B. Jayarajan v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **FRIDAY, THE 12TH DAY OF JULY 2013/21ST ASHADHA, 1935** ## **WP(C).No. 28039 of 2011 (D)** **----------------------------** ## **PETITIONER :** **--------------------------** **B.JAYARAJAN,AGED 37 YEARS, S/O.BHARATHARAJAN, MANAGER, S.N.V.GIRLS HIGH SCHOOL, PARAVOOR, KOLLAM-691 301.** **BY ADVS.SRI.V.A.MUHAMMED SRI.K.E.HAMZA** **RESPONDENT(S):** - **----------------------------** **1. THE STATE OF KERALA,REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DISTRICT EDUCATIONAL OFFICER, KOLLAM DISTRICT-691 001.** **3. SRI.J.S.SHALI,SEWING TEACHER,S.N.V. GIRLS HIGH SCHOOL, PARAVOOR, KOLLAM-691 301.** **4. SMT.N.T.JISHA,VISHAKAM, P.O.KOTTAPPURAM, PARAVOOR-691 301, KOLLAM DISTRICT.** **R1 & R2 BY GOVERNMENT PLEADER SRI.NOUSHAD THOTTATHIL R3 BY ADV. SRI.M.A.THOMAS KUTTY** **SMT.ASHA CHERIAN R4 BY ADV. SRI.R.REJI** **SMT.THARA THAMBAN** **SRI.B.BIPIN** **DR.K.P.SATHEESAN** **SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.ANOOP.V.NAIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-07-2013,ALONG WITH WP(C)NO.28631/2011 AND WP(C)NO.30263/2011, THE COURT ON THE 12-07-2013 DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.28039/2011** **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXT.P1: TRUE COPY OF THE MINUTES OF THE MEETING OF THE SAMAJAM, DATED 30/05/2009 EXT.P2: TRUE COPY OF THE NOTING OF THE VISIT BOOK DATED 30/05/2009 EXT.P3: TRUE COPY OF THE LETTER OF THE PETITIONER ALONG WITH DECLARATION AND APPLICATION CHANGE OF MANAGEMENT, DATED 30/05/2009 EXT.P4: TRUE COPY OF THE G.O.(RT.)NO.2304/2010/ G.EDN.OF THE GOVERNMENT, DATED 31/05/2010 EXT.P5: TRUE COPY OF THE APPLICATION FOR FITNESS CERFITICATE DATED 28/06/2009 EXT.P6: TRUE COPY OF THE FITNESS CERTIFICATE OF THE MUNICIPAL ENGINEER, DATED 07/07/2009 EXT.P7: TRUE COPY OF THE STAFF FIXATION ORDER 2008-2009, DATED 25/08/2008 EXT.P8: TRUE COPY OF THE STAFF FIXATION ORDER 2009-2010 ALONG WITH ERRATTUM ORDER NO.B5/7173/09/(D.DIS.)DT.15-02-2010. EXT.P9: TRUE COPY OF THE STAFF FIXATION ORDER 2010-2011, DATED 31/08/2010 EXT.P10: TRUE COPY OF THE PROCEEDINGS OF THE SCHOOL MANAGER, DATED 01/06/2010 EXT.P11: TRUE COPY OF THE G.O.(RT.)4183/2011/G/EDN.OF THE GOVERNMENT. DATED 07/10/2011 EXT.P12: TRUE COPY OF THE LETTER NO.B5/1985/2011 OF DISTRICT EDUCATIONAL OFFICER. DATED 13/10/2011 EXT.P13: TRUE COPY OF THE LETTER NO.B5/2364/10 OF DISTRICT EDUCATIONAL OFFICER. DATED 09/07/2010** ## **RESPONDENTS' EXHIBITS : NIL** **/TRUE COPY/** **P.S.TO.JUDGE** **sts** ## **A.M.SHAFFIQUE, J** ## *** * * * * * * * * * * * *** W.P.C.Nos.28039 of 2011, 28631 of 2011 and 30263 of 2011 ---------------------------------------Dated this the 12[th] day of July 2013 ## **J U D G M E N T** In W.P.C.Nos.28631 of 2011 and 30263 of 2011 as the petitioner is the same and since common issues arise for consideration in the above writ petitions they are decided together. 2. In W.P.C.No.28631 of 2011, the facts would disclose that the petitioner was appointed as Sewing Teacher in the High School section of S.N.V Girls High School, Paravoor on 01/06/2010 against a vacancy which arose on account of the retirement of the existing sewing teacher in the High School section Smt.K.Radhamani Amma. Though the manager had forwarded the appointment order and other particulars to the 2[nd] respondent for approval, her appointment has not been approved so far. W.P.C..No.28039 of 2011 & conn.cases 2 3. In the meantime, Smt.Vasantha who was a protected sewing teacher in the Upper Primary section of the school and who was continuing on a clubbing arrangement with another school retired on 31/03/2010. The Manager appointed the 4[th] respondent in the said vacancy. According to the petitioner the post held by Smt.Vasantha was only on the basis of a clubbing arrangement and was not an established vacancy and therefore the manager could not have appointed Vasantha in the said vacancy. The appointment of the 4[th] respondent was made by the former Manager who had no authority to do so. The 4[th] respondent's approval was declined by the District Educational Officer. The 4[th] respondent challenged the denial of approval before the Government by filing a revision. Petitioner narrates certain issues in regard to the management of the school. The dispute was between the members of the managing committee. As per the bye law of the Samajam which runs the school President of the W.P.C..No.28039 of 2011 & conn.cases 3 Samajam is the Manager. The term of the committee had expired on 23/05/2008. The new managing committee was elected on 19/04/2009. The managing committee meeting was held on 30/05/2009 and one Sri.Jayarajan was appointed as President of the Samajam and thus he became the manager of the school. The Government approved Sri.Jayarajan as Manager of the school as per Government Order dated 31/05/2010. Ext.P10 is the said Government order. Petitioner submits that there is a specific reference in Ext.P10 which states that the former Manager cannot continue as Manager of the school after 19/04/2009. According to the petitioner, when the 4[th] respondent is appointed by the former Manager, he had no authority for the same. In the revision filed by the 4[th] respondent by Ext.P14 order dated 07/10/2011, the Government approved the appointment of the 4[th] respondent. Ext.P15 is a consequential order. Petitioner challenges Exts.P14 and P15. W.P.C..No.28039 of 2011 & conn.cases 4 4. The contention urged is that as per Rule 7A(2) of Chapter XIV-A of KER no posts that fall vacant on the closing day shall be filled up till the reopening day. The 4[th] respondent is seen appointed as Sewing teacher on 29/05/2010 and therefore it is against the said Rule. It is alleged that the 6[th] respondent has no work in the school even for a single day. 5. In W.P.C.No.30263 of 2011, it is contended that the Petitioner's name has been included in the Teachers bank in terms of Government order dated 01/10/2011. An attempt is being made to delete the name of the petitioner from the list and include the name of the 6[th] respondent (4[th] respondent in W.P.C.No.28631 of 2011). Hence the petitioner seeks for a direction to respondents 1 to 4 to retain her in the Appendix I list in the Ext.P8 Government order and for a direction to the 4[th] respondent to approve her appointment from 01/06/2011 and to give her the W.P.C..No.28039 of 2011 & conn.cases 5 necessary monetary benefits. 6. Counter affidavit is filed by the 4[th] respondent in W.P.C.No.28631 of 2011. It is contended that she was selected to the post of Sewing teacher (High School) as per appointment order dated 29/05/2010 produced as Ext.R4(a). The change of staff statement is produced as Ext.R4(b). Therefore according to the 4[th] respondent there was only one vacancy which had arisen on the relieving of Smt.K.Radhamani Amma who retired on 31/03/2009. When Smt.Vasantha retired, it was not an actual vacancy at all. In fact no appointment was made at the time when Smt.Radhamani Amma retired since Smt.Vasantha was working as sewing teacher under clubbing arrangement. Therefore the actual vacancy had arisen only on 31/03/2010. It is stated that the management changed only with effect from 31/05/2009. Therefore the appointment of the 4[th] respondent on 29/05/2011 is valid in law. It is an appointment against the regular vacancy and therefore Rule 6 W.P.C..No.28039 of 2011 & conn.cases 7A(2) of Chapter XIV-A has no application. Since the Government has issued Ext.P10 order approving the appointment of the 4[th] respondent she is entitled to take classes. 7. Counter affidavit is filed by the 3[rd] respondent in W.P.C.No.30263 of 2011 supporting the stand taken by the Government in the matter. 8. W.P.C.No.28039 of 2011 is filed by the present Manager of the School challenging Exts.P11 and P12 orders passed by the Government which are the same as Ext.P14 and Ext.P15 in W.P.C.No.28631 of 2011. 9. Heard the learned counsel for the petitioners and the Learned Government Pleader and the learned counsel for the party respondents. 10. Reference is made to a Division Bench judgment of this Court in **Rani George v. Deputy Director of Education** _[2004(1) KLT 460]_ in order to contend that though a junior may work in the High School, yet, as and W.P.C..No.28039 of 2011 & conn.cases 7 when the question of termination of the service of specialist teacher for want of vacancy arises the service of the junior is liable to be terminated whether he works in U.P.Section or High School, subject to the provisions contained in Rule 51A of Chapter XIV-A of KER. Reference is made to paragraphs 31 and 32 of the judgment which reads as under: “ _**31** . Though a junior may work in the High School, yet, as and when the question of termination of the service of specialist teacher for want of vacancy arises the services of the junior are liable to be terminated whether he works in U.P. Section or High School, subject to the provisions contained in R. 51A of Chapter XIV-A of KER._ _**32** . In view of the legal principles discussed above, it is held as follows:-_ _(i) If the educational agency is having an Upper Primary School and a High School or a High School with Upper Primary in the same district, both sections shall be treated as a single unit._ W.P.C..No.28039 of 2011 & conn.cases 8 _(ii)The seniority of the specialist teachers working in such units shall be prepared in accordance with R. 37 treating the abovesaid U.P. Schools and High Schools as a Single unit._ _(iii) The post of specialist teachers in the abovesaid schools/sections are interchangeable._ _(iv) The post of the specialist teacher attached to the High School is not a promotion post of the specialist teacher working in the U.P. School or U.P. Section of High School._ _(v)In case of any post of a specialist teacher in such a unit is to be abolished, the service of the junior specialist teacher in the combined seniority list is liable to be terminated even if he/she is working in the High School subject to the provisions of R. 51A of Chapter XIV-A K.E.R._ _(vi) A senior teacher working in the U.P. Section has no legal right to claim that he/she shall be transferred and posted in the High School on the ground of seniority alone._ W.P.C..No.28039 of 2011 & conn.cases 9 _(vii) The Educational Agency is having the right to transfer a specialist teacher working in the U.P. Section to High School of the same unit or vice versa subject to the Rules."_ 11. Another Division Bench judgment relied upon is **Padmanabhan Nambiar v. State of Kerala** _[1997(2) KLT 725]_ wherein it is held that even if the election of the Manager is later held to be invalid his actions and official duties already discharged cannot be treated as void based on the de facto doctrine. Reference is made to paragraph 10 which reads as under: “ _10. In Gokaraju Rangaraju v. State of A.P. (AIR 1981 SC 1473) the question whether the judgment pronounced by a Sessions Judge was invalid for the reason that the appointment of the Sessions Judge was found to be illegal as it was in violation of Art. 233 of the Constitution. The Court held:_ W.P.C..No.28039 of 2011 & conn.cases 10 _“The de facto doctrine is now well established that the acts of the Officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure”._ 12. Another judgment relied upon is **Gopalakrishna Kurup v. State of Kerala** _[2000(1) KLT 22]_ . This judgment is relied upon for the position that unless the change of management is approved by the DEO, the manager cannot function as such. 13. Reference is made to judgment in **Mini Joseph v. Director of Public Instruction** _[2005(4) KLT Case No.17]_ . It is held that Rule 7A(2) has application only in the matter of appointment of posts which fall vacant on the closing date of the academic year and 7A (3) shall have application only regarding appointments to vacancies the duration of which is two months or less. The rule has no application for W.P.C..No.28039 of 2011 & conn.cases 11 appointments to regular vacancies or permanent vacancies. A similar position has been taken by another learned Single Judge **Manju v. State of Kerala** _[2005(1) KLT S.N.98(Case No.122]_ . 14. Having regard to the aforesaid factual circumstances and the law laid down by this Court the short question to be considered is the validity of Government Order dated 07/10/2011 and the consequential orders. By virtue of the aforesaid order the petitioner in W.P.C.No.28631 of 2011 lost the post of sewing teacher and her name has not been included in the teachers bank and steps are being taken to delete her name. The question involved is whether her appointment could be approved. The factual situation is not in dispute. The former manager was in management upto 30/05/2010. 15. Parties and documents are referred to hereinafter as described in WPC No.28631/2011. The previous Manager appointed the 4[th] respondent on 29/05/2010. As held in the W.P.C..No.28039 of 2011 & conn.cases 12 judgments referred above rule 7A(2) of Chapter XIV-A is not applicable for the regular appointment. The vacancy admittedly had arisen on 31/03/2009 when Smt.Radhamani Amma retired but as another teacher was working on a clubbing arrangement the said post was not filled up. She retired only on 31/03/2010 and an established vacancy had arisen. It is not in dispute that the present manager occupied office only on 31/5/2010. As such, it was open for the previous manager to have appointed any other person. He appointed the 4[th] respondent as per Ext.R4(a) on 29/05/2010 and she joined on 01/06/2010. Since there was only one vacancy and the appointment was made on 29/05/2010, the new manager could not have appointed any person as there was no other established vacancy. Apparently the petitioner's appointment order was issued on 01/06/2010 by the new manager is not in an established vacancy. When Ext.P1 came to be issued, necessarily that post was already filled up as per Ext.R4(a). W.P.C..No.28039 of 2011 & conn.cases 13 16. That being the situation, I do not think that the Government has committed any error in approving the appointment of the 4[th] respondent. 17. Necessarily, the petitioner's name could have been entered in the teacher's bank only if her appointment was approved. It is not in dispute that no such approval was granted. That being the situation, I do not think that the petitioners can impugn the Government order. In the result, these writ petitions are liable to be dismissed. 18. Petitioner submits that she is entitled to the benefit of G.O.(P) No.178/2002/G/Edn. dated28/6/2012 and entitled to be included in the teachers bank. According to the petitioner her name has already been included but due to hostility her name may be excluded. This apparently is a matter to be considered by the Government. If the petitioner's name is deleted, the petitioner has a valid right as per the above Government Order to agitate the same at that point of time. W.P.C..No.28039 of 2011 & conn.cases 14 In the result, these writ petitions are disposed as under: (i) W.P.C.Nos.28631 of 2011 and 28039 of 2011 are dismissed. (ii) W.P.C.No.30263 of 2011 is dismissed, keeping open the petitioner's right to challenge any order deleting her name from the teacher's bank. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C..No.28039 of 2011 & conn.cases 15 W.P.C..No.28039 of 2011 & conn.cases 16