N. Radhakrishnan Nair v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **WEDNESDAY, THE 9TH JANUARY 2008 / 19TH POUSHA 1929** **WP(C).No. 23025 of 2004(N)** **--------------------------------------** **PETITIONER:** - **------------------** **N.RADHAKRISHNAN NAIR, RETIRED HEADMASTER (SVMMHS), SREEVIHAR, AVANOOR, KOTTARAKKARA P.O., KOLLAM.** **BY ADV. SRI.P.ALI** **RESPONDENTS:** - **-----------------------** **1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION, THIRUVANANTHAPURAM.** ## **2. THE DEPUTY DIRECTOR (EDUCATION), KOLLAM.** **3. THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA.** **4. THE MANAGER,** - **S.V.M.M. HIGH SCHOOL, VENDAR P.O., VENDAR, KOTTARAKKARA, KOLLAM.** **BY GOVERNMENT PLEADER SRI.NANDAKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/01/2008, THE COURT ON 09/01/2008 DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.23025/2004** ## **APPENDIX** ## **PETITIONERS EXHIBITS** **EXT.P1:- COPY OF THE ORDER OF THE 3RD RESPONDENT DT. 10.5.1993. EXT.P2:- COPY OF THE ORDER OF THE 3RD RESPONDENT DT. 29.5.1993. EXT.P3:- COPY OF THE ORDER OF THE 2ND RESPONDENT DT. 22.9.1993,. EXT.P4:- COPY OF THE ORDER OF THE IST RESPONDENT DT. 3.5.94. EXT.P5:- COPY OF THE APPOINTMENT ORDER OF SMT.MEENAKSHI AMMA DT. 15.4.94. EXT.P6:- COPY OF THE JUDGMENT IN OP. NO.8163/94 DT. 23.8.2000. EXT.P7:- COPY OF THE JUDGMENT IN OP. 7196/94 DT. .23.8.2000. EXT.P8:- COPY OF THE JUDGMENT IN WA. NO.2025/2000 DT. 19.10.2000. EXT.P9:- COPY OF THE FORWARDING LETTER DT. 30.10.2000 OF THE JUDGMENT.** **EXT.P10:- COPY OF THE LETTER OF THE IST RESPONDENT DT. 8.11.2000.** **EXT.P11:- COPY OF THE ORDER OF NOTICE IN SLP NO.740-742/2001 DT. 30.1.2001. EXT.P12:- COPY OF THE ORDER IN SLP. NO.740-742 DT. 4.2.2002. EXT.P13:- COPY OF THE ORDER IN SLP NO.740-742 DT. 2.8.2002. EXT.P14:- COPY OF THE ORDER IN CCC. NO.1260/2000 DT. 20.12.02.** **EXT.P15:- COPY OF THE REPRESENTATION OF THE PETITIONER DT. 3.9.03.** **EXT.P16:- COPY OF THE ORDER IN CCC. NO.1260/2000 DT. 20.3.03.** **EXT.P17:- COPY OF THE ORDER IN SLP. NO.6489/03 DT. 10.7.03.** **EXT.P18:- COPY OF THE ORDER IN CCC. NO.1260/2000 DT. 5.3.04.** **EXT.P19:- COPY OF THE ORDER OF THE 3RD REPRESENED DT. 29.6.04.** **RESPONDENT'S EXHIBITS** **EXT.R4 A:- COPY OF THE GOVERNMENT ORDER DT. 3.5.94.** **EXT.R4 B:- COPY OF THE SUPREME COURT ORDER IN SLP. 740/2001 AND 742/2001 DT. 22.1.2001.** ## **W.P.(C) NO.23025/2004** **EXT.R4C:- COPY OF THE ORDER NO.G.O.(MS)22/95/G.EDN. DT. 25.1.1995 BY THE IST RESPONDENT.** **EXT.R4D:- COPY OF THE ORDER NO.VHSS/P/M/95-96 DT. 11.10.1995 OF THE PETITIONER.** **EXT.R4E:- COPY OF THE ORDER NO.E3 9542/96 DT. 28.10.1996.** **EXT.R4F:- COPY OF THE KERALA GAZETTE DT. 3.8.2001.** **EXT.R4G:- COPY OF THE ORDER NO.GO(MS) NO.225/2000/G.EDN. DT. 5.7.2000 BY THE IST RESPONDENT.** **EXT.R4H:- COPY OF THE LETTER NO.B4/22091/2000 DT. 4.9.2001 FROM THE OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION.** **EXT.R4I :- COPY OF THE REPLY TO THE DEPUTY DIRECTOR OF EDUCATION DT. 16.10.2001.** **EXT.R4J:- COPY OF THE SHOW CAUSE NOTICE NO. B4-22091/2000 DT. 22.9.2001.** **EXT.RK:- COPY OF THE A ORDER NO. B4/22091/2000/DDE DT. 28.12.2001 BY THE 2ND RESPONDENT.** **EXT.R4L:- COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT OF INDIA IN S.L.PS 740 TO 742/2001 DT. 2.8.2002.** ## **EXT.R4M:- COPY OF THE SENIORITY LIST .** **EXT.R4N:- COPY OF THE APPOINTMENT ORDER DT. 10.7.2002.** **EXT.R4O:- COPY OF THE JUDGMENT IN OP.18707/02 OF THIS HON'BLE COURT.** **EXT.R4P:- COPY OF THE ORDER NO.B2-4271/02/BD DT. 17.9.02. ISSUED BY THE D.E.O.** _**/**_ **TRUE COPY/** **P.S. TO JUDGE** **tss** ## **ANTONY DOMINIC, J.** ## **==================== W.P.(C) NO. 23025 OF 2004 N ====================** ## **Dated this the 9[th] January, 2008** ## **J U D G M E N T** The prayers in this writ petition are to quash Ext.P19 order of the 3[rd] respondent and to direct respondents 1 to 3 to give effect to the promotion of the petitioner as Headmaster with effect from 01.04.1993. There is a further prayer to direct respondents 1 to 3 to draw and disburse the consequential benefits with effect from 01.04.1993 with interest at 12% and to recover the loss so sustained to the exchequer from the 4[th] respondent, the Manager of the School. 2. The 4[th] respondent was the Headmaster of the SVMM High School, Vendar P.O., Kottarakkara, until his retirement on 31.03.1993. Though he had sought for an extension by one more year that request was turned down and on his retirement, there arose a vacancy of Headmaster with effect from 01.04.1993. Petitioner being the only qualified teacher to **W.P.(C)No.23025 of 2004** **- 2 -** be promoted as Headmaster, claimed promotion, but however, the 4[th] respondent, who continued as the Manager, engaged his wife, Smt. A.R. Meenakshi Amma as Teacher in charge. Thereupon the petitioner represented to the 3[rd] respondent who passed Ext.P1 order dated 10.05.1993 in which it is stated that when the remarks of the Manager were called for, he had informed that he had no intention to appoint a Headmaster at present. On this basis, Smt.A.R. Meehakshi Amma was authorized only for the limited purpose of drawal and disbursement of salary and daily supervision of routine work. In Ext.P1 it is clarified that the aforesaid arrangement was purely temporary and that the Manager should take immediate steps for appointing a Headmaster in the School. 3. In the meanwhile petitioner had filed O.P.No. 5755 of 1993 before this Court and the original petition was disposed of by directing the 3[rd] respondent to consider his representation. In pursuance to the said judgment, the 3[rd] respondent passed Ext.P2 order dated 29.05.2003 in which he **W.P.(C)No.23025 of 2004** **- 3 -** had rejected the 4[th] respondent’s contention that the petitioner was unqualified to be promoted as Headmaster. The further contention of the Manager that he had lost confidence in the petitioner was also rejected. The relevant portion of Ext.P2 order reads as follows: “The vacancy of Headmaster, SVMMHS, Vendar arose on 1.4.1993. There is no dispute in the seniority of Smt. A.R. Meenakshmi Amma and the petitioner. Though senior Smt. Meenakshmi Amma does not possess the test qualification and has not attained 50 years of age as on 1.4.1993. Therefore she is not entitled for the post of Headmaster on 1.4.1993. Rule 2 Chapter XXXI KER speaks of the Educational and professional qualification of Headmaster in High School. Accordingly to this rule “A Degree in Arts or Science and B.Ed./BT/LT conferred or recognized by the University in Kerala is the Educational and professional qualification for the post of Headmaster. Besides according to Rule 44A (1) of Chapter XIV A KER a pass in the Test in KER and a pass in Account test lower are also required for the post of Headmaster. The petitioner Sri. RAdhakrishnan Nair possesses the qualification required for the post of Headmaster, as laid down in KERs. The argument put forwarded by the Manager that Sri. RAdhakrishnan Nair does not possess B.A or B.Sc. Degree in Arts or Science is not sustainable since the certificate issued by the University of Kerala itself is a testimonial that he possesses the degree of Bachelor of Arts with Hindi Language and Literature as the Optional Subjects. It is well known to all that there are different faculties of **W.P.(C)No.23025 of 2004** ## **- 4 -** studies under the University such as Faculty of Arts, Faculty of Oriental Studies etc. The letter produced by the Manager is only a clarification regarding faculty issued to the Manager by the Registrar of University of Kerala as to which Faculty does Hindi come. It cannot be held that a holder of B.A. degree with Hindi or any other language as Optional subject is not a holder of a degree of Bachelor of Arts. With regard to the loss of confidence of the Manager in the petitioner, the Manager has not substantiated it with facts and figure. He has also not proved that the petitioner has been declared unfit to hold the post of Headmaster by taking any disciplinary action against him. Under these circumstances the reasons adduced by the Manager are not sufficient cause for not appointing the petitioner, as the Headmaster of this School. In as much as the Manager has not made any appointment against the post of Headmaster, Exts.P3 and P5 representations put in by Sri.N. Radhakrishnan Nair, cannot be considered as an appeal preferred under Rule 44(2) of Chapter XIV A KER. They are disposed of accordingly. The Manager is directed to appoint a qualified Headmaster in the school without delay as per rules”. Against Ext.P2 order, the Manager filed an appeal to the 2[nd] respondent and the petitioner also represented for appointment as Headmaster. Since Ext.P2 was still remaining unimplemented, petitioner filed O.P.No.9883 of 1993, which **W.P.(C)No.23025 of 2004** **- 5 -** was disposed of by this Court by judgment dated 27.07.1993 directing the 2[nd] respondent to pass orders on the appeal of the 4[th] respondent and the representation filed by the petitioner. In obedience to the said direction, the 2[nd] respondent considered the matter and held the petitioner to be qualified for promotion as Headmaster in the vacancy that arose on 01.04.1993 and that Smt. Meenakshi Amma was unqualified as on 01.04.1993. The plea of the Manager that he had lost confidence in the petitioner was also rejected. Finally the 2[nd] respondent disposed of the matter directing that the petitioner be promoted as Headmaster in the following terms: “Regarding the seniority of teachers there is no dispute Sri.N. Radhakrishnan Nair has admitted that Smt. A.R. Meenakshi Amma is the senior most HSA in the School. But she is not qualified for promotion as Headmistress, as on 1.4.1993, Sri.N. Radhakrishnan Nair is the only candidate fully qualified for promotion as Headmaster in the roll of SVMMHS Vendar as on 1.4.1993 i.e., the date on which the vacancy arose. In the above circumstances the charges levelled against the promotion of Sri.N. Radhakrishnan Nair as **W.P.(C)No.23025 of 2004** **- 6 -** Headmaster of SVMMHS, Vendar are not sustainable. In the light of judgment dated 27.07.1993 in O.P.No. 9883/93 B of the Hon’ble High Court of Kerala the Manager is directed to promote Sri.N. Radhakrishnan Nair, HSA (Hindi) SVMMHS, Vendar as Headmaster of the School without any delay”. 4. Ext.P3 order was also not implemented by the 4[th] respondent and thereupon the petitioner filed O.P.No. 4436 of 1994 for its implementation. During the pendency of the original petition, Ext.P4 order was issued by the 1[st] respondent acting upon a representation filed by Smt. Meenakshi Amma and directing the 2[nd] respondent to approve her appointment as Headmistress of School with effect from 14.04.1994 subject to the decision in O.P. No. 4436 of 1994 filed by the petitioner. This order of the 1[st] respondent was given effect to by the 2[nd] respondent by Ext.P5 order dated 04.05.1994. Thereupon the petitioner filed O.P.No.7197 of 1994 seeking to quash Exts.P4 and P5 and the Manager filed O.P. No. 8163 of 1994 seeking to sustain the appointment of his wife as the Headmistress of the School. By Ext.P6 judgment date **W.P.(C)No.23025 of 2004** **- 7 -** 23.08.2000, O.P.No.8163 of 1994 filed by the Manager was dismissed by this Court, finding that Smt. Meenakshi Amma was not qualified to be appointed as Headmistress in the vacancy that arose on 01.04.1993. 5. In paragraph 11 thereof, this Court concluded the judgment in the following terms: “The petitioner has now successfully deprived the 6[th] respondent of the fruits of Ext.P5 order by which he should have been appointed as Headmaster about six years back. The petitioner has unnecessarily dragged the 6[th] respondent to this Court and the 6[th] respondent also has to file two original petitions before this court earlier. Therefore while declaring that the 6[th] respondent is the rightful claimant to the post of Headmaster in the school of the petitioner which arose on 1.4.1993 and upholding Ext.P5 order, I am of the view that this is a fit case where the petitioner must pay the costs to the 6[th] respondent which I fix as Rs.2,500/-.” Following Ext.P6 judgment, directing that the educational authorities will see that their orders are implemented and that the Manager will take necessary steps in the matter, O.P.Nos. 4436 of 1994 and 7197 of 1994 were also disposed of by **W.P.(C)No.23025 of 2004** **- 8 -** Ext.P7 judgment dated 23.08.2000. 6. Against Exts.P6 judgment in O.P.No. 8163 of 1994, Writ Appeal Nos. 1934 of 2000 and 2025 of 2000 and 2026 of 2000 were filed against Ext.P1 judgment in O.P.Nos. 7197 of 1994 and 4436 of 1994 respectively. These Appeals were dismissed by Ext.P8 judgment and in paragraph 11 it has been held as follows: “Learned Counsel for the appellant in Writ Appeal No.2025 and 2026 of 2000 submitted that she has been continuing an Headmistress from 15.04.1994. It is further stated that School has now been upgraded as Higher Secondary School and he is appointed as the Principal of the school. So far as the appointment of the Principal of a Higher Secondary School is concerned, it is submitted that KER does not apply. We are of the view that, 6[th] respondent N. Radhakrishnan Nair, ought to have been appointed as Headmaster. The approval of the appointment of the appellant as Headmistress is not correct, and 6[th] respondent is eligible to be appointed as Headmaster. We do not express any opinion regarding the continuance of the appellant as Principal, since it is not agitated before us. The appeal are dismissed. The direction to pay cost is vacated. However the sentence that “we do not express any opinion regarding the continuance of the appellant as Principal, since **W.P.(C)No.23025 of 2004** **- 9 -** it is not agitated” was deleted on 20.10.2000, when the cases were posted for being spoken to. 7. Even thereafter, the petitioner was not promoted and finally, he filed Contempt of Court Case No.1260 of 2000. In the meanwhile, the 4[th] respondent and his wife Smt. Meenakshi Amma had filed Special Leave to Appeal (Civil) Nos. 740/2001 – 742/2001 in which by Ext.P11 order, the Apex Court issued notice confining to the deletion of the sentence quoted above from Ext.P8 judgment of the Division Bench. 8. In his counter affidavit filed in this case, the 4[th] respondent would point out certain developments that took place in the school in the meanwhile. According to him by Ext.R4(g) order dated 05.07.2000, the government had sanctioned Higher Secondary (Plus Two) Course in the School during the academic year 2000-01. It is also stated that by Ext.R4(h) dated 04.09.2001, the 2[nd] respondent had directed the 4[th] respondent to promote the petitioner as Headmaster of the school forthwith after reverting Smt. Meenakshi Amma, the **W.P.(C)No.23025 of 2004** **==> picture [42 x 10] intentionally omitted <==** then Headmistress who was also re-designated as Principal. It was ordered that “in case you fail to implement these directions I will be constrained to pursue action against you invoking Rule 7 of Chapter III of KER”. It is stated that in response to Ext.R4(h), the Manager filed Ext.R4(i) reply and thereafter the 2[nd] respondent issued Ext.R4(j) show cause notice of disqualification, in exercise of his power under Rule 7 (1) of Chapter III KER. To this also, the Manager filed his reply. Thereafter the 2[nd] respondent issued Ext.R4(k) proceeding dropping further action against the 4[th] respondent. 9. While so, Ext.P12 order was passed by the Apex Court staying further proceeding in CCC No.1260 of 2000. Smt. Meenakshi Amma retired from service on 31.05.2002 and the vacancy so caused was filled up by the 4[th] respondent by promoting Smt. Saraswathy Amma as Principal, with effect from 01.06.2002 by Ext.R4(n) order dated 10.07.2002. It would appear that the appointment was made taking advantage of Ext.R4(o) judgment of this Court in O.P. No. ## **W.P.(C)No.23025 of 2004** **- 11 -** 18707 of 2002 filed by Smt. Saraswathy Amma directing consideration of her representation to promote her. This position continued until the dismissal of the Special Leave Petitions by Ext.P13 order dated 02.08.2002. Ext.P13 shows that on behalf of the 4[th] respondent it was submitted that in view of the retirement of Smt. Meenakshi Amma with effect from 31.05.2002, the cases had become infructuous. It is also made clear in the order that in future the appointment will be made in accordance with Rules. 10. While so, the petitioner also had filed Ext.P15 representation to the 3[rd] respondent objecting to the claim of Smt. Saraswathy Amma, but despite his objections the appointment of Saraswathy Amma was approved by the 3[rd] respondent by Ext.R4(n) order dated 17.09.2002. Smt. Saraswathy Amma had also filed O.P.No. 39490 of 2002 apprehending reversion and for ensuring her continuance as Headmistress and that case was pending. Following the dismissal of the Special Leave Peition, CCC No.1260 of 2000 **W.P.(C)No.23025 of 2004** **- 12 -** was considered along with O.P.No.39490 of 2002 and this Court passed Ext.P14 dated 20.12.2002 disposing of these cases. In the original petition filed by Smt. Saraswathy Amma, in which she had obtained an order of stay of her reversion, this Court had held that; “According to us, the original petition cannot be allowed. So long as the appointment of Meenakshi Amma was held invalid and the 4[th] respondent was directed to be appointed as Headmaster the petitioner cannot be appointed to the post”. Proceeding further it was held that; “We are of the view that in order to accommodate the petitioner in the original petition officers of the department in collusion with the Manager appointed the present petitioner as Headmistress”. On the aforesaid basis this Court concluded the judgment in the following terms: “In CCC No.1260 of 2000 we passed an order clarifying that the order in the Writ Appeal was to appoint the fourth respondent as Headmaster. That order was passed on 20.12.2000. Against that order, the Manager went in appeal before the Supreme Court. The Supreme Court refused to interfere with the Order. We are only concerned with the post of Headmaster for which the petitioner has been appointed. According to us, the appointment of the petitioner is illegal. We direct the **W.P.(C)No.23025 of 2004** ## **- 13 -** Manager, SVM Model Higher Secondary School, Vendar, Kottarakkara to appoint the fourth respondent, N. Radhakrishnan Nair as Headmaster and direct the Deputy Director of Education and the District Educational Officer to give consent for the same. The order shall be implemented within one week from today. We find that the Manager of the School has been taking an attitude of indifference and negligence of the orders passed by this Court and has been privy to the appointment of Saraswathy Amma as Headmistress of the school. He should have pointed out to the authorities regarding the judgment of this Court. The fourth respondent has been facing litigations one after the other due to the attitude taken by the Manager. Hence, we direct the Manager, G. Balakrishnan Pillai to pay a cost of Rs.10,000/- (Rupees ten thousand only) to the fourth respondent. The cost shall be paid within two weeks from today”. Against Ext.P16, the Manager filed Special Leave Petition (Civil) No.6489 of 2003 and that was dismissed by the Apex Court by Ext.P17 order and Special Leave Petition (Civil) No.5376 of 2003 filed by the Principal was also dismissed. 11. Since with Ext.P17 all his options were closed, the Manager appointed the petitioner as Headmaster with effect from 01.08.2003 and his appointment was also approved. He continued in that post and retired from service with effect ## **W.P.(C)No.23025 of 2004** **- 14 -** from 31.03.2004. In the meanwhile, claiming that his appointment ought to be with effect from 01.04.1993, the petitioner filed IA No. 9485 of 2003 in CCC No.1260 of 2000 praying for clarifying Ext.P16 order disposing the case. The IA was disposed of Ext.P18 order directing that the petitioner may represent to the 3[rd] respondent who was directed to pass appropriate orders thereon. Accordingly the petitioner submitted representation dated 24.03.2004 in which the 3[rd] respondent passed Ext.P19 order, which concluded as follows: “The petitioner had worked as Headmaster only from 1.8.2003 i.e., from the date of effect of approval. The judgment of the Division Bench of the Hon’ble High Court in IA No.9485 of 2003 in CC No.1260 of 2000 remarked that “according to him he ought to have been given the approval w.e.f. 1.4.2003”. SVMMHSS, Vendar is an aided Higher Secondary School and the Manager is the appointing authority according to KER. The Educational Officer has no legitimate the power to direct a Manager to appoint a particular teacher as Headmaster unless and until there is direction from an appellate authority. Since the petitioner was appointed and approved from 1.8.2003 only as Headmaster and worked as such from that date upto his retirement on 31.03.2004, the under signed regrets to reject the petition. As it is ordered in the judgment Sri.N. **W.P.(C)No.23025 of 2004** ## **- 15 -** Radhakrishnan Nair is at his liberty to move a fresh petition before higher authority for redressal of his grievance”. It is challenging Ext.P19 and seeking the relief’s mentioned earlier, that this writ petition has been filed. 12. Respondents 3 and 4 have filed a counter affidavit in which they have in paragraphs 4, 7, 8 and 25 have stated that the petitioner was the qualified teacher who should have been promoted to the vacancy that arose on 01.04.1993. The points that are urged by the 4[th] respondent in his counter affidavit are that the petitioner has not impleaded Smt. Meenakshi Amma or Saraswathy Amma and therefore, he is not entitled to the reliefs sought for. It is stated that by Ext.P4 order Smt. Meenakshi Amma’s appointment was approved by the authorities and that by Ext.R4(n) the appointment of Saraswathy Amma was also approved. According to the 4[th] respondent Smt. Meenakshi Amma was appointed as Principal by Ext.R4(d) and that was also approved by the 2[nd] respondent by Ext.R4(e) order. The Manager would reiterate the petitioner **W.P.(C)No.23025 of 2004** **- 16 -** was unqualified to be promoted as Headmaster and that Smt. Meenakshmi Amma was the senior most qualified teacher as per Ext.R4 (m) and hence was promoted. 13. In the aforesaid factual background the question to be considered is whether the petitioner ought to have been promoted as Headmaster of the School in the vacancy that arose on 01.04.1993. If my conclusion on the aforesaid question is in favour of the petitioner, the further question that would arise is whether the petitioner is entitled to consequential monitory benefits and if so, whether the 4[th] respondent is liable to make good the same. This necessarily calls for examination the correctness of the contention of the Manager that the petitioner was unqualified to be promoted as Headmaster in the vacancy that arose on 01.04.1993. 14. In my view this question cannot be re-opened at this distance of time in view of the earlier orders of the educational authorities and also the judgments of this Court, which have been confirmed by the Apex Court. I have already ## **W.P.(C)No.23025 of 2004** **- 17 -** made detailed reference to the relevant documents. The question regarding the ineligibility of the petitioner was canvassed by the 4[th] respondent and has been negatived in Ext.P2 order of the 3[rd] respondent which was issued as early as on 29.05.1993. In the appeal that was filed by the 4[th] respondent against Ext.P2, the 2[nd] respondent dealt with this question again. In Ext.P3 order passed on 22.09.2003, the 2[nd] respondent again negatived this contention and directed that the petitioner be promoted. This question was considered by this Court in Ext.P6 judgment in O.P.No. 8163 of 1994 and the 4[th] respondent eligibility was upheld. Simultaneously, O.P.No.7197 of 1994, filed by the petitioner against Exts.P4 and P5 and O.P.No. 4436 of 1994 filed by him for the implementation of Exts.P2 ad P3 were also disposed of. 15. These judgments were confirmed the Division Bench in Ext.P8 judgment by dismissing the Writ Appeal Nos.1934, 2025 and 2026 of 2000 filed by the Manager. In this judgment again, the Division Bench held that the petitioner **W.P.(C)No.23025 of 2004** ## **- 18 -** ought to have been promoted as Headmaster in the vacancy that arose on 01.04.1993. Although Special Leave Petitions were filed against Ext.P8 judgment, notice was issued confining to the deletion of a sentence in the judgment and the Special Leave Petitions were also dismissed as infructuous by Ext.P13 order. Thus the finding on the eligibility of the petitioner has become final. In spite of all these, the Manager continued to be defiant and this is reflected from his conduct in appointing Smt. Saraswathy Amma in the vacancy that arose on 01.06.2002 on account of the retirement of Smt. Meenakshi Amma on 31.05.2002. Although her appointment was approved by the Educational authorities by Ext.R4(n) order, by Ext.P16 judgment, this Court dismissed O.P.No.39490 of 2002 filed by Smt. Saraswathy Amma, apprehending reversion and that judgment was also confirmed by the Apex Court in Ext.P17 order. 16. Thus, repeatedly, from 1993 onwards, the departmental authorities and this Court had upheld the claim **W.P.(C)No.23025 of 2004** **- 19 -** of the petitioner to the post of Headmaster in the vacancy that arose on 01.04.1993 and also had negatived the Manager’s contention that the petitioner was unqualified to be promoted. In view of this, the 4[th] respondent cannot now be heard to content on the eligibility of the petitioner to be promoted as Headmaster. Ext.R4(f) order dated 3.8.2001, also cannot affect the claim of the petitioner for promotion to vacancy that arose on 1.4.1993. 17. The malafides of the 4[th] respondent in denying the benefit of promotion that was legitimately due to the petitioner is evident not only from the contentions that are now raised on the qualification of the petitioner but also from the fact that he chose to promote his wife Smt. Meenakshi Amma initially as Teacher in charge and thereafter as Headmistress with effect from 15.04.1994 and she continued in service till her retirement on 31.05.2002. This is despite the fact that in Ext.P3 order it has been found that she was not qualified for promotion as Headmistress as on 01.04.1993. ## **W.P.(C)No.23025 of 2004** **- 20 -** 18. The other contention that is raised by the 4[th] respondent is that Smt. Meenakshi Amma’s appointment was ordered to be approved by the 1[st] respondent by Ext.P4 order and that in view of this, the petitioner cannot seek to be appointed as Headmaster. This contention is also liable to be rejected. First of all, Ext.P4 and P5 orders issued by the respondents 1 and 3 were under challenge in O.P.No.7197 of 1994 which was disposed of by Ext.P7 judgment following Ext.P6 judgment in O.P.No.8163 of 1994 which upheld the petitioner’s claim to be appointed to the vacancy that arose on 01.04.1993. Further, the approval of her appointment was again subject to the result of O.P.No.4436 of 1994 and in view of Ext.P7 judgment, the approval could not survive after the judgment. These judgments were also affirmed in Writ Appeals by Ext.P8 judgment and the SLPs admitted on a limited question were also dismissed by Ext.P13 order of the Apex Court. Further, in Ext.P16 order in CCC No.1260 of 2000 this Court had again ordered the petitioner’s appointment to the **W.P.(C)No.23025 of 2004** **- 21 -** vacancy of 01.04.1993. In the light of all these, there is absolutely no merit in the 4[th] respondent’s contention relying on the approval of Smt. Meenakshi Amma’s appointment. 19. It was further contented that following Ext.R4(c) order, Smt. Meenakshi Amma was appointed as Principal of the Higher Secondary School by Ext.R4(d) order and that, the said appointment was approved by the 2[nd] respondent in Ext.R4(e) order. I do not find any merit in this contention as well. This is mainly for the reason that while the claim of the petitioner was with reference to the vacancy that arose on 01.04.1993, the developments that had taken place following Ext.R4(c), were much later to the date of occurrence of vacancy. 20. Further Ext.R4(d) order and its approval by Ext.R4(e) shows that the said order was one of re-designation of the Headmaster as Principal. It is on that basis that Smt. Meenakshi Amma was re-designated as Principal with effect from 11.10.1995. 4[th] Respondent has not shown that it was on account of any special qualification possessed by her that **W.P.(C)No.23025 of 2004** **- 22 -** Smt. Meenakshi Amma was re-designated as Principal. If that be so, it is merely for the reason that she was illegally appointed as Headmistress that she was re-designated as Principal. Evidently, if the petitioner was appointed as Headmaster in that vacancy, he would have certainly been redesignated and therefore, the fact that Smt. Meenakshi Amma was re-designated as Principal does not improve the case of the 4[th] respondent in any manner. 21. The 4[th] respondent had contended that in the absence of Smt. Meenakshi Amma and Saraswathy Amma being impleaded in this writ petition, the petitioner is not entitled to the reliefs sought for. I cannot accept this plea either and that is for the reason that the petitioner is not claiming any relief against any one of these persons. In the result I must hold that none of the contentions raised by the 4[th] respondent are liable to be upheld. 22. What remains to be examined is the correctness or otherwise of Ext.P19 order passed by the 2[nd] respondent. In ## **W.P.(C)No.23025 of 2004** ## **- 23 -** the light of the previous orders that are passed by the educational authorities including the 3[rd] respondent himself and also the judgments that have been rendered, the irresistible conclusion that is possible is that Ext.P19 order is unsustainable. The educational authorities and this Court having upheld the entitlement of the petitioner to be appointed in the vacancy that arose on 01.04.1993, there is absolutely no reason for rejecting his representation for making his appointment effective from that date. This is all the more so for the reason that the Manager deliberately flouted the judgments of this Court with impunity. 23. I am also not persuaded to agree with the Manager that the petitioner ought to have filed a revision against Ext.P19 invoking Rule 92 of Chapter XIV-A or should have represented to the higher authorities. It is settled law that once a writ petition has been admitted and after keeping it pending for years, the same shall not be rejected relegating the parties to pursue any alternate remedy, even if an effective ## **W.P.(C)No.23025 of 2004** ## **- 24 -** one is available. In this case, the writ petition is of 2004 and in view of the binding judgments passed by this Court, I am not inclined to decline jurisdiction on the technical plea that is now advanced by the 4[th] respondent. Thus, Ext.P9 order deserves to be quashed and I do so. 24. Now what remains is the nature of relief that the petitioner deserves to be granted. Petitioner prays that he should be given the benefits with effect from 01.04.1993 and that the loss sustained to the exchequer should be recovered from the Manager. The statutory provision in this behalf is Chapter III Rule 7(4) which provides that in the case of a Manager, who commits serious irregularities causing monitory loss to teachers/ government, the loss sustained by teachers/ government should be recoverable from the Manager under the provisions of the Revenue Recovery Act for the time being in force as if it is an arrear of public revenue due on land. This power is applicable in a case were there is denial of promotion to the senior most rightful claimant of the post of Headmaster, **W.P.(C)No.23025 of 2004** ## **- 25 -** when the post becomes vacant disobeying the directions from the Department and/ or Government, causing denial of all monitory benefits which he/ she would have got had the promotion been effected as per Rules in time. Examining this question in Manager M.M. H.S v. Deputy Director reported in 1994 (1) KLT 321, this court has held as follows: “The failure of the manager in not appointing the writ petitioner against the vacancy which arose with effect from 1.6.1990 caused monetary loss to the writ petitioner. Such a loss caused to the teacher is to be recovered from the Manager as provided by the Rule quoted above. Learned Single Judge was right in giving direction to the educational authorities to compute the loss caused to the writ petitioner on account of the delayed appointment and to realize the same under the provisions of the Revenue Recovery Act. WE are in full agreement with the reasonings adopted by the learned Judge”. Similarly, in Babykutty v. State of Kerala reported in 2000 (2) KLT 779, it has been held as follows: “As on today, the petitioner’s claim had been upheld. There is no reason to decline the relief to the petitioner. **W.P.(C)No.23025 of 2004** ## **- 26 -** In such circumstances, the petitioner shall be paid all his dues from the date when he was entitled to be promoted as Headmaster. If the Manager did not appoint him as Headmaster, his entitlement and eligibility cannot be denied. The entitlement of a teacher denied by the Manager can be recovered from the Manager by resorting to even revenue recovery proceedings, as enabled in Chap. III R. 7(4) of the Kerala Educational Rules. R.7(4) provides that in case a Manager commits serious irregularities causing monetary loss to teachers/Government, the loss sustained by teachers/Government shall be recoverable from the Manager under the provisions of the Revenue Recovery Act. This is an apt case where the Manager has committed serious irregularities by causing monetary loss to the petitioner denying him due promotion. Therefore, this is a situation where the said provision shall be invoked by the Government to recover the loss sustained by the petitioner”. Similar relief has been granted in the case of Rajesh v. Secretary to Government reported in 2007 (3) KLT 376. 25. In this case, the claim of the petitioner for being promoted to the post of Headmaster in the vacancy that arose on 01.04.1993 stands upheld in the orders referred to in this judgment. The Manager has willfully disobeyed orders issued by the authorities and the directions issued by this Court and **W.P.(C)No.23025 of 2004** ## **- 27 -** has deliberately denied the benefits to the petitioner. If that be so, the petitioner shall be paid all his dues from the date when he was entitled to be promoted and for the reason that the Manager has illegally denied him such appointment; the petitioner shall not be deprived of his entitlement. Therefore, this case discloses a clear situation where the power of the authorities under Rule 7 (4) of Chapter III KER shall be invoked by the Government to recover from the 4[th] respondent the loss sustained by the petitioner. 26. Therefore, I dispose of this writ petition quashing Ext.P19 and directing that the petitioner’s appointment as Headmaster be treated as approved with effect from 01.04.1993 and the loss that the petitioner has sustained be recovered in full from the 4[th] respondent by taking proceedings under the Revenue Recovery Act and the petitioner be compensated of such loss. The process shall be completed at the earliest and at any rate within 6 months of receipt of a copy of this judgment. ## **W.P.(C)No.23025 of 2004** **- 28 -** 27. Since the petitioner was driven to this court on various occasions and had to fight for his legitimate dues since 1993 and that the benefit of all the orders and judgments were denied only due to the illegality committed by the Manager, I am satisfied that the petitioner is entitled to be paid his costs. Accordingly I direct that the 4[th] respondent shall pay the petitioner Rs.10,000/- as his costs. Writ Petition is allowed as above. ANTONY DOMINIC, JUDGE pr.jan/-