IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 WA.No. 2094 of 2006(E) ---------------------- AGAINST THE JUDGEMENT IN WPC.32765/2003 Dated 02/06/2006 .................... APPELLANT: PETITIONER IN WPC -------------------------------- D.SARASWATHY AMMA, RTD. HSA TEACHER IN CHARGE, M.R.M.K.M.M. HIGHER SECONDARY SCHOOL, EDAVA. BY ADV. SRI.SIBY MATHEW SRI.A.A.MOHAMMED NAZIR RESPONDENT(S): RESPONDENTS IN WPC ---------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, OFFICE OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SANTHINAGAR, TRIVANDRUM. 3. SRI. K.S.ANSARI, THE MANAGER, M.R.M.K.M.M. HIGHER SECONDARY SCHOOL, EDAVA. 4. THE DISTRICT EDUCATIONAL OFFICER, ATTINGAL. 5. P.RAVEENDRAN NAIR, HIGHER SECONDARY SCHOOL TEACHER, MOHAMMED KOYA MEMORIAL HIGHER SECONDARY SCHOOL, EDAVA. BY GOVERNMENT PLEADER SRI.NOBLE MATHEW – R1, R2 & R4 SRI.K.P.DANDAPANI, SENIOR ADVOCATE APPEARING ALONG WITH SRI.MILLU DANDAPANI FOR R3 SRI.BENOY THOMAS FOR R5 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- W.A. NO. 2094 OF 2006 ----------------------------------------- Dated 13th February, 2009. JUDGMENT Balakrishnan Nair, J. The writ petitioner is the appellant. She joined the High School managed by the 3rd respondent as High School Assistant (H.S.A.) on 15.7.1977. At the relevant time, it was being managed by the predecessor- in-interest of the 3rd respondent. While so, Higher Secondary Wing was sanctioned in the school in the year 2000. The Headmaster of the High School, who was functioning as the Principal also, retired from service on 31.5.2003. So, the incumbent in the post of Principal handed over charge to the appellant, who was the senior-most H.S.A working as Deputy Headmistress. The term of the 3rd respondent to function as Manager was to expire on 30.4.2003. He was appointed as Manager by his mother Smt.Aysha Beevi. But, she died before he could be re-appointed after 30.4.2003. With the consent of the legal heirs, the 3rd respondent moved for extension of his term beyond 30.4.2003. He made a request in this regard WA 2094/2006 2 before the Director of Public Instruction (D.P.I.) on 8.4.2003. As directed by the D.P.I., the District Educational Officer (D.E.O.) enquired into the matter and submitted a detailed report dated 16.4.2003. The D.P.I after considering all aspects of the matter and also taking note of the fact that out of the 12 legal heirs, 4 are against him, permitted the 3rd respondent to continue as Manager beyond 30.4.2003, subject to certain conditions, as per Ext.P2 order. One of the conditions was that he shall not make any appointment during the period. But, ignoring the said restriction, he appointed the 5th respondent as the Principal of the school, by order dated 31.5.2003. The appellant submits, the Manager himself, realising the mistake committed by him, cancelled that order by Ext.P3 order dated 3.6.2003 and allowed the appellant to continue as the Teacher in-charge. Aggrieved by the non-approval of his appointment, the 5th respondent approached this Court, by filing W.P.(C) No.17964/2003. This Court, by Ext.P4 judgment, directed the Director of Higher Secondary Education to consider the claim of the 5th respondent for approval of his appointment with notice to all affected parties, including the appellant herein. Pursuant to Ext.P4 judgment, the Director of Higher Secondary Education considered the claims of the appellant and the 5th respondent and held that the appointment of the 5th respondent could be ratified, if the same is made in WA 2094/2006 3 accordance with law, by Ext.P5 order. The Manager was also directed to forward the proposal for approval of the appointment of the 5th respondent. Challenging Ext.P5, the writ petition was filed. During the pendency of the writ petition, the Director of Higher Secondary Education passed Ext.P10 order, approving the appointment of the 5th respondent. The writ petition was amended, incorporating the challenge against Ext.P10 also. The learned Single Judge dismissed the writ petition. Hence this appeal. 2. The learned Judge dismissed the writ petition, taking note of the fact that the appellant is retiring next day and therefore, the issue raised has become academic. 3. The appellant submits that the submission made before the learned Single Judge by her counsel that she was going to retire next day, was not factually correct. Therefore, she submits, the appellate court may hear the matter on merits. 4. The appellant's main ground of attack against Ext.P5 is that in view of Ext.P2 order, the Manager is not competent to make any appointment. But, simultaneously, the appellant claims appointment as Headmistress and thereafter as Principal. We notice that since the Manager did not have the powers to make any appointment, if we accept the contention of the appellant against Ext.P5, the same will result in rejecting WA 2094/2006 4 her prayers also, because if the Manager cannot appoint the 5th respondent, he cannot appoint the appellant also. In view of the above position, the appellant could have at best continued as Teacher in-charge, in the light of Exts.P1 and P3. 5. The learned counsel for the 5th respondent pointed out that the Manager challenged the condition imposed by Ext.P2 against making appointments, by filing a writ petition and this Court as per Ext.R5(g) interim order, permitted him to take consequential action pursuant to Ext.P5 appointment in favour of the 5th respondent. The learned counsel for the appellant disputed the above submission. According to him, Ext.P2 was challenged in O.P.No.8661/2003. 6. It is unnecessary to go into the above disputed questions. As the appellant was only a High School Assistant, she could not have been appointed as Principal, in view of the provisions contained in Chapter XXII of the K.E.R., as she was not in the feeder category. We notice that pursuant to the interim order of this Court, the appellant has been appointed as Headmistress with effect from the date the vacancy arose in that post, her appointment has been approved and she drew all service benefits also. She retired from service on 31.3.2006. It is ordered that the promotion granted to her as Headmistress pursuant to the said interim order shall be treated as WA 2094/2006 5 regular for the purpose of payment of salary, terminal benefits etc. Since the appellant cannot be granted any other relief, it is unnecessary for us to go into the various contentions raised. Accordingly, the Writ Appeal is dismissed, subject to the above clarification. K.BALAKRISHNAN NAIR, JUDGE. M.L.JOSEPH FRANCIS, JUDGE. nm/