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2018 Supreme(Online)(KER) 44952
HIGH COURT OF KERALA
ANU SIVARAMAN, J
ABEY DANIEL – Appellant
Versus
G KOSHY Advocate -SRI V A MUHAMMED – Respondent
WRIT PETITION (CIVIL) 13064/2017
An incumbent's appointment as Principal remains valid if qualifications were met at the time of the vacancy, and time-limiting appointments contravenes statutory provisions.
Headnote:
Qualification - Appointment of Principal - KER Chapter XIV - Its Summary: The court analyzed the KER provisions on qualifications for Principal appointments, confirming the legality of the incumbent's appointment while dismissing claims for a fresh selection by illustrating the absence of a substantive vacancy post-appointment.
Fact of the Case:
The petitioner, a qualified HSST, challenged the appointment of the 5th respondent as Principal, claiming seniority and qualification on the date of vacancy. The Manager's decision to appoint the 5th respondent and limit the appointment duration was contested, alleging misrepresentation regarding minority status.
Finding of the Court:
The court determined that the 5th respondent was qualified at the time of appointment, the limitation on the term was flawed, and the petitioner lacked standing for a fresh selection as no vacancy arose thereafter.
Issues: The core issue was whether the appointment of the 5th respondent as Principal was valid in light of the petitioner's claim of seniority and qualification for the post.
Ratio Decidendi: The appointment was upheld as the 5th respondent was qualified on the vacancy date, and the prior restrictions on his term were invalid. A fresh selection was not warranted due to an absence of subsequent vacancies.
Final Decision: The writ petition was dismissed, affirming the 5th respondent's continued appointment as Principal.
JUDGMENT
1.This writ petition is filed with the following prayers:-
“(i)issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P10 order dated
29.3.2017 issued by the 1st respondent.
(ii)issue a writ of mandamus or any other appropriate writ, order or direction directing the 4th respondent to conduct fresh selection of Principal for St.Gregorious HSS, Kottarakkara and further direct to send the proposal to the 3rd respondent who will consider the proposal and to approve the same within a time frame fixed by this Hon'ble Court.”
2.Heard the learned counsel for the petitioner and the learned Government Pleader as well as the learned counsel appearing for the 5th respondent.
3.It is contended that the petitioner is working as HSST in Mathematics. He was appointed on 14.9.1998. It is stated that there was no seniority list in the school and it was only pursuant to a direction issued by this Court in W.P. (C).No.13178/2012 that a provisional seniority list as on 1.1.2012 was issued. It is stated that a vacancy of Principal arose in the school on 1.4.2008. It is stated that at the time of occurrence of vacancy, the 5th respondent was not entitled for appointment whereas one Chinnamma KG, who was appointed as HSA on 11.1.1987 and promoted as HSST on 14.9.1998 was eligible for appointment. But the Manager appointed the 5th respondent as Principal from 1.4.2008 to 31.3.2013 by Exhibit P2. It is stated that an incorrect undertaking that no other qualified teacher is available in the educational agency was also falsely given and Exhibit P2 appointment was approved. It is stated the petitioner, who was a direct appointee as HSST completed 12 years of service in 2010 and became qualified and eligible for appointment after the tenure of the appointment of the 5th respondent expires on 31.3.2013.
4.Petitioner, therefore, requested for conduct of a fresh selection and preferred W.P.(C).No.25603/2012 seeking conduct of a fresh selection while the 5th respondent filed W.P. (C).No.27462/2012 seeking the consideration of his representation for extending the period of appointment as HM till the vacancy exists. By Exhibit P4 common judgment, both the requests were directed to be considered. It is stated that the contention taken by the Manager in earlier proceedings that the school had minority status also stood disproved since Exhibit P5 reply under the RTI Act specifically revealed that the school has no such minority status. It is stated that Exhibit P6 order was issued by the 3rd respondent extending the period of the 5th respondent's appointment without considering the contentions urged by the petitioner. The same was challenged before this Court in W.P.(C).No.11739/2013. By Exhibit P7 judgment Exhibit P6 order was set aside and a reconsideration was ordered. Pursuant thereto, Exhibit P8 order was issued by the 3rd respondent finding that the initial selection was vitiated and directing the conduct of fresh selection. By Exhibit P9 judgment dated 8.9.2016, this Court directed the consideration of the revision filed by the 5th respondent against Exhibit P8 order after hearing all concerned.
5.Thereafter, Exhibit P10 order has been passed which is under challenge. The operative portion of Exhibit P10 reads as follows:-
“ On the date of occurrence of vacancy, Smt.Chinnamma K .G and Shri.G. oshy were qualified to be appointed as Principal as per above rules. Shri.Abey Daniel was not qualified to be appointed as Principal as on that date. Smt.Chinnamma .G. had 21 days of seniority in Higher Secondary Service than the petitioner and she was HSST (Jr) in Sanskrit. But the petitioner who secured highest score in the interview conducted by the selection committee constituted under the Rules was selected Shri.G. oshy as Principal. Accordingly, the Manager appointed him as Principal w.e.f. 1.4.2008 to 31.3.2013 and the Regional Deputy Director, Higher Secondary Education, Thiruvananthapuram approved the appointment as su
