IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20082 of 2008(N)
1. SINI GEORGE, UPPER PRIMARY SCHOOL
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. ASST.EDUCATIONAL OFFICER, ANCHAL (PO),
3. THE DISTRICT EDUCATIONAL OFFICER,
4. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
5. H.SOMACHOODAN PILLAI,
For Petitioner :SRI.M.V.THAMBAN
For Respondent :SRI.JOHN JOSEPH VETTIKAD
The Hon'ble MR. Justice K.T.SANKARAN
Dated :19/08/2008
O R D E R
K.T. SANKARAN,J.
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W.P.(C) No.20082 of 2008 N
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Dated this the 19th day of August, 2008.
J U D G M E N T
The petitioner, Sini George, is working as Upper Primary
School Assistant in Pullamkode Upper Primary School of which the additional
sixth respondent is the Manager. The petitioner states that she is fully qualified
to be appointed as Headmistress of the school.
2. On 1.6.2006, a vacancy of Headmaster arose in the
school. That fact is not disputed. The vacancy arose on the retirement of Shri
K.Vijayanadhan, the previous Headmaster on 31.5.2006. The Manager
appointed Smt. Annie Thomas as the Teacher-in-Charge. According to the
petitioner, Smt.Annie Thomas was not qualified as she did not have the test
qualification. The Assistant Educational Officer rejected the appointment of
Smt.Annie Thomas as Teacher-in-Charge for that reason. Another reason for
rejection of the appointment of Smt.Annie Thomas was that she was appointed
by a person who was not approved as the Manager. It is stated that the
management dispute was continuing on the date of filing of the Writ Petition.
However, the additional sixth respondent now says that the dispute is resolved
by Ext.R6(a) order dated 23.6.2008 passed by the Additional Director of Public
Instruction.
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3. Smt.Annie Thomas died on 21.3.2007. It is stated
that she worked as Teacher-in-Charge for the period from 1.6.2006 to
3.10.2006 and that she handed over the charge of the school to the fifth
respondent, N.Somachoodan Pillai, on 4.10.2006. The petitioner states that
Shri Somachoodan Pillai has continuous service from 7.6.1993. On the date of
occurrence of vacancy, he had not passed the test qualification. According to
the petitioner, 1.6.2006 is the relevant date and the qualification on that date is
the relevant criterion to be adopted to determine as to who should be appointed
as the Headmaster.
4. Ext.P1 representation dated 16.5.2007 was submitted
by the petitioner to the District Educational Officer, complaining that Shri
Somachoodan Pillai who was appointed as the Teacher-in-Charge does not
have the required qualification. Interference by the District Educational Officer
was prayed for in Ext.P1. It is stated that Shri Somachoodan Pillai and another
teacher, viz., Smt. S.K.Usha also had filed petition/representation before the
Deputy Director of Education, putting forward their claim for being appointed as
the Headmaster. The District Educational Officer passed Ext.P3 order dated
15.2.2008, holding thus –
"It is found that
Sri.N.Somachoodan Pillai, UPSA is not
qualified to the post of HM as he has not
passed Account Test (Lower) or (Higher).
Smt.Siny George is the only fully qualified
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UPSA in the school for the post of Headmaster
even w.e.f.1-6-06, the date of occurrence of
vacancy of HM in Pullamcode UPS, as she
passed the required departmental test and
having continuous service as UPSA in the
school from 1-7-1998.
As per circular No.H2-
26250/95 dated 31-7-95 of the Director of
Public Instruction, Thiruvananthapuram, when
the post of HM is vacant for a long period,
charge of the school should be given to the
seniormost qualified teacher – eligible to be
promoted as HM. In this case the post of
Headmaster of the school is vacant from 1-6-
06 and that position is continuing indefinitely.
Absence of Headmaster for such a long period
will adversely affect the smooth functioning of
the school including the academic interests. In
this context the ruling of the Hon’ble High
Court of Kerala in judgment dated 5-11-05 in
W.P.(C) No.31818/05 filed by Smt.Daisy
Kunjunny, seniormost qualified HSA seeking
orders for promotion as HM in the absence of
an approved Manager is significant – “dispute
over the managership is not to stand in the
way of the eligible candidates getting their
deserving post”. The AEO, Anchal may do the
needful for the school to have a Headmaster in
accordance with the rules without delay.
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In view of the facts stated
above the AEO, Anchal is directed to authorise
Smt.Siny George, UPSA, Pullamcode UPS, to
hold the charge of HM as Teacher-in-Charge
of the school till a Headmaster is appointed, on
promotion.”
5. The grievance voiced by the petitioner in the Writ
Petition is that in spite of Ext.P3 order, the Assistant Educational Officer failed to
take necessary steps to implement the said order.
6. The reliefs prayed for in the Writ Petition originally
were the following:-
“(i). to issue a declaration
that the petitioner is the senior most and the
only qualified UPSA for promotion as
Headmistress as on the date of occurrence of
vacancy on 1.6.2006 in the Pullamkode UP
School and that she is entitled to be promoted
as Headmistress w.e.f. 1.6.2006.
(ii). To issue a writ of
mandamus or other writ or order directing the
2nd respondent to post the petitioner as
Headmistress in the Pullamkode UP School
w.e.f. 1.6.2006 and take steps to approve that
appointment and also to direct the 1st and 4th
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respondents to appoint an Educational officer
as Manager of the Pullamkode UP School till
the Management dispute is resolved or to give
instruction to the AEO, Anchal to promote her.
(iii) to issue such other
further reliefs as this Honourable Court may
deem fit and proper in the facts and
circumstances of this case.”
7. The petitioner has filed I.A.No.10136 of 2008 for
amendment of the Writ Petition. It is stated that during the pendency of the Writ
Petition, ignoring Ext.P3 order passed by the District Educational Officer, the
Assistant Educational Officer had approved the appointment of Shri
Somachoodan Pillai as the Headmaster with effect from 1.7.2008 in the vacancy
of Shri K. Vijayanadhan, as per Ext.P4 order. Ext.P4 produced by the petitioner
would show that the Manager appointed Shri Somachoodan Pillai as the
Headmaster with effect from 1.7.2008 in the vacancy of Shri K.Vijayanadhan,
Headmaster who retired from service on 30.6.2006. By the amendment of the
Writ Petition, additional reliefs to quash Exts.P4 and P4(a) and for a declaration
that the qualification for promotion as Headmaster should be considered as on
the date of occurrence of vacancy which was on 1.6.2006 and also to declare
that the fifth respondent is not qualified for the post Headmaster as per Rule 45
of Chapter XIV A of the Kerala Education Rules, have been sought to be
included.
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8. The fifth respondent has filed a counter affidavit, in
which it is stated that against Ext.P4 order approving the appointment of the fifth
respondent, the petitioner has an effective alternative remedy of appeal and,
therefore, the Writ Petition is not maintainable for the relief of quashing Ext.P4.
It is stated in the counter affidavit that Ext.P3 order passed by the District
Educational Officer was challenged by the fifth respondent before the
Government in revision. As per Ext.R5(a) judgment dated 4.3.2008 in W.P.(C)
No.7385 of 2008, this Court directed the Government to dispose of the revision
and stay petition. Consequently, the Government passed Ext.R5(b) stay order
dated 3.6.2008, staying the operation of Ext.P3 order passed by the District
Educational Officer till the disposal of the representation filed by Somachoodan
Pillai. According to the fifth respondent, the petitioner has filed the Writ Petition
after coming to know about Ext.R5(b) stay order and suppressing Ext.R5(b)
stay order.
9. The additional sixth respondent (the Manager) has
filed a counter affidavit wherein a strange case is put forwarded. According to
the Manager, the post of Headmaster became vacant on 21.3.2007 consequent
to the death of Smt.Annie Thomas. It is also stated by the Manager in paragraph
No.4 of the counter affidavit thus –
“It is respectfully submitted
that on getting the change of management of
Pullamcode UP School approved in favour
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this Additional 6th Respondent Shri
N.Somachoodan Pillai the senior most fully
qualified UPSA under the management of
Pullamcode UPS who is the 5th Respondent in
the Writ petition was appointed as
Headmaster of the School with effect from 1st
July 2008 and the same was approved by the
2nd Respondent. In fact Smt. S.K.Usha the
senior most UPSA of UPS Pullamcode had
relinquished her claim for promotion as
Headmistress and the 2nd Respondent has
also taken that aspect in to consideration while
granting approval to the appointment of the 5th
Respondent as Probationary Headmaster of
Pullamcode School with effect from 1st July
2008 as per his Order No.C/3672/2008/D –
Dis. dated 17.7.2008.”
10. The Manager contends that the fifth respondent is the
only fully qualified Upper Primary School Assistant having 15 years of service,
entitled to be appointed as Headmaster. The Manager further states that the
petitioner, Sini George, has continuous service under the management only
from 16.1.1998 and she is assigned rank No.8 in the approved seniority list of
Teachers under the management whereas the fifth respondent occupies sixth
rank in the seniority list.
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11. Against Ext.P3 order a revision filed by the fifth
respondent, Shri Somachoodan Pillai, is pending before the Government. As
per Ext.R5(a) judgment dated 4.3.2008 in W.P.(C) No.7385 of 2008, this Court
directed the Government to dispose of the revision within a period of three
months. The said period is over. It is submitted that subsequently the period for
disposal was extended by another one month. That period is also over. The
Government has not disposed of the revision so far. However, the Government
have stayed Ext.P3 order by Ext.R5(b) order of stay dated 3.6.2008. This
situation has really created difficulties in the matter of appointment of
Headmaster and which resulted in the appointment of Shri Somachoodan Pillai
in a vacancy which is not the real vacancy. Ext.P4 appointment order and
approval thereof arose only in this background.
12. At the same time, against Ext.P4 order an appeal
lies. The remedy of the petitioner is to file an appeal against that order. Ext.P4
order cannot be straight away challenged, ordinarily in a Writ Petition. I do not
propose to resolve the rival claims of the petitioner and fifth respondent for the
post of Headmaster in this Writ Petition, particularly, when the matter is pending
before the Government in revision filed by the fifth respondent. It is submitted
that the parties were heard in May, 2008 and orders are to be passed by the
Government.
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In the facts and circumstances of the case, the Writ Petition
is disposed of with the following directions:-
(1) If the Government does not dispose of the revision
filed by the fifth respondent challenging Ext.P3 order within a period of one
month from today, Ext.R5(b) stay order will stand automatically vacated without
further orders and thereafter Ext.P3 order shall be implemented by the Assistant
Educational Officer, irrespective of the existence of Ext.P4 which was passed
subsequent to the filing of the Writ Petition.
(2) The petitioner is free to challenge Ext.P4 order
appropriately.
(3) All the contentions of the parties are left open.
K.T. SANKARAN,
JUDGE.
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