K. Ambika v. Director of Public Instruction, District Educational Officer, Kollam and Manater, St. Joseph's Convent Girls High School

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 K.AMBIKA, D/O. KAMALAMMA, MURALEESADANAM 1. THE DIRECTOR OF PUBLIC INSTRUCTION 2. THE DISTRICT EDUCATIONAL OFFICER,KOLLAM. 3. THE MANATER, ST.JOSEPH'S CONVENT GIRLS THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17/01/2008, THE COURT ON 17/01/2008 DELIVERED THE FOLLOWING: O.P.NO.4718/02. ## APPENDIX ## PETITIONER'S EXHIBITS: P1. COPY OF THE PETITIONER'S CONTRIBUTION CARD - P.F.SCHEME. P2. COPY OF THE REPRESENTATION DTD.22.9.97. P3. COPY OF THE LETTER DTD.11.2.98. P4. COPY OF THE ORDER DTD.17.7.98. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No.4718 of 2002 ================== Dated this the 17[th] day of January, 2008 J U D G M E N T The petitioner was appointed as a Music teacher in the third respondent's school with effect from 1.6.1996. The third respondent's school is an unaided recognsied school. She was also enrolled as a member of the Employees Provident Fund Scheme as evidenced by Ext.P1. However, suddenly, on 2.6.1997 the petitioner was denied employment. Aggrieved by the same, the petitioner filed Ext.P2 representation dated 22.9.1997 before the 1[st] respondent- Director of Public Instruction. The 1[st] respondent forwarded the same to the 2[nd] respondent as intimated by Ext.P3 communication. The second respondent considered the representation and disposed of the same by Ext.P4 holding that since the school is an unaided school and the management is the appointing authority, the 2[nd] respondent cannot direct the manager to appoint anybody in the school. Subsequently, the petitioner filed O.S.No.984/1998 before the Munsiff's Court, Kollam, seeking the following declarations: 2 o.p.4718/02 - (a) A declaration that the act of the 3[rd] Respondent terminating the service of the Petitioner is illegal. - (b) A perpetual injunction restraining the 3[rd] Respondent from making any obstruction to the Petitioner in discharging her duties as a permanent full time Music Teacher in the school. - (c) An order allowing the Petitioner to recover Rs.1700/- being salary for the month of May, 1997 with interest thereon and to recover Rs.15,000/- as compensation from the 3[rd] Respondent in the alternative of the reinstatement of the Petitioner.” However, the learned Munsiff dismissed the suit holding that the petitioner's appointment was only on provisional basis and therefore, she is not entitled to get any relief as prayed for. It is thereafter the petitioner has filed this writ petition seeking the following reliefs: - “1. To call for the records and to issue a writ of certiorari - quashing the Exhibit - P4 order passed by the 2[nd] Respondent. 2. To issue a writ of Mandamus or any other appropriate writ, order or direction commanding the Respondents to re-instate the Petitioner to the post of Music Teacher in the St: Joseph's Convent Girls High School, Tuet, Kollam with back wages and other benefits for the period during which she was denied employment.” 2. The petitioner's contention is that since Rule 3 of Chapter XIV-AA of the KER mandates that the services of any member of the teaching or non-teaching staff shall not be terminated by the management without conducting a domestic enquiry and without giving an opportunity of being heard in that enquiry, the denial employment of the petitioner by the third 3 o.p.4718/02 respondent without complying with the provisions of Rule 3 is illegal and unsustainable. The petitioner challenges Ext.P4 order of the 2[nd] respondent as well. 3. The learned Advocate appearing for the 3[rd] respondent submits that the petitioner was appointed on provisional basis and she had started working on 5.8.1996. According to him, the decision to appoint a music teacher was only a provisional decision for a period of one year and since the performance of the petitioner was not so good, the school decided not to continue her provisional services and also decided not to have the post of music teacher at all. According to the counsel, therefore, there is nothing wrong in not re-engaging her for the next year when the school started from 2.6.1997. He further points out that the petitioner is guilty of delay and laches. According to him, after 2.6.1997 the petitioner filed Ext.P2 representation on 22.9.1997 which was rejected as per order dated 17.7.1998 and O.S.No.984/1998 filed by the petitioner was dismissed by judgment dated 30.3.2001. The petitioner has filed this original petition only on 11.2.2002, almost a year after that suit was dismissed. If the petitioner was aggrieved by the judgment in the 4 o.p.4718/02 suit, she ought to have challenged that judgment in appeal before the appellate court. He would also submit that the school not being an aided one, is not an instrumentality of the State and therefore, would not come within the definition of “Other Authority” under Article 12 of the Constitution of India and as such, no writ can be issued against the third respondent. He also relies on the decision of this court in _**Annamma v. State of Kerala**_ [1994(1) KLT 309] 4. I have considered the rival contention in detail. 5. At the outset, I must state that I find considerable merit in the contention of the third respondent that the petitioner is guilty of delay and laches. Even assuming that the Munsiff did not have jurisdiction to entertain the suit, which contention is not specifically raised by the petitioner in the original petition, after dismissal of the suit on 30.3.2001, the petitioner did not take any steps for redressal of her grievances within a reasonable time. She filed this original petition only on 11.2.2002, almost a year thereafter. There is absolutely no explanation whatsoever mentioned in this original petition for this long delay in approaching this court. 5 o.p.4718/02 6. Further, the petitioner has no case in the original petition that the Munsiff did not have jurisdiction to decide the suit. If that be so, the remedy available to the petitioner against the judgment in the suit was to file an appeal against the judgment, which the petitioner has not done. Moreover, even if the Munsiff did not have jurisdiction, the Munsiff has entered a finding after considering the evidence adduced by both sides that the appointment of the petitioner was only on a provisional basis. I am inclined to accept the contention of the third respondent that the petitioner was appointed only on provisional basis. The contention of the 3[rd] respondent that the post of music teacher itself was not continued after the petitioner's tenure ceased is also not denied. That being so, the procedure stipulated in Rule 3 of Chapter XIV-AA could not be made applicable to the petitioner's case. For all the above reasons, I do not find any merit in this writ petition and accordingly, the same is dismissed. sdk+ S.SIRI JAGAN, JUDGE 6 o.p.4718/02 S.SIRI JAGAN, J. =============== O.P.No.4718 of 2002-J =============== J U D G M E N T 17[th] January, 2008