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2024 DIGILAW 1462 (KER)

Jisha John v. Muhamed Basheer K

2024-11-11

A.MUHAMED MUSTAQUE, P.M.MANOJ

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JUDGMENT : A.Muhamed Mustaque, J. These appeals are preferred by Smt.Jisha John against a common judgment arising from the writ petitions filed by her and one Shri Mohammed Basheer K. respectively. 2. Both Jisha John and Mohammed Basheer K. are eligible to be appointed in the vacancy of Higher Secondary School Teacher (English) (“HSST”) from by transfer quota of High School Assistant in a vacancy that arose at Imbichi Koya Thangal Higher Secondary School, Cherukulamba, in Malappuram District. Jisha John, admittedly, is the senior. The Regional Deputy Director of the Higher Secondary Education Department, Malappuram, found that Mohammed Basheer’s appointment as HSST (English) lacked transparency and overlooked the claim of Jisha John. Consequently, the approval was rejected. The Government, in a revision filed by Mohammed Basheer challenging the order of the Regional Deputy Director, affirmed the order of the Regional Deputy Director. This was questioned before the learned Single Judge by Mohammed Basheer. In the writ petition filed by Jisha John she also claimed appointment to the above post of HSST. The learned Single Judge, by the common judgment, reversed the orders of the Regional Deputy Director and the Government, allowed the writ petition filed by Mohammed Basheer, and dismissed the writ petition filed by Jisha John. 3. We heard Adv.V.A.Muhammed appearing for Jisha John and Dr.George Abraham for Mohammed Basheer. We have gone through the orders passed by the Regional Deputy Director as well as the Government. We find that fact findings were made based on materials and after perusing the records. The question is whether the learned Single Judge was justified in exercising the power of judicial review or not. 4. The vacancy of HSST arose consequent upon the retirement of Smt.Alice Joseph on 31/05/2015. There is no dispute to the fact that Jisha John is the senior claimant. Under Chapter XXXII Rule 4(2)(2)(ii) of the Kerala Education Rules, an appointment to the post of HSST from by transfer quota is based on seniority and merit. In Gigimol v. Director of Higher Secondary Education [ 2008 1 KLT 278 ], this Court observed that seniority and suitability does not mean comparative assessment of suitability. That means, the senior will have to be preferred with no other disability attached to the seniority. Suitability has to be understood as a prescription for exclusion for any reason, and not for comparison of applicants who applied for the post. 5. That means, the senior will have to be preferred with no other disability attached to the seniority. Suitability has to be understood as a prescription for exclusion for any reason, and not for comparison of applicants who applied for the post. 5. The Regional Deputy Director found that no one had responded to the alleged public notice issued by the Manager inviting applications to the post of HSST (English) except Mohammed Basheer, who was the lone applicant. The Manager’s case was that a public notice was given and Jisha John did not respond to the notification nor attended the interview. The Manager further contended that Jisha John had relinquished her claim for the post. Jisha John has a case that the Manager misused her signed blank paper with an ulterior motive. 6. The findings of fact rendered by Regional Deputy Director are as follows: i. No public notice was issued by the Manager inviting applications; ii. There were many qualified teachers working in the school as per the seniority list who are eligible to apply, and; iii. The alleged relinquishment of Jisha John was not counter signed by the District Education Officer, Malappuram 7. The Government in the revisional order particularly noted a Circular laying the procedure for relinquishment of a claim. This Circular was issued on 6/1/1997. The procedure noted in the revisional order is reproduced hereunder: 1.Whenever the Manager intends to appoint or promote a person other than the senior claimant, the Manager shall obtain a written consent in advance from such senior claimant renouncing his/her claim either permanently or temporarily. 2. In the case of temporary relinquishments the period of relinquishment should necessarily be furnished in the relinquishment letter. 3. Such relinquishment letters accepted by the appointing authority shall have the approval of Educational Office concerned (A.E.O in the case of Primary and D.E.O in the case of Secondary). 4. Employees shall not be allowed to withdraw the relinquishment of their claim once accepted and approved by the Controlling Officer. 5.While making appointments/promotions of juniors on the strength of relinquishment letters of rightful claimants, the letters renouncing the claim duly accepted by the appointing authority and approved by the Controlling Officers should invariably be sent along with proposals for approval appointments. The Government noted that no such procedure was followed, particularly emphasising that the relinquishment had not been approved by the immediate educational officer. 8. The Government noted that no such procedure was followed, particularly emphasising that the relinquishment had not been approved by the immediate educational officer. 8. These fact findings entered by the Regional Deputy Director and the Government were based on materials and on perusal of records. The learned Single Judge examined the matter as though a primary authority and framed the following points for consideration. (a) whether there is a proper circulation of notice regarding selection process? (b) Whether the relinquishment letter is properly executed by Smt.Jisha John? If not, then on that sole ground whether the approval of Sri. Mohammed Basheer is liable to be rejected? 9. The learned Single Judge did not provide a specific answer to the first point formulated but noting that Jisha John had raised a claim after six months, assumed that there was notice. On the second point, the learned Single Judge noted that in the light of the judgment of Geevarghese v. State of Kerala [2000 (3) KLT SN 31 C.No.37], the senior must have a constructive notice regarding the appointment of the junior, and she having no challenge with the appointment, by filing an appeal, her reliance on the relinquishment cannot be accepted. The learned Single Judge also noted that since the impugned orders did not direct the appointment of Jisha John, there was no reason to decline the appointment of Mohammed Basheer. 10. We note that the judgment rendered by the learned Single Judge is contrary to the well established principles of judicial review. The question that ought to have been addressed was whether the decision-making process was flawed for any reason, rendering orders of both the Regional Deputy Director and the Government as unsustainable. The decisions taken by these authorities were based on available materials. The learned Single Judge could not have transformed the jurisdiction of this Court under Article 226 into an appellate power. There was no material before the learned Single Judge to hold that a public notice was served and the findings rendered by the Regional Deputy Director and the Government are contrary to the materials available on record. The learned Single Judge overlooked the fact that the relinquishment was not in accordance with the directions issued by the Director of Public Instructions, nor was it approved by the District Education Officer. The learned Single Judge overlooked the fact that the relinquishment was not in accordance with the directions issued by the Director of Public Instructions, nor was it approved by the District Education Officer. Therefore, the entire selection process was vitiated, leaving no scope for any appointment based on the selection, thereby necessitating a fresh selection. The learned single judge could not have exercised the power of judicial review to have a different view without there being any finding that the finding rendered by the fact finding authority was absurd, irrational or unsupported by materials. The judgment clearly indicates that the learned Single Judge acted as a primary authority and reached a different conclusion like a primary authority, overlooking the fact that judicial review is concerned with the decision-making process, not the merits of the decision itself. In the light of the categorical finding that no selection was conducted and there is no other evidence before this Court to hold that such selection was pursuant to a notification, the entire process appointing Mohammed Basheer stands vitiated. 11. The learned counsel Dr.George Abraham appearing for Mohammed Basheer submitted that the selection committee includes the Deputy Secretary to Government and, therefore, it cannot be assumed that the selection was one-sided. It is to be noted that the finding of the Regional Deputy Director and the Government was that no notice was issued. That finding was based on facts, and the mere presence of the Deputy Secretary to the Government cannot legitimise actions carried out unlawfully. The learned counsel placed reliance on the judgment of a learned Single Judge in Lilly V.A. v. State of Kerala and Others [ 2016 KHC 414 ] and an unreported judgment of this Court in W.A. No.607/2022, dated 22/5/2023, to canvass that inter se seniority can be based on general principles and, since Jisha John has relinquished her claim and no one else has come forward to challenge the appointment of Mohammed Basheer, he is entitled to have his appointment approved. As we already noted, the finding of facts entered by the Regional Deputy Director and Government was well-founded and there was no scope for exercising the power of judicial review. Therefore, we allow these appeals and set aside the impugned judgment of the learned Single Judge and order that the Manager shall conduct a fresh selection to the post of HSST (English) by inviting a fresh notification.