High Court Kerala High Court

V.Suresh vs S.Sujathan on 1 October, 2009

Kerala High Court
V.Suresh vs S.Sujathan on 1 October, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 1931 of 2009()


1. V.SURESH, MANAGER SNDP UNION SCHOOL,
                      ...  Petitioner
2. G.SUMI, U.P.S.A., SN UP SCHOOL,

                        Vs



1. S.SUJATHAN, AGED 48 YEARS,
                       ...       Respondent

2. SREELATHA.V.G., D/O. GANAGADHARAN.V.R.,

3. THE SECRETARY GENERAL EDUCATION

4. THE UNDER SECRETARY

5. THE DIRECTOR PUBLIC INSTRUCTIONS

6. THE DISTRICT EDUCATION OFFICER

7. THE ASSISTANT EDUCATION OFFICER

                For Petitioner  :SRI.A.N.RAJAN BABU

                For Respondent  :SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)

The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.BHAVADASAN

 Dated :01/10/2009

 O R D E R
      K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ.
                   ------------------------------
                     W.A. No.1931 of 2009
                   ------------------------------

               Dated this, the 1st day of October, 2009


                           JUDGMENT

Balakrishnan Nair, J.

The appellants were not parties to the Writ Petition,

which was allowed by the learned Single Judge. So, they sought

leave of this Court and have filed this appeal challenging the

directions in the judgment, which are adverse to them. The brief

facts of the case are the following:

The Writ Petition was filed by the respondents 1 and

2 herein. The first respondent was the Manager, who appointed

the second respondent, as per Ext.P1 order dated 19.10.2005 in

a leave vacancy of an Upper Primary School Assistant (for short,

‘UPSA’) for the period from 19.10.2005 to 30.8.2010. The leave

vacancy was available for the period from 31.8.2005 to

30.08.2010. It appears that there was some dispute concerning

the management of the school. The local SNDP Union is the

educational agency of the school. The President of the Union is

the ex officio Manager of the school, as per the approved

W.A. No.1931 of 2009 – 2 –

bye-laws. The first respondent was elected President of the

Union and the Manager of the school in 2002 for a period of

three years. While so, the SNDP Union superseded the said

Managing Committee headed by the first respondent on

4.3.2005. The same led to disputes which were agitated before

the civil court also. By Ext.P3 order dated 18.10.2005 of the

civil court, the right of the first respondent to continue as

Manager was upheld. The result was that when the second

respondent was appointed as UPSA, the first respondent was

holding office as Manager validly. But, the second respondent’s

appointment was not approved by the Assistant Educational

Officer. The said officer rejected it, by Ext.P4 order dated

13.2.2006, holding that the appointment cannot be approved as

there was no approved Manager for the school on 19.10.2005.

The said decision was affirmed in appeal by the District

Educational Officer, by Ext.P5 order dated 25.5.2006. The first

respondent moved the Director of Public Instruction, by filing

Ext.P6 Revision Petition. The said petition was dismissed by the

Additional Director (Academic) of Public Instruction, by Ext.P7

order dated 20.1.2007. The rejection was on two grounds.

W.A. No.1931 of 2009 – 3 –

Firstly, it was held that, there was no approved Manager.

Secondly, it was held that, the second respondent has worked

only up to 31.7.2006 pursuant to Ext.P1 appointment order and

therefore, the period she has worked being only nine months,

the appointment cannot be approved. The first respondent filed

Ext.P9 revision before the Government challenging the above

orders. The said revision was dismissed by the Government by

Ext.P11 order dated 4.12.2007, holding that the period of

appointment of the second respondent was for less than one

academic year. Challenging Exts.P4, P5, P7 and P11 orders, the

Writ Petition was filed. The learned Single Judge after hearing

both sides, allowed the Writ Petition. It was held that even if the

term of appointment is less than one academic year, if the term

of the vacancy is for one academic year or more, the

appointment should be approved. In that view of the matter,

the Assistant Educational Officer was directed to approve Ext.P1

appointment. It was also ordered that if Ext.P1 order was not

available, the present Manager shall forward a fresh appointment

order in tune with Ext.P1 appointment order.

W.A. No.1931 of 2009 – 4 –

2. The first appellant was elected President of the

educational agency (the local unit of the SNDP Union) on

16.7.2006. The change of management was approved by the

competent authority on 20.7.2006, which was for a period of

three years. According to the appellants, the second respondent

deserted the job and absented herself from 27.7.2006. So, the

second appellant was appointed in that vacancy on 1.6.2007.

The Assistant Educational Officer as per Annexure A order

approved the said appointment from 4.6.2007. The present

Manager, first appellant and her appointee, the second appellant

herein, were not parties to Ext.P11 proceedings or to the Writ

Petition. Therefore, feeling aggrieved by the aforementioned

directions of the learned Single Judge in the judgment under

appeal, this Writ Appeal is preferred.

3. Sri.A.N.Rajan Babu, learned counsel for the

appellants, submitted that the second respondent has not turned

up for work from 27.7.2006. Therefore, the second appellant

was appointed in that vacancy and the same has been approved.

The learned Single Judge happened to pass the judgment under

W.A. No.1931 of 2009 – 5 –

appeal because the above facts were not placed before this

Court. Further, it is pointed out, that the present Manager

cannot be compelled to issue an appointment order to the

appointee of the predecessor Manager.

4. We heard the learned counsel for the respondents

1 and 2. It is submitted on behalf of the second respondent that

she was physically prevented from attending the school after the

take over of the management by the new Manager and

non-approval of her appointment by the educational officers.

This is clear from her statement in Ext.P10. So, the directions of

the learned Single Judge are legal and valid.

5. From the facts placed before us, it is clear that the

first respondent was holding the office of the Manager validly

when he appointed the second respondent in the leave vacancy

available from 31.8.2005 to 30.8.2010, by Ext.P1 order on

19.10.2005. Even according to the appellants, the first

appellant was elected on 16.7.2006 and change of management

took place on 20.7.2006. So, by virtue of Ext.P3 interim order of

W.A. No.1931 of 2009 – 6 –

the Civil Court, the first respondent held office of Manager

validly, notwithstanding the supersession of the Committee

headed by him on 4.3.2003. So, the Government rightly did not

rely on the management dispute in Ext.P11 order to reject the

claim of respondents 1 and 2.

6. The next point to be considered is, if the period the

incumbent worked is less than one academic year, even though

the vacancy in which she was appointed extends beyond one

academic year, whether approval could be denied. Relying on a

Division Bench decision of this Court in Unni Narayanan v.

State of Kerala, 2009 (2) KLT 604, the learned Single Judge

directed the A.E.O. to approve the appointment even if the

period of appointment is less than one academic year provided

the appointment is made in a vacancy having a duration of one

academic year or more. In view of the above position, we find

nothing wrong in the decision of the learned Single Judge. The

learned Single Judge, in the judgment under appeal, has held as

follows:

W.A. No.1931 of 2009 – 7 –

“I also note the contention of the 2nd

petitioner that she could not work in the school

after 31.07.06 only because the contesting factor

of the SNDP Union, which owns the school

physically prevented her from entering the school.

Whether that is correct or not, insofar as the

appointment of the 2nd petitioner is clearly in

accordance with the provisions of KER, approval

could not have been rejected as done in the

impugned orders.”

The learned counsel for the appellant submitted that the above

claim of the second respondent is not correct. But, the learned

counsel for the second respondent relied on the pleadings in

Ext.P10, which we have already noted earlier, to justify the

observations of the learned Single Judge. Having regard to the

facts of the case, we find no reason to take a different view on

the above point. Only because of the non-approval of the

appointment of the second respondent, the second appellant was

appointed, and her appointment was approved. So, with the

approval of appointment of the second respondent, the

appointment of the said appellant and its approval, being

dependent proceedings, will collapse. But the salary, if any, paid

to the second appellant till the date of the judgment under

W.A. No.1931 of 2009 – 8 –

appeal shall not be recovered from her.

7. Finally, the learned counsel for the appellants

submitted that the present Manager cannot be compelled to

issue an appointment order to the second respondent with

retrospective effect. We think, the above contention is hyper

technical. If Ext.P1 appointment order is not available with the

authorities, the present Manager can be asked to forward a copy

of the same available with him and if not, issue a fresh

appointment order in tune with Ext.P1, so that the approval can

be granted for the same by the Assistant Educational Officer

concerned. So, the said contention also cannot be upheld.

In the result, the Writ Appeal fails and it is dismissed.

Sd/-

K. Balakrishnan Nair,
Judge.

Sd/-

P. Bhavadasan,
Judge.

DK.                    (True copy)