IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 18TH SEPTEMBER 2008 / 27TH BHADRA 1930 WA.No. 509 of 2008 ------------------------------- AGAINST THE JUDGEMENT IN WPC.23025/2004 Dated 09/01/2008 .................... APPELLANT/4TH RESPONDENT: THE MANAGER, S.V.M.M.HIGH SCHOOL, VENDAR P.O., VENDAR, KOTTARAKKARA, KOLLAM. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3: 1. N.RADHAKRISHNAN NAIR, RETIRED HEADMASTER (SVMMHS), SREE VIHAR, AVANOOR, KOTTARAKKARA-P.O., KOLLAM. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR (EDUCATION), KOLLAM. 4. THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA. BY ADV. SRI.P.ALI FOR R1 BY GOVT. PLEADERSRI.BENNY GERVACIS R2-R4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- W.A.No.509 of 2008 --------------------------------- JUDGMENT Koshy, J. The appellant is the Manager of an Aided School. A vacancy of Headmaster arose on 1.4.1993 consequent on retirement of the then Headmaster. The post of Headmaster was not filled up and a request was made to give extension to the retired Headmaster. While the said request was pending, the senior most teacher was given charge as Headmistress pending decision of the Government. That request was declined by the Government on 12.4.1994. The Manager appointed one Meenakshi Amma as the Headmistress. According to the Manager, she was the senior most qualified claimant to that post. The writ petitioner, the first respondent in the writ appeal questioned the appointment of above Meenakshi Amma as Headmistress and according to him, he ought to have been appointed in that WA 509/08 2 retiral vacancy that arose on 1.4.1993. Even though his claim was accepted by the educational authorities, by Exhibit P4, Government directed to approve the appointment of Meenakshi Amma as the Headmistress of the School and Meenakshi Amma's appointment was approved as per Exhibit P5. Thereafter, the writ petitioner challenged Exhibit P4, which resulted in Exhibit P6 judgment dated 23.8.2000. The dispute arose because the Manager was under the impression that a Language teacher cannot be appointed as the Headmaster and the writ petitioner was a Language teacher, even though he was a graduate teacher. The learned single Judge, by judgment dated 23.8.2000, held that the writ petitioner was qualified to be appointed as Headmaster in the vacancy which arose on 1.4.1993. Since appointment of the petitioner was delayed Rs.10,000/- was also granted as cost while disposing of the writ petition. The fourth respondent approached the Honourable Supreme Court WA 509/08 3 filing SLP. By Exhibit P13 order dated 2.8.2002 SLP was disposed of with the following directions: “It is submitted by the learned senior counsel for the petitioner that Respondent No.5 has since retired, therefore, the cause of action does not survive. Hence, SLPs have become infructuous. However, we make it clear that in future, the appointment will be made in accordance with the Rules. The special leave petitions are disposed of.” 2. Meenakshi Amma retired from service on 31.5.2002. Thereafter, the writ petitioner was appointed on 19.10.2002. On retirement of Meenakshi Amma, in between, another teacher was appointed as the Headmistress. According to the Manager, on the basis of the directions of this Court only another teacher was appointed whose appointment was also approved. The petitioner filed the present writ WA 509/08 4 petition contending that he is entitled to get salary with effect from 1.4.1993. His claim for salary was declined by the DEO by Exhibit P19 order and that was challenged before this Court and the learned single Judge directed to pay salary to the petitioner from 1.4.1993 onwards and directed the Government to recover the amount from the Manager in view of Chapter III Rule 7(4) KER. As per the above Rule, in case the Manager commits serious irregularities causing monetary loss to the teachers/Government, the loss sustained to the teachers/Government should be recovered from the Manager under the provisions of the Revenue Recovery Act as if it is an arrear of public revenue due on land. In various decisions of this Court right of the Government to recover such loss and entitlement of salary to the teachers who were illegally denied appointment were reiterated. Those decisions were also quoted in the impugned judgment. WA 509/08 5 3. The question is whether any patent illegality was committed by the Manager and whether the first respondent is entitled to get salary from 1.4.1993 onwards. Proceedings and various writ petitions filed show that the appellant Manager was contesting the right of the first respondent to become a Headmaster bona fidely as he was under the impression that he cannot be appointed as Headmaster being a Language teacher. In any event, in view of Exhibit P4 order of the Government, it cannot be stated that he had acted illegally in appointing Meenakshi Amma as the Headmistress. Exhibit P4 order of the Government reads as follows: “I am to forward herewith a copy of the representation 1st cited and to direct you to approve the appointment of Smt.Meenakshi Amma as Headmistress with effect from 14.4.1994 subject to decision in O.P.No.4436/94/HC filed by Sri.N.Radhakrishnan Nair, HSA WA 509/08 6 (Hindi) as there is no stay in the O.P. or any interim direction of the Honourable High Court of Kerala.” Only after Exhibit P4 order, Meenakshi Amma's appointment was regularised by Exhibit P5. We also note that during all these periods, Meenakshi Amma was working as Headmistress and the writ petitioner was working only as a teacher. But, by Exhibit P6 judgment, learned single Judge positively directed that the first respondent was entitled to be appointed as Headmaster with effect from 1.4.1993. The directions in Exhibit P6 judgment were very clear. The Manager ought to have appointed the first respondent at least after Exhibit P6 judgment of the learned single Judge dated 23.8.2000. Even though it was appealed against, no stay was granted and the appeal was dismissed on 19.10.2000. The Honourable Supreme Court admitted the SLP on a limited ground and did not grant stay of Exhibit P6 judgment, even though contempt proceedings were WA 509/08 7 only stayed. In these set of facts, we are of the opinion that the writ petitioner will be entitled to get all the service benefits, except salary with effect from 1.4.1993 and he will be entitled to salary with effect from Exhibit P6 judgment dated 23.8.2000, wherein, a positive direction was issued by this Court to appoint him as the Headmaster. He was denied promotion for no fault of his at least after 23.8.2000. The monetary loss caused to the petitioner after 23.8.2000 has to be reimbursed by the appellant. In the above circumstances, we are of the view that the writ petitioner need be given notional promotion with service benefits with effect from 1.4.1993, but will be entitled to get salary only from 23.8.2000. He is not entitled to get salary for the periods from 1.4.1993 to 23.8.2000, as during the above periods Meenaskhi Amma was working as Headmistress on the basis of Exhibit P4 order of the Government. He was also not functioning as the Headmaster during all the WA 509/08 8 above periods. The amount to be paid (the difference in salary as teacher and Headmaster) to the writ petitioner can be recovered from the Manager. The judgment of the learned single Judge is modified accordingly. The appeal is allowed in part. Since the appeal is allowed in part the cost of Rs.10,000/- is reduced to Rs.5,000/-. (J.B.Koshy, Judge) 18th September, 2008 (K.P.Balachandran, Judge) tkv