IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 WP(C).No. 30140 of 2010(N) -------------------------- PETITIONER(S): --------------- RACHEL ABRAHAM, THEVARIL HOUSE, KIZHAKKUMBHAGOM.P.O., NIRANAM WEST, THIRUVALLA. BY ADV. SRI.P.HARIDAS SMT.S.SIKKY RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, OFFICE OF THE DIRECTORATE OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, THIRUVALLA,PATHANAMTHITTA DISTRICT. 4. THE DISTRICT EDUCATIONAL OFFICER, THIRUVALLA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30140 of 2010(N) PETITIONER'S EXTS: EXT.P1:- COPY OF ORDER DTD.28.3.05 EXT.P2:- COPY OF ORDER DTD.27.4.07 EXT.P3:-COPY OF STAFF FIXATION ORDER DTD.5.8.07 EXT.P4:- COPY OF ORDER DTD.28.4.08 ISSUED BY R3. EXT.P5:- COPY OF JUDGMENT IN WP(c) NO.17352/07 EXT.P6:- COPY OF ORDER DTD.27.9.07 ISSUED BY R3. EXT.P7:- COPY OF ORDER DTD.3.1.08 ISSUED BY R4. EXT.P8:- COPY OF ORDER DTD.3.9.10 EXT.P9:- COPY OF APPEAL RESPONDENTS EXTS: NIL /TRUE COPY/ P.A.TO JUDGE K.T.SANKARAN, J. ------------------------------ W.P.(C).No.30140 OF 2010 ------------------------------ Dated this the 19 th day of October, 2010 JUDGMENT The case of the petitioner is the following. She is working as the Headmistress in Kadapra St.Thomas High School, Niranam West, which is a minority educational institution as recognized in Ext.P1. Rev.A.T.Raju was working as Headmaster of the school. He retired from service on 30.4.2007. In that resultant vacancy, the petitioner was appointed as Headmistress, as per Ext.P2 order dated 27.4.2007. It is stated that in the resultant vacancy on account of the appointment of the petitioner as Headmistress, a protected teacher was recalled. It is stated that the appointment of Rev.A.T.Raju as Headmaster was challenged by another teacher, and she filed W.P.(C) No.688 of 2005. That Writ Petition is pending. However, Rev.A.T.Raju and the rival claimant retired from service. W.P.(C).No.30140 OF 2010 2 2. The Deputy Director of Education rescinded handing over the charge to the petitioner as Headmistress on the ground that there was a rival claimant, namely, Smt.Annie Joseph. That order was challenged by the petitioner as well as the Manager in WP(C) No.17352 of 2007, which was disposed of as per Ext.P5 judgment dated 19 th June, 2007. After Ext.P5 judgment, the Deputy Director of Education passed Ext.P6 order dated 27.9.2007 holding thus: “The Manager has appointed Smt.Rachel Abraham as HM in St.Thomas HS, Kadapra exercising minority right vested on him vide read Ist cited. Smt.Rachel Abraham, the 2nd appellant is fully qualified to the post of HM. The exercising of minority right is not stayed by the Hon'ble High Court in their interim judgment read 2nd cited. The 1st appellant, being the manager, of a minority institution having minority right is entitled to appoint a fully qualified person as head of school of his choice. Hence, the action of the DEO, Thiruvalla in granting charge of the HM to Smt.Annie Joseph, the senior most teacher of the School to handle the day to day activities in the school is not legal. The DEO, Thiruvalla is directed to re-examine the case as per rules and issue orders accordingly. The circumstances stated in the above para, the request of Smt.Annie Joseph who is the additional respondent No.4, promoting her in the place of Smt.Rachel Abraham as HM is not allowable. No need to interfere the power of the manager, which is challenged in W.P.(C).No.30140 OF 2010 3 the Hon'ble High Court in the WP Read 2nd cited. Hence the request of Smt.Annie Joseph is also rejected.” In Ext.P6 order, it was also held that the approval of appointment of the petitioner can be considered only after the approval of appointment of the Rev.A.T.Raju. It is stated that Annie Joseph, the rival claimant has not challenged Ext.P6 order. 4. Against the finding in Ext.P6 that approval of the appointment can be made only after the approval of appointment of Rev.A.T.Raju, the Manager filed an appeal before the Director of Public Instruction. That appeal was rejected as per Ext.P8 order dated 3.9.2010. Challenging Ext.P8 order, the petitioner filed Ext.P9 revision dated 18.9.2010 before the first respondent. Ext.P9 is pending disposal. 5. It is submitted by the learned counsel for the petitioner that approval of the appointment of W.P.(C).No.30140 OF 2010 4 Rev.A.T.Raju is not relevant for considering the approval of the appointment of the petitioner since it is not in dispute that there was a post to which the petitioner could be appointed. It is submitted that the rival claims between Rev.A.T.Raju and K.C.Valsamma, who retired from service, should not be an obstacle in the matter of approval of appointment of the petitioner. These contentions need not be considered in the Writ Petition as they can be taken by the petitioner before the first respondent while considering Ext.P9 revision. 6. The prayer in the Writ Petition is to issue a direction to the first respondent to dispose of Ext.P9 revision on the merits. In the facts and circumstances of the case, the Writ Petition is disposed of directing the first respondent to consider and dispose of Ext.P9 revision filed by the petitioner as expeditiously as possible, and at any rate within a period of W.P.(C).No.30140 OF 2010 5 three months from the date of receipt of a copy of the judgment, after affording an opportunity of being heard to the petitioner, the Corporate Manager and any other affected party. a) The petitioner shall produce a copy of the Writ petition and certified copy of the judgment before the first respondent. b) The petitioner shall also send a copy of the Writ Petition and a copy of the judgment to the Corporate Manager by registered post and he shall produce proof of the same before the first respondent. K.T.SANKARAN, JUDGE. cms