IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 1623 of 2003
1. C.G.JOHN, C.K.P. BUNGALOW, CHENGAMANDU,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
3. THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM
4. THE DISTRICT EDUCATIONAL OFFICER,
5. P.RADHA, SREE BHAVAN, ARAMPUNA, ELAMPAL
For Petitioner :SRI.V.GIRI
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.A.ABDUL GAFOOR
The Hon'ble MRS. Justice K.HEMA
Dated : 03/08/2005
O R D E R
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K.A. ABDUL GAFOOR & @@
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These writ appeals arise from the common
judgment in O.P.No.5686/01 and O.P.No.31697/02.
2. The petitioner in O.P.No.5686/01 claimed
the post of Headmistress of Mannam Memorial High
School, Vilakkudy, Punalur, as she was overlooked. The
manager appointed the petitioner in O.P.No.31697/02 in
that post. There were several litigations concerning
the matter including disciplinary action against the
petitioner in O.P.NO.5686/01. Finally, based on a
direction from this court, the Manager the appellant in
W.A.No.2157/03 considered her claim and passed Ext.P9
marked in O.P.No.5686/01 to the effect that, as there
was disciplinary action and criminal case pending
against her, she could not have been appointed as
Headmistress. Consequently, Ext.P10 order was issued
by the Manager appointing an enquiry officer to hold an
enquiry against her. Earlier she had been placed under
suspension and was later reinstated.
3. During the pendency of the said original
petition, her claim for the post of Headmistress had
been finally considered and adjudicated by the
Government as is revealed by Ext.P11 marked in
O.P.No.31697/02. Government, in that order, upheld the
claim of the petitioner in O.P.No.5686/01. That order
was challenged by the appointee – the petitioner in
O.P.No.31697/02. Therefore, in the light of Ext.P11,
there arises no question of considering the challenge
against Ext.P9 marked in O.P.No.5686/01. It is also
now agreed by the counsel on either side that the
disciplinary action had never been proceeded against
the petitioner in O.P.No.5686/01 and that she had
retired by now. Therefore, there arises no question of
considering the challenge against Ext.P10 as well.
4. In the meantime, Ext.P13 marked in
O.P.No.5686/01 was also passed by the District
Educational Officer, Punalur, based on a direction from
this court, regularising the period during which she
had been kept under suspension and treating it as
eligible leave. Though O.P.No.5686/01 was not formally
amended incorporating the challenge against Ext.P13
order, it was produced and her grievance against it had
been voiced in an affidavit filed along with
I.A.No.8121/03. That much is sufficient as regards
O.P.No.5686/01 because, the main challenge was against
Ext.P11 marked in O.P.No.31697/02 at the instance of
the appointee for the post of Headmaster, the appellant
in W.A.No.1623/03 and 2051/03.
5. The bone of contention is who among these
two should have been considered for the vacancy of
Headmaster, which arose on retirement of the then
incumbent. The claim of the petitioner in
O.P.No.5686/01 was resisted mainly based on Ext.P8
marked in O.P.No.31697/02 which is, according to the
appointee as well as the Manager, a consent obtained as
provided in the Note under rule 44(1) Chapter XIV A
K.E.R. to appoint a junior incumbent viz., the
petitioner in O.P.No.31697/02 (the appellant in
W.A.Nos.1623/03 and 2051/03) So everything depend upon
the legal efficacy of Ext.P8.
6. Admittedly, the petitioner in
O.P.No.5686/01 was the seniormost incumbent in the
school when the vacancy arose on 1.5.1996. There is no
contention that she had not been qualified. Rule 44(1)
Chapter XIV A of the Kerala Education Rules obliges the
Manager, while making appointment to the post of
Headmaster, to follow the seniority of the incumbents
concerned, ordinarily. Of course, going by the Note
under Sub-rule (1) of Rule 44, the Manager can prefer a
junior incumbent provided, the senior incumbent
consents for that. Therefore, appointment of a junior
incumbent can be made only after obtaining consent from
the seniormost eligible incumbent. The Note further
provides that “such consent shall have the approval of
the Educational Officer concerned”. Thus consent is a
pre-requisite to prefer a junior incumbent. Such
consent shall be an efficacious one. It shall always
have the approval. Then alone it will be an
efficacious consent. Therefore, such approval to the
consent is a pre-requisite, so far as the Manager is
concerned, to overlook the seniority. Ext.P8 is the
consent in this case, whereby the petitioner in
O.P.No.5686/01 had allegedly renounced her claim for
appointment as Headmistress. But no one has a case
before us that any approval to the said alleged consent
dated 29.6.1996 had been obtained until the junior hand
had been appointed as Headmaster as per Ext.P5 dated
2.9.1996 marked in O.P.No.31697/02. When the statute
requires that there shall be a such consent and that
consent shall have the approval of the Educational
Officer, necessarily, it is a pre-requisite for the
Manager to prefer a junior incumbent. When a junior
incumbent was thus preferred for appointment as
Headmaster as per Ext.P5 dated 2.9.1996, approval to
such consent had not been obtained. Even on today,
there is no approval. Therefore, the appointment of
the petitioner in O.P.No.31697/02, the appellant in
W.A.No.1623/03 and in W.A.No.2051/03 as headmaster was
not in order. In such circumstances, the challenge
against Ext.P11 at his instance was rightly turned down
by the learned single Judge. Necessarily, the impugned
judgment has to be sustained.
7. The learned single Judge also had quashed
Ext.P13 order produced in O.P.No.5686/01 whereby the
period of suspension of the petitioner therein had been
regularised as eligible leave. When there was no
disciplinary action finding her guilty and when there
was no permission granted by the Educational Officer to
keep the incumbent under suspension beyond 15 days,
necessarily, the District Educational Officer, Punalur
was not justified in treating the suspension period as
eligible leave. Rule 67(8) Chapter XIV-A K.E.R.
provides that if the Educational Officer “is satisfied
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that there was no valid ground for the suspension, he
may direct the manager to reinstate the teacher with
effect from the date of suspension …..”. Therefore,
interference with Ext.P13 as per the impugned judgment
is also to be sustained.
8. We need not consider the contention of the
Manager, the appellant in W.A.No.1623/03, that there
was no formal challenge against Ext.P13 because, none
of the rights of appellant is adversely affected by it.
He was on any count, going by Rule 67(8) liable to
reinstate the teacher. He did not do so. The salary
paid to the teacher on account of his refusal to
reinstate the teacher is to be recouped from him as per
law.
9. Anyhow, as the petitioner in O.P.No.5686/01
is getting the benefit with retrospective effect, we
find that the award of costs shall be set aside. We do
so.
The appeals are accordingly dismissed, subject
to the order as to costs as mentioned above.
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W.A.Nos.1623, 2051 & 2157 of 2003@@
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3rd August, 2005.@@
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