Kerala High Court
M. Honey vs Manager Kopparethu Higher ... on 27 June, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 27TH DAY OF JUNE 2023 / 6TH ASHADHA, 1945
RP NO. 1039 OF 2022
AGAINST THE JUDGMENT IN WA 639/2021 OF HIGH COURT OF
KERALA
REVIEW PETITIONER/APPELLANT/RESPONDENT NO.5:
M. HONEY, AGED 44 YEARS
W/O. ANIL GOPINATH,
HIGHER SECONDARY SCHOOL TEACHER (CHEMISTRY),
KOPPARETHU HIGHER SECONDARY SCHOOL,
P.O. PATTOLI MARKET, KAYAMKULAM,
ALAPPUZHA DISTRICT - 690 531.
BY ADVS.
P.SREEKUMAR
RENOY VINCENT
HELEN P.A.
ARUN ROY
SHAHIR SHOWKATH ALI
ALEESHA SHEREEF
STEPHANIE SHARON
ATHUL ROY
RESPONDENTS/PETITIONER/RESPONDENTS 1 TO 4 & 6, 7:
1 MANAGER KOPPARETHU HIGHER SECONDARY SCHOOL P.O.,
PATTOLI MARKET, KAYAMKULAM,
ALAPPUZHA DISTRICT - 690 531.
2 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM - 695 014.
3 THE DIRECTOR OF GENERAL EDUCATION,
GENERAL EDUCATION DEPARTMENT, JAGATHY,
THIRUVANANTHAPURAM - 695 014.
R.P.No.1039 of 2022
in
W.A.No.639 of 2021
-: 2 :-
4 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY
EDUCATION, CHENGANNUR,
ALAPPUZHA DISTRICT - 689121.
5 SHINY.A,
HIGHER SECONDARY SCHOOL TEACHER (PHYSICS),
KOPPARETHU HIGHER SECONDARY SCHOOL P.O.
PATTOLI MARKET, KAYAMKULAM,
ALAPPUZHA DISTICT - 690 531
6 LEKSHMI.A.S,
HIGHER SECONDARY SCHOOL TEACHER (MATHEMATICS),
KOP-PARETHU HIGHER SECONDARY SCHOOL P.O.,
PATTOLI MARKET, KAYAMKULAM, ALAPPUZHA - 690 531
7 VISHNU S L,
HIGHER SECONDARY SCHOOL TEACHER (JUNIOR) BOTANY,
KOPPARETHU HIGHER SECONDARY SCHOOL P.O, PATTOLI
MARKET, KAYAMKULAM, ALAPPUZHA DISTRICT -690 531.
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON
16.06.2023, THE COURT ON 27.06.2023 DELIVERED THE
FOLLOWING:
R.P.No.1039 of 2022
in
W.A.No.639 of 2021
-: 3 :-
P.B.SURESH KUMAR & C.S.SUDHA, JJ.
-----------------------------------------------
Review Petition No.1039 of 2022
in
Writ Appeal No.639 of 2021
-----------------------------------------------
Dated this the 27th day of June, 2023
ORDER
P.B.Suresh Kumar, J.
The review petitioner is the appellant in the appeal
and the fifth respondent in the writ petition, from which the
appeal arose. Parties are referred to in this order for
convenience, as they appear in the writ petition.
2. The petitioner is the Manager of an aided
Higher Secondary School. The Higher Secondary section of the
school was sanctioned from the year 2014-2015. Since there
were no qualified hands then in the school for appointment by
transfer as Higher Secondary School Teacher [HSST], the
petitioner took steps to appoint required number of teachers
from open market. It is stated that there were three posts of
HSST in the school. A selection was consequently conducted
and appointments were made based on the selection. Among
R.P.No.1039 of 2022
in
W.A.No.639 of 2021
the appointees to the post of HSST, the fourth respondent was
appointed on 05.01.2018 and respondents 5 and 6 were
appointed on 06.01.2018. The said appointments were
approved with effect from the respective dates of appointment,
in terms of Ext.P2 order issued by the third respondent.
3. The fifth respondent preferred an appeal against
Ext.P2 order before the second respondent seeking a direction
to the Manager to submit a revised proposal for approval of her
appointment as HSST with effect from 05.01.2018. On the said
appeal, the second respondent took the view that insofar as
three vacancies were existing at the time of preparation of the
select list, they should have been appointed on the same day
itself and consequently directed the third respondent to
approve the appointment of respondents 5 and 6 also as HSST
with effect from 05.01.2018. Ext.P3 is the order issued by the
second respondent in this regard. Although Ext.P3 order was
challenged by the petitioner in revision before the
Government, the same was affirmed by the Government as per
Ext.P5 order. In the meanwhile, the fourth respondent being
the earliest appointee to the post of HSST, the petitioner
appointed her as Principal-in-Charge of the School. Exts.P3 and
R.P.No.1039 of 2022
in
W.A.No.639 of 2021
P5 orders were under challenge in the writ petition. The case
set out by the petitioner in the writ petition was that, being the
appointing authority, he has absolute discretion in the matter
of making appointments and the appointees cannot claim that
they should be appointed with effect from a particular date. It
was also the case of the petitioner that the dates of
appointment were fixed based on the merits of the candidates
and the fourth respondent being a candidate who secured
more marks in the selection, she was appointed earlier to
others and there is nothing illegal in the same.
4. A counter affidavit was filed in the matter by
the fifth respondent contending, inter alia, that insofar as the
selection was conducted on the same day and since vacancies
were available on the date of selection, the vacancies should
have been filled up by appointing all the selected candidates
on the same day itself. It was also contended by the fifth
respondent that had the Manager adopted the said course, the
fifth respondent being elder to the fourth respondent, she
would have had a claim for appointment as Principal in
preference to the fourth respondent and it was with a view to
appoint the fourth respondent as Principal that the
R.P.No.1039 of 2022
in
W.A.No.639 of 2021
appointments were made by the petitioner in the manner
aforesaid.
5. The learned Single Judge took the view that in the
absence of any specific provision in the Kerala Education Act
(the Act) and the Kerala Education Rules (the Rules)
interdicting the Manager from making appointments in the
manner in which appointments have been made by him, there
is no illegality in the decision taken by the Manager to appoint
the fourth respondent earlier to the appointment of
respondents 5 and 6. The learned Single Judge also found that
the decision of the Manager to appoint the fourth respondent
earlier to the appointment of respondents 5 and 6 cannot be
said to be unfair as she was found to be more meritorious than
respondents 5 and 6 in the selection. The writ petition, in the
circumstances, was allowed and Exts.P3 and P5 orders were
quashed. It is aggrieved by the said decision of the learned
Single Judge that the fifth respondent has come up in the
appeal.
6. This Court found that the question arising for
consideration is whether the petitioner was obliged under law
to appoint the fifth respondent on 05.01.2018 itself and
R.P.No.1039 of 2022
in
W.A.No.639 of 2021
answered the question in the negative. The view taken by this
Court is that in the absence of any specific provision in the Act
and the Rules interdicting the Manager from making
appointments in a particular manner, there is no illegality in
the decision taken by the Manager to appoint the fourth
respondent earlier to the appointment of respondents 5 and 6,
even if it was intended to enable the fourth respondent to
claim seniority over the fifth respondent so as to appoint her
as Principal of the school at a later point of time. It was also
held by this Court that the statutory duty cast on the Manager
to act fairly, reasonably and without arbitrariness, is only in the
context of complying with the provisions of the Act and the
Rules and it does not extend to matters not covered by the
Statute. It was also held by this Court that in respect of
matters not covered by the Act and the Rules, ideas of
competence and the manner in which the Manager wants the
school to be run, cannot be interfered with by the educational
authorities who are created for the purpose of ensuring
compliance of the provisions of the Act and the Rules. It was
observed by this Court in the judgment that if the Manager
chooses to appoint a more meritorious candidate on an earlier
R.P.No.1039 of 2022
in
W.A.No.639 of 2021
date, such a decision cannot be said to be unfair or
unreasonable. It is that decision of this Court which is sought
to be reviewed in this proceedings.
7. Heard the learned counsel for the fifth
respondent/the review petitioner.
8. It was pointed out by the learned counsel for
the fifth respondent that the posts of HSST in the school
existed in different subjects and the selection was conducted
on the same day. It was also pointed out by the learned
counsel that rank list was prepared by the Selection
Committee for each subject and the appointees are first rank
holders in each subject. It was submitted by the learned
counsel that the said fact could not be brought to the notice of
this Court and it is on account of the said reason that the
judgment in the appeal was rendered in the manner indicated
above on the assumption that the fourth respondent is more
meritorious than respondents 5 and 6. It was also argued by
the learned counsel that it is thus clear that the decision of the
Manager to appoint the fourth respondent in preference to
respondents 5 and 6 was solely for the purpose of enabling the
fourth respondent to claim seniority over respondents 5 and 6
R.P.No.1039 of 2022
in
W.A.No.639 of 2021
which is per se unfair, and should have been interfered by this
Court.
9. We have examined the argument advanced by
the learned counsel for the fifth respondent, the review
petitioner.
10. True, the fact that respondents 4 to 6 were
appointed as HSSTs in different subjects based on separate
selections conducted on the same day was not brought to the
notice of the learned Single Judge or before this Court by the
petitioner. Therefore, the argument advanced by the petitioner
that the fourth respondent was more meritorious than
respondents 5 and 6 may not be of any merit merely for the
reason that the fourth respondent has secured more marks
than respondents 5 and 6 in selection process. Let us assume
that the fourth respondent cannot be considered as more
meritorious than respondents 5 and 6. Is the judgment liable to
be reviewed on that sole ground? The answer to this question,
according to us, would decide the fate of this review petition.
11. Even though this Court was proceeding on the
premise that the fourth respondent is a person who secured
more marks than respondents 5 and 6 in the selection process,
R.P.No.1039 of 2022
in
W.A.No.639 of 2021
the judgment sought to be reviewed is not one rendered on
that sole basis. On the other hand, the pointed question
considered by this Court was whether, in the absence of a
specific provision in the Act and Rules, the selected candidates
could claim appointment on the same day, and this Court
answered the said question holding that the restrictions that
could be enforced against the Managers, are only restrictions
provided for in the Act and Rules and in respect of all other
matters relating to administration, the Manager shall have
absolute right to take any decision. It was also held by us that
in the absence of any specific provision in the statute
interdicting the Manager from making appointments in a
particular manner, there is no illegality in the decision taken by
the Manager to appoint the fourth respondent earlier to the
appointment of respondents 5 and 6, even if it was intended to
enable the fourth respondent to claim seniority over
respondents 5 and 6, so as to appoint the fourth respondent as
Principal of the school at a later point of time. As noted, it was
also held by us that the statutory duty cast on the Manager to
act fairly, reasonably and without arbitrariness, is only in the
context of complying with the provisions of the Act and the
R.P.No.1039 of 2022
in
W.A.No.639 of 2021
Rules and it does not extend to matters not covered by the Act
and Rules, and in respect of matters not covered by the Act
and the Rules, it was held that the choice, ideas of competence
and the manner in which the Manager wants the school to be
run, cannot be interfered with by the educational authorities
who are created for the purpose of ensuring compliance of the
provisions of the Act and the Rules. Of course, we have
observed in our judgment that the fourth respondent is a
candidate who secured more marks than the fifth respondent
in the selection process. Even if it is held that the said
observation is incorrect, we are of the view that the judgment
is not liable to be reviewed on that ground, for the judgment is
not one rendered solely based on the case set out by the
petitioner that the fourth respondent was more meritorious
than respondents 5 and 6.
The review petition, in the circumstances, is without
merits and the same is accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
C.S.SUDHA, JUDGE.
ds 17.06.2023
R.P.No.1039 of 2022
in
W.A.No.639 of 2021
APPENDIX OF RP 1039/2022
PETITIONER ANNEXURES
Annexure A1 A TRUE COPY OF G O MS
NO.106/2017/G/EDN DATED 21.8.2017
Annexure A2 A TRUE COPY OF THE RANK LIST PREPARED
AND SUBMITTED TO THE AUTHORITIES FOR
THE SUBJECT BOTANY
Annexure A3 A TRUE COPY OF THE RANK LIST PREPARED
AND SUBMITTED TO THE AUTHORITIES FOR
THE SUBJECT CHEMISTRY
Annexure A4 A TRUE COPY OF THE RANK LIST PREPARED
AND SUBMITTED TO THE AUTHORITIES FOR
THE SUBJECT MATHEMATICS
Annexure A5 A TRUE COPY OF THE RANK LIST PREPARED
AND SUBMITTED TO THE AUTHORITIES FOR
THE SUBJECT MALAYALAM
Annexure A6 A TRUE COPY OF THE RANK LIST PREPARED
AND SUBMITTED TO THE AUTHORITIES FOR
THE SUBJECT ZOOLOGY
Annexure A7 A TRUE COPY OF THE RANK LIST PREPARED
AND SUBMITTED TO THE AUTHORITIES FOR
THE SUBJECT ENGLISH.
Annexure A8 A TRUE COPY OF THE RANK LIST PREPARED
AND SUBMITTED TO THE AUTHORITIES FOR
THE SUBJECT PHYSICS.
