IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 WP(C).No. 25919 of 2007(I) ------------------------------------ PETITIONER(S): ------------------------ RAJEEV.V., PEON, S.P.M.U.P.SCHOOL, AYIKUNNAM, SASTHAMCOTTA P.O., KOLLAM. BY ADVS.MR.M.V.BOSE MR.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENT(S): ------------------------- 1. THE ASSISTANT EDUCATIONAL OFFICER, SASTHAMCOTTA-690 521, KOLLAM. 2. THE MANAGER, S.P.M.U.P.SCHOOL, AYIKUNNAM, SASTHAMCOTTA P.O., KOLLAM. 3. THE HEADMASTER, S.P.M.U.P.SCHOOL, AYIKUNNAM, SASTHAMCOTTA P.O., KOLLAM. ADDL. R4 IS IMPLEADED. 4. R.ANANDAN, FLAT NO.6, SURABHI APARTMENT, PANAVILA, NALANCHIRA, THIRUVANANTHAPURAM. ADDL. R4 IS IMPLEADED AS PER ORDER DT. 28.9.07 IN WPC. NO.25919/07. BY GOVT. PLEADER MR.DILIP MOHAN FOR R1 BY ADVS. MR.B.RAGUNATHAN FOR R2 & 3 MR.V.V.MATHEW FOR R2 MR.G.S.MOHANDAS FOR R3 MR.RAM MOHAN.G. FOR R4 MR.G.P.SHINOD FOR R4 MR.MANU V. FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.25919/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE POWER OF ATTORNEY EXECUTED BY THE MANAGER SMT.R.SUDHARMA. P2:- COPY OF THE LETTER AADDRESSED TO THE HEADMASTER DT. 8.6.07. P3:- COPY OF THE APPOINTMENT ORDER IN FAVOUR OF THE PETITIONER DT. 8.6.07. P4:- COPY OF THE DECALARATION DT. 8.6.07. P5:- COPY OF THE LETTER DT. 11.6.07 TO THE ASST. EDUCATIONAL OFFICER, SASTHAMCOTTA. P6:- COPY OF THE COMPLAINT DT. 18.6.07 FROM THE PETITIONER BEFORE THE ASST. EDUCATIONAL OFFICER, SASTHAMCOTTA. P7:- COPY OF THE ADVERTISEMENT APPEARED IN MATHRUBHOOMI DAILY DT. 19.8.07. P8:- COPY OF THE LETTER DT. 21.8.07 FROM R.ANANDAN TO A.E.O., SASTHAMCOTTA. P9:- COPY OF THE LETTER DT. 31.7.07 FROM THE ASST. EDL. OFFICER SASTHAMCOTTA TO SRI.R.ANANDAN. P10:- COPY OF THE APPLICATION DT. 15.9.07 FROM PETITIONER TO ASST.EDL. OFFICER, SASTHAMCOTTA. RESPONDENT'S EXHIBITS R2(a):- COPY OF THE LETTER DT. 13.5.08 OF THE IST RESPONDENT. R2(b):- COPY OF THE LETTER DT. 14.5.08 OF THE IST RESPONDENT. R3(a):- COPY OF THE FAX MESSAGE DT. 11.6.07. R3(b):- COPY OF THE LETTER DT. 26.6.07 OF THE IST RESPONDENT. R3(c):- COPY OF THE LETTER DT. 13.7.07. R3(d):- COPY OF THE LETTER DT. 19.9.05. R3(e):- COPY OF THE LETTER DT. 18.7.06. TRUE COPY PS.TO JUDGE TSS S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 25919 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 30th June, 2009. J U D G M E N T The petitioner was appointed as a Peon in S.M.U.P School from 8-6-2007 by the additional 4th respondent, who was the power of attorney holder of the manager of the school, the 2nd respondent herein. The manager, Smt. Sudharma, was away in London. According to the petitioner, by virtue of the power of attorney, the additional 4th respondent was making appointments since, according to the petitioner, as per Ext. P1 power of attorney, he was authorised to do so. It is also submitted that various appointments made by the 4th respondent earlier, had been approved by the A.E.O also. The appointment of the petitioner was in the retirement vacancy of one Thulasedharan, who retired on 31-5-2007. The appointment order of the petitioner was forwarded to the educational authorities. The petitioner tried to join duty but he was not permitted to sign the attendance register. The petitioner claims to be continuing to work there since even the A.E.O directed the petitioner to continue to work. Now, the approval of appointment of the petitioner has been declined on the ground that the power of attorney executed in favour of the additional 4th respondent had been cancelled by the manager on 12-6-2007. According to the petitioner, by virtue of Ext. P1 power of attorney, the additional 4th respondent had validly appointed the petitioner at a time when the power of attorney was still in force and therefore the petitioner's appointment was perfectly valid and because of the dispute between the manager and the power of attorney holder, the petitioner should not be allowed to suffer. Subsequently, the petitioner came across Ext. P7 advertisement in the Mathrubhoomi inviting applications for the post of Peon to which the petitioner had been appointed by the 4th respondent. In the above circumstances, the petitioner seeks the following reliefs: W.P.C. No. 25919/07 -: 2 :- “(i) to call for the entire records leading up to Ext. P7 and to quash the action of appointment as fresh hand as Peon in place of the petitioner by the issuance of a writ of certiorari or any other writ, direction or order. (ii) to issue a writ of mandamus compelling the 1st respondent to approve Ext. P3 appointment of the petitioner as Peon. (iii) to direct the respondents to permit the petitioner to sign the attendance register.” 2. While the writ petition was pending, he manager appointed another person as Peon on 31-8-2007. 3. Counter affidavits have been filed by respondents 1, 2 and 3. The 1st respondent would submit that the power of attorney executed by the manager in favour of the additional 4th respondent was approved by the educational authorities and the additional 4th respondent was continuing as the power of attorney holder duly enjoying the rights and duties of the manager. According to 1st respondent, the appointment order of the petitioner was received by him only on 14-6-2007, by which time the 1st respondent had received a message from the 2nd respondent cancelling the power of attorney executed by her in favour of the additional 4th respondent and that is why the appointment of the petitioner had not been approved. The 1st respondent also would submit that the petitioner was not appointed on 8-6-2007 and he has not attended the school on that day. It is further stated that the additional 4th respondent forcibly took the attendance register from the Headmaster of the school and marked the attendance of the petitioner with effect from a previous date. 4. In her counter affidavit, the 2nd respondent wouldinter alia, submit as follows: “3. At the very outset I submit that the petitioner is not entitled to get any relief from this Hon'ble Court. He had filed this W.P.C. No. 25919/07 -: 3 :- writ petition colluding with the additional 4th respondent, power of attorney holder. He was well aware of the fact that the 4th respondent was not competent or having any authority to make appointment in the school. The order of appointment Ext. P3 is an illegal one without authority or competence. On the basis of Ext. P3, the petitioner is not entitled to stake any claim in my school. It is a void order. 4. It is submitted that in Ext. P1 power of attorney, I have not given the authority to make appointment or promotion of any staff in the school. If at all it was necessary in any given situation there was a specific understanding that the order of appointment could be issued by the power of attorney holder only on my written consent. The order of appointment Ext. P3 made by the 4th respondent in favour of the petitioner is one arranged secretly and without the knowledge of the 3rd respondent Headmaster or myself. In para one of the writ petition itself the petitioner had admitted that the power of attorney holder was appointed to attend the day-to-day duties and functions of the Manager of the School. So he was well aware of the situation, limited power and competence of the 4th respondent.” According to her, the power of attorney did not confer any power on the additional 4th respondent to make appointments and promotions of teachers and staff in the school. The 3rd respondent-Headmaster has filed a counter affidavit supporting the averments of the Manager. The 3rd respondent has produced Exts. R3(d) and R3(e) letters addressed to the Assistant Educational Officer, Sasthamcotta, wherein the manager had specifically authorised the additional 4th respondent to issue formal orders of appointment for making other appointments in the school. 5. I have considered the rival contentions in detail. 6. The issue which has to be decided in this case is whether the petitioner was validly appointed as a Peon in the school. Admittedly, the appointment order was signed by the additional 4th respondent in his capacity as power of attorney holder of the 2nd respondent manager. Therefore, only if the additional 4th respondent had power to make appointments in the school, the appointment of the petitioner would be valid. The petitioner relies on clause 3 of Ext. P1 power of W.P.C. No. 25919/07 -: 4 :- attorney to prove that the additional 4th respondent had power to make appointments in the school. That clause reads thus: “3. To deal/correspond with the Educational Authorities, Government or other Government authorities if any in connection with the management, appointment and all other proceedings in connection with the conduct of the School.” On a reading of the same, I cannot find anything therein which confers power on the additional 4th respondent to make appointment of teachers and staff in the school. What clause 3 confers on the additional 4th respondent is the authority to deal/correspond with the educational authorities etc., in connection with the management and appointment. That does not spell out a power to make appointments of teachers and staff in the school. A power of attorney has to be strictly construed. Only if the document specifically confers power on the power of attorney to do certain thing, he would have the authority to do so. Clause 3 does not, by any stretch of imagination, confer power on the 4th respondent to make appointments. Further, if the manager wanted to confer on the 4th respondent such an important power, which has far reaching consequences, the manager would certainly have conferred such power in specific and unambiguous terms, which is clearly absent in Ext. P1. Power to make appointment in an aided school, as is common knowledge, has serious consequences and therefore any manager would be cautious in giving such power, especially to a third person, who is not related to her. 7. Of course, learned counsel for the petitioner would strenuously argue that the only ground on which the approval was refused was that the power of attorney has been cancelled prior to consideration for approval and not because the additional 4th respondent had no power to make appointments. It is also submitted W.P.C. No. 25919/07 -: 5 :- that the additional 4th respondent had made other appointments which have been approved. But that argument has no legs to stand since I have held that Ext. P1 power of attorney does not confer on the 4th respondent the power to make appointments. This is fortified by Exts. R3(d) and R3(e), which show that earlier the manager had issued letters to the AEO, specifically authorising the 4th respondent to issue order of appointment in individual instances. If Ext. P1 granted power of appointment to the 4th respondent, no separate authorisation was necessary in individual cases. 8. Apart from that, he additional 4th respondent had not chosen to file a counter affidavit supporting the petitioner. As such, those averments of the petitioner stand unsupported by any material on record. Therefore, I cannot accept it on its face value. In any event, insofar as Ext. P1 does not confer any power on the additional 4th respondent to make appointments even if the denial of approval is on the ground that the power of attorney has been cancelled. If the 4th respondent did not have any power, the views of the educational authorities are irrelevant in deciding the relationship between the power of attorney holder and the manager. Since Ext. P1 does not confer the power to appoint teachers and staff in the school on the additional 4th respondent, he could not have validly appointed the petitioner in the school. That being so, I do not think that the petitioner is entitled to succeed in this writ petition. Accordingly, the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/