IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 OP.No. 36425 of 2002(J) ----------------------- PETITIONER(S): --------------- BINDHU M., TEACHER IN ZOOLOGY, HIGHER SECONDARY SCHOOL, SIVAGIRI VARKALA, RESIDING AT THUSHARA, VAKKOM,THIRUVANANTHAPURAM. BY ADV. SRI.P.M.JOSEPH RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION (T) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. MANAGER, SREE NARAYANA DHARMA SANGHAM TARUSTS, SIVAGIRI MUTT, VARKALA. 4. PRINCIPAL, SIVAGIRI HIGHER SECONDARY SCHOOL, SREENIVASAPURAM, VARKALA. ADV. SRI.SAJAN VARGHEESE K. FOR R3 & 4 GOVERNMENT PLEADER SMT. T.B. REMANI. FOR R1&2 SRI.LIJU. M.P FOR R3 & 4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 14/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P. NO. 36425/2002 ----------------------------------------------------------------- EXT.P1 TRUE COPY OF MEMO DT. 11-8-2000. EXT.P2 APPOINTMENT ORDER DT. 18-8-2000. EXT.P3 GOVT. ORDER DT. 25-11-2000. EXT.P4 ORDER OF THE SUPREME COURT IN 2001 (1) SCC 151. EXT.P5 REPRESENTATION DT. 23-5-2002. EXT.P6 JUDGMENT IN O.P. 14242/2002 DST. 31-5-2002. EXT.P7 REPRESENTATION DT. 13-6-2002. EXT.P7(a) POSTAL ACKNOWLEDGMENT. EXT.P8 ORDER DT. 10-7-2002. EXT.P9 REPRESENTATION DT. 7-8-2002. EXT.P10 ORDER OF R2. EXT.P11TRUE COPY OF CERTIFICATE. RESPONDENTS' EXHIBITS: -------------------------------------- EXT.R3(a) CIRCULAR DT. 23-12-1999. EXT.R3(b) GOVT. ORDER DT. 13-5-1998. [TRUE COPY] P.S TO JUDGE.SMT. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 36425 of 2002 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 14th day of January, 2010. J U D G M E N T The petitioner is a post-graduate in Zoology with B.Ed qualification. The Sreenarayana Dharma Sangham Trust owns an aided higher secondary school. Since, ecause of an inter se dispute among the Sanyasins, who were administering the Trust, the administration of the trust came to a stalemate, the Government decided to take over the administration of the Trust temporarily and enacted the Sivagiri Matt (Emergency Provisions) Act, 1997 and took over the management of the Trust. As provided in the Act, an administrator was appointed to administer the Trust and its institutions. The administrator, acting as the manager of the school, issued Ext. P1 memo to the petitioner to appear for an interview for appointment to the post of higher secondary school teacher in Zoology in the higher secondary school owned by the Trust. Pursuant thereto, by Ext. P2 order, the petitioner was appointed as a Guest Lecturer in the school on an ad hoc basis on a stop gap arrangement subject to the final outcome of the appeals pending before the Supreme Court of India in respect of the appointment of teachers in higher secondary schools in the State of Kerala. It was specifically stated therein that the appointee shall not have any claim whatsoever for future appointment of any kind by virtue of the said appointment as a Guest Lecturer. The petitioner joined and continued for 1½ years. Thereafter, after the administration was returned to an elected body of the Trust, the petitioner's services were terminated and the manager of the school took steps to appoint a new teacher by inviting applications. In respect thereof, the petitioner filed a petition before the the Director of Higher Secondary Education. Since there was delay in disposal of the same, the petitioner filed O.P.No. 18509/2002, in which, this Court, by judgment dated 5-7-2002, directed the O.P. No. 36425/2002 -: 2 :- Director to consider the petitioner's representation and to pass appropriate orders thereon after affording an opportunity of being heard to the petitioner and the 3rd respondent-manager. Pursuant thereto, the Director passed Ext. P10 order holding that the petitioner's appointment was not in accordance with the interim orders passed by the Supreme Court of India in Dolichan's case insofar as the petitioner's appointment was not on the recommendation of the selection committee constituted as directed in the interim order of the Supreme Court. It was also found that at the time of appointment, the petitioner did not possess the qualification of SET and as per Government Orders on the subject, at the relevant time, persons who did not possess the SET qualification were to be considered only in the absence of persons having the qualification of SET. It is in that context the petitioner has filed this original petition seeking the following reliefs: “a. Call for the records leading to passing of Ext. P10 and quash the same by issuing a writ of certiorari or appropriate writ. b. Issue a writ of mandamus or other appropriate writ, direction or order directing respondents to reinstate the petitioner in service and pay the salary and all the monitory benefits without further delay.” 2. The petitioner would take a specific contention that this Court had directed the Director to pass orders on the petitioner's representation after affording an opportunity of being heard to the petitioner. According to the petitioner, the petitioner did not receive any notice of hearing and therefore she could not appear for the hearing. In the counter affidavit filed by the 2nd respondent, this averment has been sought to be controverted, but, no evidence has been produced regarding service of notice on the petitionerfor the O.P. No. 36425/2002 -: 3 :- hearing. 3. In Ext. P10 regarding notice of hearing, it is stated that representations were considered in detail along with the arguments submitted by the petitioner and the manager in the hearing held on 4-9-2001. But, it is specifically stated therein that the petitioner was absent in the hearing. There is no mention whatsoever in Ext. P10 that the petitioner had received notice of hearing for the hearing conducted on 4-9-2002. In the above circumstances, I am of opinion that the petitioner should be given another opportunity to present her case before the Director of Higher Secondary Education. Accordingly, Ext. P10 is quashed. The 2nd respondent is directed to re-consider the matter in accordance with the direction of this Court in O.P.No. 18509/2002 and in accordance with law, after affording an opportunity of being heard to the petitioner and the 3rd respondent as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The original petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/