Disposed

Mary Margaret.R v. State of Kerala

Kerala HC4 Jul 2016WP(C)/18458/2016

Case brief

AI extract

What is this about?

Disposing a writ petition regarding seniority and appointment dispute in an aided school. Directing the petitioner to file a statutory appeal under Article 44(1) of KER with the District Educational Officer instead of immediate judicial intervention.

What did the court decide?

Directed petitioner to file a statutory appeal under Rule 44(1) KER with the 3rd respondent DEO within 2 weeks. DEO to decide appeal and appointment approval within 2 months.

Mary Margaret.R Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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MONDAY, THE 4TH DAY OF JULY 2016/13TH ASHADHA, 1938

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WP(C).No. 18458 of 2016 (F)

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PETITIONER(S):

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MARY MARGARET.R, W/O GEORGE JACOB, AGED 48 YEARS, RESIDING AT MARY BHAVAN, PAZHAYATHARA, PULLUVILA.P.O, THIRUVANANTHAPURAM-695526, WORING AS HIGH SCHOOL ASSISTANT, LEO X111 HSS, PULLUVILA, PULLUVILA PO, THIRUVANATHAPURAM.

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BY ADVS.SRI.G.SIVASANKAR

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SRI.D.GANESH KUMAR

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RESPONDENT(S):

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1. STATE OF KERALA,REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, STATUE, THIRUVANANTHAPURAM-695001.

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2. DEPUTY DIRECTOR OF DEUCATION, O/O THE DEPUTY DIRECTOR OF EDUCATION, KOCHAR ROAD, PASHAYASALAI, THIRUVANANTHAPURAM 695036.

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3. DISTRICT DECUATIONAL OFFICER, O/O THE DISTRICT EDUCATIONAL OFFICER, NEYYATTINKARA, THIRUVANANTHAPURAM 695121.

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4. MANAGER, LEO XIII HSS,PULLUVILA, PULLUVILA PO, THIRUVANANTHAPURAM-695526.

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5. PRAMEELA FORGOD, HM, LE XIII HSS, PULLUVILA, PULLUVILA P.O, THIRUVANANTHAPURAM-695526.

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R1-3 BY GOVERNMENT PLEADER SRI.P.V.ELIAYAS R4 BY ADVS. SRI.ELVIN PETER P.J.

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SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH R5 BY ADVS. SRI.T.B.HOOD SMT.M.ISHA SRI.AMAL KASHA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 18458 of 2016 (F)

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APPENDIX

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PETITIONER(S)' --------------	EXHIBITS ---------
P1	TRUE COPY OF THE COMBINED SENIORITY LIST OF HSAS OF LEO XIII HSS, PULLUVILA AND ST MARYS LPGS AS ON 01-06-2012
P2	CONSENT GIVEN BY SOBHANA. R.T DATED 30-4-2016
P3	CONSENT GIVEN BY PRAMILA. H, DATED 30-4-2016
P4	CONSENT GIVEN BY GEETHAKUMARI. J. L, DATED 30-4-2016
P5	CONSENT GIVEN BY R. AMBIKADEVI, DATED 30-4-2016
P6	REPRESENTATION DATED 28-4-2016 SUBMITTED BY THE PETITIONER, TO THE MANAGER OF LEO XIII HSS, PULLUVILA, THIRUVANANTHAPURM
P7	COMMUNICATION FROM THE MANAGER, LEO XIII HSS, PULLUVILA, THIRUVANANTHAPURAM TO THE THEN HM, SMT USHA LOUIS DTD 30-4-2016 TO HAND OVER CHARGE TO SMT. PRAMEELA FORGOD. A
P8	REPRESENTATION TO THE DISTRICT EDUCATION OFFICER, SUBMITTED BY THE PETITIONER ON 30-4-2016
P9	REPRESENTATION TO THE 2ND RESPONDENT, SUBMITTED BY THE PETITIONER DATED 2-5-2016
P10	POSTAL RECEIPT DATED 2-5-2016
P11	POSTAL ACKNOWLEDGEMENT
P12	REPRESENTATION DATED 2-5-2016 SUBMITTED BY THE PETITIONER
P13	POSTAL RECEIPT
P14	POSTAL ACKNOWLEDGEMENT CARD
P15	GO(RT) 1478/2016/G.EDN DATED 26/4/2016
P16	THE TRUE COPY OF FINAL ORDER OF KERALA STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS DATED 21-3-2016
RESPONDENT(S)' --------------	EXHIBITS ---------
R4(A):	COPY OF THE BYE LAW RELATING TO THE MANAGEMENT OF LEO XIII HSS, PULLUVILA.
R4(B):	COPY OF THE ORDER DATED 12/8/15 OF THE R3 DEO
PJ	....2/-

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..2..

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WP(C).No. 18458 of 2016 (F)

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R4(C): COPY OF THE MINUTES DATED 27/4/16 OF THE JOINT MEETING OF PARISH COUNCIL AND FINANCIAL COUNCIL R4(D): COPY OF THE APPOINTMENT ORDER DATED 30/4/16 OF THE R5.

/ TRUE COPY /

P.S. TO JUDGE

ALEXANDER THOMAS, J.

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W.P.(C).No. 18458 of 2016

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==================

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Dated this the 4^th day of July, 2016 J U D G M E N T

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The case of the writ petitioner that she is now working as High School Assistant (H.S.A) in the high school section of the 4^th respondent aided higher secondary school and that she fulfills all the qualifications and eligibility conditions as prescribed in Chapter XIVA of the Kerala Education Rules, to be promoted to the next higher category post of headmaster/headmistress. That out of the 9 teachers, who are seniors to her (from the combined/integrated seniority list of two schools coming under the corporate management of R-4 school), who are eligible to be promoted to the post of headmaster of the high school section of the 4^th respondent school, only one incumbent, viz.,Sri.Girichandran, is test qualified and eligible for promotion, but that he has already relinquished his claim for appointment as headmaster of the said school as he is already holding the post of headmaster in the other school concerned viz., St.Mary's Lower Primary Girls School. That 4 senior incumbents, who had crossed the age of 50 years and eligible for exemption from the test qualification have also given their no objection, vide Exts.P-2 to P-5 in considering the petitioner for

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W.P.(C).18458/16 - : 2 :-

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promotion to the above said post of headmaster in the high school section concerned. That 2 other seniors have already retired from service on 31.5.2016 and hence they do not have any claim and the remaining 2 are not test qualified and hence not eligible, etc. But that overlooking the better and senior claim of the petitioner, the corporate management of the 4^th respondent higher secondary school had appointed contesting respondent No.5 as the headmaster of the high school section of the 4^th respondent, in the vacancy caused due to the retirement of one Smt.Usha Louis. It is pointed out that the said vacancy in the post of headmaster in the high school section had occurred due to the retirement of the earlier incumbent in the post of headmaster, one Smt.Usha Louis on 30.4.2016. Aggrieved by the said appointment/promotion of contesting respondent No.5 as headmaster of the high school section concerned, the petitioner had submitted Ext.P-9 representation dated 2.5.2016 before the 2^nd respondent Deputy Director of Education, Thiruvananthapuram, and had also submitted Ext.P-12 representation dated 2.5.2016 before the 3^rd respondent District Educational Officer, Thiruvananthapuram, requesting that necessary directives may be issued to ensure that the manager of the school appoints the petitioner herein as the headmistress of the

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W.P.(C).18458/16 - : 3 :-

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school and that approval is not granted to the impugned appointment of contesting respondent No.5 as the headmaster of the school and that the said representations are still pending consideration before the statutory educational authorities concerned. The sheet anchor of the petitioner's case is that the impugned appointment has been given by the 4^th respondent management in favour of contesting respondent No.5 overlooking the senior claim of the petitioner and that such appointment made in deviance from the seniority requirement as laid down in the provisions of Kerala Education Act, more particularly Chapter XIVA of the said Rules, is illegal and ultra vires and requires intervention. It is in the background of these facts and circumstances that the petitioner has preferred the instant Writ Petition (Civil) with the following prayers:

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“A. To issue a writ, direction or order in the nature of certiorari, quashing the Exhibit P7 order of appointment of the 5^th respondent, as it is in blatant violation of the basic rules of seniority and KER.

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B. To declare that the applicant is entitled and eligible to be appointed as Head Mistress of Leo XIII HSS, Pulluvila, Thiruvananthapuram, as she is qualified as per the KER and next on line for promotion.

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C. To issue a writ, direction or order in the nature of mandamus commanding the respondents to appoint the petitioner as Head Mistress of the Leo XIII, HSS with immediate effect.

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D. To issue appropriate writ or direction commanding the 2^nd and 3^rd respondent to consider and pass orders on Exhibit P9 &

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W.P.(C).18458/16 - : 4 :-

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P12 within time frame.

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E. To issue a writ, direction or order in the nature of mandamus which this Honourable Court deems fit and necessary in the circumstances of the case.”

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Contesting respondent No.4 corporate management of

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the school has entered appearance through their learned counsel Sri.PJ.Elvin Peter and contesting respondent No.5 (who is the appointee whose promotion is impugned) has entered appearance through Sri.T.B.Hood, learned Advocate.

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The 4^th respondent corporate management has sworn to a counter affidavit dated 2.6.2016 in this case for resiting the pleas in the Writ Petition. The sheet anchor of the defence of the 4^th respondent management is that the 4^th respondent school has been established and administered by a religious minority institution within the meaning of Art.30(1) of the Constitution of India and that therefore the said management has the fundamental right under Art.30(1) of the Constitution of India to appoint any qualified incumbent of their choice as the head of their school (headmaster), in view of catena of rulings in that regard by the Apex Court and various High Courts. More particularly, Sri.P.J.Elvin Peter, learned counsel for the 4^th respondent would point out the ruling of the Apex Court in the celebrated case in Malankara Syrian Catholic

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W.P.(C).18458/16 - : 5 :-

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College v. Jose, reported in 2007 (1) KLT 22 (SC) as also a Division Bench ruling of this Court in the case Manager, S.S.H.S., v. Lijin, reported in 2007 (3) KLT 663 and also the ruling of the Apex Court in Ammad v. Emjay High School, reported in 1998 (2) KLT 828 (SC).

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Ext.R-4(a) produced in the counter affidavit is said to be the bye-laws relating to the management of the school in question, viz., Leo XIII Higher Secondary School, Pulluvila, Thiruvananthapuram. Ext.R-4(b) is said to be the order dated 12.8.2015 issued by the 3^rd respondent DEO approving the appointment of the present incumbent in the office of the manager of the school with effect from 31.5.2014. Ext.R-4(c) is stated to be the minutes of the Joint Parish Council of the church which is running the school, which decided to select contesting respondent No.5 in preference to the petitioner herein to the post of headmaster in question. It is pointed out that pursuant to Ext.R-4(c) proceedings, the approved manager of the school has issued Ext.R-(d) order dated 30.4.2016 appointing the contesting respondent No.5 as the headmistress of the high school section of the 4^th respondent aided higher secondary school. Contesting respondent No.5 (the appointee concerned) has adopted the pleadings of the 4^th respondent.

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Heard Sri.D.Ganesh Kumar, learned counsel for the Writ

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W.P.(C).18458/16 - : 6 :-

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Petitioner, the learned Government Pleader appearing for official respondents 1 to 3, Sri.T.G.Sunil, learned counsel appearing for the 4^th respondent-Manager and Sri.T.B.Hood, learned counsel appearing for contesting respondent No.5.

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In the light of the reliefs that is proposed to be granted in this Writ Petition and having regard to the facts and circumstances of this case, this Court is of the considered opinion that there is no necessity to now adjudicate the rival pleadings of the petitioner on the one hand and that of the 4^th respondent on the other hand, as it is pointed out by both of them that appointment of the 5^th respondent as per Anx.R-4(d) has not yet been approved by of the competent educational authority concerned, 3^rd respondentDEO, as process in that regard is still under consideration. Therefore, there is no necessity to adjudicate the rival pleas on its merits and it is only just and proper that the matter is relegated to the statutory authority concerned to enable them to bestow serious consideration of the rival pleas at hand. It is pointed out by the petitioner that Rule 44(1) of Chapter XIVA of the Kerala Education Rules confers a right to the aggrieved person to file an appeal before the educational officer concerned, if the claim of that person is overlooked and another claimant has been appointed to that post.

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W.P.(C).18458/16 - : 7 :-

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It is also brought to notice that Rule 44(3) confers a right of second appeal after passing of the orders in first appeal as per Rule 44(1) to the post of Headmaster/Headmistress of the High School Section. The competent authority to grant approval and take a decision on appeal filed under Rule 44(1) is the 3^rd respondent-DEO and the second appellate authority concerned appears to be the 2^nd respondent-Deputy Director of Education. Therefore, at this stage of the matter, though Ext.P-9 which is said to be addressed to the 2^nd respondent-DDE may not be maintainable, as the 3^rd respondent-DEO is certainly competent to consider and take a decision on Ext.P-12 representation submitted by the petitioner before that respondent as the same could be treated as an appeal under Rule 44(1) of the KER. From a mere reading of Ext.P-12 it appears that Ext.P-12 is not formally worded as a memorandum of statutory appeal under Rule 44(1) and moreover, Ext.R-4(d) appointment order dated 30.4.2016 given to the 5^th respondent has not been formally challenged, presumably because the petitioner has not received the copy of Ext.R-4(d). Therefore, the petitioner is equally given liberty to file appropriate appeal as conceived under Rule 44(1) and to urge out all his grounds and he will also be at liberty to formally challenge Ext.R-4(d) herein. However, for

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W.P.(C).18458/16 - : 8 :-

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computing the time of one month prescribed for submission of first appeal as contemplated under Rule 44(1) from the date of submission of Ext.P-12 may be reckoned for that purpose and that representation which may be supplemented now should not be dismissed merely on the ground of any delay, etc. None of the respondents has any serious objections to this course of action as the petitioner appears to have submitted Ext.P-12 dated 2.5.2016, at any rate, within the time limit. The petitioner should ensure that copy of the memorandum of such appeal to be made should be available to the 4^th respondent-Manager as well as the 5^th respondent appointee before it is formally submitted to the 3^rd respondent-DEO and necessary receipts/endorsements should also be produced along with memorandum of appeal evidencing that the same has been received by the 5^th respondent . This, the petitioner may do within a period of 2 weeks from the date of receipt of a certified copy of this judgment. The petitioner will also produce such memorandum of appeal along with a certified copy of this judgment before the 3^rd respondent after serving copies of the same to the contesting respondent No.5 as directed herein above. On receipt of such an appeal, the 3^rd respondent will take up the said appeal memorandum as well as Ext.P-12 for consideration without

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W.P.(C).18458/16 - : 9 :-

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much delay and will take a considered decision thereon after affording a reasonable opportunity of being heard to the petitioner as well as respondents 4 & 5 either in person or through their authorized representative, if any. The contentions of the petitioner that she has the statutory right to be promoted as Headmistress of the High School Section as per seniority and as per the other aspects should also be considered by the 3^rd respondent. So also, the submission of respondents 4 & 5 that the 4^th respondent is running a school which has been established and administered within Article 30(1) of the Constitution of India, which has the right to appoint any qualified person as Headmaster, etc. and the contention of the petitioner that she is entitled to be promoted to the post of Headmistress should also be considered in the light of the various aspects mentioned hereinabove. Along with the said appeal, the 3^rd respondent should also take up for consideration the proposal submitted by the 4^th respondent for approval of the appointment of the 5^th respondent as the Headmistress of the high school section and a considered decision on this aspect should be taken and separate orders in both these proceedings should be taken and the decision so taken on the said appeal as well as on the question of approval of the appointment of the 5^th respondent should be

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W.P.(C).18458/16 - : 10 :-

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communicated to the petitioner, respondents 4 & 5, etc. without much delay, at any rate, within a period of 2 months from the date of submission of the appeal to be filed as directed above. It is made clear that none of the observations in the judgment shall even be remotely taken as an expression made by this Court on the merits of the matter and the merits of the rival pleas in this matter are solely within the domain of the statutory educational functionary concerned, viz., 3^rd respondent, as directed above.

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With these observations and directions, this Writ Petition (Civil) stands finally disposed of.

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bkn Sd/sdk+ ALEXANDER THOMAS, JUDGE

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///True copy///

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P.S. To Judge.

Mary Margaret.R v. State of Kerala

Case brief

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Mary Margaret.R v. State of Kerala

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