IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 509 of 2008()
1. THE MANAGER, S.V.M.M.HIGH SCHOOL,
... Petitioner
Vs
1. N.RADHAKRISHNAN NAIR,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
3. THE DEPUTY DIRECTOR (EDUCATION),
4. THE DISTRICT EDUCATIONAL OFFICER,
For Petitioner :SRI.GEORGE POONTHOTTAM
For Respondent :SRI.P.ALI
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :18/09/2008
O R D E R
J.B.Koshy & K.P.Balachandran, JJ.
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W.A.No.509 of 2008
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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
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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
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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
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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.
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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, HSAWA 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
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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
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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