IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 29TH MARCH 2010 / 8TH CHAITHRA 1932 WP(C).No. 3292 of 2010(I) ------------------------------------ PETITIONER(S): ----------------------- ARYAVASANTHI. M.A., W/O.M. RAMACHANDRAN BHATTATHIRIPPAD, ASSISTANT TEACHER, NEERVELI U.P.SCHOOL, NEERVELI POST, NIRMALAGIRI, KANNUR, PIN 670 701. BY ADV. MR.K.P.SUDHEER, MR.V.C. MADHAVANKUTTY. RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, GERNERAL EDUCATIONAL DEPARTMENT, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR. 4. THE DISTRICT EDUCATIONAL OFFICER, THALASSERY. 5. THE ASSISTANT EDUCATIONAL OFFICER, MATTANNUR. 6. THE MANAGER, NEERVELI U.P.SCHOOL, NIRMALAGIRI, KANNUR, PIN- 670 701. R1 TO R5 BY GOVERNMENT PLEADER SMT.T.B. REMANI. R6 BY ADV. MR.K.V.PAVITHRAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 3292/2010-J APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER ON 08/03/2006 BEFORE THE 6TH RESPONDENT. EXT.P2: COPY OF THE JUDGMENT DATED 18/10/2006 IN WP(C) NO. 12437/2006 PASSED BY THIS HONOURABLE COURT. EXT.P3: COPY OF THE ORDER NO.G-4493/06 DATED 29/12/2006 ISSUED BY THE 5TH RESPONDENT. EXT.P4: COPY OF THE JUDGMENT DATED 02/02/2007 IN WP(C) NO. 3816/2007 PASSED BY THIS HONOURABLE COURT. EXT.P5: COPY OF THE ORDER NO.B5-1297/2007/K.DIS. DATED 21/02/2007 PASSED BY THE 4TH RESPONDENT. EXT.P6: COPY OF THE ORDER NO.G.4493/06 DATED 29/03/2007 ISSUED BY THE 5TH RESPONDENT. EXT.P7: COPY OF THE JUDGMENT DATED 30/07/2007 IN WP(C) NO. 19574/2007 PASSED BY THIS HONOURABLE COURT. EXT.P8: COPY OF THE ORDER NO.B5-17247/07 DATED 12/12/2007 PASSED BY THE 3RD RESPONDENT. EXT.P9: COPY OF THE ORDER NO.G4/60842/08/DPI/K.DIS DATED 14/07/2009 PASSED BY THE 2ND RESPONDENT. EXT.P10: COPY OF THE LETTER ISSUED BY THE 6TH RESPONDENT, DATED 17/03/2010. RESPONDENT'S EXHIBITS: EXT.R6(a): COPY OF THE APPEAL CHALLENGING THE CORRECTNESS OF THE EXHIBIT-P9 ORDER. //TRUE COPY// P.S. TO JUDGE rs. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 3292 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of March, 2010 J U D G M E N T The petitioner was appointed as U.P.S.A in the 6th respondent's school on 24.07.1982. A vacancy of Headmistress arose in the said school with effect from 01.04.2006, consequent to the retirement of the incumbent of the said post. Petitioner being the senior-most qualified graduate teacher, laid a claim for promotion to that post by virtue of Rule 45 of Chapter XIV of KER, by filing Ext.P1 application to 6th respondent on 08.03.2006. But the 6th respondent put another teacher in charge of the post of Headmaster. Petitioner filed W.P.(C) No.12437/2006 and by Ext.P2 judgment dated 18.10.2006 this court directed the 5th respondent to consider the matter and pass orders within six weeks. By Ext.P3 order dated 29.12.2006 the 5th respondent rejected the claim of the petitioner. W.P.(C)No. 3292 of 2010 -2- Petitioner filed an appeal against Ext.P3 and filed W.P.(C) No.3816/2007. By Ext.P4 judgment 02.02.2007 this court directed the 4th respondent to dispose of the appeal filed by the petitioner. By Ext.P5 order dated 21.02.2007 the 4th respondent set aside Ext.P3 order and directed the 6th respondent to appoint the petitioner as Headmistress with immediate effect. The 4th respondent also directed the 5th respondent to verify whether the action of the 6th respondent will attract the provision contained in Rule 7 (b) of Chapter III of KER. Since the 6th respondent did not take any steps to implement Ext.P5, the petitioner submitted a representation before the 4th respondent. In the meantime, the 6th respondent appointed another teacher as Headmistress and the then Assistant Educational Officer on the previous day of her retirement passed Ext.P6 order imposing punishment on the petitioner by barring two increments for two years. The petitioner filed W.P.(C) No.19574/2007 and by Ext.P7 judgment dated 30.07.2007 this court quashed Ext.P6 order and directed W.P.(C)No. 3292 of 2010 -3- the 3rd respondent to dispose of the appeal filed by the 6th respondent challenging Ext.P5 order. By Ext.P8 order dated 12.12.2007 the 3rd respondent affirmed Ext.P5 order and directed the 6th respondent to comply with the orders. Even after Ext.P8, 6th respondent did not take steps to implement the orders. By Ext.P9 order dated 14.07.2009 the 2nd respondent also rejected the appeal filed by the manager against Ext.P8 order. Inspite of the specific orders issued by the educational authorities, 6th respondent is not implementing Ext.P5 order is the grievance of the petitioner in this writ petition. 2. On 22.02.2010 the 6th respondent appeared through counsel and sought time to file counter affidavit. I posted the writ petition after one week. On 04.03.2010 a representation was made on behalf of the counsel for the 6th respondent that due to some personal inconvenience he is unable to argue the case on that day. Therefore I posted the case on 09.03.2010. On 09.03.2010 the learned counsel for the 6th respondent submitted before me that the W.P.(C)No. 3292 of 2010 -4- 6th respondent is prepared to implement Ext.P5 order within a week. That submission was recorded and the matter was posted after a week. On 23.03.2010 again the matter came up and I posted the matter to the next day. On 24.03.2010 I passed the following order: This writ petition is filed by the petitioner seeking implementation of Ext.P5 order passed by the D.E.O. on 21.02.2007 directing the 6th respondent to appoint the petitioner as Headmistress with immediate effect. For three long years, the 6th respondent has not chosen to implement Ext.P5. Even after this writ petition was filed and even after several opportunities granted to the 6th respondent to make amends, he is adamant. Ultimately when this court opined that in such circumstances proceedings have to be directed to be initiated to disqualify him as the manager, counsel for the 6th respondent took time and today counsel for the petitioner produces before me an appointment order appointing the petitioner w.e.f. 17.03.2010 only. When it was pointed out to the counsel for the 6th respondent that this is one more reason why the educational authorities should be directed to take proceedings for disqualification of the 6th respondent manager, counsel for the 6th respondent seeks time till 29.03.2010 to get instructions in the matter. Post on 29.03.2010. 3. The petitioner has now produced Ext.P10 order whereby the petitioner was appointed as Headmistress with effect from 17.03.2010. Ext.P5 order was passed as early as on 21.02.2007, wherein the D.E.O. had directed the 6th respondent to appoint the petitioner as Headmistress with immediate effect and the A.E.O. was also directed to W.P.(C)No. 3292 of 2010 -5- see that the order is complied with and to verify whether the action of the manager will attract the provision contained in Rule 7 (b) of Chapter III of KER. Despite the order having been affirmed by superior authorities the 6th respondent takes the stand that in view of the Ext.R6 (a) appeal pending before the Government he will not implement the order. I had given several opportunities to the 6th respondent to make amends. He still remains recalcitrant and takes the stand that he will appoint the petitioner as Headmistress only with effect from 17.03.2010. In view of that adamant stand, I am inclined to take very serious view of the matter. Since Ext.P5 order has been affirmed by the superior authorities and the petitioner has not been able to obtain any stay orders he was bound to comply with the directions of the educational authorities. As such the 6th respondent has no defense in the matter and he has compounded his misconduct by taking an adamant stand before this court that he will not comply with the orders of the educational authorities. The W.P.(C)No. 3292 of 2010 -6- counsel for the 6th respondent, without any supporting pleadings, submits before me that the 6th respondent cannot comply with the directions because he fears that a teacher appointed in the meanwhile may proceed against him. That means he is more concerned about the action by the teacher than the action by the educational authorities and this court. In the above circumstances this writ petition is allowed in the following terms: The 6th respondent shall forthwith issue an appointment order appointing the petitioner as Headmistress of the school with effect from 22.02.2007 and forward the same to the 5th respondent for approval within one week from today. The 5th respondent shall pass orders on approval of the same within one month thereafter and take steps to disburse the salary due to the petitioner from the date of appointment. The salary payable to the petitioner from 22.02.2007 till the date of forwarding of the appointment W.P.(C)No. 3292 of 2010 -7- order to the A.E.O., as directed above shall be recovered from the 6th respondent. In view of the refusal of the 6th respondent to comply with the orders of the educational authorities, even in defiance of this court, the 4th respondent shall take immediate steps against the 6th respondent as proposed by him in Ext.P5 order under Chapter III of the K.E.R. for disqualification of the 6th respondent as the manager of the school. In view of the recalcitrant attitude of the 6th respondent, the 4th respondent shall pay Rs.10,000/- as costs to the petitioner within one month from today. sd/- S. SIRI JAGAN JUDGE The last sentence in the judgment dated 29/03/2010 in W.P.(C) 3292/2010 is corrected and substituted as”in view of the recalcitrant attitude of the 6th respondent, the 6th W.P.(C)No. 3292 of 2010 -8- respondent shall pay Rs.10,000/- as costs to the petitioner within one month from today”as per order dated 08/04/2010 in I.A. 5159/2010 in W.P. (C) 3292/2010. sd/- Registrar (Judicial) shg/