IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

TUESDAY, THE 10

TH

DAY OF JANUARY 2023 / 20TH POUSHA, 1944

WP(C) NO. 20757 OF 2022

PETITIONER:

P.PRASANNA

AGED 53 YEARS

D/O. BALAN NAMBIAR, HEADMISTRESS,

SANTHI NIKETHAN HIGHER SECONDARY SCHOOL,

THIRUVALLUR, KOZHIKODE-673541, RESIDING AT

MULLANKUNNUMMAL HOUSE, ERAVATTUR, P.O.PERAMBRA,

KOZHIKODE-673541.

BY ADV R.K.MURALIDHARAN

RESPONDENTS:

1 THE DIRECTOR OF GENERAL EDUCATION (HIGHER

SECONDARY SECTION)

HOUSING BOARD BUILDING, SANTHI NAGAR, THYCAUD,

THIRUVANANTHAPURAM-695001.

2 JOINT DIRECTOR (ACADEMIC),

OFFICE OF THE DIRECTOR OF GENERAL EDUCATION

(HIGHER SECONDARY SECTION), HOUSING BOARD

BUILDING, SANTHI NAGAR, THYCAUD,

THIRUVANANTHAPURAM-695001.

3 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY

EDUCATION,

KOZHIKODE, KOZHIKODE DISTRICT-673004.

4 THE MANAGER,

SANTHI NIKETHAN HIGHER SECONDARY SCHOOL,

THIRUVALLUR, KOZHIKODE-673541.

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W.P.(C) No.20757 of 2022 2

5 PRASEEDA KOODATHIL,

HSST (MATHS), SANTHI NIKETHAN HIGHER SECONDARY

SCHOOL, THIRUVALLUR, KOZHIKODE-673541.

BY ADVS.

V.A.MUHAMMED

M.SAJJAD

SMT NISHA BOSE, SR GOVERNMENT PLEADER

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR

ADMISSION ON 10.01.2023, THE COURT ON THE SAME DAY

DELIVERED THE FOLLOWING:

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W.P.(C) No.20757 of 2022 3

“CR”

JUDGMENT

The petitioner states that she entered service as High School

Assistant (HSA) at the Santhi Nikethan Higher Secondary School,

Thiruvallur. Being duly qualified, she was promoted to the post of

Headmistress with effect from 01.04.2020. While so, the vacancy to the

post of Principal arose in the school with effect from 01.06.2021. The

petitioner asserts that there being no qualified Higher Secondary School

teacher (HSST) qualified for promotion, she is entitled to be appointed as

Principal. However, overlooking the provisions of Chapter XXXII Rule 4(1)

of the KER, the 4th respondent appointed the 5th respondent and the 3rd

respondent proceeded to grant approval to the appointment as

Teacher-in-Charge by Exhibit P1 order. Challenging Ext.P1 order, the

petitioner approached the 1st respondent, and pursuant to orders issued

by this Court, Exhibit P4 order was issued rejecting the challenge raised by

the petitioner. While issuing Exhibit P4 order, the 1st respondent proceeded

to hold that there is no post of HSST Malayalam in the Higher Secondary

Section, and as the Principal has to take eight periods, a supernumerary

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W.P.(C) No.20757 of 2022 4

post had to be created, which would entail additional financial burden to

the Government. It is in the afore circumstances that this writ petition is

filed seeking the following reliefs:

i) issue a writ of certiorari or any other appropriate writ, order or

direction, quashing Ext.P1 order issued by the 2nd respondent dated

30.06.2021 and Ext.P4 order issued by the 1st respondent dated

08.06.2022 And;

ii) Issue a writ of mandamus or any other appropriate writ, order

or direction, directing the 3rd respondent to appoint the petitioner as

Principal of Santhi Nikethan Higher Secondary School, Thiruvallur, with

effect from 01.06.2021 with all consequential benefits;

2. Sri. R.K. Muralidharan, the learned counsel appearing for the

petitioner, submits that Ext.P4 order issued by the 1st respondent cannot

be sustained under law. According to the learned counsel, statutory rule

prescribes that the appointment shall be either from HSST or from

qualified Headmasters of aided schools under the same educational

agency, and preference is to the HSSTs and Headmistress in the ratio 2:1.

The learned counsel contends that the petitioner is eligible to be

considered to be appointed as Principal especially since there are no

qualified HSSTs available. The learned counsel contends that the eligibility

of the petitioner under Rule 4 of Chapter XXXII cannot be frustrated

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W.P.(C) No.20757 of 2022 5

merely for the reason that there are no posts available of HSST in the

Higher Secondary Section. The learned counsel would then refer to the law

laid down by the Division Bench of this Court in Thomas K.L v. State of

Kerala and Others [2013 (4) KLT 257] to substantiate his contention.

The learned counsel would urge that the law laid down in Thomas (supra)

has been consistently followed by this Court and reliance is placed on the

judgments rendered by the Division Bench in judgments dated 31.10.2019

in Writ Appeal No.957 of 2016, judgment dated 15.03.2021 in Writ Appeal

No.2373 of 2019, judgment dated 06.04.2018 in Writ Appeal No.1597 of

2017 and by a learned Single Judge in Jayaraj V.P. and Another v

State of Kerala and Others (2016 (2) KLT 200).

3. In response, it is submitted by the learned Government

Pleader that Ext.P4 order was issued, taking note of the fact that there is

no post of HSST(Malayalam) in the Higher Secondary Section of the

School. In that view of the matter, as the Principal has to take eight

periods, it would be necessary to create a supernumerary post. This would

entail an additional financial burden to the Government. The learned

Government Pleader would refer to the observations made by a Division

Bench of this Court in the judgment dated 04.12.2018 in Writ Appeal

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W.P.(C) No.20757 of 2022 6

No.2341 of 2018, and it is submitted that while upholding the findings of

the learned Single Judge, it was held that the Government was right in

rejecting approval to the appointment of the teacher concerned. According

to the learned counsel, the observations made in Writ Appeal No.2341 of

2018 are more apt to the facts and circumstances of the instant case.

4. I have considered the submissions advanced, and I have gone

through the materials on record. I find from Ext.P4 that two reasons have

been afforded to decline the approval of the petitioner as Principal of the

Santhi Nikethan Higher Secondary School. The 1st reason is that the

Principal will have to take eight periods, and as there is no post of HSST

Malayalam, the subject requirement will not be satisfied. Next is that the

creation of supernumerary posts will create an additional financial burden

for the Government. The statutory rule prescribes that the method of

appointment shall be either from the HSST or from qualified Headmasters

of aided Schools under the same educational agency. Preference at the

first instance is to the HSST’s and then to the H.M. in the ratio of 2:1. The

petitioner, who is qualified to be appointed as Principal, is eligible to be so

considered, especially since there are no qualified HSST’s available. The

petitioner’s eligibility under the statutory rule cannot be frustrated merely

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W.P.(C) No.20757 of 2022 7

for the reason that there are no posts available of HSST in the Higher

Secondary section.

5. I find that both these issues were considered by the Division

Bench of this Court in Thomas (supra), wherein after considering the

facts and circumstances, it was held as follows in paragraphs Nos. 5 to 11.

5. The primary contention of the appellant is that the definition of

"Principal" contained in Rule 1(f) of Chap.32 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 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. 59 of 2013 arises, which contemplates the 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.

6. 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

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W.P.(C) No.20757 of 2022 8

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

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

7. 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 School Teachers as also Headmasters 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.

8. What remains is the contention regarding the lack of qualification of

the 6th respondent. We extract herewith the method of appointment of

Principal as provided under Rule 4 and the qualifications provided under

Rule 6: "4. Method of Appointment:- Appointment to the various

categories specified in Column (2) of the Table below shall be made by

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W.P.(C) No.20757 of 2022 9

the method of appointment specified against Category each in column

(3) thereof.-

Category - Principal

Method of appointment - 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) [xxxxxx xxxxxxxxxx xxxxxxx]

(ii) [xxxx xxxxxxxx xxxxxxxxxx]

(iii) The post shall be filed 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

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 qualifications prescribed in the

corresponding entry in column (4) thereof.-

Category - Principal

Methods of Appointment - By Promotion

Qualifications

(1) Master's Degree with not less than 50% marks from any

Universities in Kerala or a qualification recognized 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 qualifications as

specified above, approved teaching experience at High

School/Upper Primary/ Lower Primary Schools 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.

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W.P.(C) No.20757 of 2022 10

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) BEd 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

9. The method of appointment postulates two sources from which the

Principal of a Higher Secondary School can be appointed. The first

source is by promotion from Higher Secondary 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, l.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

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

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W.P.(C) No.20757 of 2022 11

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 the 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 21 would be rendered

ineffective,

10. 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 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

11. In the instant case, the 6th 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 6th respondent amply

satisfies the qualification provided for appointment as a Principal, by

transfer, as provided under Rule 6 of Chap.32 KER. The order of the

educational authority holding that the 6th respondent would not be

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W.P.(C) No.20757 of 2022 12

qualified to take classes for higher secondary 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.

6. I find that the observations made in Thomas (supra) have

been consistently followed by subsequent Division Benches in the

judgment dated 31.10.2019 in Writ Appeal No.957 of 2016, judgment

dated 15.03.2021 in Writ Appeal No.2373 of 2019 and judgment dated

06.04.2018 in Writ Appeal No.1597 of 2017

7. However, I find that a discordant note was struck by a Division

Bench of this Court in Writ Appeal No.2341 of 2018, wherein it was

observed that in the absence of subject requirement, the Government was

right in rejecting approval to the appointment of the teacher therein.

However, I find that in the said case, the school to which the petitioner

therein was transferred, there was already an HSST (Economics) who was

working. At the time of consideration of the writ petition, the teacher had

retired as well. The binding judgment in Thomas (Supra), followed by

other Division Benches, was also not brought to the notice of this Court.

Furthermore, that was a case wherein the Government had directed the

RDD to take immediate action for the payment of salary and other

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W.P.(C) No.20757 of 2022 13

allowances last drawn as Headmaster to the teacher concerned. As a

matter of fact, the Division Bench in Thomas (supra), after considering

the statutory provisions, had held that 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 effective.

8. In the instant case, I find that the learned Government

Pleader has no response to the contention of the petitioner that as per

Chapter XXXII Rule 4, if the qualification of Higher Secondary School

teacher were to be insisted for filling up of the post of Principal of Higher

Secondary School, then the two methods of appointment prescribed at the

mandate of the ratio of 2:1 would be frustrated. In that view of the matter,

I am inclined to follow the law laid down in Thomas (supra) as the

principles laid down therein squarely apply to the facts of the instant case.

Furthermore, it has been held by this Court that financial liability to the

State is not a reigning consideration while interpreting statutory rules and

notifications. It has also been held that the State cannot rely on financial

exigencies when its own rules and notifications intend to confer a benefit

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W.P.(C) No.20757 of 2022 14

on a particular category of teachers.

Resultantly, this writ petition will stand allowed. Ext.P1 issued by

the 3rd respondent and Ext.P4 issued by the 1st respondent will stand

quashed. There will be a direction to the 3rd respondent to appoint the

petitioner as Principal of Santhi Nikethan Higher Secondary School with

effect from 01.06.2021, and she shall also be entitled to all eligible

benefits.

Sd/-

RAJA VIJAYARAGHAVAN V,

JUDGE

IAP

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W.P.(C) No.20757 of 2022 15

APPENDIX OF WP(C) 20757/2022

PETITIONER’S EXHIBITS:

Exhibit P1 A TRUE COPY OF THE ORDER NO.A2/2285/2021

OF THE 3RD RESPONDENT DATED 30.6.2021.

Exhibit P2 A TRUE COPY OF THE JUDGMENT IN WP(C)

NO.18229/2021 DATED 15.12.2021.

Exhibit P3 A TRUE COPY OF THE ARGUMENT NOTE

SUBMITTED BEFORE THE 2ND RESPONDENT

DATED 10.3.2022.

Exhibit P4 A TRUE COPY OF THE ORDER

NO.ADC.B1/226248/2022/HSE DATED 8.6.2022

ISSUED BY THE 1ST RESPONDENT.

RESPONDENTS’

EXHIBITS:

NIL

2023/KER/3155