IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 28TH MAY 2008 / 7TH JYAISHTA 1930 WA.No. 2805 of 2007() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.29378/2004 Dated 05/10/2007 .................... APPELLANTS/ADDL.6TH RESPONDENT: ------------------------------ P.P.CHACKO, S/O.SRI.PAILO, AGED 53 YEARS, SR.H.S.A. AYAMKUDY HIGH SCHOOL, AYAMKUDY P.O., KOTTAYAM 13, RESIDING AT MANJAPRAYIL, MEMURY P.O., KOTTAYAM. BY ADV. SRI.O.V.RADHAKRISHNAN (SR.) SRI.MANUEL KACHIRAMATTAM RESPONDENTS/PETITIONER/RESPONDENTS 1 TO 5: ------------------------------------------ 1. V.P.JOSE, S/O.PAILY, AGED 53 YEARS, RESIDING AT PUTHIYADATHU, MANJOOR P.O., KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM. 4. DISTRICT EDUCATIONAL OFFICER, KADUTHURUTY, KOTTAYAM. 5. MANAGER, AYAMKUDI HIGH SCHOOL, AYAMKUDY P.O., KOTTAYAM. 6. SRI.BABY THOMAS, HIGH SCHOOL ASSISTANT, AYAMKUDI HIGH SCHOOL, AYAMKUDY P.O., KOTTAYAM. BY GOVT.PLEADER SRI.BENNY GERVACIS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. ------------------------------- W.A.NO.2805 OF 2007 () ----------------------------------- Dated this the 28th day of May, 2008 J U D G M E N T KOSHY,J. Petitioner/1st respondent was appointed as High School Assistant in the School with effect from July 29, 1977. While continuing so in the school, the petitioner was deployed to another school consequent to division fall with effect from March 29, 2000 and he continued on deployment till September 4, 2003. Thereafter he rejoined. He was promoted and appointed as Headmaster with effect from April 1, 2004. Respondent No.5 was appointed in the School on July 21, 1977. But his appointment was approved from August 25, 1977. But he was relieved from service on March 31, 1978 and then re-appointed with effect from June 7, 1978. So his continuous service started from June 7, 1978. By Ext.P3 representation, he filed representation to the Minister for approval of his appointment with effect from 21.7.1977, the date of his joining duty. Minister forwarded the representation to the Department concerned. On the basis of W.A.2805/07 2 the representation of the Minister, Government passed an order (Ext.P4) dated 20.9.2004 directed to fill up the post of Headmaster based on the rules. But before filling it, petitioner was appointed as Headmaster. According to the petitioner/1st respondent, the Minister had no right to issue any direction regarding promotion. The learned judge held that in view of the decision in Aleyamma v. Kunjamma Jacob (2007 (1) KLT 1049) and going by the precedents of this Court, the period spent on deployment pursuant to retrenchment cannot be reckoned for the purpose of computing the period of continuous service as provided under Rule 37 of Chapter XIV-A KER. Though the 5th respondent may be the senior, if the deployed period of the petitioner is excluded, he did not challenge the appointment of the petitioner in the proper way as provided under the rule. He did not question the seniority of the petitioner for 26 years. It was held that Ext.P4 order was incorrect and without jurisdiction. Therefore, it was set aside. Fifth respondent did not file any appeal. In the writ petition filed by the petitioner, the 6th respondent/appellant got impleaded in 2007 and questioned the appointment of the petitioner as Headmaster. But petitioner was appointed as Headmaster from 1.4.2004. W.A.2805/07 3 The 6th respondent, who filed this appeal and who was working in the same School and who knew regarding the appointment of the Headmaster, did not challenge the same. Even the impleading petition was filed only in 2007. Even after knowing his promotion, he did not challenge the promotion of the petitioner by filing appeal as provided under the statutory rules. He did not challenge the same by filing a writ petition also. Rule 44 of Kerala Education Rules reads as follows: 44. (1) [The appointment of Headmasters shall ordinarily be according to seniority from the seniority list prepared and maintained under clauses (a) and (b) as the case may be of rule 34]. The manager will appoint the Headmaster subject to the Rules laid down in the matter. A teacher if he is aggrieved by such appointment will have the right of appeal to the Department [xxx] [Note:- Whenever the Manager intends to appoint a person as Headmaster other than the senior claimant, the Manager shall obtain a written consent from such senior claimant renouncing his claim permanently. Such consent shall have the approval of the Educational Officer concerned] [(2) An appeal under sub-rule (1) shall lie to the Education Officer. (3) A second appeal shall lie to the W.A.2805/07 4 District Educational Officer against the order of the Assistant Educational Officer passed on an appeal preferred under Sub-Rule (2). In the case of an order passed by the District Educational Officer under sub-rule (2), the second appeal shall lie to the [Deputy Director (Education)] (4) No appeal or second appeal preferred under these rules shall be entertained unless it is preferred within one month of the date of [receipt of the order appealed against] He did not file an appeal within the time prescribed or filed any appeal to the authorities concerned even now. Unlike Rule 8, it is not stated that Rule 44 appeal can be filed only after approval for initial appointment and appeal to be filed regarding appointments as prescribed under Rule 44. In any event, for long years, 6th respondent/appellant did not question the appointment of the petitioner as the Headmaster, and therefore, he cannot question the same. We see no ground to interfere in the above, and hence, this appeal is dismissed. J.B.KOSHY, JUDGE P.N.RAVINDRAN, JUDGE prp W.A.2805/07 5 J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 26th May, 2008