IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 WP(C).No. 2073 of 2009(V) ------------------------- PETITIONER: --------------- THOMAS JOSEPH, S/O.K.T. JOSEPH, AGED 35 YEARS, HIGH SCHOOL ASSISTANT (ENGLISH), K.K.M.H.S SCHOOL, VANDITHAVALAM, PALAKKAD DISTRICT. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENTS: --------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY,THIRUVANANTHAPURAM-14. 3. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD DISTRICT. 4. THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD DISTRICT. 5. MANAGER, K.K.M HIGHER SECONDARY SCHOOL, VANDITHAVALAM, PALAKKAD DISTRICT. 6. THE HEADMASTER, K.K.M HIGHER SECONDARY SCHOOL, VANDITHAVALAM, PALAKKAD DISTRICT. WP(C).No. 2073 of 2009(V) : 2 : 7. MR.P.R. SREENAGESH, UPPER PRIMARY SCHOOL ASSISTANT, K.K.M HIGHER SECONDARY SCHOOL, VANDITHAVALAM, PALAKKAD DISTRICT. BY GOVT. PLEADER SHRI.T.T.MUHAMOOD ADV. SRI.SAJAN VARGHEESE K. FOR R7 SRI.LIJU. M.P FOR R7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2073 of 2009(V) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : TRUE COPY OF THE ORDER OF APPOINTMENT DATED 1.10.2007 EXHIBIT P2 : TRUE COPY OF THE CERTIFICATE DATED 23.11.2007 EXHIBIT P3 : TRUE COPY OF THE ORDER NO.B1-3865/96/K.DIS OF THE DISTRICT EDUCATIONAL OFFICER DATED 19.6.2007 EXHIBIT P4 : TRUE COPY OF THE ORDER NO.EM5/25842/08/DPI OF THE 2ND RESPONDENT DATED 10.4.2008 EXHIBIT P5 : TRUE COPY OF THE REPRESENTATION OF THE 7TH RESPONDENT DATED 29.3.2008 EXHIBIT P6 : TRUE COPY OF THE -DO- BY THE PETITIONER DATED 5.7.2008 EXHIBIT P7 : TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C)No.29441/2008 DATED 6.10.2008 EXHIBIT P8 : TRUE COPY OF THE HEARING NOTE SUBMITTED BY THE PETITIONER EXHIBIT P9 : TRUE COPY OF THE ORDER NO.EM5/25842/08/DPI/D.DIS. OF THE 2ND RESPONDENT DATED 10.12.2008 EXHIBIT P10 :TRUE COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT DATED 17.1.2009 EXHIBIT P11 :TRUE COPY OF THE STAY PETITION FILED BEFORE THE GOVERNMENT DATED 17.1.2009 //TRUE COPY// PA TO JUDGE P.N.RAVINDRAN, J. ---------------------------------------------- W.P(C) No.2073 of 2009-V --------------------------------------------- Dated this the 18th February, 2009. J U D G M E N T Heard Shri.V.A.Muhammed, the learned counsel appearing for the petitioner, Shri.T.T.Muhamood, the learned Government Pleader appearing for respondents 1 to 4 and Shri.Sajan Varghese, the learned counsel appearing for the seventh respondent. 2. The dispute relates to appointment to the post of HSA (English) sanctioned by the fourth respondent in the fifth respondent's school during the academic year 2006-07. Initially the Manager appointed the seventh respondent as HSA (English) with effect from 5.6.2006. By Exhibit P3 order passed on 19.6.2007, the District Educational Officer declined to approve the said appointment on the ground that he does not possess either a Bachelor degree or Post Graduate degree in English, which is one of the essential qualifications for appointment to the post of HSA (English). Thereafter the Manager invited applications. The petitioner was selected and he was appointed with effect from 1.10.2007 as HSA (English), as per Exhibit P1 appointment order. The said appointment was approved by the District Educational Officer, Palakkad, by order passed on 27.3.2008. 3. Two days thereafter, the seventh respondent filed Exhibit W.P(C) No.2073 of 2009-V 2 P5 representation dated 29.3.2008 before the Director of Public Instruction without disclosing the fact that his appointment as HSA (English) was rejected by the District Educational Officer. In Exhibit P5 he had no case that the petitioner is not qualified to be appointed. His contention was that the Manager has appointed an outsider ignoring his claim under Rule 43. On receipt of Exhibit P5, the Director of Public Instruction sent Exhibit P4 letter dated 10.4.2008 to the District Educational Officer, directing him to forward the files relating to the appointment of the petitioner. He also ordered that till a decision is taken on the representation submitted by the seventh respondent, the order approving the appointment of the petitioner as HSA (English) with effect from 1.10.2007 shall be kept in abeyance. 4. On coming to know about Exhibit P4 communication, the petitioner submitted Exhibit P6 representation dated 5.7.2008 before the Director of Public Instruction requesting him to vacate the order keeping his approval in abeyance. He also filed W.P(C)No.29441 of 2008 in this Court. By Exhibit P7 judgment delivered on 6.10.2008, this Court directed the Director of Public Instruction to consider and pass orders on Exhibit P6 representation after notice to and affording the petitioner and respondents 5 to 7 an opportunity of being heard. 5. As directed by this Court, the Director of Public Instruction W.P(C) No.2073 of 2009-V 3 heard the parties on 10.12.2008 and passed Exhibit P9 order holding that the petitioner is not qualified to be appointed and that the action of the Manager in appointing an unqualified hand from the open market is in violation of Rule 43 of Chapter XIVA of the KER. The Director of Public Instruction accordingly cancelled the order passed by the District Educational Officer, Palakkad, approving the petitioner's appointment and directed the Manager to promote the seventh respondent as HSA (English) immediately. The Director of Public Instruction further directed the District Educational Officer to approve the seventh respondent's appointment within 30 days from the date of receipt of the proposal by ascertaining the genuineness of the M.A. Degree issued by the Annamalai University, if he is otherwise eligible. 6. Aggrieved by Exhibit P9, the petitioner has filed Exhibit P10 revision petition before the State Government along with Exhibit P11 stay petition. In Exhibit P11 stay petition he has also prayed for stay of operation of Exhibit P9 pending disposal of the revision petition. This Writ Petition was thereafter filed on 19.1.2009 challenging Exhibit P9 and seeking a writ in the nature of mandamus commanding the first respondent to consider and pass orders on Exhibits P10 revision and P11 stay petition. When this writ petition was admitted, this Court directed the first respondent to consider and pass orders on Exhibit W.P(C) No.2073 of 2009-V 4 P11 after hearing the petitioner and respondents 5 to 7 . This Court also directed that Exhibit P9 shall be kept in abeyance till orders are passed by the Government on Exhibit P11. 7. Going by the pleadings and the materials on record, it would be premature for this Court to adjudicate upon the dispute at this stage. Aggrieved by Exhibit P9, the petitioner has filed Exhibit P10 revision along with Exhibit P11 stay petition. Therefore it is for the Government to decide whether the order passed by the Director of Public Instruction is in accordance with law and is sustainable. I am therefore inclined to dispose of this Writ Petition with a direction to the Government to pass orders on Exhibit P10 after notice to and affording the petitioner and respondents 5 to 7 an opportunity of being heard. What remains to be considered is whether the operation of Exhibit P9 should be kept in abeyance till the Government decides the matter. There is no dispute about the fact that the seventh respondent was initially appointed as HSA (English) against a newly sanctioned post for the year 2005-2006 and that the said appointment was not approved for the reason that he did not possess a degree in English. It was after the seventh respondent's appointment was rejected by Exhibit P3 that the petitioner was appointed on 1.10.2007. The seventh respondent thereupon filed a complaint before the Director of W.P(C) No.2073 of 2009-V 5 Public Instruction without referring to his earlier appointment and the rejection of that appointment by the District Educational Officer, stating that the Manager has ignoring his rights under Rule 43, appointed an outsider as HSA (English). The fact that the petitioner is admittedly working in the school since 1.10.2007 is not disputed. Having regard to the facts stated above I am of the opinion that the said state of affairs should continue till the Government decides the issue. In these circumstance, I dispose of the writ petition with the following directions. i) The first respondent shall within three months from the date of receipt of a copy of this judgment pass final orders on Exhibit P10 revision after affording the petitioner and respondents 5 to 7 an opportunity of being heard. After orders are passed on Exhibit P10 as directed above, the Government shall communicate the order to the petitioner and respondents 5 to 7. iii) The operation of Exhibit P9 shall stand stayed until orders are passed on Exhibit P10 and for a period of two weeks thereafter. The writ petition is disposed of as above. Sd/- P.N.RAVINDRAN JUDGE //True Copy// ab PA to Judge W.P(C) No.2073 of 2009-V 6