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2015 DIGILAW 927 (KER)

RUBY VARGHESE v. STATE OF KERALA

2015-07-20

A.K.JAYASANKARAN NAMBIAR

body2015
JUDGMENT A.K. JAYASANKARAN NAMBIAR, J. 1. The petitioner was appointed as Lower Primary School Assistant in the School under the management of the 6th respondent on 17.07.1979. The School in question is a minority educational institution. To a vacancy to the post of Headmaster that arose in the School with effect from 01.06.2013, although the petitioner who was the Senior most LPSA aspired for promotion, the 6th respondent took steps to appoint the 7th respondent who was junior to the petitioner in service as Headmaster. The petitioner, therefore, preferred Ext.P2 representation before the 5th respondent indicating that the appointment of the 7th respondent as the Headmaster was by overlooking the seniority of the petitioner and although the 6th respondent School might claim a minority educational institution status, they still had to comply with a fair procedure in the matter of selection of an incumbent to the post of Headmaster. It is the case of the petitioner in the said representation that such a procedure had not been followed, and therefore, the appointment of the 7th respondent as Headmaster was vitiated. By Ext.P4 order dated 12.07.2013, the 5th respondent rejected the claim of the petitioner. In the said order, there is no mention about a selection process having been undertaken by the 6th respondent Manager while selecting the 7th respondent as the Headmaster of the School. The petitioner would also point out that in Ext.R6(c) hearing note that was submitted by the 6th respondent before the 5th respondent, there is no mention of any selection procedure having been published or followed by the 6th respondent Manager. An appeal preferred by the petitioner against Ext.P4 order of the 5th respondent, also did not meet with any success and by Ext.P7 order dated 26.08.2013, the 4th respondent rejected the appeal preferred by the petitioner. In a further revision filed by the petitioner before the 1st respondent, by Ext.P9 order dated 12.03.2014, the 1st respondent rejected the revision petition filed by the petitioner. In the writ petition, the petitioner impugns Exts.P4, P7 and P9 orders, interalia, on the ground that in selecting the 7th respondent as the Headmaster of the School, the 6th respondent Manager had not followed the procedure that was mandated by the decision of the Full Bench of this Court in Kurian Lizy vs. State of Kerala, 2006 (4) KLT 264 (F.B.). It is his specific contention that at no stage of the proceedings before the 5th respondent, the 4th respondent or the 1st respondent, had the 6th respondent produced any document to show that a transparent procedure for selection of candidates to the post of Headmaster was published in the School notice board and followed in the matter of selection of the Headmaster. 2. A counter affidavit as well as two additional counter affidavits have been filed on behalf of the 6th respondent. In the said counter affidavits, documents have been produced to show that there was a consideration of the candidature of the petitioner as well as the 7th respondent, and an inter se evaluation of the merits of both the candidates, against certain criteria that were fixed by the 6th respondent. It is also stated that the stand of the petitioner before the lower authority, that the institution is not a minority educational institution, cannot be legally countenanced inasmuch as the status of the School in question as a minority institution was evidenced by valid documents which the petitioner had not impugned earlier. In the counter affidavits filed by the 5th respondent, Exts.P4, P7 and P9 orders are sought to be justified on the basis of the reasons contained therein. 3. I have heard the learned counsel for the petitioner, the learned counsel for the 6th respondent and the learned Government Pleader for the official respondents. 4. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that the specific case of the petitioner before the 5th respondent, 4th respondent and the 1st respondent respectively that, in the matter of selection of an incumbent to the post of Headmaster of the School, the 6th respondent had not published any criteria or guidelines for selection prior to carrying out a selection process for the selection of Headmaster, has not been rebutted through any document produced on behalf of the 6th respondent before the said authorities. No doubt, the 6th respondent has produced certain documents along with the additional counter affidavits filed before this Court, to suggest that there had been an evaluation of the inter se merits of the petitioner and the 7th respondent, against fixed criteria which had been published by the 6th respondent. No doubt, the 6th respondent has produced certain documents along with the additional counter affidavits filed before this Court, to suggest that there had been an evaluation of the inter se merits of the petitioner and the 7th respondent, against fixed criteria which had been published by the 6th respondent. On a consideration of the submissions of counsel on either side, I am of the view that, inasmuch as the factual aspect, as to whether the 6th respondent had actually published the criteria that was to govern a selection to the post of Headmaster in the notice board of the School during the relevant time, and prior to the commencement of the selection process, is one that has to be established by looking into the evidence produced by either side, it would be in the interests of justice to relegate the matter to the 5th respondent for a fresh determination of the aforesaid factual aspect. Accordingly, I quash Exts.P4, P7 and P9 orders and direct the 5th respondent to consider the documents and other evidence produced on behalf of the petitioner as well the 6th respondent Manager and ascertain whether, as a matter of fact, the 6th respondent had duly published the relevant criteria, as well as the procedure for selection to the post of Headmaster in the School to the vacancy that arose with effect from 01.06.2013. The 5th respondent shall enter a finding as to whether the said publication other procedures, as detailed in the judgment of the Full Bench of this Court in Kurian Lizy vs. State of Kerala, 2006 (4) KLT 264 (F.B.), were complied with by the 6th respondent Manager prior to selecting the 7th respondent as the Headmaster of the School. Based on the findings of fact arrived at by the 5th respondent, the 5th respondent shall take a decision as to whether the appointment of the 7th respondent, overlooking the seniority of the petitioner was legal and proper. If the appointment of the 7th respondent is found to be irregular/illegal then the 5th respondent shall issue consequential orders approving the appointment of the petitioner as the Headmaster of the School in the vacancy arising with effect from 01.6.2013, by considering her admitted seniority over the 7th respondent as an LPSA in the School. If the appointment of the 7th respondent is found to be irregular/illegal then the 5th respondent shall issue consequential orders approving the appointment of the petitioner as the Headmaster of the School in the vacancy arising with effect from 01.6.2013, by considering her admitted seniority over the 7th respondent as an LPSA in the School. If on the other hand, it is found that the 6th respondent had complied with the procedure laid down in the Full Bench decision referred above, then the consequential order to be passed by the 5th respondent shall be one that approves the appointment of the 7th respondent as the Headmaster of the School with effect from 01.06.2013. The 5th respondent shall comply with the directions in this judgment within a period of three months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above.