Noushar P.K. v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH THURSDAY, THE 2ND DAY OF JUNE 2016/12TH JYAISHTA, 1938 ## WP(C).No. 30818 of 2014 (B) ---------------------------- PETITIONER(S): ---------------- NOUSHAR.P.K. FULLTIME LANGUAGE TEACHER, (ARABIC), MOWANCHERY U.P.SCHOOL, P.O.MOWANCHERY, KANNUR DISTRICT - 670 613. BY ADV. SRI.P.M.PAREETH RESPONDENT(S): - ------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM - 695 014. 3. DISTRICT EDUCATIONAL OFFICER, KANNUR, P.O.KANNUR - 670 002. 4. ASSISTANT EDUCATIONAL OFFICER, KANNUR NORTH, P.O.KANNUR - 670 002 5. SMT.PATHUKUTTY HAJUMMA, MANAGER, MOWANCHERY U.P.SCHOOL, P.O.MOWANCHERY, KANNUR DISTRICT -670 613. 6. T.C.SHAMUDHEEN, AHMA MAHAL, MANNIKAKKAVU ROAD, THANA P.O., KANNUR 670 012. R5 BY ADV. SRI.V.R.KESAVA KAIMAL R5 BY ADV. SMT.C.DEVIKA RANI KAIMAL R6 BY ADV. SRI.GEORGE POONTHOTTAM R1-R4 BY SR. GOVERNMENT PLEADER SMT.ANITHA RAVINDRAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30818 of 2014 (B) ---------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS ----------------------------- P1: TRUE PHOTOCOPY OF THE APPOINTMENT ORDER DATED 4/6/2012. P2: TRUE PHOTOCOPY OF THE ORDER NO.C/3426/2012 DATED 25/3/2013 ISSUED BY THE FOURTH RESPONDENT. P2(A): TRUE ENGLISH TRANSLATION OF EXHIBIT P2 P3: TRUE COPY OF THE ORDER NO.B6/3468/12/KDIS DATED 24/8/2013 ISSUED BY THE THIRD RESPONDENT. P3(A): TRUE ENGLISH TRANSLATION OF EXHIBIT P3 P4: TRUE PHOTOCOPY OF THE REVISION PETITION DATED 12/9/2013 SUBMITTED BY THE PETITIONER P5: TRUE PHOTOCOPY OF THE JUDGMENT DATED 17/10/2013 IN WPC 25189/13. P6: TRUE PHOTOCOPY OF THE ORDER NO.G4/38906/2013/K DIS DATED 30/9/2014 ISSUED BY THE SECOND RESPONDENT. P6(a): A TRUE ENGLISH TRANSLATION OF EXT.P6. P7: TRUE PHOTOCOPY OF THE JUDGMENT DATED 14/7/2014 IN WPC NO.9113/2013. RESPONDENT(S)' EXHIBITS : ------------------------------- EXT.R5(a) TRUE COPY OF THE APPOINTMENT ORDER DATED 17.6.1996 APPOINTING SMT.SREEJA.P. EXT.R5(b) TRUE COPY OF THE APPOINTMENT ORDER DATED 2.2.1998 APPOINTING SRI.HUSSAIN .K.N. EXT.R5(c) TRUE COPY OF THE APPOINTMENT ORDER DATED 9.6.1998 APPOINTING SRI.NOUSHAD.C.V. EXT.R5(d) TRUE COPY OF THE APPOINTMENT ORDER DATED 20.8.1998 APPOINTING SRI.K.VINOD KUMAR. EXT.R5(e) TRUE COPY OF THE APPOINTMENT ORDER DATED 6.6.2001 APPOINTING SMT.C.THULASI. EXT.R5(f) TRUE COPY OF THE APPOINTMENT ORDER DATED 5.6.2006 APPOINTING SMT.BINDUMOL.K.E. ## W.P.(C) No.30818/2014 : 2 : EXT.R5(g) TRUE COPY OF THE APPOINTMENT ORDER DATED 1.6.2010 APPOINTING SMT.NEENA P.V. EXT.R5(h) TRUE COPY OF THE APPOINTMENT ORDER DATED 1.6.2010 APPOINTMENT SMT.SARISHA RAVINDRAN.C. EXT.R5(i) TRUE COPY OF THE APPOINTMENT ORDER DATED 1.6.2010 APPOINTING SMT.SHUHAIBA.P. EXT.R6(a) TRUE COPY OF THE RELEVANT PORTION OF THE SETTLEMENT DEED. EXT.R6(b) TRUE COPY OF THE COMMUNICATION NO.C/5661/2012 DATED 20.3.2013. EXT.R6(c) TRUE COPY OF THE C.M.P.NO.1559/2014 BEFORE THE COURT OF THE CHIEF JUDICIAL MAGISTRATE, THALASSERY. EXT.R6(d) TRUE COPY OF THE ORDER DATED 12.11.2014. EXT.R6(e) TRUE COPY OF THE REPRESENTATION DATED 22.11.2014. EXT.R6(f) TRUE COPY OF THE LETTER NO.C/5661/12 DATED 22.12.2014. //TRUE COPY// P.S. TO JUDGE. “C.R.” ## V.CHITAMBARESH, J. --------------------W.P (C) No.30818 of 2014 --------------------Dated this the 2[nd] day of June, 2016 **==> picture [136 x 15] intentionally omitted <==** “More things are wrought by prayer than this world dreams of” wrote Alfred Tennyson the powerful english poet of the Victorian era. The prayers of an Arabic teacher for approval of his appointment in terms of the Kerala Education Rules, 1959 ['the Rules' for short] are finally answered after four long years. 2. The petitioner was appointed as an Arabic teacher under Ext.P1 order dated 4.6.2012 by the fifth respondent in the Mowanchery U.P.School ['the School' for short]. The fifth respondent is the widow of the Manager of the School and the Constitution/Rules for its management is yet to be drafted and approved by the educational authorities. The fifth respondent had in the meanwhile been provisionally approved as the Manager of the School by order dated 7.3.1995 of the fourth respondent which concludes as under:- “Under the above circumstances, Smt.Pathukutty Hajumma, the wife of the late Registered Manager and the mother of others mentioned in the legal heirship certificate is hereby appointed and approved as the WP(C) No.30818/2014 2 Manager 'provisionally' to the School. The above order will take effect on 1.2.1994.” None of the legal heirs of the erstwhile Manager including the sixth respondent (who is one of the children and does not sail with the others) had challenged the order of the fourth respondent. But still respondents 4, 3 and 2 have by Exts.P2, P3 and P6 orders declined the approval for appointment and hence the writ petition by the teacher. The approval was declined for the reason that there exists a dispute as regards the management of the School amongst the legal heirs and there is no regular Manager. 3. The sixth respondent contends that the fifth respondent could not have appointed the petitioner when the managership vested in a corporate management by all the legal heirs. This plea has found favour in W.A.No.771/2015 filed by the sixth respondent against the interim order granted by a learned single Judge directing provisional approval of appointment. The sixth respondent also relies on Ext.P7 judgment dated 14.7.2014 in a writ petition filed by one of the legal heirs of the erstwhile Manager to ensure that a WP(C) No.30818/2014 3 legally constituted body manages the School. Ext.P7 judgment inter alia directed the legal heirs to prepare the Constitution/Rules for the management of the School to be approved by the second respondent. It was however observed in Ext.P7 judgment that the fourth respondent would continue as the provisional Manager of the School in the meanwhile. Ofcourse a rider was attached in the direction that the fourth respondent shall not make any appointments in the School until a regular Manager is appointed. 4. I heard Mr.P.M.Pareeth, Advocate on behalf of the petitioner, Mr.V.R.K.Kaimal, Advocate on behalf of the fifth respondent and Mr.George Poonthottam, Advocate on behalf of the sixth respondent. I also heard Mrs.Anitha Ravindran, Senior Government Pleader on behalf of respondents 1 to 4 who are the State and the jurisdictional educational officers. 5. Rule 4 of Chapter III KER deals with the approval of the appointment of a Manager and Rule 8 of Chapter XIV A KER deals with the approval of the appointment of a teacher. The appointment of a teacher WP(C) No.30818/2014 4 is not affected by any change in the Educational Agency of the Manager as per Rule 9(1) of Chapter XIV A KER which is extracted hereunder:- 9(1) The appointment order shall not be affected by any change in the Educational Agency or the Manager. The above Rule is applicable only when an appointment is made by a person approved as the Manager and not by any one styling himself as the Manager when there is a dispute as regards management. The appointment of a teacher by an approved Manager remains unaffected by the fact that the Manager has lost his approval subsequently or is replaced by another. The Manager would have lost his approval under orders passed by officers in the hierarchy of the Education Department or due to a verdict by a civil court. The teacher is however insulated from adverse consequences by the subsequent orders or verdict affecting the Manager and his appointment remains in-tact. This is the essence of the de facto doctrine ingrained in Rule 9(1) of Chapter XIV A KER and the actions of the Manager when her stint was approved are saved. It would suffice if WP(C) No.30818/2014 5 the approval of the Manager is subsequently obtained ofcourse with retrospective effect to cover the date of appointment of the teacher as well. [See Padmanabhan Nambiar v. Government of Kerala (1997 (2) KLT 725(DB)) and Manager, St.Mary's High School v. Beji Abraham (2002 (1) KLT 406 (DB))] 6. It should be noted that the fifth respondent was approved as the Manager of the School ofcourse provisionally with effect from 1.2.1994 under the order of the fourth respondent dated 7.3.1995. The fourth respondent was directed to continue as the provisional Manager of the School even in Ext.P7 judgment in the writ petition filed by a legal heir. The restraint against the fifth respondent making appointments in the School appeared for the first time in Ext.P7 judgment dated 14.7.2014 much after the petitioner was appointed on 4.6.2012. The restraint therefore did not disable the fifth respondent from issuing Ext.P1 appointment order dated 4.6.2012 which is liable to be approved. The sixth respondent asserts that the fifth respondent was only WP(C) No.30818/2014 6 provisionally approved as the Manager of the School under the order of the fourth respondent dated 7.3.1995. The word 'provisionally' found in the order can only mean that the fifth respondent could function as the Manager till the Constitution/Rules of Management was approved. This is fortified by the fact that Ext.P7 judgment directed the legal heirs of the deceased Manager to draft the Constitution/Rules and get it approved. The Manager thus provisionally approved could exercise the right of appointment of the petitioner as a teacher in the School in the absence of any rider. 7. I am not impressed by the contention of the sixth respondent that the fifth respondent could not have exercised the right individually when the management vested in the family. The Educational Agency may vest in a family whereas the managership may rest in an individual as per the Scheme evident by Rule 3(1) of Chapter III KER. It cannot be said that all the legal heirs of the deceased Manager had not agreed to the fifth respondent acting as the Manager of the WP(C) No.30818/2014 7 School atleast provisionally. I should note that the order dated 7.3.1995 approving the fifth respondent as the Manager provisionally with effect from 1.2.1994 has become final and not challenged by the legal heirs. The sixth respondent cannot contend that the fifth respondent could not have exercised the power of Manager of the School including the right of appointment of the petitioner as teacher. I also find that the appointment of 9 other teachers made by the fifth respondent from the year 1996 onwards has since been approved by the educational authorities. This is a fact well conceded even in the counter affidavit dated 23.2.2016 filed by the fourth respondent which the sixth respondent also does not refute. 8. I accordingly quash Exts.P2, P3 and P6 orders declining approval of appointment of the petitioner as an Arabic teacher in the School with effect from 4.6.2012. The fourth respondent is directed to pass consequential orders approving the appointment of the petitioner and take steps for the disbursement of her salary. The needful in this regard WP(C) No.30818/2014 8 shall be done by the competent amongst the respondents within a period of two months from the date of receipt of a copy of this judgment. The Writ Petition is allowed. No costs. Sd/V.CHITAMBARESH, Judge. nj.