IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 WP(C).No. 20330 of 2008(T) ------------------------ PETITIONER : ------------------ THOMSON C.VARGHESE,MANAGER ST.JOHN'S SYRIAN HIGHER SECONDARY SCHOOL AND TEACHERS TRAINING INSTITUTE,VADAKARA, OLLIYAPPURAM P.O., KOOTHATTUKULAM. BY ADVS. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT GOVT. SECRETARIAT, TRIVANDRUM 2. THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, EDAPPALLY COCHIN-24 3. SHRI SINOBY MATHEW THEKKEDATH HOUSE, MANNATHUR P.O. ERNAKULAM DISTRICT *ADDITIONAL R4 & R5 IMPLEADED 4. JOBY M. JOHN, S/O. M.J. JOHN, AGED 38 YEARS, RESIDING AT MANGALATHU HOUSE, KIZHAKOMBU P.O., KOOTHATTUKULAM, ERNAKULAM. *ADDL. R4 IS IMPLEADED AS PER ORDER DATED 13.3.09 IN I.A. NO. 3522/09. ...2/- WP(C).No. 20330 of 2008(T) -2- 5. FR. JOY KADUKKUMMAKKIL, S/O. CHAKOCHAN, AGED 42, VICAR. ST. JOHN'S ORTHODOX SYRIAN CHURCH, VADAKARA, OLIYAPURAM P.O., KOOTHATTUKULAM. *ADDL. R5 IS IMPLEADED AS PER ORDER DATED 21.5.09 IN I.A. NO. 4935/09. R1 & R2 BY GOVT. PLEADER SMT. M.R. SREELATHA R3 BY ADVS. SRI. V.A.MUHAMMED SRI.K.E.HAMZA R4 BY ADV. SRI.JAMES ABRAHAM (VILAYAKATTU) R5 BY ADV. SRI.S.SREEKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/06/2010, ALONG WITH WPC NO. 22858/2008 & CONNECTED CASES, THE COURT ON 26/10/2010 DELIVERED THE FOLLOWING: Mn ...3/- WP(C).No. 20330 of 2008(T) -3- APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF PROCEEDINGS AND ORDERS OF APPOINTMENT DATED 25.7.06 ISSUED BY THE FORMER MANAGER OF ST.JOHN'S SYRIAN HSS & TTI. EXT.P2 : COPY OF PROCEEDINGS NO. A2/8391/06 DATED 11.2.08 ISSUED BY THE 2ND RESPONDENT. EXT.P3 : COPY OF APPEAL WITH INTERIM APPLICATION SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 1ST RESPONDENT ON 25-2-2008. EXT.P4 : COPY OF APPLICATION AND APPROVAL ORDER NO. B4/9613/05 DATED 22.4.06 ISSUED BY THE DEO, MUVATTUPUZHA. EXT.P5 : COPY OF ORDER DATED 1.6.06 IN W.P(C) NO. 14103/06 OF THIS HON'BLE COURT. EXT.P6 : COPY OF JUDGMENT DATED 23.6.06 IN W.P.(C) NO. 14103/06 OF THIS HON'BLE COURT. EXT.P7 : COPY OF NOTICE NO. B4/15161/06 DATED 4.7.06 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM. EXT.P8 : COPY OF ORDER NO. ET (4) 23761/06/DPI/D.DIS. DATED 7.7.06 ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTION, TVM. EXT.P9 : COPY OF COMMUNICATION NO. 38515/02/06/G.EDN. DATED 20.7.06 ISSUED BY THE 1ST RESPONDENT. EXT.P10 : COPY OF ORDER DATED 1.9.06 IN W.P.(C) NO. 23009/06 OF THIS HON'BLE COURT. EXT.P11 : COPY OF JUDGMENT DATED 20.10.06 IN W.P.(C)NO.23009/06 OF THIS HON'BLE COURT. EXT.P12 : COPY OF G.O.(RT)NO. 1616/07/G.EDN. DATED 11.4.07 ISSUED BY THE 1ST RESPONDENT. EXT.P13 : COPY OF JUDGMENT DATED 5.10.07 IN W.P.(C)NO. 13575/07 AND CONNECTED CASES OF THIS HON'BLE COURT. EXT.P14 : COPY OF JUDGMENT DATED 28.2.08 IN 6927/08 OF THIS HON'BLE COURT. ...4/- WP(C).No. 20330 of 2008(T) -4- EXT.P15 : COPY OF ARGUMENT AS WELL AS ADDITIONAL ARGUMENT NOTE SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 18.4.08. EXT.P16 : COPY OF G.O.(RT)NO. 2790/2008/G.EDN. DATED 19.6.08 ISSUED BY THE 1ST RESPONDENT. EXT.P17 : COPY OF INFORMATION FURNISHED BY THE DEO, MUVATTUPUZHA UNDER RIGHT TO INFORMATION ACT ON 13.11.07 VIDE NO. A1/8280/07. EXT.P18 : COPY OF RELEVANT EXTRACT OF EXT.P4 SEEN AND COUNTER SIGNED BY THE HEADMASTER, PRINCIPAL IN CHARGE AND HEADMISTRESS OF 3 EDUCATIONAL INSTITUTIONS. EXT.P19 : COY OF CHARGE REPORT WITH ACKNOWLEDGEMENT OF THE VICAR OF THE EDUCATIONAL AGENCY. EXT.P20 : COPY OF INSTRUCTIONS ON BEHALF OF THE EDUCATIONAL AGENCY BY THE VICAR ON 7.12.05 TO THE PETITIONER. EXT.P21 : COPY OF LETTER DATED 27.12.05 ISSUED BY THE VICAR OF THE EDUCATIONAL AGENCY TO THE DEO, MUVATTUPUZHA. EXT.P22 : COPY OF REQUEST SUBMITTED BY THE SECRETARY OF SCHOOL CO-OPERATIVE SOCIETY ON 4.1.06 BEFORE THE PETITIONER. EXT.P23 : COPY OF ACKNOWLEDGEMENT RECEIPT TOWARDS THE ADVANCE AMOUNT OF RS. 2500/- FROM THE PETITIONER. EXT.P24 : COPY OF RELEVANT PAGES OF VISITORS DIARY OF THE PETITIONER'S EDUCATIONAL INSTITUTION. EXT.P25 : COPY OF VISITORS DIARY OF ST. JOHN'S TT1, VADAKARA. EXT.P26 : COPY OF APPLICATION DATED 22.5.06 ALONG WITH FITNESS CERTIFICATE ISSUED TO THE PETITIONER DATED 1.8.06. EXT.P27 : COPY OF COMMUNICATION NO.L.DIS.3762/2006 DATED 19.6.06 OF THE DEO, MUVATTUPUZHA. EXT.P28 : COPY OF RELEVANT EXTRACT OF COUNTER AFFIDAVIT EXCLUDING EXHIBITS FILED BY THE PETITIONER IN W.P.(C) NO.14103/05 BEFORE THIS HON'BLE COURT. ...5/- WP(C).No. 20330 of 2008(T) -5- EXT.P29 : COPY OF CASH BILL TOWARDS REPAIRING CHARGES FOR RS. 1400/-. EXT.P30 : COPY OF INTIMATION GIVEN BY THE PETITIONER TO THE STATUTORY AUTHORITIES AND DEPARTMENTAL AUTHORITIES REGARDING HIS APPOINTMENT AND APPROVAL. EXT.P31 : COPY OF ORDER NO. ACD.A1/16108/HSE/2006 DATED 25.7.06 ISSUED BY THE DIRECTOR OF HIGHER SECONDARY EDUCATION. EXT.P32 : COPY OF PROPOSAL OF SRI. P.J. JOSEPH DATED 19.7.06 WITH WRITTEN ENDORSEMENT DATED 25.7.06 BY DEO. EXT.P33 : COPY OF ORDER NO.D.DIS.B4/5045/2006 DATED 28.7.06 ISSUED BY THE DEO, MUVATTUPUZHA. EXT.P34 : COPY OF ORDER NO.D.DIS.B4/5282/2006 ISSUED BY THE DEO, MUVATTUPUZHA. EXT.P35 : COPY OF A CLAIM SUBMITTED BY ONE SMT. SALY P. JOHN BEFORE THE PETITIONER ON 5.8.08 FOR COMPASSIONATE EMPLOYMENT. RESPONDENT'S EXHIBITS: EXT.R-3(a) : COPY OF THE NOTIFICATION PUBLISHED IN MALAYALA MONORAMA DAILY DATED 13.06.2006. EXT.R-3(b) : COPY OF THE MARKS SHEET. EXT.R-3(c) : COPY OF THE PROCEEDINGS OF THE MANAGER DATED 25-07-2006. EXT.R-3(d) : COPY OF THE APPOINTMENT ORDER DATED 25-07-2006. EXT.R-3(e) : COPY OF THE DECLARATION BY THE MANAGER DATED 25-07-2006. EXT.R-3(f) : COPY OF THE LETTER OF THE PRINCIPAL-IN-CHARGE DATED 06-06-2006. EXT.R-3(g) : COPY OF THE REPRESENTATION DATED 18-02-2008. EXT.R-3(h) : COPY OF THE DECISION REPORTED IN 1997 (2) K.L.T. 725 DATED 11.09.1997. ...6/- WP(C).No. 20330 of 2008(T) -6- EXT.R-3(i) : COPY OF THE DECISION REPORTED IN 2002 (1) K.L.T. 406 DATED 21-12-2001. EXT.R-3(j) : COPY OF THE LETTER OF THE DIRECTOR DATED 2-8-2006. EXT.R-3(k) : COPY OF THE ORDER OF THE DIRECTOR DATED 25-07-2006. EXT.R-3(l) : COPY OF THE PROCEEDINGS OF THE MANAGER DATED 7-8-2006. EXT.R-3(m) : COPY OF THE ANNUAL REPORT DATED NIL EXT.R-3(n) : COPY OF THE NOTICE DATED 3-1-2007. EXT.R-3(o) : COPY OF THE PHOTOGRAPH DATED NIL. EXT.R-3(p) : COPY OF THE PETITION FILED UNDER RIGHT TO INFORMATION ACT DATED 22-7-2008 ALONG WITH THE ORDER NO. A1/5115/08 OF THE DIST. EDL. OFFICER DATED 28-7-2008 AND ORDER NO. 38515/D2/06/G.EDN. OF THE GOVT. DATED 20-7-2006 AND THE RELEVANT PAGE OF THE DISTRIBUTION REGISTER. EXT.R-3(q) IN I.A.12473 : COPY OF THE ORDER NO. C3/20533/08 OF THE PUBLIC INFORMATION OFFICER, O/O. THE DEPUTY DIRECTOR OF EDN. EXT.R-3(q) : COPY OF THE APPLICATION FOR FITNESS CERTIFICATE DATED 24-5- 2006, CERTIFICATE DATED 3-6-2006, APPLICATION DATED 29-3-2007, CERTIFICATE DATED 30-5-2007, APPLICATION DATED 29-3-2007, CERTIFICATE DATED 30-5-2007, CHALAN RECEIPT DATED 29-3-2007, LETTER OF THE MANAGER DATED 11-7-2007. EXT.R-3(r) : COPY OF THE LETTER DATED 14-8-2006 OF THE MANAGER, PROCEEDINGS OF THE MANAGER DATED 4-8-2006 AND ORDER NO. ACD.A1/16108/HSE/2006 OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION DATED 25-7-2006. EXT.R-3(s) : COPY OF THE LETTER DATED 20-6-2007 ALONG WITH DETAILS OF STAFF FIXATION PROPOSALS FOR THE YEAR 2006-07 AND STRENGTH OF PUPILS ON THE 6TH WORKING DAY. EXT.R-3(t) : COPY OF THE LETTER FROM THE PRINCIPAL IN CHARGE TO THE PETITIONER DATED 31-5-2006. ...7/- WP(C).No. 20330 of 2008(T) -7- EXT.R4(a) : COPY OF THE LETTER DTD. 4.3.2006 ISSUED BY THE CHIEF SUPERINTENDENT (PRINCIPAL). EXT.R4(b) : COPY OF THE ORDER DATED 1.6.2006. EXT.R4(c) : COPY OF THE ADVERTISEMENT DTD. 13.6.2006. EXT.R4(d) : COPY OF THE COMMON JUDGMENT DATED 20.10.2006. EXT.R4(e) : COPY OF THE COMMON JUDGMENT DATED 5.10.2007. EXT.R4(f) : COPY OF THE REPRESENTATION DATED 14.11.2007. EXT.R4(g) : COPY OF THE MEDICAL RESPORT. EXT.R4(h) : COPY OF THE LETTER DATED 29.4.08. //TRUE COPY// P.S. TO JUDGE Mn THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.20330 of 2008-T = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 1st day of September, 2008. ORDER OF REFERENCE 1.There were conflicts between Sri.P.J.Joseph and the petitioner herein, namely, Thomson C. Varghese regarding the managership of the corporate educational agency of St.John's Syrian Higher Secondary School and Teachers' Training Institute, Vadakara. The action of the District Educational Officer approving the managership of the petitioner herein was set aside as per Ext.P8 proceedings of the Director of Public Instruction issued on 7-7-2006 and the DEO was directed to approve the managership of P.J.Joseph up to three years from 3-12-2004. In the wake of that order, the DEO could not have but issued the further order in compliance with that direction. But, the Government granted the appeal of the petitioner against Ext.P8 order as per Ext.P12, WP(C)20330/2008 -: 2 :- on 11-4-2007. However, in the interregnum, P.J.Joseph, as the Manager, issued appointment order to the third respondent and he entered service. There also appears to be controversy as to whether the managership could have been exercised by either P.J.Joseph or the petitioner in view of certain intervening directions, including by entrusting the managership to the Deputy Director as per Ext.P6 judgment. 2.The issues raised by the third respondent herein are three-fold. Firstly, he states that following his appointment on 25-7-2006, he had been working as a Lab Assistant and discharging duties and responsibilities attached to that post and therefore, he is entitled to be paid his emoluments, bereft of which, there is a deprivation of his fundamental right to life and livelihood. Second, but equally emphatic, is the contention that the appointment was at a stage when Ext.P8 governed the field and such appointment is not affected by the Government decision reversing WP(C)20330/2008 -: 3 :- Ext.P8 following the de facto doctrine. The third limb of the argument is that in terms of Rule 9 of Chapter XIV-A KER, change of managership does not affect the rights of persons who are appointed into the service of the educational agency. 3.The issue as to the correctness of the Government Order reversing Ext.P8 is pending consideration of the Division Bench. It also appears that some of the teachers or Lab Attenders having similar claims have moved different writ petitions which resulted in adverse orders against them. They have also carried those matters to the Division Bench in writ appeal, though the learned counsel for the third respondent states that unlike the case in hand, in those cases, there were no Government Orders in favour of the appointees in question. 4.Having regard to the sweep of Article 226 and the scope of jurisdiction that the Division Bench may exercise in a writ appeal, in my view, it may not be safe to apply the de facto doctrine, as of now, WP(C)20330/2008 -: 4 :- even if this writ petition is to be concluded in favour of the third respondent. The question of approval would depend, ultimately, on different considerations, including the manner in which the learned Justices of the Division Bench may dispose of the writ appeals which are pending. 5.However, I am quite clear in my mind that the entitlement to draw emoluments for work done and the right to livelihood and life of an employee, particularly in the strata to which the Lab Assistants etc. belong, cannot be made to depend on disputes between rivals as to managership in a corporate educational agency. This is all the more so because, the liability to pay in the absence of Government aid, is with the corporate educational agency. Hence, I would have been inclined to grant an order of interim measure directing that the corporate educational agency shall release the emoluments of the third respondent from its funds and adjust among the managers and the educational agency depending upon the final outcome of the WP(C)20330/2008 -: 5 :- direction regarding the managership. However, the learned counsel for the writ petitioner seeks that in view of the pendency of writ appeals even from another similarly situated person, that issue may be left open. 6.In the light of the aforesaid, the question as to whether the de facto doctrine could be invoked to sustain the impugned order and to have the appointment of the third respondent approved is a question of law intricately connected with the issues pending consideration in W.A.Nos.2515/2007 and 2677/2007. Conflict of judgments needs to be excluded in the situation. Hence, this case is adjourned for consideration of the Division Bench. The files may be placed before the Hon'ble the Chief Justice for further orders. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/020908