IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 WA.No. 2365 of 1998(B) --------------------------------- AGAINST THE JUDGEMENT/ORDER IN OP.12560/1996 Dated 02/11/1998 .................... APPELLANT: PETITIONER ------------------ ANITHA R., H.S.A. (MATHEMATICS), HIGH SCHOOL, THIRUVAMBADY, ALAPPUZHA - 9. BY ADV. SMT.I.SHEELADEVI SRI.KRB.KAIMAL (SR.) RESPONDENTS: RESPONDENTS ----------------------- 1. STATE OF KERALA, REP.BY SECRETARY TO GOVT., DEPARTMENT OF GENERAL EDUCATION, GOVT. SECRETARIAT, TRIVANDRUM. 2. DIST. EDUCATIONAL OFFICER, ALLEPPEY. 3. MANAGER, HIGH SCHOOL, THIRUVAMBADY, PAZHAVEEDU P.O., ALAPPUZHA. 4. BINDU R., BINDU NIVAS, SANATHANAMWARD, ALAPPUZHA. BY ADV. SRI.M.R.RAJENDRAN NAIR (SR.) SRI.K.V.SADANANDA PRABHU GOVERNMENT PLEADER SRI.ROY CHACKO SRI.ELVIN PETER P.J. SRI.V.K.BEERAN, ADDL.ADVOCATE GENERAL FOR R1 & R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04/07/2008 , ALONG WITH WA NO. 2694 OF 1998 THE COURT ON THE SAME DAYCDELIVERED THE FOLLOWING: W.A. NO.2365/1998 ORDER ON CMP. NO.6367/1998 IN WA. NO.2365/1998 DISMISSED 04.07.2008 SD/- J.B.KOSHY, JUDGE SD/- P.N.RAVINDRAN, JUDGE /TRUE COPY/ P.S. TO JUDGE tss J.B.Koshy & P.N.Ravindran, JJ. ===================== W.A.Nos.2365 & 2694/98 ===================== Dated this the 4th day of July, 2008. JUDGMENT Ravindran,J. W.A.No.2365 of 1998 arises from O.P.No.12560 of 1996 and W.A.No.2694 of 1998 arises from O.P.No.12551 of 1996. The appellants are the petitioners in the respective Original Petitions. The Original Petitions were heard and dismissed by a common judgment. Hence these appeals were heard together and are being disposed of by this judgment. The brief facts of the case are as follows: 2. The appellant in W.A.No.2694 of 1998 is the Manager of the Thiruvampady High School, an aided school administered by the Thiruvampady High School Trust. Under the Articles of Association of the said Trust, the Managing Committee is empowered to appoint teaching and non-teaching staff of the school, place them under suspension or initiate disciplinary action against them and to exercise general control over the staff of the WA 2365 & 2694/98 -: 2 :- school. 3. A vacancy of H.S.A. (Mathematics) arose in the school on 4.6.1996. The appellant in W.A.No.2365 of 1998 submitted her application on 14.6.1996 while the fourth respondent therein (who is also the second respondent in W.A.No.2694 of 1998) submitted her application on 24.6.1996. The last date for receipt of the applications was 20.6.1996. The Managing Committee that met on 21.6.1996 decided to take the services of the two subject experts to decide the proficiency of the candidates. 14 candidates who possessed the requisite qualifications were called for the interview that was held on 26.6.1996. Since the fourth respondent's application was belated, she was not called for interview. However, she appeared for the interview and was interviewed without the approval of the Managing Committee. In the final list prepared by the Managing Committee, the appellant in W.A.No.2365 of 1998 was ranked first and the fourth respondent was ranked third. The appellant in W.A.No.2365 of 1998 was appointed. The fourth respondent in W.A.No.2365 of 1998 thereupon moved the District Educational Officer, Alappuzha. By Ext.P4 order passed on 1.8.1996 the District WA 2365 & 2694/98 -: 3 :- Educational Officer directed the Manager of the school to appoint her as H.S.A. (Mathematics) after relieving the appellant in W.A.No.2365 of 1998. The Manager as well as the aggrieved teacher thereupon filed O.P.No.12551 of 1996 and O.P.No.12560 of 1996 respectively challenging Ext.P4. By judgment delivered on 2.11.1998, the learned single Judge dismissed the Original Petitions holding that the Managing Committee committed a grave error in appointing the appellant in W.A.No.2365 of 1998, in the place of the fourth respondent therein. It was held that the appointment of the appellant in W.A.No.2365 of 1998 was of no effect. Hence, the management and the aggrieved teacher have filed these appeals canvassing the correctness of the decision of the learned Single Judge. 4. We have heard Sri.K.R.B. Kaimal, the learned Senior Counsel appearing for the appellant in W.A.No.2365 of 1998, Sri.M.R.Sudheendran, the learned counsel appearing for the appellant in W.A.No.2694 of 1998, Sri.Benny Garvasis, the learned Government Pleader appearing for official respondents and Sri.Elvin Peter, the learned counsel for the fourth respondent in W.A.No.2365 of 1998 and the second respondent in WA 2365 & 2694/98 -: 4 :- W.A.No.2694 of 1998. During the course of arguments it was brought to our notice that Smt.Bindu R., the second respondent in W.A.No.2694 of 1998 and the fourth respondent in W.A.No.2365 of 1998 has since been selected and appointed by the Kerala Public Service Commission as a Teacher and therefore, she is not interested in seeking appointment as teacher in the Thiruvambady High School. We also notice that during the pendency of the Writ Petitions, there was an order staying the operation and implemention of Ext.P4 and that the operation of the judgment of the learned Single Judge was also stayed pending disposal of the appeals. The appellant in W.A.No.2365 of 1998 was also actually working in the school from 28.6.1996. Pursuant to the judgment of the learned Single Judge, the appellant in W.A.No.2365 of 1998 was relieved on 6.1.1998. However, by an interim order passed on 10.1.1998 on C.M.P.No.6367 of 1998 in W.A.No.2365 of 1998 a Division Bench of this Court directed as follows: "Notice and interim stay of the operation of the judgment of the learned Single Judge. Admittedly the petitioner has been working in the school from WA 2365 & 2694/98 -: 5 :- 28.61996. It appears that on the 6th of this month the petitioner/appellant was relieved and that 4th respondent was appointed in the said post. In view of the stay granted now, respondents 2 and 3 shall retain the petitioner herein in service as High School Assistant (Mathematics) in the High School, Thiruvambady and the petitioner alone shall be permitted to work in the said post, in preference to the 4th respondent." 5. Having regard to the interim order referred to above and the fact that the fourth respondent in W.A.No.2365 of 1998 has no claim for the post in view of her appointment in government service, we are of the opinion that the Writ Appeals can be disposed of with a direction to the District Educational Officer Alappuzha and the other authorities concerned to approve the appointment of the appellant in W.A.No.2365 of 1998 as H.S.A. (Mathematics) in Thiruvambady High School with effect from 28.6.1996 and to treat her as in continuous service with effect from that date. The District Educational Officer and the other authorities of the education department shall also grant approval to her appointment. Needless to say, the arrears of salary and allowances payable to her shall also be paid taking note of the WA 2365 & 2694/98 -: 6 :- periodical pay revisions effected since 1996. The appellant in W.A.2365 of 1998 shall also be given an opportunity to exercise her option/re-option following the pay revisions effected since 28.6.1996. Orders approving the appointment of the appellant in W.A.No.2365 of 1998 shall be passed within one month from today and salary and allowances payable to her shall be fixed and arrears paid within a period of three months thereafter. 6. The Writ Appeals are accordingly allowed, the judgment of the learned Single Judge is set aside and the Original Petitions are allowed setting aside Ext.P4 order dated 1.8.1996 passed by the District Educational Officer, Alappuzha. No costs. J.B.Koshy, Judge. P.N.Ravindran, Judge. ess 9/7