IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 3RD MARCH 2009 / 12TH PHALGUNA 1930 OP.No. 15333 of 1999(A) ---------------------------------- PETITIONER: ------------------- VARGHESE K.T., S/O. K.V. THOMAS, KUTTIKAT HOUSE, P.O. THALAKOTTUKARA, THRISSUR DISTRICT. BY ADV. MR.N.P.SAMUEL. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCATIONAL OFFICER, THRISSUR. 3. THE MANAGER, ST. JOSEPH'S MODEL HIGH SCHOOL, KURIACHIRA, THRISSUR – 680 006. 4. THE HEADMASTER, ST. JOSEPH'S MODEL HIGH SCHOOL, KURIACHIRA, THRISSUR – 680 006. R1 & R2 BY GOVERNMENT PLEADER SMT. SMITHA SUKUMAR, R3 & R4 BY ADV. MR.FIROZ K.ROBIN. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 03/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 15333/1999-A: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPOINTMENT ORDER NO. SJ/95/97-98 DTD. 05/08/97 ISSUED BY R3. EXT.P.2: COPY OF THE CERTIFICATE ISSUED BY R4. TO THE PETITIONER ON 10/08/98. EXT.P.3: COPY OF THE REPRESENTATION SUBMITTED BY PETITIONER BEFORE R2. ON 03/06/99. EXT.P.4: COPY OF THE POSTAL ACKNOWLEDGEMENT CARD RECEIVED BY ST. JOSEPH'S MODEL HIGH SCHOOL (MANAGER) ON 04/06/99. RESPONDENTS' EXHIBIT: EXT.R4.A: COPY OF THE PETITIONER'S APPOINTMENT ORDER DTD. 23/06/99. //TRUE COPY// P.A. TO JUDGE. Prv. S.SIRI JAGAN, J. ================== O.P.No. 15333 of 1999 ================== Dated this the 3rd day of March, 2009 J U D G M E N T St.Joseph's Model High School, Kuriachira, is a recognised unaided school, to which Chapter XIV(AA) of the KER applies. The petitioner was appointed as a probationary H.S.A. in that school, by the 3rd respondent-manager, by Ext.P1 order, for the period from 5.8.1997 to 31.3.1998. The petitioner joined pursuant to Ext.P1 and continued to work there till 31.3.1999. When the petitioner reported for duty after vacation, he was told that he has no further job in that school. Subsequently, another person was appointed to that post. In the above circumstances, the petitioner seeks the following reliefs: “[i] to issue a writ of mandamus or other appropriate writ, direction or order directing respondents 3 and 4 to reinstate the petitioner into service with all benefits; [ii] to declare that the petitioner is entitled to get equal salary as that of the High School Assistant in an aided school and Govt. School and direct the 3rd respondent to give that salary to the petitioner; [iii] to issue a writ of mandamus or any other writ, order or direction directing the third respondent to give arrears of salary to the petitioner at the rate of the salary given to a High School teacher in an aided school and in a Govt. School; [iv] to direct the 2nd respondent to dispose of Exhibit P-3 and direct the 3rd respondent to reinstate the petitioner forthwith;” 2. A counter affidavit has been filed by respondents 3 and 4 challenging the very maintainability of the original petition. According to them, they not being State or other authority as defined under o.p.15333/99 2 Article 12 of the Constitution of India, no writ can be issued against them. It is further submitted that the petitioner was temporarily appointed for the period mentioned in Ext.P1 and therefore, the petitioner does not have the right to continue in the school beyond that date. A counter affidavit has been filed by the 2nd respondent in which the 2nd respondent would take a stand that the 3rd respondent has violated the provisions of Chapter XIV(AA). When the 2nd respondent was contemplating action for the same, this original petition was filed and therefore, no further steps were taken. 3. I have heard the parties. 4. It is not disputed before me that the 3rd respondent school is a recognised unaided school. That being so, Chapter XIV(AA) is applicable to that school. Rules 1, 2 and 3 of Chapter XIV(AA) read thus: “1. (a) Managers of Recognised Unaided Schools shall appoint only such candidates as teaching and non-teaching staff who possess the qualifications prescribed for the respective posts in Government Schools; (b) Whenever a vacancy occurs, the manager shall follow the directions issued by the Government from time to time, for ascertaining the availability of qualified hands and for filling up of that vacancy. (c) The age limit and the relaxation thereof for appointment as applicable to candidates for appointment under Government Schools/Aided Schools shall mutatis mutandis apply to the candidates for appointment as member of staff of these schools; Provided that these teaching and non-teaching staff of recognised unaided schools in service at the commencement of the Kerala Education (Amendment) Rules 1990 and who do not possess the qualifications o.p.15333/99 3 required under this sub-rule shall be given two years time to acquire such qualifications: Provided further that the Government may for reasons to be recorded extend the said period for a further period not exceeding two years. 2. The teaching and non-teaching staff of these schools shall be paid salary every month by cheques drawn on managements' accounts in Nationalised or Scheduled Banks. 3. The services of any member of the teacher or non-teaching staff shall not be terminated by the management without conducting domestic enquiry and without giving the member an opportunity of being heard in that enquiry.” Notwithstanding the fact that the 3rd respondent school is a private school, when the 3rd respondent-manager of the school recognised under the Kerala Education Act and Rules, violates Chapter XIV(AA), in respect of that violation a writ petition under Article 226 of the Constitution of India is certainly maintainable in so far as the 3rd respondent has violated a statutory duty cast on him by Chapter XIV (AA) which is admittedly applicable to the 3rd respondent school. Therefore, I do not find any merit in the contention of the 3rd respondent that no writ petition is maintainable against them. The contention of the 3rd respondent on merits also, appears to be very hollow. Although, by Ext.P1, the petitioner was appointed for the period mentioned in Ext.P1, it is not disputed before me that the petitioner continued to work till 31.3.1999. If that be so, it cannot be held that it was a temporary appointment. Further, the petitioner categorically avers that after the discontinuance of the petitioner as a o.p.15333/99 4 teacher, another teacher was appointed in his place. Therefore, the post was certainly not temporary. What is relevant is whether the post is temporary or not, and not whether the appointment was temporary. If a teacher is appointed to a permanent post, then rule 3 applies. Admittedly no domestic enquiry was held and no opportunity of being heard was given to the petitioner. Absolutely no reason is forthcoming for denial of employment to the petitioner. That being so, the 3rd respondent is guilty of violation of at least Rule 3, if not Rule 2. The 3rd respondent is liable to be proceeded against for the same. Accordingly, the 2nd respondent is directed to take appropriate proceedings against the 3rd respondent for violation of Chapter XIV(AA) of the KER. Proceedings shall be initiated and concluded as expeditiously as possible, at any rate, within three months from the date of receipt of a certified copy of this judgment. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.15333/99 5 S.SIRI JAGAN, J. ================== O.P.No. 15333 of 1999-A ================== J U D G M E N T 3rd March, 2009