IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 19TH AUGUST 2008 / 28TH SRAVANA 1930 WP(C).No. 20082 of 2008(N) -------------------------- PETITIONER: ------------ SINI GEORGE, UPPER PRIMARY SCHOOL ASSISTANT, PULLAMKODE UPPER PRIMARY SCHOOL, ANCHAL, KOLLAM DISTRICT. BY ADV. SRI.M.V.THAMBAN RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVT., DEPARTMENT OF GENERAL EDUCATION, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. ASST.EDUCATIONAL OFFICER, ANCHAL (PO), KOLLAM DISTRICT. 3. THE DISTRICT EDUCATIONAL OFFICER, PUNALUR. 4. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 5. H.SOMACHOODAN PILLAI, TEACHER-IN-CHARGE, PULLAMKODE UPPER PRIMARY SCHOOL, ANCHAL, KOLLAM DISTRICT. ADDL.R6 IMPLEADED: THE MANAGER, PULLAMKODE UPPER PRIMARY SCHOOL, ANCHAL KOLLAM DISTRICT. (ADDL.R6 IS IMPLEAEED AS PER ORDER DATED 7.7.2008 IN IA.NO.8634/2008) BY ADV. SRI.JOHN JOSEPH VETTIKAD FOR ADDL.R6 SRI.C.JOSEPH JOHNY FOR ADDL.R6 SRI.GEORGE POONTHOTTAM FOR R5 BY GOVT. PLEADER SHRI A.J.VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T. SANKARAN,J. -------------------------------------- W.P.(C) No.20082 of 2008 N -------------------------------------- Dated this the 19th day of August, 2008. J U D G M E N T The petitioner, Sini George, is working as Upper Primary School Assistant in Pullamkode Upper Primary School of which the additional sixth respondent is the Manager. The petitioner states that she is fully qualified to be appointed as Headmistress of the school. 2. On 1.6.2006, a vacancy of Headmaster arose in the school. That fact is not disputed. The vacancy arose on the retirement of Shri K.Vijayanadhan, the previous Headmaster on 31.5.2006. The Manager appointed Smt. Annie Thomas as the Teacher-in-Charge. According to the petitioner, Smt.Annie Thomas was not qualified as she did not have the test qualification. The Assistant Educational Officer rejected the appointment of Smt.Annie Thomas as Teacher-in-Charge for that reason. Another reason for rejection of the appointment of Smt.Annie Thomas was that she was appointed by a person who was not approved as the Manager. It is stated that the management dispute was continuing on the date of filing of the Writ Petition. However, the additional sixth respondent now says that the dispute is resolved by Ext.R6(a) order dated 23.6.2008 passed by the Additional Director of Public Instruction. WP(C) No.20082/2008 2 3. Smt.Annie Thomas died on 21.3.2007. It is stated that she worked as Teacher-in-Charge for the period from 1.6.2006 to 3.10.2006 and that she handed over the charge of the school to the fifth respondent, N.Somachoodan Pillai, on 4.10.2006. The petitioner states that Shri Somachoodan Pillai has continuous service from 7.6.1993. On the date of occurrence of vacancy, he had not passed the test qualification. According to the petitioner, 1.6.2006 is the relevant date and the qualification on that date is the relevant criterion to be adopted to determine as to who should be appointed as the Headmaster. 4. Ext.P1 representation dated 16.5.2007 was submitted by the petitioner to the District Educational Officer, complaining that Shri Somachoodan Pillai who was appointed as the Teacher-in-Charge does not have the required qualification. Interference by the District Educational Officer was prayed for in Ext.P1. It is stated that Shri Somachoodan Pillai and another teacher, viz., Smt. S.K.Usha also had filed petition/representation before the Deputy Director of Education, putting forward their claim for being appointed as the Headmaster. The District Educational Officer passed Ext.P3 order dated 15.2.2008, holding thus - “It is found that Sri.N.Somachoodan Pillai, UPSA is not qualified to the post of HM as he has not passed Account Test (Lower) or (Higher). Smt.Siny George is the only fully qualified WP(C) No.20082/2008 3 UPSA in the school for the post of Headmaster even w.e.f.1-6-06, the date of occurrence of vacancy of HM in Pullamcode UPS, as she passed the required departmental test and having continuous service as UPSA in the school from 1-7-1998. As per circular No.H2- 26250/95 dated 31-7-95 of the Director of Public Instruction, Thiruvananthapuram, when the post of HM is vacant for a long period, charge of the school should be given to the seniormost qualified teacher - eligible to be promoted as HM. In this case the post of Headmaster of the school is vacant from 1-6- 06 and that position is continuing indefinitely. Absence of Headmaster for such a long period will adversely affect the smooth functioning of the school including the academic interests. In this context the ruling of the Hon'ble High Court of Kerala in judgment dated 5-11-05 in W.P.(C) No.31818/05 filed by Smt.Daisy Kunjunny, seniormost qualified HSA seeking orders for promotion as HM in the absence of an approved Manager is significant - “dispute over the managership is not to stand in the way of the eligible candidates getting their deserving post”. The AEO, Anchal may do the needful for the school to have a Headmaster in accordance with the rules without delay. WP(C) No.20082/2008 4 In view of the facts stated above the AEO, Anchal is directed to authorise Smt.Siny George, UPSA, Pullamcode UPS, to hold the charge of HM as Teacher-in-Charge of the school till a Headmaster is appointed, on promotion.” 5. The grievance voiced by the petitioner in the Writ Petition is that in spite of Ext.P3 order, the Assistant Educational Officer failed to take necessary steps to implement the said order. 6. The reliefs prayed for in the Writ Petition originally were the following:- “(i). to issue a declaration that the petitioner is the senior most and the only qualified UPSA for promotion as Headmistress as on the date of occurrence of vacancy on 1.6.2006 in the Pullamkode UP School and that she is entitled to be promoted as Headmistress w.e.f. 1.6.2006. (ii). To issue a writ of mandamus or other writ or order directing the 2nd respondent to post the petitioner as Headmistress in the Pullamkode UP School w.e.f. 1.6.2006 and take steps to approve that appointment and also to direct the 1st and 4th WP(C) No.20082/2008 5 respondents to appoint an Educational officer as Manager of the Pullamkode UP School till the Management dispute is resolved or to give instruction to the AEO, Anchal to promote her. (iii) to issue such other further reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of this case.” 7. The petitioner has filed I.A.No.10136 of 2008 for amendment of the Writ Petition. It is stated that during the pendency of the Writ Petition, ignoring Ext.P3 order passed by the District Educational Officer, the Assistant Educational Officer had approved the appointment of Shri Somachoodan Pillai as the Headmaster with effect from 1.7.2008 in the vacancy of Shri K. Vijayanadhan, as per Ext.P4 order. Ext.P4 produced by the petitioner would show that the Manager appointed Shri Somachoodan Pillai as the Headmaster with effect from 1.7.2008 in the vacancy of Shri K.Vijayanadhan, Headmaster who retired from service on 30.6.2006. By the amendment of the Writ Petition, additional reliefs to quash Exts.P4 and P4(a) and for a declaration that the qualification for promotion as Headmaster should be considered as on the date of occurrence of vacancy which was on 1.6.2006 and also to declare that the fifth respondent is not qualified for the post Headmaster as per Rule 45 of Chapter XIV A of the Kerala Education Rules, have been sought to be included. WP(C) No.20082/2008 6 8. The fifth respondent has filed a counter affidavit, in which it is stated that against Ext.P4 order approving the appointment of the fifth respondent, the petitioner has an effective alternative remedy of appeal and, therefore, the Writ Petition is not maintainable for the relief of quashing Ext.P4. It is stated in the counter affidavit that Ext.P3 order passed by the District Educational Officer was challenged by the fifth respondent before the Government in revision. As per Ext.R5(a) judgment dated 4.3.2008 in W.P.(C) No.7385 of 2008, this Court directed the Government to dispose of the revision and stay petition. Consequently, the Government passed Ext.R5(b) stay order dated 3.6.2008, staying the operation of Ext.P3 order passed by the District Educational Officer till the disposal of the representation filed by Somachoodan Pillai. According to the fifth respondent, the petitioner has filed the Writ Petition after coming to know about Ext.R5(b) stay order and suppressing Ext.R5(b) stay order. 9. The additional sixth respondent (the Manager) has filed a counter affidavit wherein a strange case is put forwarded. According to the Manager, the post of Headmaster became vacant on 21.3.2007 consequent to the death of Smt.Annie Thomas. It is also stated by the Manager in paragraph No.4 of the counter affidavit thus - “It is respectfully submitted that on getting the change of management of Pullamcode UP School approved in favour WP(C) No.20082/2008 7 this Additional 6th Respondent Shri N.Somachoodan Pillai the senior most fully qualified UPSA under the management of Pullamcode UPS who is the 5th Respondent in the Writ petition was appointed as Headmaster of the School with effect from 1st July 2008 and the same was approved by the 2nd Respondent. In fact Smt. S.K.Usha the senior most UPSA of UPS Pullamcode had relinquished her claim for promotion as Headmistress and the 2nd Respondent has also taken that aspect in to consideration while granting approval to the appointment of the 5th Respondent as Probationary Headmaster of Pullamcode School with effect from 1st July 2008 as per his Order No.C/3672/2008/D - Dis. dated 17.7.2008.” 10. The Manager contends that the fifth respondent is the only fully qualified Upper Primary School Assistant having 15 years of service, entitled to be appointed as Headmaster. The Manager further states that the petitioner, Sini George, has continuous service under the management only from 16.1.1998 and she is assigned rank No.8 in the approved seniority list of Teachers under the management whereas the fifth respondent occupies sixth rank in the seniority list. WP(C) No.20082/2008 8 11. Against Ext.P3 order a revision filed by the fifth respondent, Shri Somachoodan Pillai, is pending before the Government. As per Ext.R5(a) judgment dated 4.3.2008 in W.P.(C) No.7385 of 2008, this Court directed the Government to dispose of the revision within a period of three months. The said period is over. It is submitted that subsequently the period for disposal was extended by another one month. That period is also over. The Government has not disposed of the revision so far. However, the Government have stayed Ext.P3 order by Ext.R5(b) order of stay dated 3.6.2008. This situation has really created difficulties in the matter of appointment of Headmaster and which resulted in the appointment of Shri Somachoodan Pillai in a vacancy which is not the real vacancy. Ext.P4 appointment order and approval thereof arose only in this background. 12. At the same time, against Ext.P4 order an appeal lies. The remedy of the petitioner is to file an appeal against that order. Ext.P4 order cannot be straight away challenged, ordinarily in a Writ Petition. I do not propose to resolve the rival claims of the petitioner and fifth respondent for the post of Headmaster in this Writ Petition, particularly, when the matter is pending before the Government in revision filed by the fifth respondent. It is submitted that the parties were heard in May, 2008 and orders are to be passed by the Government. WP(C) No.20082/2008 9 In the facts and circumstances of the case, the Writ Petition is disposed of with the following directions:- (1) If the Government does not dispose of the revision filed by the fifth respondent challenging Ext.P3 order within a period of one month from today, Ext.R5(b) stay order will stand automatically vacated without further orders and thereafter Ext.P3 order shall be implemented by the Assistant Educational Officer, irrespective of the existence of Ext.P4 which was passed subsequent to the filing of the Writ Petition. (2) The petitioner is free to challenge Ext.P4 order appropriately. (3) All the contentions of the parties are left open. K.T. SANKARAN, JUDGE. cks