IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 WP(C).No. 17244 of 2007(C) --------------------------------------- PETITIONER: ------------------- JERIN JACOB P., H.S.A. (SOCIAL SCIENCE), FR.JOSEPH MEMORIAL HSS, PUTHUPPADY, MUVATTUPUZHA. BY ADV. MR.ELVIN PETER P.J. RESPONDENTS: ------------------------ 1. THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM. 2. THE DISTRICT EDUCATIONAL OFFICER, KOTHAMANGALAM. 3. THE MANAGER, FR.JOSEPH MEMORIAL HIGHER SECONDARY SCHOOL, PUTHUPPADY, MUVATTUPUZHA. 4. DR. P.V.JOSEPH, XIX/256, PUKKUNEL HOUSE, P.O.PUTHUPADY, MUVATTUPUZHA-686 673. 5. SRI.PRASAD P.VARGHESE, PUKKUNNEL HOUSE, PUTHUPADY, MUVATTUPUZHA. *ADDL.R6. IMPLEADED: 6. LIZA ZACHARIAS, HIGH SCHOOL ASSISTANT (SOCIAL SCIENCE), F.J.M.H.S.S, PUTHUPPADY, KOTHAMANGALAM, RESIDING AT PACHAYIL HOUSE, EAST VAZHAPPILLY.P.O., MUVATTUPUZHA. *ADDL. R6. IS IMPLEADED VIDE ORDER DTD. 16/12/08 IN I.A. NO. 187/08. R1 & R2 BY SR. GOVT. PLEADER SMT. T.B. REMANI, R3 & R4 BY ADVS. MR. ELDHOSE ELIAS, MR.P.V.DIBU, R5 BY MR. S.RAMESH BABU, ADDL.R6 BY ADV. MR. S.P. ARAVINDAKSHAN PILLAY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/02/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.17244/2007-C: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPOINTMENT ORDER DT. 05/06/2006 OF THE PETITIONER. EXT.P.2: COPY OF THE ORDER DT. 05/02/07 ISSUED BY THE R.2. EXT.P.3: COPY OF THE APPEAL DT. 05/03/2007 FILED BY THE PETITIONER AND TWO OTHERS BEFORE THE DEPUTY DIRECTOR. EXT.P.4: COPY OF THE JUDGMENT DT. 13/03/2007 IN W.P.(C).NO.8309/2007 OF THIS HON. COURT. EXT.P.5: COPY OF THE ORDER DTD. 23/03/2007 ISSUED BY THE R.1. EXT.P.6: COPY OF THE ORDER DTD. 22/12/2006 ISSUED BY THE R.4. TO THE PETITIONER. EXT.P.7: COPY OF THE ORDER DTD 07/12/2006 ISSUED BY THE ADDL. DIRECTOR OF PUBLIC INSTRUCTION (GENERAL). EXT.P.8: COPY OF THE ORDER DTD. 23/12/2006 ISSUED BY THE GOVERNMENT. EXT.P.9: COPY OF THE JUDGMENT DTD. 15/02/2007 IN W.P.(C).NO.632/2007 OF THIS HON. COURT. EXT.P.10: COPY OF THE ORDER DTD. 08/12/2006 ISSUED BY THE R.2. EXT.P.11: COPY OF THE ORDER DTD. 19/05/2007 ISSUED BY THE R.1. EXT.P.12: COPY OF THE ORDER DTD. 12/01/2007 IN W.P.(C).NO.1340/2007 OF THIS HON. COURT. EXT.P.13: COPY OF THE ORDER DTD. 10/04/2007 IN W.P.(C).NO.1340/2007 OF THIS HON. COURT. EXT.P.14: COPY OF THE INTERIM REPORT DTD. 12/01/2007 IN W.P.(C).NO.1340/07 OF THIS HONOURABLE COURT. EXT.P.15: COPY OF THE G.O.DTD.13/0707. EXT.P.16: COPY OF THE INTERIM ORDER DTD. 01/08/07 IN W.P.(C).22131/07 OF THIS HONOURABLE COURT. EXT.P.17: COPY OF THE ORDER PASSED BY THE R.4. ON 02/06/2007. EXT.P.18: COPY OF THE JUDGMENT DTD. 24/11/08 IN W.P.(C).NO.11565/07 OF THIS HON'BLE COURT. W.P.(C). NO.17244/2007: RESPONDENTS' EXHIBITS: EXT.R6.A: COPY OF THE ORDER DTD. 25/06/2007 OF THE R.4. EXT.R6.B: COPY OF THE ORDER NO. B2-8193/2007 DTD. 26/12/2007 OF THE D.E.O., KOTHAMANGALAM. EXT.R6.C: COPY OF THE APPEAL DTD. 18/02/2008 BEFORE THE DEPUTY DIRECTOR (EDUCATION), ERNAKULAM. //TRUE COPY// P.A. TO JUDGE. Prv. P.N.RAVINDRAN, J. ----------------------------- W.P(C) No.17244 of 2007-C ----------------------------- Dated this the 19th day of February, 2009. J U D G M E N T Heard Sri.Elvin Peter P.J, the learned counsel appearing for the petitioner, Smt.T.B.Remani, the learned Government Pleader appearing for respondents 1 and 2, Sri.S.Ramesh Babu, the learned counsel appearing for respondents 3 and 5, Sri.Eldhose Elias, the learned counsel appearing for the fourth respondent and Shri.S.P.Aravindakshan Pillay, the learned counsel appearing for the sixth respondent. 2. A vacancy of Headmaster arose in the Father Joseph Memorial Higher Secondary School, Puthuppady, during the academic year 2006-2007. The fifth respondent the then Manager of the School, appointed Smt.K.A.Sosamma, HSA (SS) as Headmaster in that vacancy with effect from 1.6.2006. In the resultant vacancy of HSA (SS) the fifth respondent Manager appointed the petitioner as HSA (SS) as per Exhibit P1 order dated 5.6.2006. The appointment of Smt.K.A.Sosamma as Headmaster was objected to by Sri.P.T.Poulose, HSA (SS) who claimed appointment as W.P(C) No.17244 of 2007-C 2 Headmaster contending that he is senior to Smt.K.A.Sosamma. The District Educational Officer accepted his claim and declined to approve the appointment of Smt.K.A.Sosamma as Headmaster by order passed on 11.10.2006. The fifth respondent ceased to be the Manager of the school on 7.12.2006 and with effect from 8.12.2006 the fourth respondent became the Manager. He accepted the decision of the District Educational Officer and reverted Smt.K.A.Sosamma as HSA (SS) with effect from 1.6.2006. He also promoted Sri.P.T.Poulose HSA (SS) as Headmaster of the school as per order dated 22.12.2006 with effect from 23.12.2006. 3. The District Educational Officer approved the appointment of Sri.P.T.Poulose as Headmaster with effect from 23.12.2006 as per order passed by him on 4.1.2007. By Ext.P2 order passed on 5.2.2007, the District Educational Officer declined to approve the petitioner's appointment for the reason that with the reversion of Smt.K.A.Sosamma as HSA (SS) there was no sanctioned post against which the petitioner can be accommodated. The District Educational Officer had declined to approve the appointments of two other teachers also. The petitioner along with W.P(C) No.17244 of 2007-C 3 the said two teachers filed Exhibit P3 appeal before the Deputy Director of Education. By Exhibit P11 order passed on 19.5.2007, the Deputy Director of Education dismissed the said appeal. In this writ petition the petitioner challenges Exhibits P2 and P11 and prays for a writ in the nature of mandamus commanding respondents 1 and 2 to approve her appointment as HSA (SS) with effect from 5.6.2006. 4. This writ petition was presented on 4.6.2007. It was admitted and notice ordered to the respondents on 6.6.2007 on which date this Court also passed an interim order staying the termination of service of the petitioner for a period of ten days. The interim order was periodically extended and is still in force. It appears that after this writ petition was filed and the interim order staying the termination of the service of the petitioner was passed, the fifth respondent appointed the additional sixth respondent as HSA (SS) by Exhibit R6(a) order dated 25.6.2007, against the vacancy which arose on the promotion of Sri.P.T.Poulose as Headmaster. By Exhibit R6(b) order passed on 26.12.2007, the District Educational Officer declined to approve the sixth W.P(C) No.17244 of 2007-C 4 respondent's appointment on the ground that the petitioner is continuing in service by virtue of the interim orders passed by this Court and there is no post against which the sixth respondent can be accommodated. The District Educational Officer also noticed that the petitioner was appointed as HSA (SS) with effect from 5.6.2006 and that in these circumstances, the sixth respondent's appointment cannot be approved. The sixth respondent thereupon moved before the Deputy Director of Education, Ernakulam by filing Exhibit R6(c) appeal and it is reported to be pending. 5. I have considered the submissions made at the Bar by the learned counsel appearing on either side. It is not in dispute that the petitioner was appointed as HSA (SS) on 5.6.2006 by the fifth respondent, the then Manager. That appointment was against the vacancy of HSA (SS) that arose when Smt.K.A.Sosamma was promoted as Headmaster. The petitioner started discharging her duties as HSA (SS) with effect from 5.6.2006 and Smt.K.A.Sosamma was discharging the duties of Headmaster with effect from 1.6.2006. After Smt.K.A.Sosamma was appointed as Headmaster, Sri.P.T.Poulose, HSA (SS) staked his claim for the post of Headmaster W.P(C) No.17244 of 2007-C 5 on the ground that he is senior to Smt.K.A.Sosamma. That claim was upheld by the District Educational Officer by order passed on 11.10.2006. The fourth respondent who succeeded the fifth respondent as the Manager with effect from 8.12.2006, accepted the decision of the District Educational Officer and implemented it. The fourth respondent appointed Sri.P.T.Poulose HSA (SS) as Headmaster with effect from 23.12.2006 and reverted Smt.K.A.Sosamma as HSA (SS) with retrospective effect from 1.6.2006. The appointment of Sri.P.T.Poulose as Headmaster was approved by the District Educational Officer on 4.1.2007 with effect from 23.12.2006. It was thereafter that by Exhibit P2 order dated 5.2.2007 that the District Educational Officer declined to approve the petitioner's appointment as HSA (SS). The reason stated is that with the reversion of Smt.K.A.Sosamma there was no sanctioned post of HSA (SS) against which the petitioner can be accommodated. Though the petitioner moved the Deputy Director of Education in appeal, the said appeal was rejected by Exhibit P11 order passed on 19.5.2007. 6. As noticed above, Smt.K.A.Sosamma HSA (SS) was W.P(C) No.17244 of 2007-C 6 appointed as Headmaster with effect from 1.6.2006 and she continued to be the Headmaster of the school till 23.12.2006, when she was replaced by Sri.P.T.Poulose, Sri.P.T.Poulose was appointed as Headmaster only with effect from 23.12.2006 and his appointment as Headmaster was approved only with effect from that date. Therefore, for all practical purposes, Smt.K.A.Sosamma was discharging the duties of Headmaster from 1.6.2006 till 23.12.2006. Therefore the mere fact that Smt.K.A.Sosamma was reverted as HSA (SS) with effect from 1.6.2006 by order dated 22.12.2006 passed by the fourth respondent does not lead to the conclusion that there was no post of HSA (SS) to accommodate the petitioner during the period from 1.6.2006 to 23.12.2006. Further, Smt.K.A.Sosamma and Sri.P.T.Poulose were both High School Assistants in the same subject namely Social Science. A post of Headmaster had admittedly fallen vacant and was available to be filled up on 1.6.2006. Therefore if the Manager had promoted Sri.P.T.Poulose HSA (SS) as Headmaster with effect from 1.6.2006 instead of promoting Smt. K.A.Sosamma, then also a vacancy of HSA (SS) would have arisen. Therefore any change in the person who was W.P(C) No.17244 of 2007-C 7 appointed as Headmaster cannot be held out against the petitioner. Apart from stating that with the reversion of Smt.K.A.Sosamma, there was no vacancy of HSA (SS) against which the petitioner can be accommodated, the official respondents have not set out any other reason to decline to approve her appointment. They have no case that the petitioner is not qualified to be appointed as HSA (SS). They also have no case that the petitioner was not appointed against a sanctioned post. A vacancy of HSA (SS) arose on 23.12.2006 when Sri.P.T.Poulose was appointed as Headmaster. Therefore all that was required to be done was to shift the petitioner from the vacancy of Smt.K.A.Sosamma against which he was appointed with effect from 5.6.2006 to the vacancy of Sri.P.T.Poulose with effect from 23.12.2006. The official respondents have failed to take note of this crucial aspect when they declined to approve the petitioner's appointment. Therefore in my considered opinion, the grounds put forward by the official respondents for declining approval to the petitioners appointment as HSA (SS) are not tenable. 7. The sixth respondent contends that as the District Educational Officer had declined to approve the petitioner's W.P(C) No.17244 of 2007-C 8 appointment by the order passed on 5.2.2007 and as the appeal therefrom was rejected on 19.5.2007 by the Deputy Director of Education, the fourth respondent Manager was right in appointing her as HSA (SS) with effect from 25.6.2007. She is therefore entitled to continue as HSA (SS) and to have her appointment approved with effect from 25.6.2007 it is contended. In my opinion, there is no merit in the said contention. This writ petition challenging Exhibit P2 order passed by the District Educational Officer on 5.2.2007 declining to approve the petitioner's appointment as HSA (SS) and Exhibit P11 appellate order passed by the Deputy Director of Education on 19.5.2007, upholding Exhibit P2 was presented in this Court on 4.6.2007. This writ petition was admitted and notice ordered to the respondents on 6.6.2007. The fourth respondent had entered appearance through counsel on 6.6.2007 when this writ petition was admitted and an interim order staying the termination of the petitioner's service was passed. He was therefore aware of the pendency of this writ petition, wherein the petitioner had challenged the orders passed by the educational officers declining to approve her appointment. He was also aware that this Court has W.P(C) No.17244 of 2007-C 9 admitted the writ petition and passed an interim order staying the termination of the petitioner's service. As the Manager of an aided school, the fourth respondent ought to have awaited the outcome of the writ petition before altering the status quo and appointing the additional sixth respondent as HSA (SS). The appointment of the sixth respondent was at a time when the claim made by the petitioner to have her appointment approved was being examined by this Court. The appointment of the sixth respondent on 25.6.2007 as HSA (SS) was an appointment made pendente lite by the fourth respondent Manager who was aware of this writ petition. The sixth respondent cannot therefore contend that she is entitled to have her appointment as HSA (SS) approved with effect from 25.6.2007. The request made by her in Ext.R6(c) revision petition cannot therefore be granted. For the reasons stated above, I quash Exhibits P2 and P11 and direct respondents 1 and 2 to approve the appointment of the petitioner as HSA (SS) with effect from 5.6.2006. The petitioner will be entitled to all consequential benefits including salary and allowances. Necessary orders in this regard shall be passed within W.P(C) No.17244 of 2007-C 10 six weeks from the date on which the petitioner produces a certified copy of this judgment before the District Educational Officer, Kothamangalam. Payment of arrears of salary and allowances shall be made within two months thereafter. The fourth respondent shall give necessary instructions to the Headmaster of the school to prepare and present the arrear bill for payment so as to enable the District Educational Officer to sanction and disburse arrears of salary to the petitioner. Needless to say, the petitioner will also entitled to reckon her service with effect from 5.6.2006 for all purposes including seniority. The writ petition is allowed as above. No costs. Sd/- P.N.RAVINDRAN JUDGE //True Copy// PA to Judge W.P(C) No.17244 of 2007-C 11