Kerala High Court
Jisha John vs State Of Kerala on 11 November, 2024
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
WA NOS. 614 OF 2024 & 707 OF 2024 -:1:- 2024:KER:82405
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
MONDAY, THE 11TH DAY OF NOVEMBER 2024 / 20TH KARTHIKA, 1946
WA NO. 614 OF 2024
AGAINST THE JUDGMENT DATED 12/4/2024 IN WP(C) NO.1859 OF 2018
OF HIGH COURT OF KERALA
APPELLANT/S:
JISHA JOHN
AGED 50 YEARS
HSA (ENGLISH)IKT HIGHER SECONDARY SCHOOL, CHERUKULMBA,
VATTALOOR, MALAPPURAM DISTRICT,PIN 678 582, PIN -
676507
BY ADVS.
PRAMOD J.DEV
V.A MUHAMMED
M.SAJJAD(K/335/1997)
RESPONDENT/S:
1 MUHAMED BASHEER K
HIGHER SECONDARY SCHOOLTEACHEER(ENGLISH), IKT HIGHER
SECONDARY SCHOOL,CHERUKULMBA,VATTALOOR, MALAPPURAM
DISTRICT, PIN 678 582, PIN - 676507
2 MANAGER
IKT HIGHER SECONDARY SCHOOL,CHERUKULMBA, VATTALOOR,
MALAPPURAM DISTRICT,PIN 678 582, PIN - 676507
WA NOS. 614 OF 2024 & 707 OF 2024 -:2:- 2024:KER:82405
3 REGIONAL DEPUTY DIRECTOR
REGIONAL OFFICE, HIGHEER EDUCATION
DEPARTMENT,MALAPPURAM PIN 678 582, PIN - 676505
4 STATE OF KERALA
REPRESENTED BY THE SECRETARY,GENERAL EDUCATION
DEPARTMENT,THIRUVANANTHAPURAM 695 001, PIN - 695001
5 DISTRICT EDUCATION OFFICER
MALAPPURAM 678 852, PIN - 676507
6 SHAREEFA FATHIMA MULLA BEEVI
W/O. LATE POOKOYA THANGAL, SAYYID MANZIL, KURUVA,
MAKKARAPARMBA-P.O, MALAPPURAM DISTRICT , PIN - 676507
BY ADVS.
DR.GEORGE ABRAHAM FOR R1
SHRI A.J.VARGHESE, SENIOR GOVERNMENT PLEADER
ADV.C.LEENA
ADV.JOBY D.JOSEPH
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24.10.2024
ALONG WITH W.A.NO.707/2024, THE COURT ON 11.11.2024 DELIVERED THE
FOLLOWING:
WA NOS. 614 OF 2024 & 707 OF 2024 -:3:- 2024:KER:82405
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
MONDAY, THE 11TH DAY OF NOVEMBER 2024 / 20TH KARTHIKA, 1946
WA NO. 707 OF 2024
AGAINST THE JUDGMENT DATED 12/4/2024 IN WP(C) NO.2499 OF 2018
OF HIGH COURT OF KERALA
APPELLANT/S:
JISHA JOHN
AGED 43 YEARS
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., PIN -
676507
BY ADVS.
PRAMOD J.DEV
V.A MUHAMMED
M.SAJJAD(K/335/1997)
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL
EDUCATION (T), STATE SECRETARIAT, THIRUVANANTHAPURAM -
695 001., PIN - 695001
2 THE REGIONAL DEPUTY DIRECTOR
HIGHER SECONDARY EDUCATION, MALAPPURAM DISTRICT, PIN -
WA NOS. 614 OF 2024 & 707 OF 2024 -:4:- 2024:KER:82405
676 505., PIN - 676505
3 THE DISTRICT EDUCATIONAL OFFICER
MALAPPURAM DISTRICT - 676 505., PIN - 676505
4 THE MANAGER
IKTHSS, CHERUKULAMBA, MALAPPURAM - 676 507., PIN -
676507
5 THE PRINCIPAL
IKTHSS, CHERUKULAMBA, MALAPPURAM - 676 507., PIN -
676507
6 MOHAMMED BASHEER. K.
RESIDING AT KAMBAKKADAN HOUSE, VATTALLURE P.O.,
MALAPPURAM - 676 507, NOW WORKING AS HSST (ENGLISH),
IKTHSS, CHERUKULAMBA, MALAPPURAM - 676 507., PIN -
676507
BY ADVS.
SHRI A.J.VARGHESE, SENIOR GOVERNMENT PLEADER
DR.GEORGE ABRAHAM
ADV.C.LEENA
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24.10.2024
ALONG WITH W.A.NO.614/2024, THE COURT ON 11.11.2024 DELIVERED THE
FOLLOWING:
WA NOS. 614 OF 2024 & 707 OF 2024 -:5:- 2024:KER:82405
JUDGMENT
A.Muhamed Mustaque, J.
These appeals are preferred by Smt.Jisha John against a
common judgment arising from the writ petitions filed by her and
one Shri Mohammed Basheer K. respectively.
2. Both Jisha John and Mohammed Basheer K. are eligible
to be appointed in the vacancy of Higher Secondary School Teacher
(English) ("HSST") from by transfer quota of High School Assistant
in a vacancy that arose at Imbichi Koya Thangal Higher Secondary
School, Cherukulamba, in Malappuram District. Jisha John,
admittedly, is the senior. The Regional Deputy Director of the
Higher Secondary Education Department, Malappuram, found that
Mohammed Basheer's appointment as HSST (English) lacked
transparency and overlooked the claim of Jisha John. Consequently,
the approval was rejected. The Government, in a revision filed by
Mohammed Basheer challenging the order of the Regional Deputy
Director, affirmed the order of the Regional Deputy Director. This
was questioned before the learned Single Judge by Mohammed
WA NOS. 614 OF 2024 & 707 OF 2024 -:6:- 2024:KER:82405
Basheer. In the writ petition filed by Jisha John she also claimed
appointment to the above post of HSST. The learned Single Judge,
by the common judgment, reversed the orders of the Regional
Deputy Director and the Government, allowed the writ petition filed
by Mohammed Basheer, and dismissed the writ petition filed by
Jisha John.
3. We heard Adv.V.A.Muhammed appearing for Jisha John
and Dr.George Abraham for Mohammed Basheer. We have gone
through the orders passed by the Regional Deputy Director as well
as the Government. We find that fact findings were made based on
materials and after perusing the records. The question is whether
the learned Single Judge was justified in exercising the power of
judicial review or not.
4. The vacancy of HSST arose consequent upon the
retirement of Smt.Alice Joseph on 31/05/2015. There is no dispute
to the fact that Jisha John is the senior claimant. Under Chapter
XXXII Rule 4(2)(2)(ii) of the Kerala Education Rules, an
appointment to the post of HSST from by transfer quota is based on
WA NOS. 614 OF 2024 & 707 OF 2024 -:7:- 2024:KER:82405
seniority and merit. In Gigimol v. Director of Higher Secondary
Education [2008 1 KLT 278], this Court observed that seniority
and suitability does not mean comparative assessment of
suitability. That means, the senior will have to be preferred with no
other disability attached to the seniority. Suitability has to be
understood as a prescription for exclusion for any reason, and not
for comparison of applicants who applied for the post.
5. The Regional Deputy Director found that no one had
responded to the alleged public notice issued by the Manager
inviting applications to the post of HSST (English) except
Mohammed Basheer, who was the lone applicant. The Manager's
case was that a public notice was given and Jisha John did not
respond to the notification nor attended the interview. The
Manager further contended that Jisha John had relinquished her
claim for the post. Jisha John has a case that the Manager misused
her signed blank paper with an ulterior motive.
6. The findings of fact rendered by Regional Deputy Director
are as follows:
WA NOS. 614 OF 2024 & 707 OF 2024 -:8:- 2024:KER:82405
i. No public notice was issued by the Manager inviting
applications;
ii. There were many qualified teachers working in the school as per
the seniority list who are eligible to apply, and;
iii. The alleged relinquishment of Jisha John was not counter signed
by the District Education Officer, Malappuram
7. The Government in the revisional order particularly noted
a Circular laying the procedure for relinquishment of a claim. This
Circular was issued on 6/1/1997. The procedure noted in the
revisional order is reproduced hereunder:
1. Whenever the Manager intends to appoint or promote a person other
than the senior claimant, the Manager shall obtain a written consent in
advance from such senior claimant renouncing his/her claim either
permanently or temporarily.
2. In the case of temporary relinquishments the period of relinquishment
should necessarily be furnished in the relinquishment letter.
3. Such relinquishment letters accepted by the appointing authority shall
have the approval of Educational Office concerned (A.E.O in the case of
Primary and D.E.O in the case of Secondary).
WA NOS. 614 OF 2024 & 707 OF 2024 -:9:- 2024:KER:82405
4. Employees shall not be allowed to withdraw the relinquishment of their
claim once accepted and approved by the Controlling Officer.
5. While making appointments/promotions of juniors on the strength of
relinquishment letters of rightful claimants, the letters renouncing the
claim duly accepted by the appointing authority and approved by the
Controlling Officers should invariably be sent along with proposals for
approval appointments.
The Government noted that no such procedure was followed,
particularly emphasising that the relinquishment had not been
approved by the immediate educational officer.
8. These fact findings entered by the Regional Deputy
Director and the Government were based on materials and on
perusal of records. The learned Single Judge examined the matter
as though a primary authority and framed the following points for
consideration.
(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?
WA NOS. 614 OF 2024 & 707 OF 2024 -:10:- 2024:KER:82405
9. The learned Single Judge did not provide a specific
answer to the first point formulated but noting that Jisha John had
raised a claim after six months, assumed that there was notice. On
the second point, the learned Single Judge noted that in the light of
the judgment of Geevarghese v. State of Kerala [2000 (3) KLT
SN 31 C.No.37], the senior must have a constructive notice
regarding the appointment of the junior, and she having no
challenge with the appointment, by filing an appeal, her reliance on
the relinquishment cannot be accepted. The learned Single Judge
also noted that since the impugned orders did not direct the
appointment of Jisha John, there was no reason to decline the
appointment of Mohammed Basheer.
10. We note that the judgment rendered by the learned
Single Judge is contrary to the well established principles of judicial
review. The question that ought to have been addressed was
whether the decision-making process was flawed for any reason,
rendering orders of both the Regional Deputy Director and the
Government as unsustainable. The decisions taken by these
authorities were based on available materials. The learned Single
WA NOS. 614 OF 2024 & 707 OF 2024 -:11:- 2024:KER:82405
Judge could not have transformed the jurisdiction of this Court
under Article 226 into an appellate power. There was no material
before the learned Single Judge to hold that a public notice was
served and the findings rendered by the Regional Deputy Director
and the Government are contrary to the materials available on
record. The learned Single Judge overlooked the fact that the
relinquishment was not in accordance with the directions issued by
the Director of Public Instructions, nor was it approved by the
District Education Officer. Therefore, the entire selection process
was vitiated, leaving no scope for any appointment based on the
selection, thereby necessitating a fresh selection. The learned
single judge could not have exercised the power of judicial review
to have a different view without there being any finding that the
finding rendered by the fact finding authority was absurd, irrational
or unsupported by materials. The judgment clearly indicates that
the learned Single Judge acted as a primary authority and reached
a different conclusion like a primary authority, overlooking the fact
that judicial review is concerned with the decision-making process,
not the merits of the decision itself. In the light of the categorical
WA NOS. 614 OF 2024 & 707 OF 2024 -:12:- 2024:KER:82405
finding that no selection was conducted and there is no other
evidence before this Court to hold that such selection was pursuant
to a notification, the entire process appointing Mohammed Basheer
stands vitiated.
11. The learned counsel Dr.George Abraham appearing for
Mohammed Basheer submitted that the selection committee
includes the Deputy Secretary to Government and, therefore, it
cannot be assumed that the selection was one-sided. It is to be
noted that the finding of the Regional Deputy Director and the
Government was that no notice was issued. That finding was based
on facts, and the mere presence of the Deputy Secretary to the
Government cannot legitimise actions carried out unlawfully. The
learned counsel placed reliance on the judgment of a learned Single
Judge in Lilly V.A. v. State of Kerala and Others [2016 KHC
414] and an unreported judgment of this Court in W.A.
No.607/2022, dated 22/5/2023, to canvass that inter se seniority
can be based on general principles and, since Jisha John has
relinquished her claim and no one else has come forward to
WA NOS. 614 OF 2024 & 707 OF 2024 -:13:- 2024:KER:82405
challenge the appointment of Mohammed Basheer, he is entitled to
have his appointment approved.
As we already noted, the finding of facts entered by the
Regional Deputy Director and Government was well-founded and
there was no scope for exercising the power of judicial review.
Therefore, we allow these appeals and set aside the impugned
judgment of the learned Single Judge and order that the Manager
shall conduct a fresh selection to the post of HSST (English) by
inviting a fresh notification.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
P.M.MANOJ
JUDGE
ms
