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2017 Supreme(Ker) 166
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V. ASHA, J.
PHILOMINA SEBASTIAN, HIGH SCHOOL ASSISTANT (MALAYALAM) – Petitioner
Versus
STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT – Respondent
W.P. (C) No. 9106 of 2016
Decided On : 09-01-2017
For the Petitioners: SRI. S.P. ARAVINDAKSHAN PILLAY, SMT. N. SANTHA, SRI. K.A. BALAN, SRI. V. VARGHESE, SRI. PETER JOSE CHRISTO, SRI. S.A. ANAND & SMT. L. ANNAPOORNA.
For the Respondents: SRI. B. UNNIKRISHNA KAIMAL & SRI. GEORGEKUTTY MATHEW.
Managers must comply with appointment rules and are liable to compensate for loss caused by failure to appoint duly qualified candidates.
Headnote:
Appointment - Higher Secondary School Teacher (H.S.S.T.) Malayalam - Kerala Education Rules, 1959, Chapter XXXII, Rule 5 and 6
Fact of the Case:
The petitioner sought appointment as HSST (Mal) and challenged the appointment of a junior candidate. The petitioner was initially denied appointment and later appointed but rejected due to non-compliance with selection committee rules.
Finding of the Court:
The court found that the Manager acted contrary to the rules in KER and caused loss to the petitioner. The court directed the authorities to compute the loss caused to the petitioner and ensure her appointment before retirement.
Issues: Violation of appointment rules, denial of rightful claim, non-compliance with selection committee rules, and loss caused to the petitioner.
Ratio Decidendi: The Manager's failure to appoint a duly qualified candidate and non-compliance with appointment rules led to loss for the petitioner, which the Manager is liable to compensate.
Final Decision: The court allowed the writ petition and directed the authorities to compute the loss caused to the petitioner and ensure her appointment before retirement.
P.V. ASHA, J.
1. The petitioner seeks appointment as HSST (Mal) under the 4th respondent with effect from 01.11.2013. The petitioner commenced her service as UPSA and thereafter she was promoted as High School Assistant (Malayalam) with effect from 20.06.1991 under the 4th respondent, Corporate Educational Agency of the Diocese of Pala. A vacancy of Higher Secondary School Teacher (HSST) (Mal) arose in the School under the 4th respondent on 01.11.2013. Petitioner was the senior most H.S.A. in Malayalam; She was having all the qualifications as prescribed under the provisions contained in Rule 6 of Chapter XXXII of the Kerala Education Rules, 1959. However, the Manager appointed the 5th respondent, who was junior to her and who was having only B.A. Degree in Natural Science.
2. As per Rule 6, for appointment as Higher Secondary School Teacher (H.S.S.T.) Malayalam, the requiste qualification prescribed is Masters Degree in Malayalam with not less than 50% marks and B.Ed. in the concerned subject. B.Ed. Degree holders in other subjects could be considered only in the absence of persons with B.Ed. Degree in the same subject.
3. As against the appointment of the 5th respondent, the petitioner submitted several objections, as contained in Ext.P3 dated 10.02.2015, submitted before the Regional Deputy Director of Higher Secondary Education. On the basis of information obtained on application under the Right to Information Act, through the Public Information Officer of the 3rd respondent in Ext.P5 letter dated 26.05.2015, petitioner came to know that the appointment of 5th respondent was not approved. The petitioner thereafter submitted several representations before the Director as well as the Government. Thereafter, this writ petition was filed in March 2016 challenging Ext.P1 order of appointment granted to the 5th respondent on 14.07.2014 and praying for a direction to the respondents to ensure her appointment as H.S.S.T.
4. Subsequent to the filing of the writ petition, the Manager appointed the petitioner as H.S.S.T. Malayalam, as per Ext.P9 order dated 01.06.2016. However, it was rejected by the Regional Deputy Director of Education as per Ext.P11 order dated 16.06.2016 on the ground that the appointment was not made on recommendation by a Selection Committee. The 3rd respondent stated that the action of the Manager in making appointment without constituting selection committee was contrary to the provisions contained in Chapter XXXII of K.E.R. and the Govt. orders relating to the same. The Manager was accordingly directed to resubmit the proposal after taking steps for constituting the Selection Committee in accordance with the provisions. The petitioner pointed out that her rightful claim on the basis of qualification as well as seniority, was deliberately overlooked.
5. The 4th respondent Manager has filed a counter affidavit stating that the 5th respondent was appointed under the criteria of suitability, in preference to the petitioner. It is further stated that the petitioner was promoted as HSST on 1.6.2016; but she was reverted to the post of H.S.A. (Malayalam) as per order dated 15.6.2016.
6. Thus, even though the petitioner was granted an order of appointment in June 2016 as H.S.S.T. she could not work as H.S.S.T. for a period of more than 1½ months, since approval to that appointment was declined.
7. The petitioner's claim is that she was entitled to be appointed against the vacancy which arose on 1.11.2013 and she was liable to be appointed with effect from 14.7.2014, the date on which the 5th respondent was appointed. It is to be noted that on account of the action of the Manager in making appointments contrary to the provisions contained in Rule 5, approval to the appointment of the petitioner happened to be denied. As per Rule 5 of Chapter XXXII K.E.R. appointments to teachers in Higher Secondary Schools shall be made on the recommendation of the Selection Committee consisting of the Manager or his nominee and C
