Dismissed

The Corporate Manager v. Annakutty

Kerala HC21 Feb 2018WA/233/2016

Case brief

AI extract

What is this about?

This court dismissed a writ appeal challenging a single judge's order directing the appointment of a senior teacher as Headmistress. The court held that the appointment was invalid due to lack of fair procedure and affirmed the direction despite retrospective application of selection rules.

What did the court decide?

Writ appeal dismissed. Direction to appoint the first respondent as Headmistress stands.

The Corporate Manager Vs Annakutty — Service and Employment | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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WEDNESDAY, THE 21ST DAY OF FEBRUARY 2018 / 2ND PHALGUNA, 1939

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W.A.No. 233 of 2016 IN WPC. 11583/2006

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AGAINST THE JUDGMENT IN WP(C) 11583/2006 of HIGH COURT OF KERALA DATED 04-11-2015

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APPELLANT(S)/2ND RESPONDENT

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THE CORPORATE MANAGER, CORPORATE EDUCATIONAL AGENCY OF DIOCESE OF KANNUR, FATHIMA CHURCH, THAVAM PO, KANNUR.

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BY ADV.SRI.M.VIJAYAKUMAR

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RESPONDENT(S)/PETITIONER / RESPONDENTS 1 & 3:

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ANNAKUTTY, UPSA, SUHARA UP SCHOOL, VELLARA VAYAL, PO PAYAM-670 704, KANNUR DISTRICT.

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THE ASSISTANT EDUCATIONAL OFFICER, IRITTY-670 703.

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JOHNSON LATHER, H.M.(UNAPPROVED) SUHARA U.P.SCHOOL, VELLARA VAYAL, PO PAYAM-670 704, KANNUR DISTRICT.

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R1 BY ADV. SRI.KALEESWARAM RAJ R1 BY ADV. SRI.VARUN C.VIJAY R1 BY ADV. KUM.THULASI K. RAJ R1 BY ADV. KUM.A.ARUNA R2 BY SR. GOVERNMENT PLEADER SRI. A.J. VARGHESE

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K. SURENDRA MOHAN & ANNIE JOHN, JJ.

W.A. No. 233 of 2016

Dated this the 21^st day of February, 2018

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JUDGMENT

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Surendra Mohan, J.

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The Corporate Manager, Corporal Education Agency of Diocese of Kannur is in appeal against the judgment dated 4.11.2015 of the learned Single Judge allowing W.P.(C) No.

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11583 of 2006. The first respondent is the writ petitioner.

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The dispute related to the appointment of

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Headmaster/Headmistress to a School under the appellant. The first respondent, an Upper Primary School Assistant (UPSA) claimed that she was entitled to be appointed to the vacancy that arose on 1.4.2006. According to her, she was the Senior most teacher eligible to be appointed to the said post. Overlooking her claims, the appellant appointed the third respondent as Headmaster. He is a person junior to the first respondent.

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W.A.233/2016.

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The writ petition was contested by the appellant

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by filing a counter affidavit. According to the appellant, the first respondent had approached this Court without exhausting the statutory remedies available to her. It was also contended that, the School being a minority educational institution entitled to the protection under Article 30(1) of the Constitution, was entitled to appoint a person of their choice to the post of Headmaster. Therefore, it was contended that the appointment of the third respondent was in order.

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The learned Single Judge considered the respective contentions, placed reliance on the Full Bench decision of this Court in Kurian Lizy v. State of Kerala (2006 (4) KLT 264), Belsi M. v. Corporate Management of Latin Catholic Schools, Diocese of Neyyattinkara (2010(2) KLT 134) and Jameela v. State of Kerala (2015 (3) KLT 192) to hold that the appointment of the third respondent was unsustainable and liable to be set aside. The writ petition has accordingly been allowed and a direction has been issued to post the first

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W.A.233/2016.

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respondent as Headmistress with effect from 1.4.2006. A further direction was issued to the Government to compute the difference in pay to which the first respondent would be entitled on the basis of the permission and to recover the same from the appellant.

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According to Adv. M. Vijayakumar, who appears for the appellant, going by the dictum of the Full Bench in Kurian Lizy v. State of Kerala (supra), it was for the management to frame and publish Rules or Regulations stipulating the manner in which the selection to the post of Headmaster was to be conducted, upon a comparative evaluation of the merit of the respective claimants. The direction of the learned Single Judge to appoint the first respondent bypassing such a process of selection, in compliance with the dictum of the Full Bench is unsustainable and liable to be set aside. According to the learned counsel, it is necessary that the appellant is given an opportunity to undertake such an exercise. It is further contended that, as

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W.A.233/2016.

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the Full Bench decision was rendered only on 16.8.2006, there is no justification for holding the appellant liable to the procedure stipulated therein. Since the judgment was delivered on a date after the appointment of the third respondent, it is contended that there is no justification for the direction to recover the loss from the Manager.

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We have heard the learned Government Pleader

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as well as Adv. Kaleeswaram Raj who appears for the first respondent.

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Having considered the contentions advanced before us anxiously, we are not satisfied that any interference with the judgment of the learned Single Judge is warranted in this case. Though the decision in Kurian Lizy (supra) came only in August, 2006, the scope of the rights available to a minority institution under Article 30(1) of the Constitution had been declared by the Constitution Bench in T.M.A. Pai Foundation v. State of Karnataka (AIR 2003 SC 355). What the Full Bench has done is only to follow the dictum laid down by

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W.A.233/2016.

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the Constitution Bench. Therefore, we do not find any substance in the contention that the dictum in Kurian Lizy v. State of Kerala (supra) can apply only prospectively.

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We further note that it was for the appellant to have followed a reasonable procedure in the matter of selection of Headmaster/Headmistress of the School. However, he had appointed the third respondent overlooking the claims of the first respondent which was found to be unsustainable by the learned Single Judge. It is for the said reason that the first respondent has been directed to be appointed. The learned Single Judge was fully justified in setting aside the appointment of the third respondent which was not made following a fair procedure. We do not find any justification for the present contention that an opportunity should be provided to the Manager to undertake a fresh selection after putting in place Rules/Regulations as mandated by the decision in Kurian Lizy v. State of Kerala (supra). This is for the reason that the vacancy arose in the

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W.A.233/2016.

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year 2006. The first respondent has already superannuated from service. In the above circumstances, we find no infirmity in the direction that the loss caused to the exchequer shall be recovered from the Manager who has committed the illegality, instead of burdening the public exchequer with the said liability.

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For the foregoing reasons, this writ appeal fails and is accordingly dismissed.

Sd/-

K. SURENDRA MOHAN

JUDGE

Sd/ANNIE JOHN JUDGE