Dismissed

Thomas K.L. v. State of Kerala

Kerala HC14 Aug 2013WA/2203/2012

Case brief

AI extract

What is this about?

The High Court at Ernakulam dismissed appeals challenging the appointment of a Headmaster as Principal of a Higher Secondary School. The Court interpreted the Kerala Education Rules, 1959, holding that the 'transfer' method allows Headmasters to become Principals even without Higher Secondary Teacher qualifications, provided they meet the degree and experience criteria, and upheld the selection pr

What did the court decide?

The appeals filed by the appellant teacher were dismissed and the judgment of the single judge was sustained.

Thomas K.L. Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:-

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THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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WEDNESDAY, THE 14TH DAY OF AUGUST 2013/23RD SRAVANA, 1935

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W.A.No.2203 of 2012

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AGAINST THE JUDGMENT IN W.P.(C).No.13196/2010 DATED 13.12.2011 OF HIGH COURT OF KERALA.

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APPELLANT/ PETITIONER:-

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THOMAS K.L., HIGHER SECONDARY SCHOOL TEACHER (MALAYALAM), MAR THOMA HIGHER SECONDARY SCHOOL, PATHANAMTHITTA, RESIDING AT KUROMVILA LOVE DALE, VALAKOM P.O., KOLLAM DISTRICT.

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BY ADV. SRI.V.PHILIP MATHEWS.

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RESPONDENTS/ RESPONDENTS:-

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STATE OF KERALA, REPRESENTED BY ITSSECRETARY, DEPARTMENT OF GENERAL EDUCATION, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, THIRUVANANTHAPURAM - 695 001.

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THE REGIONAL DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM - 695 001.

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THE REGIONAL DIRECTOR OF HIGHER SECONDARY EDUCATION, EDAPPALLY, ERNAKULAM - 682 024.

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M.T. AND E.A.SCHOOLS CORPORATE MANAGEMENT, SCS CAMPUS, THIRUVALLA, REPRESENTED BY ITS MANAGER, PIN - 689 101.

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W.A.NO.2203 OF 2012

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LALAMMA VARGHESE, HEADMISTRESS, T.M.T.H.S. THALAVADY, ALAPUZHA DISTRICT - 690 107.

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SUCY GEORGE, PRINICIPAL, M.T.H.S.S., PATHANAMTHITTA - 689 645.

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KURUVILA MATHEW, PRINCIPAL, MARTHOMA SEMINARY H.S.S., KOTTAYAM - 686 013.

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SUSAMMA SAMUEL, PRINCIPAL, M.T.H.S.S., VENMANY, ALAPPUZHA DISTRICT - 689 509.

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R1 TO R4 BY SENIOR GOVERNMENT PLEADER SRI.P.I.DAVIS. R5 BY ADVS. SRI.ELVIN PETER P.J.

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SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH

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R6 BY ADV. SRI.BECHU KURIAN THOMAS

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14-08-2013, ALONG WITH W.A.No.59/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-

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Manjula Chellur, C.J. & K.Vinod Chandran, J.

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W.A.Nos.2203 of 2012 & 59 of 2013

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Dated this, the 14^th day of August, 2013

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JUDGMENT

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K.Vinod Chandran,J.

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Both the appeals are filed by a Higher Secondary School Teacher, who failed to get appointment as a Principal in the Higher Secondary School under the respondent-Corporate Management. Lalamma Varghese, the 6^th respondent in W.A.No.2203 of 2012, who was a Headmistress in one of the High Schools under the Corporate Management, was preferred over the Higher Secondary School Teachers by the Manager; which preference was not approved by the educational authority. The rival claimants, viz., the appellant and the 6^th respondent,

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were before the learned Single Judge in two different writ petitions; the former asserting his right to be appointed as Principal and the latter assailing the refusal of the educational authority to grant approval for her appointment. Both the writ petitions were considered together and a common judgment was passed, upholding the right of the 6^th respondent to be

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W.A.Nos.2203/2012 & - 2 - 59/2013

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appointed as Principal of the Higher Secondary School, which judgment is impugned in the above appeals.

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The appellant undisputedly has the qualification to be appointed as Principal in the Higher Secondary School as is provided under Rule 4, Method of Appointment, of Chapter XXXII of the Kerala Education Rules, 1959 (“KER” for short). The 6^th respondent, at the time of her consideration to the post of Principal, was serving as a Headmistress in one of the High Schools under the Corporate Management. The 6^th respondent has a graduation and B.Ed. in Physical Science and a post graduation in English. Though there was a contention with respect to the approval of her post graduation from Annamalai University, the learned counsel appearing for the appellant, Sri.V.Philip Mathews fairly submits that the same may not survive for consideration in the appeals. The learned counsel, however, stresses on the fact that the 6^th respondent is not entitled to be appointed as Principal of the Higher Secondary School for reason of her not being qualified to hold the post of a Higher Secondary School Teacher. Sri.Philip Mathews would assert that going by Rule 6 of Chapter XXXII KER, the qualification for a Higher Secondary School Teacher is a Master's

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Degree and B.Ed. in the concerned subject and the 6^th

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W.A.Nos.2203/2012 & - 3 -

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59/2013

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respondent's B.Ed. being in Physical Science and post graduation in English language; the 6^th respondent would not be entitled to be considered for the post of Principal.

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Over and above the aforementioned contention, the learned counsel would also point out the gross illegality in the procedure adopted by the Corporate Management. It was urged that though the Corporate Management, being a minority institution, has the authority to appoint a person of its own choice, the same has to be done in accordance with a proper procedure and it is trite that no unqualified person can be thrust upon a school in the guise of exercising minority rights. In the instant case, while the post of Principal was notified for selection from amongst the Higher Secondary School Teachers, the interview scheduled was postponed for reasons best known to the management and in the interregnum applications were received from Headmasters of High Schools. The interview was proceeded with and 6^th respondent, a Headmistress, who had not even applied as per the initial notification and who lack the qualification to be posted as a Higher Secondary School Teacher, was appointed in the vacancy. The said grounds were projected as being sufficient to warrant interference under Article 226 of the Constitution.

W.A.Nos.2203/2012 &

59/2013

We have heard the learned counsel for the respondents Sri.Bechu Kurian Thomas and Sri.K.R.Ganesh. Per contra, the respondents urge that the reason why the Headmasters were also included in the zone of consideration was due to the fact that Note (iii) of Sl.No.1 of the Table under Rule 4 of Chapter XXXII KER stipulated that the post of Principal in Higher Secondary Schools shall be filled in the ratio of 2:1 by promotion from Higher Secondary School Teachers and by transfer from qualified Headmasters of Aided High Schools. The two earlier incumbents in the post of Principal of the Higher Secondary School having been those promoted from the post of Higher Secondary School Teachers, the present vacancy was, as per the ratio, due to the Headmasters of the High Schools. The notification calling for applications from Higher Secondary School Teachers was issued on a mistake and on noticing the mandate under Rule 4, the zone

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of consideration was extended to include the Headmasters of High Schools only to comply with the statutory prescription. It is contended that the selection was proceeded with, interviewing both the Higher Secondary School Teachers and the Headmasters of High Schools; only since, if there were no qualified Headmasters, then a Higher Secondary School Teacher could be appointed. The

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W.A.Nos.2203/2012 & - 5 - 59/2013

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respondents assert that the slight change in procedure does not at all amount to any illegality and at worst it will only be an irregularity which caused prejudice to none. It is also pointed out by Sri.Bechu Kurian Thomas that the qualification of a Principal by promotion or by transfer are different and the subtle distinction is easily decipherable from the words employed in the Table under Rule 6 of Chapter XXXII KER.

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The primary contention of the appellant is that the definition of “Principal” contained in Rule 1(f) of Chapter XXXII KER makes it abundantly clear that the Principal acts as the academic and administrative head of the Higher Secondary School. On the strength of the above definition categorizing the Principal as the academic head of the school and the further stipulation in G.O. (MS).No.43/2005/G.Edn. Dated 11.02.2005 and G.O.(M.S.) No.338/2003/G.Edn. Dated 16.12.2003 that a Principal is to carry

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on teaching duties; clearly demonstrates that a person who is not qualified as a Higher Secondary School Teacher cannot be appointed to the post of Principal of a Higher Secondary School, is the contention. The appellant also has an alternate contention with reference to Exhibit P6 produced in W.P.(C).No.24638 of 2010, from which W.A.No.No.59 of 2013 arises, which contemplates the

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W.A.Nos.2203/2012 & - 6 - 59/2013

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creation of a supernumerary post of Higher Secondary School Teacher to ensure that the junior-most Higher Secondary School Teacher is not thrown out due to shortage of teaching periods; consequent on a Headmaster turned Principal taking charge and handles 16 hours teaching periods. The submission of the appellant is that while a Headmaster of a High School is appointed as Principal, it postulates creation of a supernumerary post, which burdens the State with additional financial liability while a Higher Secondary School Assistant occupying the seat of Principal would continue his teaching duties, thus requiring no additional financial liability to the State.

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At the outset, we have to notice that financial liability to the State is not a reigning consideration of this Court in interpreting statutory rules and notifications. The State, in its wisdom, has thought it fit that the Headmasters of High Schools also should be given a limited opportunity to occupy the seat of a Principal of a Higher Secondary School and has deemed it fit to issue notifications protecting any displacement of teachers in the Higher Secondary Schools by virtue of such benefit given to the Headmasters of High School section. We are not financial watchdogs of the State and cannot at all, under Article 226 of the

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W.A.Nos.2203/2012 & - 7 - 59/2013

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Constitution, meddle with the wisdom of the State and import our own concepts of financial viability. The State also cannot contend financial exigencies, when its own rules and notifications intend to confer a benefit on a particular category of teachers.

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Taking note of the contention of the respondents on the procedure of selection, we do not find any illegality in extending the scope or the zone of consideration of selection to the post of Principal in the Higher Secondary School. The explanation put forward by the Corporate Management, in the context, is very reasonable. We cannot also shut our eyes to the fact that confining the selection to the Higher Secondary School Teachers alone would have triggered a spate of litigations against the Corporate Management for compliance of the mandate of the ratio of prescription of 2:1; in the appointment to the post of Principal of Higher Secondary School. Having notified the post as available for only Higher Secondary School Teachers, on noticing the mandate in the statutory rules and the turn of Headmasters of High Schools to be considered for the post; the management rightly expanded the zone of consideration to bring in Headmasters of High Schools also. The continuance of the process of selection by interviewing both the Higher Secondary School Teachers as also Headmasters

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W.A.Nos.2203/2012 & 59/2013

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of High Schools also cannot be faulted, since in the event of none among the Headmasters being qualified, the management would have had the option to select a person from the category of Higher Secondary School Assistants itself.

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What remains is the contention regarding the lack of qualification of the 6^th respondent. We extract herewith the method

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of appointment of Principal as provided under Rule 4 and the qualifications provided under Rule 6:

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“4. Method of Appointment:- Appointment to the various categories specified in Column (2) of the Table below shall be made by the method of appointment specified against each in column (3) thereof.-

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*Sl.No.*	*Category*		*Method of appointment*
1	2		3
1	Principal		(1) By promotion from category 2 under the respective educational agency
			OR
			(2) By transfer from qualified Headmasters of Aided High Schools under the respective educational agency
		Note:-	(i) [xxx] (ii) [xxx]
			(iii) The post shall be filled by the methods specified in items (i) and (ii) above in the ratio 2:1. If qualified candidates are not available for appointment to a vacancy by any one of the methods specified above, such vacancies shall be filled up by the other method

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6. Qualifications:- No persons shall be eligible for appointment to the category in column(2) in the table below under the method specified in column (3) unless he possess the

W.A.Nos.2203/2012 &

59/2013

qualifications prescribed in the corresponding entry in column (4) thereof.-

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*Sl.* *No.*	*Category*	*Methods of Appointment* *Qualifications*
1	2	3 4
1	Principal	By promotion (1) Master's Degree with not less than 50% marks from any Universities in Kerala or a qualification recognised as equivalent thereto by any University in Kerala (2) B.Ed. Degree from any Universities in Kerala or a qualification recognised as equivalent thereto by any University in Kerala (3) Minimum approved teaching experience of 12 years at Higher Secondary Level under the same Educational Agency.
	Note:-	1. In the absence of persons having qualification as specified above, approved teaching experience at High School/Upper Primary/Lower Primary School's under the same Educational Agency shall be considered. 2. Such experience shall be reckoned only for qualifying Service and shall not be reckoned for Seniority
		3. Such persons must possess a minimum Service of Six years as Higher Secondary School Teacher (Senior/Junior)
		By transfer (1) Master's Degree with not less than 50% marks from any of the Universities in Kerala or a Qualification recognised as equivalent thereto by any University in Kerala (2) B.Ed. Degree from any of the Universities in Kerala or qualification recognised as equivalent thereto by any University in Kerala (3) Minimum approved teaching experience of 12 years under the same Educational Agency”.

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The method of appointment postulates two sources

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from which the Principal of a Higher Secondary School can be

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appointed. The first source is by promotion from Higher Secondary

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W.A.Nos.2203/2012 & - 10 - 59/2013

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School Teacher and the second is by transfer from qualified Headmasters of aided High Schools, both under the respective educational agency. Note (iii) also provides that the filling up of the post of Principal by the methods provided should be in the ratio of 2:1, i.e, when two incumbents are appointed from Higher Secondary School Teachers, the next ought to be from qualified Headmasters of High Schools. The qualifications prescribed in the two methods as noticed above, also show a subtle distinction. When selection and appointment is by promotion from Higher Secondary School Teachers, what is required is an approved teaching experience of 12 years at Higher Secondary level in the same educational agency; obviously as a Higher Secondary School Teacher. In the case of transfer, what is required is approved teaching experience of 12 years in the same educational agency, meaning that the teaching experience can also be at the High School Level. The educational qualifications are similar in both the methods; being a Master's Degree and a B.Ed. Degree. We notice that while the qualification for Higher Secondary School Teachers specifically provide a Master's and B.Ed. Degree in the “concerned subject”, the absence of the words “concerned subject” in the qualifications prescribed for Principal amply demonstrates that the

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W.A.Nos.2203/2012 & - 11 - 59/2013

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same is not a mandate as far as filling up the post of Principal is concerned. Definitely a Higher Secondary School Teacher promoted to the post of Principal would have Master's and B.Ed. Degree in the same subject. There being no such stipulation in the qualifications for the Principal, a Headmaster of a High School would not be required to have a Master's and B.Ed. Degree in the very same subject. The absence of the words at the ' Higher Secondary level ' in the stipulation of experience of Headmasters and the absence of the word ' concerned ' in the qualification is not an inadvertent omission but is with definite intent and purpose; ensuring the benefit at least in one of thr tree turns to Headmasters of High Schools. If the qualification of a Higher Secondary School Teacher were to be insisted for filling up the post of Principal of a Higher Secondary School, then the two methods of appointment prescribed and the mandate of the ratio of 2:1 would be rendered ineffective.

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The further contention based on the notifications cited above that a Principal would be necessarily required to carry on the teaching duties, which a Headmaster of a High School would be disabled from, in the event of the candidate being not qualified to be appointed as a Higher Secondary School Teacher, also does

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W.A.Nos.2203/2012 & - 12 - 59/2013

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not impress us, since such an interpretation would again render otiose the two methods of appointment clearly mentioned in the Rules. For one, the stipulation of a Principal being the academic head, does not necessarily contemplate teaching duties on the incumbent, since the academic matters in a school is not confined to teaching alone. In any event, the prescription of 16 hours teaching duty to a Principal is not as per the Rules and is as per the notifications cited above. The prescription in a notification cannot render ineffective or whittle down a statutory rule. It is also pertinent that the Government has thought it fit to bring out Exhibit P6 notification, which provides for retention of the junior-most teacher in a subject, in a supernumerary post, when a Headmaster, by transfer, is appointed as Principal. Such a prescription in a notification is intended with the object of the smooth implementation of the provisions of the Rules and are strictly in order.

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In the instant case, the 6^th respondent is a Master's Degree holder and B.Ed., having teaching experience of 12 years in the High School Level under the Corporate Management. The 6^th respondent amply satisfies the qualification provided for appointment as a Principal, by transfer, as provided under Rule 6 of

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W.A.Nos.2203/2012 & - 13 - 59/2013

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Chapter XXXII KER. The order of the educational authority holding that the 6^th respondent would not be qualified to take classes for higher seconder students is of no consequence, since the Government has provided, by virtue of notification, that the junior-most teacher would be retained in a supernumerary post so as to give the benefit to Headmasters of High Schools to occupy the post of Principal on the every third vacancy arising thereat.

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We are also not impressed with the contention of

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the appellant that Exhibit P6 is intended only to tide over the circumstance of Headmasters of High Schools continuing as Principals of Higher Secondary Schools; those having been appointed before Chapter XXXII was brought into force. We have to notice that Exhibit P6 takes into account the Full Bench decision of this Court reported in Aided Higher Secondary School Teachers Association v. State of Kerala [2005 (1) KLT 94] , which categorically held that after introduction of Chapter XXXII any Headmaster continuing as Principal without the necessary qualifications to hold the post of Principal of a Higher Secondary School shall be terminated and reverted back to the post of Headmaster of High School. All the Government Orders were referred to in Exhibit P6 Government Order and it was after

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W.A.Nos.2203/2012 & - 14 - 59/2013

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examining the issue in detail that the creation of supernumerary post, to avoid the junior-most teacher being thrown out was made.

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In the circumstances stated above, we are of the

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opinion that the judgment of the learned Single Judge is not liable to be interfered with and we sustain the same, by dismissing the

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above appeals.

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Sd/Manjula Chellur, ` Chief Justice