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.
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W.A. No.1931 of 2009
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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 While so, the SNDP Union superseded the said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)