IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 12TH MARCH 2009 / 21ST PHALGUNA 1930 WP(C).No. 33147 of 2008(U) -------------------------------------- PETITIONER(S): ---------------------- GEEVARGHESE.M.P, U.P.S.A, A.U.P. SCHOOL, VAZHIKKADAVU.P.O, MALAPPURAM DISTRICT. BY ADV. MR.KALEESWARAM RAJ RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENREAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ASSISTANT EDUCATIONAL OFFICER, NILAMBUR. 3. THE MANAGER, A.U.P. SCHOOL, VAZHIKKADAVU, NILAMBUR, MALAPPURAM DISTRICT. 4. M. MUHAMMED ASHRAF, HEADMASTER, A.U.P SCHOOL, VAZHIKKADAVU, NILAMBUR, MALAPPURAM DISTRICT. R1 & R2 BY GOVERNMENT PLEADER MR.T.T.MUHAMOOD R3 & R4 BY ADV. MR.V.RAJENDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 33147 of 2008(U) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DATED 17/01/2006. EXT.P2: COPY OF THE JUDGMENT DATED 22/06/2007 IN W.P.(C). NO. 3616/2006. EXT.P3: COPY OF THE JUDGMENT DATED 24/08/2008 IN W.A. NO.1904 OF 2007. EXT.P4: COPY OF THE JUDGMENT DATED 11/03/2008 IN R.P. NO.91/2008 IN W.A. NO.1904/2007. EXT.P5: COPY OF THE REPRESENTATION WHICH WAS SENT ON 19/05/2008 BY THE PETITIONER. EXT.P6: COPY OF THE LETTER DATED 10/12/2007 ISSUED BY THE GOVERNMENT. EXT.P7: COPY OF THE LETTER DATED 17/12/2007 ISSUED BY THE AEO TO THE MANAGER. EXT.P8: COPY OF THE RECORD OF PROCEEDINGS IN PETITION FOR LEAVE TO APPEAL (CIVIL) NO.3422 OF 2007. EXT.P9: COPY OF THE RECORD OF PROCEEDINGS RECEIVED BY THE PETITIONER ALONG WITH PETITION FOR SPECIAL LEAVE AND CONNECTED PAPERS. RESPONDENT'S EXHIBITS: EXT.R4(a): COPY OF THE COUNTER AFFIDAVIT FILED BY THE STATE KERALA IN SLP(C) NO.22840 OF 2007 BEFORE THE HONOURABLE SUPREME COURT OF INDIA. //TRUE COPY// P.S. TO JUDGE Rs/ P.N.RAVINDRAN, J. ====================================== W.P.(C)No.33147 of 2008 ====================================== Dated this the 12th day of March 2009 JUDGMENT The petitioner is presently working as Upper Primary School Assistant in AUP School, Vazhikkadavu. A vacancy of Headmaster arose in the said school on 1.6.2004. The Manager appointed the fourth respondent as Headmaster. The petitioner thereupon raised a dispute and that dispute was resolved by the Government by Ext.P1 order dated 17.1.2006. The Government held that the appointment of the fourth respondent is illegal and that the petitioner is entitled to be appointed as Headmaster. A direction was accordingly issued to the Manager to appoint the petitioner as Headmaster. The right of the fourth respondent to receive salary for the period he had worked as Headmaster was protected. 2. The fourth respondent challenged Ext.P1 in this Court by filing W.P.(C) No.3616 of 2006. By Ext.P2 judgment delivered on 22.6.2007, a learned Single Judge of this Court set aside Ext.P1 and restored the orders passed by the educational officers approving the fourth respondent's appointment as Headmaster. The petitioner carried the matter in appeal. By Ext.P3 judgment delivered on 24.8.2007 in Writ Appeal No.1904 of 2007, a Division Bench of this Court set aside Ext.P2 judgment and restored Ext.P1 Government order. The Manager W.P.(C)No.33147 of 2008 2 of the school thereupon moved for review of Ext.P3 judgment. By Ext.P4 order passed on 11.3.2008, the review petition was dismissed. 3. After Ext.P3 judgment was delivered, the petitioner moved the Government seeking implementation of Ext.P1 order. The Government sent Ext.P6 letter dated 10.12.2007 to the Assistant Educational Officer, Nilambur requesting him to comply with Ext.P3 judgment in Writ Appeal No.1904 of 2007 and to inform the Government. The Assistant Educational Officer thereupon sent Ext.P7 letter dated 17.12.2007 to the Manager of the school directing him to implement Ext.P1. The Manager did not oblige. This writ petition was thereupon filed seeking a direction to the Manager to promote the petitioner as Headmaster on the basis of Ext.P1 Government order, that was upheld by this Court in Ext.P3 judgment and Ext.P4 order. The petitioner has also prayed for a writ in the nature of mandamus commanding the State of Kerala to take action against the Manager. 4. The fourth respondent has filed a counter affidavit contending inter alia that he has moved the Apex Court in SLP (Civil) No.22840 of 2007, canvassing the correctness of Ext.P3 judgment and Ext.P4 order passed by this Court, that the said Special Leave Petition has been admitted and notice ordered to the petitioner herein and that the Special Leave Petition stands posted for hearing to 24.3.2009. It is W.P.(C)No.33147 of 2008 3 stated that the Apex Court has not stayed the operation of Ext.P3 judgment of the Division Bench. 5. As matters now stand, Ext.P1 Government order remains in force. Though a learned Single Judge of this Court had initially set aside Ext.P1 order, that was restored by the Division Bench in Ext.P3 judgment. Though the fourth respondent has moved the Apex Court, the Apex Court has not stayed the operation of Ext.P3 judgment of this Court. Therefore Ext.P1 operates with full force and the Manager is bound to implement the same. I accordingly direct the third respondent Manager to promote the petitioner herein as Headmaster, with effect from 1.4.2009 onwards, if in the meanwhile, the Apex Court does not interfere with Ext.P3 judgment and Ext.P4 order passed by this Court. The appointment of the petitioner as Headmaster, will be purely provisional and subject to the decision of the Apex Court, in the Special Leave Petition filed by the fourth respondent from Ext.P3 judgment and Ext.P4 order. The entitlement of the petitioner to have his appointment approved and for payment of salary in the scale of pay of Headmaster will also depend on the outcome of the case pending before the Apex Court. Till then the petitioner, on his appointment as Headmaster will continue to draw salary at the rate as he is presently drawing as U.P.School Assistant. W.P.(C)No.33147 of 2008 4 6. The second respondent is directed to ensure that the directions issued herein are implemented by the third respondent Manager. I also make it clear that in the event of Ext.P3 judgment and Ext.P4 order being reversed by the Apex Court, the fourth respondent shall be reappointed as Headmaster. The Writ Petition is disposed of as above. No costs. P.N.RAVINDRAN, JUDGE css/