IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 WP(C).No. 30903 of 2010(K) ---------------------------------------- PETITIONER(S): ------------------------ S.FIROZ,S/O.M.SULAIMAN,AGED 30 YEARS, PART-TIME MENIAL,ASMMHS SCHOOL,ALATHUR- 678 541, PALAKKAD DISTRICT. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA,REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT,SECRETARIAT,THIRUVANANTHAPURAM.PIN- 695 001. 2. THE DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION, PALAKKAD.PIN- 678 014. 3. THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD 678 014(MANAGER ASMMHS SCHOOL,ALATHUR, PALAKKAD DISTRICT). 4. SMT.KHADEEJA BEEGUM,FORMER MANAGER, ASMMHS SCHOOL,ALATHUR,PALAKKAD DISTRICT (RESIDING AT TC NO.35/1271,CHEELANDMUKKU, PO VELLAKKADAVU,THRIVANDRUM-8). R1 TO R3 BY GOVERNMENT PLEADER SRI.VIJULAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.30903/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE APPOINTMENT ORDER DATED 01/07/2009. P2 COPY OF THE APPOINTMENT ORDER IN SRI.K.P.PRAJITH AND APPROVAL THEREOF, DATED 16/03/2010. P3 COPY OF THE DECISION REPORTED IN 1993(2) K.L.T.SHORT NOTES P.27(C.28), DATED 02/08/1993. P4 COPY OF THE ORDER NO.B2/3474/2009 OF THE DISTRICT EDUCATIONAL OFFICER, DATED 25/06/2009. P5 COPY OF THE ORDER NO.EMI/26645/2010/DPI OF THE 2ND RESPONDENT, DATED 24/06/2010. P6 COPY OF THE G.O.(RT)NO.2178/2010/G.EDN OF THE GOVERNMENT, DATED 25/05/2010. P7 COPY OF THE G.O.(RT)NO.610/2011/G.EDN OF THE GOVERNMENT, DATED 14/02/2011. P8 COPY OF THE ORDER NO.B6/4849/09/K.DIS OF THE DISTRICT EDUCATIONAL OFFICER, DATED 28/01/2011. P9 COPY OF THE DECISION REPORTED IN 2002 (I) K.L.T.406, DATED 21/12/2001. P10 COPY OF THE G.O.(RT)NO.956/06/G.EDN OF THE GOVERNMENT, DATED 02/03/2006. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 30903 of 2010-K - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of October, 2011. JUDGMENT Ext.P8 order passed by the District Educational Officer rejecting approval of appointment of the petitioner as a part time menial, is under challenge in this writ petition. A reading of Ext.P8 order shows that the only reason for not approving the appointment is that the approval granted to Smt. Kadeeja Beegam as the Manager of the school vide order dated 25.6.2009 stands cancelled by the Director of Public Instruction, which order was subsequently upheld by the Government. The necessary facts for the disposal of the writ petition are as follows: 2. The petitioner was appointed as Part-time Menial from 1.7.2009 to 29.6.2014 by Ext.P1 order, in the promotion vacancy of Shri K.P. Prajith as Full-time Menial. Ext.P2 is the order passed by the District Educational Officer dated 16.3.2010 whereby the promotee's appointment has been approved. 3. The petitioner was appointed by the then Manager Smt. Khadeeja Beegum who is the fourth respondent herein. Ext.P4 is the order passed by the District Educational Officer dated 25.6.2009 whereby the transfer of wpc 30903/2010 2 management without involving change of ownership of the school in favour of Smt. Khadeeja Beegum was approved for a period of three years from 30.7.2008 to 29.7.2011. The same was interfered with by the Director of Public Instruction as per Ext.P5 order dated 24.6.2010 and a consequential direction was issued to prepare the bye-laws of the school. The District Educational Officer has been entrusted to discharge the duties of the Manager in the meanwhile. 4. Learned counsel for the petitioner submitted that the petitioner was appointed when the then Manager, the fourth respondent was validly in office based on an order of approval. It is pointed out that the Manager's appointment was approved for the period from 30.7.2008 to 29.7.2011, as evident from Ext.P4. The order of appointment being on 1.7.2009, the Manager was validly in office. It is submitted that any order passed by the Director of Public Instruction later cancelling the order of approval of the Manager, cannot defeat the right of the petitioner. In that context my attention was invited to certain orders passed by the Government approving certain appointments in different schools, viz. Exts.P6, P7 and P10, whereby the Government has taken the view that any dispute regarding management is not a reason for rejecting the appointment of a qualified teacher. wpc 30903/2010 3 5. In the counter affidavit filed by the second respondent what is averred is that the appointment of the petitioner was made by the 4th respondent in the capacity as manager of the school as per order dated 25.6.2009 of the third respondent (Ext.P4). Before finalising the approval of appointment of the petitioner, the order of the third respondent as manager of the school was cancelled by the Director of Public Instruction dated 24.6.2010 (Ext.P5). The Government also upheld the order of the Director of Public Instruction as per order dated 6.1.2011. Accordingly it is pointed out that the approval of appointment of the petitioner was rejected by the third respondent. Therefore, the apparent reason for rejection is the subsequent cancellation of the approval of appointment of the Manager. 6. My attention was invited by the learned counsel for the petitioner to the decision of a Division Bench of this Court in Manager, St. Mary's H.S. v. Beji Abraham (2002 (1) KLT 406). In the said decision this Court considered an identical question whether the appointment of the Manger which was found to be illegal or irregular subsequently, could take away the rights of the appointees. 7. After discussing the legal position, the Division Bench held in para 7 as follows: wpc 30903/2010 4 “We are of the view mere fact that the appointment of the Manager was subsequently found to be illegal or irregular could not take away the rights of the appointees. As far as appointees are concerned, they are appointed by approved Manager. They are not concerned with the dispute with regard to the managership of the school. There was no order either from the court or from the educational authorities restraining the then Manager from appointing the writ petitioner. Even if there is some illegality or irregularity in the appointment of the Manager, action taken by him during the tenure of his managership would not be illegal or irregular. All rights and liabilities flowed from those actions would be saved by the de facto doctrine.” It was held that the defacto doctrine will save the actions taken by the Manager who was found to be disqualified or removed later. 8. In that view of the matter, the position that emerges herein will show that the petitioner's appointment was on 1.7.2009, during the period which the fourth respondent was having approval for the managership. Therefore, there cannot be any dispute that the appointment was done by the Manager who was competent to make it. Apart from that, the promotee's appointment has been approved and no objection has been taken with regard to the appointment of the promotee. Therefore, there arose a consequent vacancy to which the petitioner was appointed. wpc 30903/2010 5 For all these reasons, Ext.P8 order is quashed. There will be a direction to the third respondent to pass fresh orders in the light of the findings rendered above, with regard to the grant of approval of the petitioner, within a period of six weeks from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/