Faseela K.P. v. State of Kerala and Others (WA No. 29 of 2016)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 16TH DAY OF MARCH 2017/25TH PHALGUNA, 1938 WA.No. 29 of 2016 () IN WP(C).2763/2010 ----------------------------------------AGAINST THE JUDGMENT IN WP(C) 2763/2010 of HIGH COURT OF KERALA DATED 17-03-2015 APPELLANT/PETITIONER: ------------------------------------ FASEELA K.P, W/O.ASHRAF, PADINJARA THANAPARAMBIL, NADUVATHUNAGAR P.O., AROOKUTTY, ALAPPUZHA DISTRICT. BY ADVS.SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH RESPONDENTS/RESPONDENTS: ------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION (H) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. THE DISTRICT EDUCATIONAL OFFICER, CHERTHALA, ALAPPUZHA DISTRICT - 690 512. 3. THE ASSISTANT EDUCATIONAL OFFICER,THURAVOOR, ALAPPUZHA DISTRICT - 690 512. 4. THE MANAGER, NADUVATHUL ISLAM U.P.SCHOOL, NADUVATHUNAGAR, AROOKUTTY, ALAPPUZHA DISTRICT - 690 512. 5. SABIRA.K, LOWER PRIMARY SCHOOL ASSISTANT, NADUVATHU ISLAM U.P.SCHOOL, NADUVATHUNAGAR P.O., AROOKUTTY - 690 512. 6. ANSARI P.A., UPPER PRIMARY SCHOOL ASSISTANT, NADUVATHUL ISLAM U.P.SCHOOL, NADUVATHUNAGAR P.O., AROOKUTTY - 690 512. R1 TO R3 BY SR. GOVERNMENT PLEADER SRI.A.J.VARGHESE R5 & R6 BY ADV. SRI.P.M.PAREETH R BY ADV.SRI.V.A.MUHAMMED THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## **K.SURENDRA MOHAN & MARY JOSEPH, JJ. --------------------------------------------W.A.No.29 of 2016 ---------------------------------------------Dated this the 16[th] day of March, 2017** ## **J U D G M E N T** ## Surendra Mohan, J. The petitioner in W.P.(C).No.2763 of 2010 is in appeal challenging the judgment dated 17.03.2015 of the learned Single Judge, dismissing the writ petition. The writ petition was filed challenging Ext.P11 order passed by the Government. Ext.P11 order was passed pursuant to the directions of this Court contained in the common judgment in W.P.(C).Nos.2901 of 2007 and 3921 of 2009. ## 2. The facts in brief are the following : The fourth respondent is the Manager of an aided school by name Naduvathul Islam U.P.School, Alappuzha District. On 26.02.2004, a vacancy of Lower Primary School Assistant (LPSA) and a vacancy of Upper Primary School Assistant (UPSA) arose in the School. In the vacancy of LPSA, one Smt.P.M.Vaheeda was appointed and in the vacancy of UPSA, one Smt.K.M.Jaseena was appointed by the Manager. The said appointments were not approved for the reason that, the duration thereof was less than 60 days. While so, a leave vacancy of LPSA arose in the School on 02.06.2004 consequent to a medical leave availed by one Smt.Shamla Beevi. The appellant herein claims that she was appointed to the said vacancy, though no formal order of appointment was issued to her. Her case is that, she W.A.No.29 of 2016 2 was informed by the Manager that, a formal order of appointment would be issued, upon grant of approval to the appointments of Smt.P.M.Vaheeda and Smt.K.M.Jaseena. According to her, the Manager used to pay her an amount of 1,250/- per month as₹ salary, on the understanding that, the amount would be returned to him when her appointment was approved and salary paid by the Government. 3. In the above circumstances, Smt.Shamla Beevi who had availed medical leave, passed away on 13.08.2004. Consequently, a regular vacancy of LPSA arose in the School. At about the same time, another leave vacancy arose in the School when one Smt.Sukruthavally Amma availed medical leave for the period from 09.08.2004 to 20.02.2005. In the leave vacancy, the Manager appointed the fifth respondent herein. It is pointed out by the appellant that, the appointment of the fifth respondent at the relevant point of time was bad for the reason that, she had not passed the TTC examination on that date. She passed her TTC examination only on 15.10.2004. Therefore, it is contended that, the appellant ought to have been appointed instead of the fifth respondent. Thereafter, on 26.02.2004 the educational authorities approved the appointments of Smt.P.M.Vaheeda and Smt.K.M.Jaseena. The appellant continued to work in the School till 18.02.2005 when she availed maternity leave for 135 days. 3 W.A.No.29 of 2016 Thereafter, when she approached the fourth respondent for rejoining duty, she was not permitted to do so. Nor was she permitted to sign the attendance register. In the meanwhile, the sixth respondent, who is the husband of the fifth respondent, was also appointed as UPSA in a retirement vacancy that arose in the School on 01.06.2005. 4. In the above circumstances, the appellant moved the Assistant Educational Officer, Thuravoor by submitting a representation dated 02.08.2005. As per proceedings dated 21.02.2006, the AEO held that the appellant had not been appointed in the School and that, in the absence of a formal order of appointment, she had no right to claim re-appointment. In the absence of an appointment order or an approval of her appointment, the AEO found that the appellant was not entitled to claim any relief. The aggrieved appellant had challenged Ext.P3 before the District Educational Officer, Cherthala. The said Officer conducted an enquiry, verified the records of the School and by Ext.P5 order dated 09.12.2006, found that the appellant had worked in the School and that attempts had been made to tamper with the attendance register to make it appear that she had not worked. Therefore, he directed the AEO to approve the appointment of the appellant, if there were no other impediments. The said order was challenged by the fourth respondent Manager in revision before the W.A.No.29 of 2016 4 Government. 5. While so, it appears that, in the matter of appointment of Smt.P.M.Vaheeda as LPSA and Smt.K.M.Jaseena as UPSA, an order was passed by the Government on 20.11.2006 directing the DEO to approve the said appointments with effect from 26.02.2004. The appellant filed W.P.(C).No.2901 of 2007 challenging Ext.P7 and seeking a declaration that she was entitled to be appointed as LPSA in the substantive vacancy that arose on 13.08.2004 on the death of Smt.Shamla Beevi. 6. In the meanwhile, the AEO declined approval to the appointment of the sixth respondent. The said order was affirmed by the District Educational Officer also. The sixth respondent's appointment was rejected on the ground that the appointments of Smt.P.M.Vaheeda and Smt.K.M.Jaseena, who had been appointed earlier, had not been approved. It was thereafter that Ext.P7 order was issued by the Government on 20.11.2006 directing the DEO to approve the appointments of the said persons. Thereupon, the Manager filed another revision before the Government seeking approval of appointment of the sixth respondent. The sixth respondent filed W.P.(C).No.3921 of 2009 challenging the proceedings of the authorities rejecting approval to his appointment. He also sought for a direction to consider and pass orders on the revision filed by the Manager, after affording an opportunity of being 5 W.A.No.29 of 2016 heard to him also. 7. Both the writ petitions were disposed of by this Court by a common judgment dated 16.03.2009, evidenced in these proceedings by Ext.P10. In Ext.P10, this Court directed the Government to consider the revision petition filed by the Manager, after affording an opportunity of being heard to all concerned. The Government was specifically directed to pay due regard to the observations and findings of the District Educational Officer with respect to tampering of the attendance register that was detected and made mention of in Ext.P5 order. 8. Accordingly, all the parties were heard and Ext.P11 order was passed finding that though the attempts to tamper with the attendance register had been detected, in the absence of a formal order of appointment of the appellant to the School and a consequent approval thereof, no relief could be granted to her. It is noticed in Ext.P11 that, even according to the appellant, an amount of 1,250/- was being paid by the Manager to her as salary per₹ month, for working in the School. Such an appointment was also not permissible as per the Rules. It was aggrieved by Ext.P11 that, W.P. (C).No.2763 of 2010 was filed by the appellant. 9. The learned Single Judge considered the contentions of the respective parties and found that, the appellant had not been appointed to the School as a teacher by the issue of a formal order 6 W.A.No.29 of 2016 of appointment, nor was her appointment approved by the educational authorities. In the absence of either an appointment order or an approval of such an appointment, the learned Single Judge found that no relief could be granted to the appellant. If as contended by the appellant, she has been a victim of misrepresentation and fraud played by the Manager, she was entitled to work out her remedies, in accordance with law in appropriate proceedings to be instituted by her for the purpose. The learned Single Judge also found that the educational authorities were at liberty to initiate appropriate action against the Manager as contemplated by the provisions of the Kerala Education Act and Rules. Accordingly, the writ petition has been dismissed. 10. According to Adv.Sri.Ziyad Rahman, who appears for the appellant, Ext.P5 proceedings of the DEO has detected tampering with the attendance register. Attempts were made to erase the signatures affixed by the appellant. Our attention has been drawn to the periods during which the appellant was found to have worked in the School, namely from 02.06.2004 to 20.8.2004, 01.09.2004 to 23.12.2004 and 03.01.2005 to 18.02.2005 to submit that, they are not broken spells of service. According to the learned counsel, the gaps in between the term of appointments referred to above are the Onam holidays and Christmas holidays during which the School had remained closed. Therefore, it is contended that, the Manager had W.A.No.29 of 2016 7 been proceeding in the matter, in a well planned manner. The fifth respondent is a close relative of his and the appellant had been made to work in the School only for the purpose of providing time to the fifth respondent to acquire the TTC qualification, which she was not possessed of when the vacancy actually arose. Viewed in the above perspective, it is pointed out by the learned counsel that _mala fides_ is writ large in the entire conduct of the Manager. Therefore, it is contended that the Government as well as the learned Single Judge ought to have interfered in the matter and directed the appointment of the appellant. 11. Heard. It is conceded by the learned counsel for the appellant that, though the appellant has worked in the School as a teacher, no formal order of appointment had been issued to her by the Manager at any time. As rightly held by the learned Single Judge, in the absence of a formal order of appointment and an approval of the appointment by the educational authorities as required by the provisions of the Kerala Education Rules, 1959 (“KER” for short), an appointment of a teacher would not be valid. An appointment would be valid only if it is done in accordance with the provisions of the KER. In the present case, though the authorities have found evidence to show that the appellant had been attending the School of the fourth respondent and taking classes there, as evident from her act of signing the attendance W.A.No.29 of 2016 8 register, there is no dispute that no appointment order was issued to her. In the absence of an appointment order, it cannot be said that she was appointed to the said School. There is no evidence on record to show, on what basis she had worked in the School and signed the attendance register. Attempts to erase her signature from the attendance register have also been noticed. Therefore, if the petitioner has been the victim of foul play or misrepresentation at the hands of the Manager, her remedy is to establish the same, in appropriate proceedings to be instituted before a Civil Court. The educational authorities are also at liberty to take action against the Manager, since there is evidence to show that he has tampered with the attendance register. We find that the learned Single Judge has reserved the liberty of the appellant as well as the educational authorities, to pursue such action. 12. In the absence of a formal appointment order, the claim of the appellant that, she was entitled to a direction for re-appointment has been rightly rejected by the learned Single Judge. We find no grounds to interfere with the same. The learned counsel for the appellant has placed reliance on a decision of the Apex Court in _**Ram Chandra Singh v. Savitri Devi And Others [2003 (8) SCC 319 = 2003 KHC 1609]**_ to contend that fraud vitiates even in the most solemn transactions. There cannot be any dispute regarding the above position of law. However, in the present case, the W.A.No.29 of 2016 9 appellant would have to establish the fraud that has been alleged by her, in appropriate proceedings. If she is able to do so, she would certainly be entitled to get some relief. As already found above, the relief sought for in the writ petition cannot be granted for the reason that fraud has not yet been established. In the result, this appeal fails and the same is accordingly dismissed. Sd/- **K.SURENDRA MOHAN JUDGE** Sd/- **MARY JOSEPH JUDGE** AV /True Copy/ P.A to Judge