IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 W.A.No. 1931 of 2009 ----------------------------- AGAINST THE JUDGEMENT IN WPC.5578/2008 Dated 29/05/2009 .................... APPELLANT(S)/THIRD PARTIES: -------------------- 1. V.SURESH, MANAGER SNDP UNION SCHOOL, KADAVOOR, SNDP OFFICE, MAVELIKKARA. 2. G.SUMI, U.P.S.A., SN UP SCHOOL, KADAVOOR, MAVELIKKARA, RESIDING AT VATTHATAYATHU ULLVUKADU, NOORANADU.P.O. BY ADVS. SRI.A.N.RAJAN BABU, SRI.P.GOPALAKRISHNAN (MVA) & SRI.A.R.EASWAR LAL RESPONDENT(S)//PETITIONERS & RESPONDENTS 1 TO 5: --------------- 1. S.SUJATHAN, AGED 48 YEARS, S/O. SUKUMARAN, MANAGER, SNDP UNION SCHOOLS, MAVELIKKARA. 2. SREELATHA.V.G., D/O. GANAGADHARAN.V.R., VILAPARAMBIL KARITHOTTA MEZHUVELI, NOW RESIDING AT KOTTUPURATHU KIZHEKKETHIL VATHIKULAM, OLAKETTIYAMBALAM. 3. THE SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPRAM. 4. THE UNDER SECRETARY, GENERAL EDUCATION(H) DEPARTMENT, THIRUVANANTHAPURAM 5. THE DIRECTOR PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 6. THE DISTRICT EDUCATION OFFICER, MAVELIKKARA. 7. THE ASSISTANT EDUCATION OFFICER, MAVELIKKARA. R1 BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL & SRI.A.R.DILEEP R2 BY ADV. SRI. R.REJI. R3 TO R7 BY GOVT. PLEADER SMT. R. BINDU. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. ------------------------------ W.A. No.1931 of 2009 ------------------------------ Dated this, the 1st day of October, 2009 JUDGMENT Balakrishnan Nair, J. The appellants were not parties to the Writ Petition, which was allowed by the learned Single Judge. So, they sought leave of this Court and have filed this appeal challenging the directions in the judgment, which are adverse to them. The brief facts of the case are the following: The Writ Petition was filed by the respondents 1 and 2 herein. The first respondent was the Manager, who appointed the second respondent, as per Ext.P1 order dated 19.10.2005 in a leave vacancy of an Upper Primary School Assistant (for short, 'UPSA') for the period from 19.10.2005 to 30.8.2010. The leave vacancy was available for the period from 31.8.2005 to 30.08.2010. It appears that there was some dispute concerning the management of the school. The local SNDP Union is the educational agency of the school. The President of the Union is the ex officio Manager of the school, as per the approved W.A. No.1931 of 2009 - 2 - bye-laws. The first respondent was elected President of the Union and the Manager of the school in 2002 for a period of three years. While so, the SNDP Union superseded the said Managing Committee headed by the first respondent on 4.3.2005. The same led to disputes which were agitated before the civil court also. By Ext.P3 order dated 18.10.2005 of the civil court, the right of the first respondent to continue as Manager was upheld. The result was that when the second respondent was appointed as UPSA, the first respondent was holding office as Manager validly. But, the second respondent's appointment was not approved by the Assistant Educational Officer. The said officer rejected it, by Ext.P4 order dated 13.2.2006, holding that the appointment cannot be approved as there was no approved Manager for the school on 19.10.2005. The said decision was affirmed in appeal by the District Educational Officer, by Ext.P5 order dated 25.5.2006. The first respondent moved the Director of Public Instruction, by filing Ext.P6 Revision Petition. The said petition was dismissed by the Additional Director (Academic) of Public Instruction, by Ext.P7 order dated 20.1.2007. The rejection was on two grounds. W.A. No.1931 of 2009 - 3 - Firstly, it was held that, there was no approved Manager. Secondly, it was held that, the second respondent has worked only up to 31.7.2006 pursuant to Ext.P1 appointment order and therefore, the period she has worked being only nine months, the appointment cannot be approved. The first respondent filed Ext.P9 revision before the Government challenging the above orders. The said revision was dismissed by the Government by Ext.P11 order dated 4.12.2007, holding that the period of appointment of the second respondent was for less than one academic year. Challenging Exts.P4, P5, P7 and P11 orders, the Writ Petition was filed. The learned Single Judge after hearing both sides, allowed the Writ Petition. It was held that even if the term of appointment is less than one academic year, if the term of the vacancy is for one academic year or more, the appointment should be approved. In that view of the matter, the Assistant Educational Officer was directed to approve Ext.P1 appointment. It was also ordered that if Ext.P1 order was not available, the present Manager shall forward a fresh appointment order in tune with Ext.P1 appointment order. W.A. No.1931 of 2009 - 4 - 2. The first appellant was elected President of the educational agency (the local unit of the SNDP Union) on 16.7.2006. The change of management was approved by the competent authority on 20.7.2006, which was for a period of three years. According to the appellants, the second respondent deserted the job and absented herself from 27.7.2006. So, the second appellant was appointed in that vacancy on 1.6.2007. The Assistant Educational Officer as per Annexure A order approved the said appointment from 4.6.2007. The present Manager, first appellant and her appointee, the second appellant herein, were not parties to Ext.P11 proceedings or to the Writ Petition. Therefore, feeling aggrieved by the aforementioned directions of the learned Single Judge in the judgment under appeal, this Writ Appeal is preferred. 3. Sri.A.N.Rajan Babu, learned counsel for the appellants, submitted that the second respondent has not turned up for work from 27.7.2006. Therefore, the second appellant was appointed in that vacancy and the same has been approved. The learned Single Judge happened to pass the judgment under W.A. No.1931 of 2009 - 5 - appeal because the above facts were not placed before this Court. Further, it is pointed out, that the present Manager cannot be compelled to issue an appointment order to the appointee of the predecessor Manager. 4. We heard the learned counsel for the respondents 1 and 2. It is submitted on behalf of the second respondent that she was physically prevented from attending the school after the take over of the management by the new Manager and non-approval of her appointment by the educational officers. This is clear from her statement in Ext.P10. So, the directions of the learned Single Judge are legal and valid. 5. From the facts placed before us, it is clear that the first respondent was holding the office of the Manager validly when he appointed the second respondent in the leave vacancy available from 31.8.2005 to 30.8.2010, by Ext.P1 order on 19.10.2005. Even according to the appellants, the first appellant was elected on 16.7.2006 and change of management took place on 20.7.2006. So, by virtue of Ext.P3 interim order of W.A. No.1931 of 2009 - 6 - the Civil Court, the first respondent held office of Manager validly, notwithstanding the supersession of the Committee headed by him on 4.3.2003. So, the Government rightly did not rely on the management dispute in Ext.P11 order to reject the claim of respondents 1 and 2. 6. The next point to be considered is, if the period the incumbent worked is less than one academic year, even though the vacancy in which she was appointed extends beyond one academic year, whether approval could be denied. Relying on a Division Bench decision of this Court in Unni Narayanan v. State of Kerala, 2009 (2) KLT 604, the learned Single Judge directed the A.E.O. to approve the appointment even if the period of appointment is less than one academic year provided the appointment is made in a vacancy having a duration of one academic year or more. In view of the above position, we find nothing wrong in the decision of the learned Single Judge. The learned Single Judge, in the judgment under appeal, has held as follows: W.A. No.1931 of 2009 - 7 - “I also note the contention of the 2nd petitioner that she could not work in the school after 31.07.06 only because the contesting factor of the SNDP Union, which owns the school physically prevented her from entering the school. Whether that is correct or not, insofar as the appointment of the 2nd petitioner is clearly in accordance with the provisions of KER, approval could not have been rejected as done in the impugned orders.” The learned counsel for the appellant submitted that the above claim of the second respondent is not correct. But, the learned counsel for the second respondent relied on the pleadings in Ext.P10, which we have already noted earlier, to justify the observations of the learned Single Judge. Having regard to the facts of the case, we find no reason to take a different view on the above point. Only because of the non-approval of the appointment of the second respondent, the second appellant was appointed, and her appointment was approved. So, with the approval of appointment of the second respondent, the appointment of the said appellant and its approval, being dependent proceedings, will collapse. But the salary, if any, paid to the second appellant till the date of the judgment under W.A. No.1931 of 2009 - 8 - appeal shall not be recovered from her. 7. Finally, the learned counsel for the appellants submitted that the present Manager cannot be compelled to issue an appointment order to the second respondent with retrospective effect. We think, the above contention is hyper technical. If Ext.P1 appointment order is not available with the authorities, the present Manager can be asked to forward a copy of the same available with him and if not, issue a fresh appointment order in tune with Ext.P1, so that the approval can be granted for the same by the Assistant Educational Officer concerned. So, the said contention also cannot be upheld. In the result, the Writ Appeal fails and it is dismissed. Sd/- K. Balakrishnan Nair, Judge. Sd/- P. Bhavadasan, Judge. DK. (True copy)