Latha.P vs State Of Kerala
2023 Latest Caselaw 2168 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
       THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
 FRIDAY, THE 10TH DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944
                     WP(C) NO. 3405 OF 2023
PETITIONER/S:
          LATHA.P, AGED 55 YEARS
          PRINCIPAL, KUTHUPARAMBA HIGHER SECONDARY SCHOOL,
          KUTHUPARAMBA, KANNUR - 670643 RESIDING AT
          KAYYANTHALA HOUSE, PERAVOOR KANNUR DISTRICT,
          670673, PIN - 670673
          BY ADVS.
          M.A.FAYAZ
          M.VISHNUPRIYA
          C.B.ABHINAVA
RESPONDENT/S:
    1     STATE OF KERALA, REP. BY SECRETARY TO THE
          GOVERNMENT, GENERAL EDUCATION DEPARTMENT,
          GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN -
          695001
    2     DIRECTOR OF GENERAL EDUCATION
          O/O DIRECTOR OF GENERAL EDUCATION, JAGATHI,
          THIRUVANANTHAPURAM, PIN - 695014
    3     REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY
          EDUCATION PAYYAMBALA, O/O REGIONAL DEPUTY
          DIRECTOR OF HIGHER SECONDARY EDUCATION
          PAYYAMBALAM, KANNUR, PIN - 670001
    4     DISTRICT EDUCATIONAL OFFICER THALASSERRY
          O/O DISTRICT EDUCATIONAL OFFICER THALASSERRY
          THALASSERRY, PIN - 670104
    5     MANAGER,KUTHUPARAMBA HIGHER SECONDARY SCHOOL,
          THOKKILANGADI P.O , KANNAUR, PIN - 670643
          BY ADV SMT.NISHA BOSE, SENIOR G.P.
OTHER PRESENT:
          SR.GP SMT NISHA BOSE
     THIS    WRIT   PETITION    (CIVIL)     HAVING    COME    UP    FOR
ADMISSION    ON   10.02.2023,    THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
                                                          2-
W.P.(C). No. 3405 of 2023



                              P.V.KUNHIKRISHNAN, J.
                               ======================================================

                                 W.P.(C) No. 3405 of 2023
                            =============================================================

                   Dated this the 10th day of February, 2023

                                            JUDGMENT

The above writ petition is filed with following prayers:

"i. To issue a Writ of mandamus directing the 3rd respondent to approve the By Transfer Promotion of the petitioner as Principal of Kuthuparamba Higher Secondary School w.e.f 01.06.2021 forthwith.

ii. To declare that In view of the fact there was no qualified HSST's available for promotion to the post of Principal as on 01.06.2021 petitioner's By Transfer Promotion as Principal is liable to be approved in accordance with the statutory provisions contained in Rule 4(1) and 4(2)(1) of Chapter XXXII KER.

iii. In view of the approval of By Transfer Promotion as Principal given to Smt. Prasanna Kumari.M.C vide Ext.P3 and the By Transfer Promotion given to one Sri.Dineshan.P.M as HSST vide Ext.P13 the refusal to grant approval of By Transfer to the petitioner on the ground of ongoing management dispute is in violation of Article 14 of the Constitution of India, and therefore discriminatory.

iv. To issue a Writ of Mandamus directing the 3 rd respondent to reconsider the proposal for approval of 3-

W.P.(C). No. 3405 of 2023

petitioner's By Transfer Promotion as Principal, In the light of the directions Issued by the Hon'ble Court vide Ext.P15 Judgment issued in respect of the teacher in the school, forthwith and to grant approval of petitioner's By Transfer Promotion.

v. To issue Writ mandamus directing the 4th respondent to sanction and disburse salary due to the petitioner In the scale of Principal of Higher Secondary School w.e.f. 01.06.2021 onwards.

vi. To dispense with the filing of translated copies of the Exhibits produced in the above Writ Petition. AND

vii. To grant such other reliefs or orders as this Hon'ble Court may deem fit and proper in the above case, and to award costs."

2. Petitioner is working as Principal of the

Kuthuparamba Higher Secondary School, Kuthuparamba w.e.f.

01.06.2021. Petitioner was originally appointed as HST in the

school on 06.06.1994 and is having 29 years of service, and he

qualified to be promoted as headmaster is the contention of the

petitioner. In the academic year 2014-15 Higher Secondary

Batches were sanctioned to the school, and one post of Principal,

8 posts of Higher Secondary School Teachers, 4 posts of Higher 4-

W.P.(C). No. 3405 of 2023

Secondary School Teachers (Jr) and 2 Lab Assistants were

sanctioned. Due to some issues, the appointment to the newly

sanctioned posts in the Higher Secondary Section was done only

in the year 2021. It is further stated that since there was no

qualified HSST available for promotion to the post of Principal

the incumbent Headmistress of the Secondary Section

Smt.Prasannakumari.M.C was promoted as Principal w.e.f.

21.04.2021 in accordance with Rule 4(2) Chapter XXXII KER

and in the said vacancy, petitioner was promoted and posted as

Head Mistress w.e.f. 21.04.2021. The by transfer promotion of

Smt. Prasannakumari was approved vide Ext.P3. The said Smt.

Prasannakumari retired from service on 31.05.2021. Since no

qualified HSSTs were available at the time of the retirement of

Smt. Prasannakumari on 31.05.2021, petitioner who was working

as Headmistress, was given promotion as Principal in accordance

with Rule Rule 4(2) (iii) of Chapter XXXII KER w.e.f.

01.06.2021 But the 3rd respondent has not granted approval of 5-

W.P.(C). No. 3405 of 2023

appointment to the petitioner as Principal even after 18 months, is

the grievance. The reason for not approving the appointment is

that there exists a management dispute and the matter is pending

before this Court.

3. Heard the counsel for the petitioner and the

Government Pleader. No notice is necessary to the 5 th respondent

in the facts and circumstances of the case. If the 5 th respondent is

aggrieved by any of the directions in this judgment, the 5 th

respondent is free to file a review petition before this Court.

4. The short point raised by the petitioner is that there is

no dispute about the qualification and eligibility of the petitioner

for the post of Principal. The only reason for not considering the

proposal for approval is that a management dispute is pending

pending before this Court. In the same school, when there arise a

same issue, this Court intervened as per Ext.P15 judgment and

directed the Department to take necessary steps for approval. It 6-

W.P.(C). No. 3405 of 2023

will be better to extract paragraphs 5 and 6 of Ext.P15 judgment

here:

"5. I find that the predominant reason given by the 2 nd respondent to decline approval is the pendency of W.P.(C) No.25268/2021. By Ext.P7 interim order, this Court had stayed the order issued by the Government handing over the managership to the DEO. As is evident from Ext.P8 order issued in the Contempt proceedings, the 3rd respondent was entitled to function as Manager, and no interdictions were placed on the same. In that view of the matter, there was no justification on the part of the 2 nd respondent in declining approval. Another reason stated is the stay granted by this Court in W.P.(C) No. 19808/2021 filed seeking enforcement of the rights of persons with disabilities. The said writ petition has been finally disposed of by issuing certain directions and observations, which stand clarified by the Division Bench. That being the case, approval could not have been declined stating the pendency of the above writ petition. If there are other minor defects, the 2nd respondent ought to have granted an opportunity to the petitioners as well as the Manager to cure the same.

6. In view of the discussion above, the petitioners are entitled to succeed. Exts.P9 to P9 (d) orders issued by the 2nd respondent are quashed. There will be a direction to the 2nd respondent to reconsider the matter in the light of the observations and directions above. The pendency of W.P.(C) No.25268/2021 shall not be taken as a reason to 7-

W.P.(C). No. 3405 of 2023

decline approval. The 2nd respondent shall pass fresh orders, expeditiously, in any event, within two months from the date of receipt of a copy of this judgment, with notice to the petitioners and the 3rd respondent."

Moreover, in the same educational authority, as per Ext.P14 , the

3rd respondent granted approval in a by transfer appointment.

5. The Government Pleader also, after getting

instructions, submitted that the only reason for not considering

the proposal is because of the pendency of the management

dispute. The Government Pleader also submitted that there is a

direction from the Government not to approve appointment in

such situations. That contention will not stand in the light of

Ext.P15 judgment of this Court. Moreover, in Ext.P7 it is clearly

stated that the petitioner alone is the eligible person for the post.

In such circumstances, according to me, the department ought to

have allow the proposal for approval.

8-

W.P.(C). No. 3405 of 2023

Therefore, this writ petition is disposed of in the following

manner:

1. The 5th respondent is directed to resubmit the proposal for approval of by transfer promotion to the petitioner as Principal before the 3rd respondent within two weeks from the date of receipt of a copy of this judgment.

2. The 3rd respondent will consider that proposal and take appropriate decision to approve the by transfer promotion, if it is otherwise in order, as expeditiously as possible, at any rate, within one month from the date of receipt of the proposal.

3. The 3rd respondent is further directed to disburse the consequential benefits to the petitioner forthwith.

4. The petitioner will produce a certified copy of this judgment together with a copy of this writ petition before the 3rd and 5th respondent for compliance.

                            Sd/-         P.V.KUNHIKRISHNAN
                                                JUDGE
das
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W.P.(C). No. 3405 of 2023



                            APPENDIX OF WP(C) 3405/2023

PETITIONER EXHIBITS
Exhibit P1         TRUE COPY OF THE ORDER PROMOTING

SMT.PRASANNAKUAMRI.M.C AS THE PRINCIPAL OF THE SCHOOL W.E.F 21.04.2021 Exhibit P2 TRUE COPY OF LETTER NO.01/2021 DATED 30.04.2021 ISSUED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT.

Exhibit P3 TRUE COPY OF THE ORDER NO.B1/2153/2021 DATED 14.06.2022 ISSUED BY THE 3RD RESPONDENT TO SMT PRASANNA KUMARI.

Exhibit P4 TRUE COPY OF ORDER NO.2/2021 DATED 21.04.2021 ISSUED BY THE 5TH RESPONDENT PROMOTING THE PETITIONER TO THE POST OF HEADMISTRESS Exhibit P5 TRUE COPY OF LETTER NO.2/2021 DATED 30.04.2021 AND OTHER ATTENDANT DOCUMENTS ISSUED BY THE 5TH RESPONDENT Exhibit P6 TRUE COPY OF ORDER NO.B6/39325/2022 DATED 23.09.2022 PROCEEDINGS ISSUED BY THE 4TH RESPONDENT Exhibit P7 TRUE COPY OF THE ORDER NO.5/2021 DATED 31.05.2021 ISSUED BY THE 5TH RESPONDENT Exhibit P8 TRUE COPY OF THE LETTER NO.5/2021 DATED 04.06.2021 ISSUED BY THE 5TH RESPONDENT Exhibit P9 TRUE COPY OF LETTER NO.B1/2154/2021 DATED 28.04.2022 ISSUED BY THE 3RD RESPONDENT Exhibit P10 TRUE COPY OF LETTER NO.76/T3/2022/G.EDN DATED 12.08.2022 ISSUED BY THE 1ST RESPONDENT Exhibit P11 TRUE COPY OF LETTER NO.A1/4111/2022 DATED 22.11.2022 ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT.

Exhibit P12 TRUE COPY OF ORDER NO.A5/E26347/2022 DATED 08.11.2022 ISSUED BY THE 3RD RESPONDENT APPROVING PETITIONER'S APPOINTMENT AS PRINCIPAL IN CHARGE.

Exhibit P13 TRUE COPY OF LETTER NO.B1/823/2022 DATED 25.11.2022 ISSUED BY THE 3RD 10-

W.P.(C). No. 3405 of 2023

RESPONDENT TO THE 5TH RESPONDENT.

Exhibit P14 TRUE COPY OF PROCEEDINGS ORDER NO.B1/830/2022/K.DIS DATED 20.06.2022 ISSUED IN RESPECT OF ONE SRI.DINESHAN.P.M HSST (HISTORY) Exhibit P15 TRUE COPY OF JUDGMENT IN W.P(C)NO.40749/2022 DATED 06.01.2023.