY OF THE CERTIFICATE DATED 26.11.1996 ISSUED BY DISTRICT INSTITUTE OF EDUCATION AND TRAINING, ERNAKULAM.

EXHIBIT P10 TRUE COPY OF THE CERTIFICATE OF PARTICIPATION DATED 02.01.2012 ISSUED BY THE GOVERNMENT OF KERALA.

EXHIBIT P11 TRUE COPY OF THE LETTER DATED 21.02.2017 ISSUED BY THE ERSTWHILE CORPORATE MANAGER TO THE 2ND RESPONDENT.

EXHIBIT P12 TRUE COPY OF THE REQUEST DATED 10.06.2018 ALONG WITH TAX INVOICE SUBMITTED TO SBI, KARUKUTTY BY THE PETITIONER TO SPONSOR SMART CLASS.

EXHIBIT P13 TRUE COPY OF THE PROPOSAL DATED 02.12.2017 SUBMITTED BEFORE THE CORPORATE MANAGER.

EXHIBIT P14 TRUE COPY OF THE SCHOOL MASTER PLAN FORWARDED BY THE PETITIONER TO THE GOVERNMENT.

EXHIBIT P15 TRUE COPY OF THE PHOTOGRAPH OF THE CONDUCT OF THE SUB-DISTRICT LEVEL SCIENCE EXHIBITION-2018 AT ST.THOMAS UP SCHOOL, KARUKUTTY.

EXHIBIT P16 TRUE COPY OF THE STAFF FIXATION ORDER DATED 08.07.2017 ISSUED BY THE AEO, ANGAMALY.

EXHIBIT P17 TRUE COPY OF THE ORDER DATED 26.06.2020 OF THE ADDITIONAL DIRECTOR (GENERAL) OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM ALONG WITH THE COVERING LETTER DATED 08.10.2020 OF THE AEO, ANGAMALY.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R2(A) TRUE COPY OF THE ORDER DATED 24.10.2011

EXHIBIT R3(1) TRUE COPY OF THE CERTIFICATE NO.F.NO.983 TO 986 OF 2011/55990 DATED 24.10.2011 ISSUED BY THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS, GOVERNMENT OF INDIA.

EXHIBIT R3(2) TRUE COPY OF THE MINUTES PREPARED FOR THE SELECTION TO FILL THE VACANT POSTS OF HEAD MASTERS IN ST.THOMAS U.P. SCHOOL KARUKUTTY AND ST. MARY'S U.P.SCHOOL, THEVARA.

EXHIBIT R3(3) A TRUE COPY OF THE ORDER NO.F-