IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15099 of 2007(V)
1. BINCY VARGHESE,
... Petitioner
2. JEENA T.S.,
3. USHA M.S.,
4. SMITHA T.,
Vs
1. THE DEPUTY DIRECTOR OF EDUCATION,
... Respondent
2. THE DISTRICT EDUCATIONAL OFFICER,
3. THE MANAGER,
4. DR.P.V.JOSEPH,
For Petitioner :SRI.ELVIN PETER P.J.
For Respondent :SRI.ELDHOSE ELIAS
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :18/11/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) No.15099 OF 2007
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Dated this the 18th day of November 2008
J U D G M E N T
Challenge in this writ petition is against Ext.P26 order
dated 03/03/2008 passed by the DEO rejecting the approval
of the appointment of the petitioners as HSA in different
subjects in the Fr. Joseph Memorial Higher Secondary
School, Puthupady, Muvattupuzha. Since the reason for
rejecting approval, as is seen from Ext.P26, is the
controversy concerning the managership of the school, the
details of the disputes to the extent that is necessary is as
stated hereunder.
2. As per the approved bye-laws for the
management of the school, one Shri.Prasad P.Varghese was
appointed as the Manager of the School and his
appointment was approved by Ext.P14 order dated
06/04/1978. He continued in office and it would appear that
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subsequently the 4th respondent claimed appointment as
Manager. As per the judgment of this Court in O.P.
No.760/1993, the Deputy Director of Education was directed
to consider the appeal filed by the 4th respondent claiming
that he was the Manager. In the judgment, there was a
further direction that until disposal of the appeal there shall
not be any appointments made. Following this judgment,
the Deputy Director passed Ext.P16 order, recognising
Shri.Prasad P.Varghese as the Manager and allowing him to
continue. Against this order, revision filed by the 4th
respondent to the DPI was rejected by Ext.P17 and the
Government also rejected, a further revision as per Ext.P18
order.
3. As a result, Shri.Prasad P.Varghese continued as
the Manager. In the meantime, following a meeting of the
proprietory body held on 02/02/2001, the 4th respondent
claimed managership of the school and that was approved
by the DEO as per Ext.P19 order dated 03/07/2001. That
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order was set aside by the DPI as per Ext.P20 order dated
12/10/2001, and the DEO was directed to reconsider the
matter, in the manner as directed therein. Accordingly, the
DEO passed Ext.P21 order approving Shri.Prasasd
P.Varghese as the Manager. The revision filed by the 4th
respondent against Ext.P20 order was also rejected by
Ext.P22.
4. Against Ext.P20 and P22 orders, a writ petition
was filed before this Court as O.P. No.20324/2002. That
writ petition was disposed of by Ext.P23 judgment dated
21/04/2006 setting aside Exts.P20 and P22 orders and
directing the DPI to consider the appeal filed by the 4th
respondent. In the writ appeal filed by Shri.Prasad
P.Varghese, the Division Bench rendered Ext.P24 judgment,
setting aside Ext.P23 judgment to extent it quashed
Exts.P20 & P22. It was directed that the appeal against
Ext.P21 shall be considered by the DPI. As already noticed,
during this period, on the strength of Ext.P21 Shri.Prasad
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P.Varghse was continuing as the Manager, and while so, the
petitioners were appointed by Exts.P1 to P4 orders dated
05/06/2006.
5. Soon after the appointment of the petitioners, a
writ petition was filed by the 4th respondent as WP(C)
No.25807/2006, complaining of the appointments that were
made by Shri.Prasad P.Varghse. That writ petition was
disposed of by Ext.P25 judgment, directing the DPI to
dispose of the appeal as directed in Exts.P23 and P24
judgments. Further there was a direction that till a decision
is taken in the appeal, the appointments, if any, made by
Shri.Prasad P.Varghse shall not be approved. In pursuance
to Exts.P23, P24 and P25 judgments, the DPI considered the
appeal filed against Ext.P21 and passed Ext.P5 order dated
07/12/2006, directing approval of the 4th respondent as
Manager. Consequently, the DEO passed Ext.P8 order dated
08/12/2006 approving the appointment of the 4th
respondent as the Manager. Against Ext.P5, a revision was
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filed to the Government by Shri.Prasad P.Varghese, and by
Ext.P6, the DPI’s order was stayed. The revision was
ultimately rejected by order dated 13/07/2007.
6. Ext.P5 and the DPI’s order dated 13/07/2007 were
challenged by Shri.Prasad P.Varghese in WP(C)
No.22131/2007, and by judgment dated 13/11/2008 this
Court set aside both the orders and directed the DPI to
consider the appeal against Ext.P21. In the meanwhile, the
proposals made for approval of the appointments of the
petitioners were rejected by Ext.P26 order dated
03/03/2008 passed by the D.E.O. The reason for such
rejection is the pendency of the management dispute.
Since the issue is pending consideration of this Court, the
petitioners have filed this writ petition against Ext.P26 order
passed by the D.E.O.
7. The contentions raised by the learned counsel for
the petitioners are that in terms of the provisions contained
in Rule 4(2), Chapter III of K.E.R. change of managership is
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effective only when the manager assumes charge. It is
stated that for the period from 06/05/1978 onwards,
Shri.Prasad P.Varghese was the Manager of the School
except for the period between 03/07/2001 to 12/10/2001.
It is stated that when the petitioners were appointed by
Exts.P1 to P4 dated 05/06/2006, Shri.Prasad P.Varghse was
the Manager. Therefore, since the appointments have been
effected by a competent manager, the appointments are
liable to be approved. Further the pendency of the
management dispute cannot be a reason for rejecting
approval of their appointments.
8. On the other hand, the learned counsel for the 4th
respondent would contest the claim of the petitioners.
According to him, the writ petition itself is not maintainable
for the reason that against Ext.P26, statutory alternative
remedies are available and therefore this writ petition, filed
without availing those remedies, is liable to be rejected on
that ground itself. Secondly, it is contended that at the time
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when appointments were made on 05/06/2006, Ext.P23
judgment dated 21/04/2006 rendered by the learned Single
Judge setting aside Exts.P20 & P22 held the field. It is
stated that consequently during that period Shri.Prasad
P.Varghese was not the Manager, and was incompetent to
make appointments and that if that be so, approval also
cannot be granted.
9. It is also contended that in Ext.P25 judgment, this
Court had directed not to approve the appointments made
by Shri.Prasad P.Varghese until a decision is taken on the
appeal and that consequent to the judgment of this Court in
WP(C) No.22131/2007 dated 13/11/2008 quashing Ext.P5
and order dated 13/07/2001, the appeal has to be decided
afresh. On this basis, the contention raised is that since the
appeal is still pending, the interdiction against approval of
appointment contained in Ext.P25 judgment, still remains in
force.
10. I have considered the submissions made by both
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sides. The first plea that has to be dealt with is the
contention that the writ petition has to be dismissed for not
availing of statutory alternative remedies. True, the K.E.R.
provides for appeal, revision etc. against an order declining
approval of appointment. As can be seen from Ext.P26, the
reason for rejection of the approval is the pendency of the
dispute concerning the managership of the school. It is a
fact that the dispute was pending in this Court. So long as
the dispute is pending before this Court, the petitioners
could not have expected any relief, even if they have
pursued remedies before the statutory authorities.
Therefore, such remedies could not have been effective in
the peculiar circumstances of this case. If that be so, the
availability of alternate remedy cannot operate as a bar
against the petitioners. That apart, this writ petition having
been admitted, kept pending, parties have filed their
pleadings, and arguments were heard at length, there is
absolutely no justification to direct the parties to pursue
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statutory remedy at this distance of time. Therefore, the
first objection raised by the learned counsel for the 4th
respondent is only to be rejected and I do so.
11. The next issue that requires to be dealt with is the
question of the competence of Shri.Prasad P.Varghese to
make appointments. It is not in dispute that from
06/05/1978 onwards he was the Manager except for the
period from 03/07/2001 to 12/10/2001, consequent to
Ext.P19 order. Thereafter he ceased to be office only
following Ext.P5 order of the DPI, which was implemented
following the approval granted by the DEO as per Ext.P8
order dated 08/12/2006. Therefore, at the time when he
issued Exts.P1 to P4 orders of appointments on 05/06/2006,
he was the manager of the school.
12. The learned counsel for the 4th respondent pointed
out two objections. One is that the approval of
appointments granted vide Ext.P8 dated 08/12/2006, was
effective from 03/07/2001 and secondly, at the time when
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appointments were made on 05/06/2006, consequent on
Ext.P23 judgment of this Court rendered on 21/04/2006,
Exts.P20 & P22 were set aside and therefore, Ext.P19
approving the 4th respondent as the Manager held the field.
13. The first question to be answered is whether the
retrospective approval of the 4th respondent as Manager will
vitiate the appointments made by Shri.Prasad P.Varghese,
who held the office of Manager at the relevant time. In my
view, it will not. As already noticed, until 07/12/2006, when
the DPI directed approval of the 4th respondent as Manager,
Shri.Prasad P.Varghse held the office as the Manager of
the school. If that be so, the fact that a subsequent
retrospective invalidation has taken place cannot invalidate
the actions, which he took as Manager of the school. As far
as the teachers are concerned, they are appointed by an
approved Manager and they are not concerned about the
Management dispute between the brothers. Further there
was no order by any superior authority or court interdicting
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the Manager from making appointments. This position is
also covered by a Division Bench decision of this Court in
Manager, St.Mary’s H.S. Vs. Beji Abraham (2002(1) KLT
406), where it was held that the fact that the appointment
of the Manager was subsequently found to be illegal or
irregular could not take away the rights of the appointees,
applying the rule of defacto doctrine. The following
paragraph of the judgment being relevant is extracted:-
“9. De facto doctrine saves the acts of the officers
de facto performed within the scope of their assumed
official authority. Whatever defects there may be in the
nature of their appointment it is based upon the principle
of public policy and necessity. Such a doctrine was
introduced into the law as a matter of policy and necessity,
to protect the interest of the public and the individual
whose interests were involved in the official acts of persons
exercising the duties of an office without being lawful
officers. Aforementioned doctrine was applied by a Full
Bench of this Court in P.S.Menon v. State of Kerala (AIR
1970 Kerala 165) and held as follows :-
“The doctrine was engrafted as a matter of policy and
necessity to protect the interest of the public and individuals
involved in the official acts of persons exercising the duty of an
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-12-officer without actually being one in strict point of law. But
although these officers are not officers de jure they are by
virtue of the particular circumstances, officers, in fact, whose
acts, public policy requires should be considered valid”.
The judgment of the Full Bench was quoted with approval
by the Apex Court in Gokaraju Rangaraju v. State of A.P.
(AIR 1981 SC 1473). That was a case where appointment
of Sessions Judge was subsequently declared as invalid on
the ground that the appointment was in violation of Art.233
of the Constitution of India. The Apex Court held that the
judgments pronounced by him and acts done by him when
he was clothed with the powers and functions of the office,
albeit unlawfully, have the same efficacy as judgments
pronounced and acts done by a Judge de jure. Above
decision was subsequently followed by the Apex Court in
C.Rangaswamiah and Ors. v. Karnataka Lokayukta & Ors.
(1998 (6) SCC 66). The Apex Court in a recent decision in
Union of India V. Charanjit S.Gill & Ors. (2000(5) SCC 742)
upheld the de facto doctrine and held that the doctrine is
borne out of necessity. United States Supreme Court in
New Zealand and Norton v. Shelby County (1886-118 US
425) while dealing with doctrine and held as follows :
“Where an office exists under the law, it matters not how
the appointment of the incumbent is made, so far as the validity
of his acts are concerned. It is enough that he is clothed with
the in signia of the office, and exercises its powers and
functions. …….The official acts of such persons are recognised
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those having official business to transact”.
It is apposite to refer to the pronouncement of Lord
Denning. The observations of Lord Denning are as
follows :
“He sits in the seat of a Judge. He wears the robes of a
Judge. He hold the office of a Judge. May be he was not validly
appointed. But still he holds the office. It is the office that
matters, not the incumbent ……… so long as the man holds the
office and exercises it duly and in accordance with law, his
orders are not a nullity. If they are erroneous they may be
upset on appeal. But if not erroneous they should be upheld”.
(Re James (An Insolvent) 1977(1) All.E.R.364(CA).
14. In this context, I should also refer to the decision
in Padmanabhan Nambiar Vs. Government of Kerala
(1997(2) KLT 725), where this court upheld the order to
approve the appointments made by the Manager, whose
appointment was found to be illegal at a subsequent stage,
and after making reference to Cooley’s “Constitutional
Limitations”, it has been held in paragraph 6, as follows :-
“6.From the commentary on law it appears that if an
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officer has got colour or sembalance of some right to hold
office but holding office without actual right due to some
legal impediment or the appointment as such lacks certain
legal requirements whatever duties performed by him with
public acquiescence have to be approved, whereas the
action done by an intruder who attempts to perform duties
without the authority of law and without the support of
public acquiescence cannot claim validity. Merely because,
there was defect in the appointment of the officer all the
duties performed by such officer do not become void or
illegal. The de facto doctrine will come to rescue under
such circumstances.”
In the light of the above binding precedents and the facts as
noticed above, the objection raised by the 4th respondent is
only to be rejected.
15. Now what remains to be considered is the effect of
Ext.P23, the judgment rendered in O.P. No.20324/2002.
First of all, Ext.P23 judgment to the extent it set aside
Exts.P20 & P22 orders was reversed by the Division Bench
of this Court in Ext.P24 judgment. Therefore, the fact that
Ext.P23 judgment was rendered by this Court, cannot now
stand in the way of considering the request for approval of
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the appointments made.
16. Then what remains is the contention relying on
Ext.P25 judgment. True, in Ext.P25 judgment, this Court
held that until a decision is taken on the appeal,
appointments made by Shri.Prasad P.Varghese shall not be
approved. The learned counsel for the petitioners
contended that this interdiction could operate only till Ext.P5
order was rendered, when order was passed in the appeal.
True, consequent on the judgment of this Court in WP(C)
No.22131/2007, the DPI is now required to consider the
appeal afresh. Therefore, if I am to accept the contention of
the learned counsel for the 4th respondent that until the DPI
re-considers the matter and renders a fresh decision,
approval will have to await, the end result would be that
until the termination of the proceedings, the petitioners who
were appointed way back on 05/06/2006 will have to await
for approval of their appointments and to get salary. I am
inclined to think that interdiction in the judgment will have
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operation only till Ext.P5 order was rendered, as otherwise it
will be too harsh a view, as far as the petitioners are
concerned.
17. I am satisfied that Ext.P26 order rejecting
approval deserves to be set aside. Accordingly, Ext.P26 will
stand set aside and it is directed that the approval sought
for will be granted by the D.E.O..
The writ petition is allowed as above.
(ANTONY DOMINIC, JUDGE)
jg