Kerala High Court
Jisha John vs The State Of Kerala on 12 April, 2024
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
WP(C) NO. 1859 OF 2018
PETITIONER/S:
MUHAMED BASHEER K
HIGHER SECONDARY SCHOOL TEACHER (ENGLISH),
IKT HIGHER SECONDARY SCHOOL,
CHERUKULMBA, VATTALOOR,
MALAPPURAM DISTRICT, PIN 678 582.
BY ADV DR.GEORGE ABRAHAM
RESPONDENT/S:
1 MANAGER
IKT HIGHER SECONDARY SCHOOL,
CHERUKULMBA, VATTALOOR,
MALAPPURAM DISTRICT, PIN 678 582
2 REGIONAL DEPUTY DIRECTOR
REGIONAL OFFICE,
HIGHER EDUCATION DEPARTMENT,
MALAPPURAM, PIN 678 582.
3 STATE OF KERALA
REPRESENTED BY THE SECRETARY,
GENERAL EDUCATION DEPARTMENT,
THIRUVANANTHAPURAM - 695 001
4 JISHA JOHN
HSA (ENGLISH), IKT HIGHER SECONDARY SCHOOL,
CHERUKULMBA,
VATTALOOR,
MALAPPURAM DISTRICT, PIN 678 582.
5 DISTRICT EDUCATION OFFICER
MALAPPURAM - 678 852.
WP(C) 1859 & 2499/18
2
BY ADVS.
SMT.C.LEENA FOR R1
JOBY D JOSEPH FOR ADDL. RESPONDENT SOUGHT TO BE
IMPLEADED
OTHER PRESENT:
SRI.BIMAL.K.NATH, SR.G.P.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 11.04.2024, ALONG WITH WP(C).2499/2018, THE COURT ON
12.04.2024 DELIVERED THE FOLLOWING:
WP(C) 1859 & 2499/18
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
WP(C) NO. 2499 OF 2018
PETITIONER/S:
JISHA JOHN
AGED 43 YEARS, D/O. P.U.JOHN, PUTHATTE HOUSE,
J,N.ROAD, PERINTHALMANNA P.O., MALAPPURAM
DISTRICT, PIN - 679 322. PRESENTLY WORKING AS
HIGH SCHOOL ASSISTANT, IKTHSS, CHERUKULAMBA,
MALAPPURAM - 676 507.
BY ADV SRI.PRAMOD J.DEV
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF
GENERAL EDUCATION (T), STATE SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 THE REGIONAL DEPUTY DIRECTOR
HIGHER SECONDARY EDUCATION,
MALAPPURAM DISTRICT, PIN - 676 505.
3 THE DISTRICT EDUCATIONAL OFFICER
MALAPPURAM DISTRICT - 676 505.
4 THE MANAGER
IKTHSS, CHERUKULAMBA,
MALAPPURAM - 676 507.
5 THE PRINCIPAL
IKTHSS, CHERUKULAMBA,
MALAPPURAM - 676 507.
WP(C) 1859 & 2499/18
4
6 MOHAMMED BASHEER. K.
RESIDING IN KAMBAKKADAN HOUSE, VATTALLURE P.O.,
MALAPPURAM - 676 507, NOW WORKING AS HSST
(ENGLISH), IKTHSS, CHERUKULAMBA, MALAPPURAM -
676 507.
BY ADVS.
SMT.C.LEENA FOR R4
DR.GEORGE ABRAHAM FOR R6,
SRI.BIMAL K.NATH, SR.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 11.04.2024, ALONG WITH WP(C).1859/2018, THE COURT ON
12.04.2024 DELIVERED THE FOLLOWING:
WP(C) 1859 & 2499/18
5
"C.R"
J U D G M E N T
[WP(C) Nos.1859/2018 & 2499/2018]
The facts of these two writ petitions are
interconnected and intertwined. In WP(C)
No.1859/2018, an unsuccessful teacher, whose
appointment as Higher Secondary School Teacher
("HSST", for short) has been declined by the
Educational Authorities and confirmed by the
Government, is before this Court. The reasons
perhaps may be little strange. On the other
hand, WP(C) No.2499/2018 has been filed by the
rival claimant, who claims that she being the
senior most teacher, is entitled to be appointed
as HSST by transfer in the place of Sri.Mohammed
Basheer, the petitioner in WP(C) No.1859/2018.
For the sake of brevity, the facts in WP(C)
No.1859/2018 will be stated.
2. Sri.Mohammed Basheer K. and Smt.Jisha
John are both working as high school teachers in
IKT Higher Secondary School, Cherukulmba,
Vattaloor, Malappuram District. On 20.6.2015,
the Manager, who is the 1st respondent, invited
WP(C) 1859 & 2499/18
applications for filling up of the post of HSST,
consequent to the retirement of Smt.Alice Joseph.
The said notice was exhibited in the notice
board. Later, Sri.Mohammed Basheer claims that
the notice dated 1.7.2015 proposing to conduct an
interview on 5.7.2015 was issued to him as well
as Smt.Jisha John as per Ext.P3. On 5.7.2015 at
10.00 a.m., a selection committee interviewed and
minutes was recorded regarding the selection
process. Smt.Jisha John did not participate in
the selection process. However, later Smt.Jisha
John seems to have filed a complaint on 6.1.2016
to the Educational Authorities, which started the
long drawn litigation between the parties. Based
on the claim raised by Smt.Jisha John, the
Educational Authorities declined to grand
approval to the petitioner. This was by Ext.P9
order dated 25.5.2017. Aggrieved by the same, a
revision was filed before the 3 rd respondent,
which was rejected by Ext.P13 order dated
5.1.2018, which is impugned in the writ petition.
WP(C) 1859 & 2499/18
3. Before entering into the discussion
relating to the sustainability of the orders
impugned, this Court will refer to the bare
necessary facts in WP(C) No.2499/2018 also.
4. In the writ petition filed by Smt.Jisha
John, the relief sought is for a direction to
respondents 3 and 4, who are the District
Educational Officer and the Manager, to appoint
the petitioner to the post of HSST with effect
from 31.5.2015. An additional relief in the form
of a writ of mandamus to direct respondents 2 to 5
to consider and pass orders on Exts.P5 to P8
representations, respectively, is also sought for.
5. When the above writ petition came up for
consideration before another Bench of this Court
on 23.2.2023, there was a direction to the
learned Government Pleader to produce the entire
files relating to the appointment of Sri.Muhammed
Basheer, which has been placed before this Court
for perusal.
6. Before going to the rival contentions, it
is suffice to note that the order declining
WP(C) 1859 & 2499/18
approval of appointment of Sri.Muhammed Basheer
is basically confined to three points.
1.The Manager did not notify the vacancy of
HSST to all eligible candidates;
2.The relinquishment stated to have been
obtained by the Manager from Smt.Jisha
John is vitiated, since the same has been
obtained on a blank paper; and
3.Sri.Mohamed Basheer is junior to
Smt.Jisha John and therefore not entitled
to be appointed as HSST.
7. It is also noted in Ext.P13 order
produced in WP(C) No.1859/2018 that as per
circular No.ET3/87201/96 dated 6.1.1997 of the
Director of Public Instructions, certain
procedures have been prescribed for obtaining
relinquishment and, therefore, the Manager has
not followed the said procedure and hence, the
appointment cannot be approved. The 3rd
respondent also found that the Manager has
neither intimated the vacancy nor called upon
qualified hands for appointment to the post of
WP(C) 1859 & 2499/18
HSST (English) in the School. The 3 rd respondent
proceeded to hold that any documents produced to
prove that intimation has been given to rightful
claimants has been created for the limited
purpose of defeating the claims of qualified
teachers.
8. I have heard Dr.George Abraham, learned
counsel for the petitioner in WP(C) No.1859/2018;
Sri.Bimal K.Nath, learned Senior Government
Pleader; Adv.Pramod J.Dev, learned counsel
appearing for Smt.Jisha John, the petitioner in
WP(C) No.2499/2018 & the 4th respondent in WP(C)
No.1859/2018 and Smt.Leena C., learned counsel
for the 1st respondent-Manager.
9. This Court has perused the files and the
findings of this Court based on the recordings in
the files will be rendered in the later part of
the judgment.
10. The short point for consideration before
this Court is as to whether other eligible
teachers have been put on notice about the
proposal to conduct interview on 5.7.2015 by the
WP(C) 1859 & 2499/18
Manager. It is an admitted fact that the
Government nominee was nominated for being a
member of the selection committee, which was
scheduled to conduct the interview. The post of
HSST is a promotion post and appointment is by
selection from the eligible candidates.
Therefore, admittedly, selection process must
take place before the appointment. In the
present case, the parties are not at dispute
regarding such process being undertaken. But the
parties are at variance about the act of the
Manager in properly notifying the selection
process.
11. Therefore, before considering the
sustainability of the orders impugned, this Court
will have to necessarily see as to whether the
notification regarding the selection process was
proper or not.
12. Admittedly, there is no procedure/
guidelines fixed by the Educational Authorities,
nor under the Educational Rules for the purpose
of undertaking such selection process. When this
WP(C) 1859 & 2499/18
query was posed before the parties, the learned
counsel appearing for Sri.Mohammed Basheer,
Dr.George Abraham, brought to the notice of this
Court an unreported judgment of a Single Bench of
this Court in WP(C) No.16786/2004 [K.R.Jeeji v.
State of Kerala]. The learned counsel further
refers to paragraph No.10 of the said judgment in
which it is categorically held that the Principal
and the Manager had a duty to duly notify such
vacancy for information of the teachers, which
could be done by publishing a notice regarding
the occurrence of the vacancy and inviting
application, appropriately or by circulating such
a notice among the teachers and obtaining
acknowledgment of having circulated such a
notice. This court is in respectful agreement
with the procedure laid down in K.R.Jeeji(supra)
except to add that it would be incumbent on the
Managers to issue such notice by registered post
notifying the vacancies for selection.
13. Applying the above principles, this Court
has to examine whether there was proper
WP(C) 1859 & 2499/18
circulation of notice. The original files
produced before this court shows a letter dated
1.7.2015 signed by the parties on 2.7.2015
putting them on notice regarding the interview
scheduled to be held on 5.7.2015. The said letter
is produced as Ext.P3 in WP(C) No.1859 of 2018.
It is to be noted that both parties have
acknowledged the said letter on 2.7.2015. The
aforesaid document led credence to the case of
the petitioner and the Manager that despite
having put on notice Smt.Jisha John choose
consciously not to appear before the selection
committee and subjected herself to the selection
process.
14. When confronted with this letter of
acceptance of the notice regarding the date of
interview for the selection process, the learned
counsel Sri.Pramod J.Dev pointed out that the
said letter was never signed by Smt.Jisha John.
He reiterates that the relinquishment letter was
not in proper form as rightly found by the
Educational Authorities. Therefore, the learned
WP(C) 1859 & 2499/18
counsel further contends based on the circular
issued by the Director of Public Instructions as
referred to in Ext.P13, that unless and until a
relinquishment was obtained from a senior high
school teacher, there is no sanctity to the
selection process.
15. When rival contentions raised by the
parties are assessed by this Court, it becomes
clear that the findings has to be rendered on two
issues:
(a) whether there is a proper circulation
of notice regarding selection process?
(b) Whether the relinquishment letter is
properly executed by Smt.Jisha John? If not, then
on that sole ground whether the approval of Sri.
Mohammed Basheer is liable to be rejected?
16. Smt. Jisha John raised her claim on
6.1.2016. A copy of the said claim is placed on
record as Ext.P8. The original of Ext.P8 is also
available in the file. When one peruses the
entire letter given on 6.1.2016, it becomes
explicitly clear that Smt.Jisha John had no
WP(C) 1859 & 2499/18
quarrel about the notice of selection being
circulated on her. Had Smt.Jisha John had any
dispute on that she would have definitely raised
a complaint at the first available instance.
Further, it is to be noted that the complaint is
after six months from the date of selection.
17. It may be noticed here that under Exhibit
P9 and Exhibit P13 orders, the 2 nd and 3rd
respondents had come to the conclusion that since
the relinquishment letter of Smt.Jisha John is
not approved by the concerned District Education
officer the appointment of Sri.Mohammed Basheer
cannot be approved. On the other hand, it is the
specific case of Smt.Jisha John that the
relinquishment letter is not properly obtained.
It is to be noted that Smt.Jisha John has not
filed any criminal complaint against the Manager
for having obtained the alleged relinquishment
letter. Hence, admittedly parties are at variance
in the way the relinquishment letter is obtained.
Therefore, even if this Court is to find that the
relinquishment letter of Smt.Jisha John is not
WP(C) 1859 & 2499/18
properly obtained for want of approval of DEO,
the question is whether the same by itself will
invalidate the appointment of Sri.Mohammed
Basheer. The answer should be in negative against
Smt.Jisha John for the reasons discussed below.
18. In Geevarghese Vs State of Kerala [2000(3)
KLT SN 31 C.No 37] this Court had an occasion to
consider whether the approval of the junior
teacher as Headmaster could be declined on the
ground that there is variation in the
relinquishment letter. It was thus held that if
the senior had a complaint with regard to the
appointment of junior incumbent as Headmaster,
necessarily such senior in service would be aware
of it and would agitate against it by filing
appeals as provided under Rule 44(2) and (3) XIV-A
KER. Though the above decision was rendered in the
context of Rule 44 of Chapter XIV-A KER, the
principles governing the same equally applies to
this case and it can be concluded safely that
Smt.Jisha John had not filed any appeal against
the appointment of Sri.Mohammed Basheer.
WP(C) 1859 & 2499/18
Therefore, this Court is not prepared to accept
the argument of Smt.Jisha John that merely
because there is variance in the letter of
relinquishment the appointment of Sri.Mohammed
Basheer had to be declined.
19. It is pertinent to note that there is no
explanation forthcoming from the side of the
petitioner with regard to the reason as to why
this Court should disown her signature in Ext.P3
letter. Both the petitioner, Sri.Mohammed
Basheer, and the 4th respondent, Smt.Jisha John,
were served with the notice on 2.7.2015.
Admittedly, the petitioner, Sri.Mohammed Basheer,
alone participated in the selection process.
20. When the complaint of Smt.Jisha John, the
4th respondent in WP(C) No 1859 of 2018 is
carefully scrutinized, it does not reveal any
allegation insofar as to the receipt of Ext.P3
letter of acknowledgment. It would also not be
possible for this Court to conclude that the
signature of Smt.Jisha John was utilized for the
purpose of creating an acknowledgment because the
WP(C) 1859 & 2499/18
files reveal that the letter dated 1.7.2015 is
executed in the letterhead of IKT Higher
Secondary School.
21. There is yet another reason for this
Court to find against the sustainability of
Exts.P9 and P13 orders. When Ext.P9 order is
scanned carefully, one could see that the Deputy
Director of Higher Secondary Education, after
verification of the files found that there is no
notice circulated to the eligible teachers about
the selection process. Hence, he declined to
approve the appointment of Sri. Mohammed Basheer.
However, it is pertinent to note that there was
no direction to appoint Smt.Jisha John. It is
also profitable to note that the said order was
not challenged by Smt.Jisha John, petitioner in
WP(C) No.2499 of 2018 in revision. On a revision
filed by the petitioner, Sri.Mohammed Basheer,
the 3rd respondent rendered Ext.P13 order in which
it is specifically found that "any documents
produced to prove that intimation has been given
to rightful claimants has been created for the
WP(C) 1859 & 2499/18
limited purpose of defeating the claims of
qualified teachers". It is no one's case that
the said document was created. Much less,
Smt.Jisha John also does not have such a case in
Ext.P8. Had the position been otherwise, the
first point of objection that would have been
raised by the incumbent would have been the non-
receipt of such notice regarding the date of
convening of the selection process. Therefore, it
is evidently clear that 3rd respondent mis
directed itself in considering the entire issue
at large. In fact, while exercising the
revisional powers, the 3rd respondent could not
have arrived at a conclusion on its own.
22. No doubt, the promotion to the post of
HSST is by selection. There is no rule which
prohibits the Manager from appointing an eligible
person after the due selection process. At the
same time, no enabling provision has been brought
to the notice of this Court, which mandates that
unless a relinquishment letter is obtained from
the senior incumbent, the Manager cannot appoint
WP(C) 1859 & 2499/18
another eligible teacher, who has come out
successful in the selection process. To accept
otherwise, would necessarily put premium to a
claim of an incumbent, who did not participate in
the selection process. Such a principle is not
envisaged in a case, where the promotion is based
on a selection process. It is precisely the
reason why this Court has concluded that even if
the relinquishment letter is not approved by the
Education officer, the same by itself will not be
sufficient to sustain the claim of Smt.Jisha
John. This is more so when, Smt.Jisha John had
not staked her claim for promotion by
participating in the interview. The finding on
the creation of any document evidencing the
service of notice regarding the selection process
was rendered only when Ext.P13 order was passed.
23. There is yet another reason for this
Court to hold against Ext.P13 order. The files
produced before the Court specifically show that
the Manager at the first point of time has raised
an objection before the Regional Deputy Director
WP(C) 1859 & 2499/18
of Higher Secondary Education, that both teachers
have accepted and countersigned the notice on
2.7.2015. Unfortunately, no specific finding in
this regard is rendered in Ext.P9 order. On a
contrary, going against the facts, the Deputy
Director of Higher Secondary Education has found
that there is no evidence to show that the notice
of interview was circulated. When this order is
pitted against the order of the 3rd respondent,
the consideration on the issue completely
changed. The 3rd respondent on his own found, that
the letter dated 1.7.2015 has been created for
the purpose of defeating the claim of Smt.Jisha
John, which this Court is not inclined to accept.
24. Accordingly, Exts.P9 and P13 orders in
WP(C) No.1859/2018 are quashed and WP(C)
No.1859/2018 is allowed. The 2nd respondent is
directed to approve the appointment of
Sri.Mohammed Basheer as HSST (English) and pass
consequential orders within a period of one month
from the date of receipt of a copy of this
judgment and release consequential benefits
WP(C) 1859 & 2499/18
within a further period of three months
thereafter.
WP(C) No.2499/2018 is dismissed, in the light
of the findings rendered by this Court in WP(C)
No.1859/2018. No orders as to costs.
Sd/-
EASWARAN S.
JUDGE
jg
WP(C) 1859 & 2499/18
APPENDIX OF WP(C) 2499/2018
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE DEGREE CERTIFICATE ISSUED
BY THE KERALA UNIVERSITY TO THE PETITIONER.
EXHIBIT P2 TRUE COPY OF THE MASTER'S DEGREE ISSUED BY
THE ANNAMALAI UNIVERSITY TO THE PETITIONER.
EXHIBIT P3 TRUE COPY OF THE ORDER NO. F/6357/2015
RDD/HSE/MLPM DATED 25.05.2017 PASSED BY THE
SECOND RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE ORDER G.O.(RT) NO.
94/2018/GEDN DATED 05.01.2018 PASSED BY THE
FIRST RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED
12.01.18 SUBMITTED BY THE PETITIONER BEFORE
THE RESPONDENT NO. 2.
EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED
12.01.18 SUBMITTED BY THE PETITIONER BEFORE
THE RESPONDENT NO. 3.
EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED
12.01.18 SUBMITTED BY THE PETITIONER BEFORE
THE RESPONDENT NO. 4.
EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED
12.01.18 SUBMITTED BY THE PETITIONER BEFORE
THE RESPONDENT NO. 5.
WP(C) 1859 & 2499/18
APPENDIX OF WP(C) 1859/2018
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE NOTIFICATION ISSUED BY THE
MANAGER INVITING APPLICATIONS FROM ELIGIBLE
CANDIDATES APPOINTMENT AS HSST ON THE
NOTICE BOARD ON 20-06-2015
EXHIBIT P2 TRUE COPY OF THE GOVERNMENT ORDER GO(RT)
NO. 2623/15/G. EDN. DATED 01-07-2015
EXHIBIT P3 TRUE COPY OF THE NOTICE ISSUED BY THE
MANAGER ON 01-07-2015
EXHIBIT P4 TRUE COPY OF THE DETAILS OF PERSONS
INTERVIEWED BY THE SELECTION COMMITTEE
EXHIBIT P5 TRUE COPY OF THE STATEMENT OF
RELINQUISHMENT DATED 03-07-2015 OF SMT.
ANITHAKUMARI P.S
EXHIBIT P6 TRUE COPY OF THE STATEMENT OF
RELINQUISHMENT GIVEN BY THE 4TH RESPONDENT
ON 08-07-2015
EXHIBIT P7 TRUE COPY OF THE APPOINTMENT ORDER ISSUED
BY THE MANAGER TO THE PETITIONER PROMOTING
HIM TO THE POST OF HSST(ENGLISH)
EXHIBIT P8 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE 4TH RESPONDENT ON 06-01-2016 BEFORE
THE 2ND RESPONDENT
EXHIBIT P9 TRUE COPY OF THE ORDER PASSED BY THE 2ND
RESPONDENT ON 25-05-2017 REJECTING APPROVAL
OF THE PETITIONER AS HSST (ENGLISH)
EXHIBIT P10 TRUE COPY OF THE REVISION FILED BY THE
PETITIONER BEFORE THE 3RD RESPONDENT
EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 30-08-2017
WP(C) 1859 & 2499/18
EXHIBIT P12 TRUE COPY OF THE ARGUMENT NOTE DATED 08-11-
2017 SUBMITTED BY THE PETITIONER TO THE 3RD
RESPONDENT
EXHIBIT P13 TRUE COPY OF THE GOVERNMENT ORDER GO(RT)
94/18/G. EDN. DATED 05-01-2018
EXHIBIT P14 PHOTOCOPY OF ATTENDANCE REGISTER FOR THE
MONTH OF JULY, 2015 FOR THE ENTIRE STAFF OF
THE SCHOOL
EXHIBIT P15 PHOTO COPY OF THE ACQUITTANCE ROLL OF THE
SCHOOL FOR THE MONTH OF JULY 2015.
Exhibit P16 A COPY OF THE REPRESENTATION SUBMITTED BY
THE PETITIONER DATED 11/3/2022
RESPONDENT'S EXHIBITS
EXHIBIT R4(a) TRUE COPY OF CIRCULAR NO.ET3/87201/96 DATED
6.1.97 ISSUED BY THE DIRECTOR OF PUBLIC
INSTRUCTIONS.
