IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 WP(C).No. 23667 of 2007(P) PETITIONER: ------------ ANITHA GREGORY, D/O. P.GREGORY, AGED 38 YEARS, HIGHER SECONDARY SCHOOL TEACHER (COMMERCE)(OUT OF SERVICE), ST.ALOYSIOUS HIGHER SECONDARY SCHOOL, KOLLAM (RESIDING AT ASHIYANA, P.O. NEENDAKARA, KOLLAM DISTRICT). BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENTS: ------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SANTHI NAGAR, TRIVANDRUM. 3. THE CORPORATE MANAGER OF CATHOLIC SCHOOLS, BISHOP HOUSE, THANGASSERI, KOLLAM DISTRICT. R3 BY ADV. SRI.GEORGE POONTHOTTAM GOVERNMENT PLEADER SRI.K.R.SABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/06/2008, ALONG WITH WPC NO. 26709 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.23667 OF 2007 PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE LETTER OF THE MANAGER DATED 12.7.2001. EXT.P2 TRUE COPY OF THE LETTER NO.8227/2001/EDN. OF THE MANAGER DATED 16.11.2001. EXT.P3 TRUE COPY OF THE ORDER NO.ACD.B3-117/02/HSE OF THE SECOND RESPONDENT DATED 20.2.2003. EXT.P4 TRUE COPY OF THE CERTIFICATE OF THE PRINCIPAL DT.29.4.2002. EXT.P5 TRUE COPY OF THE LETTER OF THE PRINCIPAL DATED 2.6.2003. EXT.P6 TRUE COPY OF THE CERTIFICATE OF SET DATED 22.8.2000. EXT.P7 TRUE COPY OF THE APPEAL PETITION FILED BEFORE THE GOVERNMENT BY THE MANAGER. EXT.P8 TRUE COPY OF THE PROVISIONAL CERTIFICATE DT.10.9.2004. EXT.P9 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 15.9.2004. EXT.P10 TRUE COPY OF THE ORDER IN I.A.NO.1398/2003 IN F.A.O. NO.106/2003 OF THE DISTRICT COURT, KOLLAM, DT.24.11.2003. EXT.P11 TRUE COPY OF THE JUDGMENT IN F.A.O.NO.106/2003 OF THE DISTRICT COURT, KOLLAM DATED 23.12.2005. EXT.P12 TRUE COPY OF THE JUDGMENT OF THIS COURT IN W.P.(C) NO.27040/2006 R , DATED 13.10.2006. EXT.P13 TRUE COPY OF THE ORDER NO.B3/117/03/HSE OF THE SECOND RESPONDENT, DATED 7.3.2007. EXT.P14 TRUE COPY OF THE REQUEST LETTER OF THE PETITIONER DATED 24.5.2007. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. -------------------------------------------- W.P.(C) NO. 23667 OF 2007 and W.P.(C) NO. 26709 OF 2007 -------------------------------------------- Dated this the 30th June, 2008 JUDGMENT The Corporate Manager, Catholic Schools, Kollam is the petitioner in W.P.(C) No.26709 of 2007, while Anitha Gregory, a teacher appointed by the Manager in St.Aloysius Higher Secondary School, Kollam is the petitioner in W.P.(C) No.23667 of 2007. 2. The Manager appointed Anitha Gregory as Higher Secondary School Teacher (Commerce) on 4.7.2001. The Manager issued a letter dated 12.7.2001 to the Principal of the School, requesting to entertain Anitha Gregory in the School from 12.7.2001. It is stated by Anitha Gregory in W.P.(C) No.23667 of 2007 that she had passed M.Com. Degree and B.Ed. Degree from Barkethulla Viswa Vidyalaya, Bhopal. It is stated that on 16.11.2001 the Manager issued orders appointing Anitha Gregory as Higher Secondary School Teacher in the Department of Commerce in St.Aloysius Higher Secondary School in the post sanctioned for the year 2001-2002. The Manager forwarded the appointment order to the Director of Higher Secondary Education for approval. As per order dated 20.2.2003, the Director of Higher Secondary Education rejected the proposal for approval of appointment on the ground that the B.Ed. Degree secured by Anitha Gregory is not a sufficient qualification. It is also stated in the order dated 20.2.2003 thus: W.P.(C) NOS.23667 &26709 OF 2007 :: 2 :: “The Selection Committee report submitted by the Manager, the Government Nominee is not as norms prescribed.” It is stated that subsequently, Anitha Gregory acquired B.Ed. qualification from the University of Kerala. Against the order rejecting approval of appointment of Anitha Gregory, the Manager filed an appeal before the Government, which is marked as Ext.P7 in W.P.(C) No.23667 of 2007. It is stated by Anitha Gregory that during June 2003, when the Management refused to permit her to resume her duties, she filed a suit for injunction before the Munsiff's Court, Kollam. The interlocutory application, I.A.No.1806 of 2003, filed in the suit was dismissed by the Munsiff's Court. In the appeal filed by Anitha Gregory before the District Court, Kollam, (F.A.O.No.106 of 2003) the learned District Judge passed an order dated 24.11.2003, directing the parties to maintain status quo until further orders. It is submitted that the suit was subsequently dismissed. 3. Meanwhile, Anitha Gregory filed W.P.(C) No.27040 of 2006, which was disposed of as per the judgment dated 13.10.2006, directing the Director of Higher Secondary Education to consider and pass orders in the appeal filed by the Manager on the merits and in accordance with law, as expeditiously as possible and, at any rate, within two months from the date of receipt of a copy of the judgment. W.P.(C) NOS.23667 &26709 OF 2007 :: 3 :: 4. Thereafter, the Director of Higher Secondary Education passed the order dated 7.3.2007, which reads as follows: “Smt.Anitha Gregory, Aashiyana, Neendakara, has filed the above Writ Petition, before the Hon'ble High Court, alleging that the Manager, St.Aloscious HSS, Kollam, has denied appointment as she is qualified. She had worked as HSST in the school from 4.7.2001. But her appointment was not approved for she was not qualified for the post. Later she acquired B.Ed. Degree from Kerala University and approached the Manager for posting. But the Manager did not appoint her and she filed Writ Petition before the Hon'ble High Court. The Hon'ble High Court has directed this respondent to consider Ext.P7 and pass appropriate Orders in accordance with law. Accordingly, Smt.Anitha Gregory and the Manager were directed to attend a hearing. But the Manager did not turn up for the same. The Manager was also given another chance to describe his part. This intimation was issued through Registered Post. But the Manager did not report the present position in writing or in person. The Manager, St.Aloscious HSS, Kollam, is hereby directed to give appointment to Smt.Anitha Gregory, as per rules, if vacancy exists. Order is issued in compliance with the direction in W.P.(C) 27040/06 filed by Smt.Anitha Gregory.” 5. The grievance of the Manager is that he was not heard before passing the order dated 7.3.2007 by the Director of Higher Secondary Education. It is stated in the order dated 7.3.2007 that the Manager did not turn up for hearing and that another chance was given to the Manager W.P.(C) NOS.23667 &26709 OF 2007 :: 4 :: “to describe his part”. It is also stated that the intimation to the Manager was issued through Registered Post. 6. Learned counsel for the Manager submitted that the notice issued by the Director of Higher Secondary Education was received by the Manager only on 13.2.2007 and on the next day a reply (dated 14.2.2007) was submitted by the Manager to the Director of Higher Secondary Education. That reply is marked as Ext.P7 in W.P.(C) No.26709 of 2007. 7. Evidently, the order dated 7.3.2007 does not refer to the case put forward by the Manager. The order also does not indicate that the Manager was heard. The order does not show the date of hearing. The grievance of the Manager was that he was not afforded an opportunity of being heard. It is not established by any acceptable material that the Manager was afforded a meaningful opportunity of being heard. A reading of the order dated 7.3.2007 would also indicate that the matter was not considered on the merits. On the other hand, the order was passed only on the ground that the Manager was absent. By that order, the Manager was directed to give appointment to Smt.Anitha Gregory as per the Rules, if vacancy exists. 8. In the Writ Petition filed by the Manager, he challenges the W.P.(C) NOS.23667 &26709 OF 2007 :: 5 :: order dated 7.3.2007. A writ of mandamus is also sought for to dispose of the appeal filed by the Manager against non-approval of the appointment of Anitha Gregory. In fact, it is not an appeal because the order rejecting approval was passed by the Director of Higher Secondary Education and the appeal is directed to the same authority. In fact, it could be considered only as a Review. Any how, as per the judgment dated 13.10.2006 in W.P.(C) No.27040 of 2006, the Director of Higher Secondary Education was directed to consider the appeal filed by the Manager. What was considered by the Director of Higher Secondary Education in the order dated 7.3.2007 was not the Appeal filed by the Manager but the request of the teacher to provide her appointment. 9. In the Writ Petition filed by Anitha Gregory the reliefs prayed for are the following: “(a) issue a writ of mandamus or other appropriate writ order or direction commanding the 2nd Respondent to approve the appointment of the Petitioner as Higher Secondary School Teacher (Commerce) from 12.7.2001 in St.Aloysious Higher Secondary School, Kollam, (b) issue a writ of mandamus or other appropriate writ order or direction commanding the 3rd Respondent Manager to re-admit the Petitioner in duty in the existing vacancy of Higher Secondary School Teacher (Commerce) in St.Aloysious Higher Secondary School, Kollam in which the petitioner was originally appointed forthwith. W.P.(C) NOS.23667 &26709 OF 2007 :: 6 :: (c) declare that the Petitioner is fully qualified for appointment as Higher Secondary School Teacher (Commerce) ion terms of clause 27 of Rule 6 of Chapter XXXII of Kerala Education Rules on the ground that the Petitioner acquired B.Ed within 5 (five) years. (d) issue a writ of mandamus or other appropriate writ order or direction commanding the Respondents to disburse the salary and allowances to the Petitioner during the period the Petitioner had actually worked as Higher Secondary School Teacher (Commerce) in St.Aloysious Higher Secondary School, Kollam and grant her compensation for the illegal and arbitrary termination of the service. (e) pass such other order or direction which this Hon'ble Court may deem fit and proper to grant in the circumstances of the case.” 10. After having heard the learned counsel for the Manager as well as the learned counsel appearing for Anitha Gregory, I am of the view that the matter requires to be considered afresh by the Director of Higher Secondary Education. Evidently, Manager was not heard by the Director. There was violation of the principles of natural justice. The matter which was directed to be considered by this Court was not considered by the Director of Higher Secondary Education. On the other hand, the question whether Smt. Anitha Gregory is to be appointed alone was considered by the Director. The respective contentions put forward by the parties were not referred to or considered in the order dated 7.3.2007, passed by the Director of Higher Secondary Education. Fresh look into the matter is necessary to resolve the controversy in the case. Therefore, hearing is W.P.(C) NOS.23667 &26709 OF 2007 :: 7 :: also required and a notice fixing the date of hearing shall be issued to the Manager as well as to Anitha Gregory well in advance. The Director of Higher Secondary Education shall pass appropriate orders in accordance with law after considering the request made by the Teacher as well as the contention put forward by the Manager. The order shall be a speaking order and the contentions put forward by both the parties shall be dealt with by the Director. 11. The order dated 7.3.2007 passed by the Director of Higher Secondary Education is hereby set aside and the Writ Petitions are allowed. All the questions are left open to be decided by the Director of Higher Secondary Education. It is submitted by the learned counsel appearing for Anitha Gregory that there is a vacancy and the Manager may fill up the same. The petitioner in W.P.(C) No.23667 of 2007 would be entitled to put forward this grievance before the Director of Higher Secondary Education and pray for appropriate interim directions. It is made clear that I have not considered the respective contentions of the parties on the merits. (K.T.SANKARAN) Judge ahz/