Roopa A.K. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **FRIDAY, THE 8TH DAY OF FEBRUARY 2013/19TH MAGHA 1934** ## **WP(C).No. 29025 of 2011 (C)** **---------------------------------------** ## **PETITIONER(S):** **------------------------** **ROOPA A.K, PEON, EVUP SCHOOL, P.O.KOTENCHERY, PURAMERI VIA, VATAKARA KOZHIKODE DISTRICT.** **BY ADV. SRI.R.K.MURALEEDHARAN** ## **RESPONDENT(S):** - **----------------------------** **1. THE STATE OF KERALA, REP.BY SECRETARY TO GENERAL EDUCATION DEPARTMENT, TRIVANDRUM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION,TRIVANDRUM.** **3. THE DISTRICT EDUCATIONAL OFFICER, VATAKARA, KOZHIKODE DISTRICT.** **4. THE ASSISTANT EDUCATIONAL OFFICER, NADAPURAM.** **5. V.K.HARIDASAN,MANAGER,EVUP SCHOOL, P.O.KOTENCHERY, PURAMERI VIA, VATAKARA KOZHIKODE DISTRICT.** ## **ADDL.RESPONDENT.** **6. PRAMOD KUMAR K., PEON, EVUP SCHOOL, KOTENCHERI AND RESIDING AT KUNIYIL HOUSE, VAIKKILASSERY P.O., VADAKARA (VIA) 673 014., KOZHIKODE DISTRICT.** **R1 TO R4 BY GOVT.PLEADER SRI.NOUSHAD THOTTATHIL R5 BY ADV. SRI.V.A.MUHAMMED R5 BY ADV. SRI.K.E.HAMZA ADDL.R6 BY ADV. DR.GEORGE ABRAHAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.29025/2011** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXT.P1:- COPY OF THE APPOINTMENT ORDER** **EXT.P2:- COPY OF THE ORDER OF THE 4TH RESPONDENT DATED 25-11-2009.** **EXT.P3:- COPY OF THE ORDER DATED 4-6-2010 ISSUED BY THE 3RD RESPONDENT.** **EXT.P4:-COPY OF THE ORDER DATED 21-6-2010.** **EXT.P5:- COPY OF THE ORDER DATED 24-9-09 OF THE 2ND RESPONDENT .** **EXT.P6:- COPY OF THE ORDER OF THE 4TH RESPONDENT.** **EXT.P7:- COPY OF THE JUDGMENT IN WP(C)6648/2010 DATED 2-8-2010 EXCLUDING THE EXHIBITS.** **EXT.P8:- COPY OF THE MEMORANDUM OF REVISION DT:17-8-2010 EXCLUDING THE ENCLOSURES.** **EXT.P9:- COPY OF THE ORDER OF THE IST RESPONDENT DATED 26-9-2011.** **P8:- COPY OF THE APOINTMENT ORDER APPOINTING BINDU K.EDATHIL DTD. 2.6.08. P8(a):- COPY OF THE APPOINTMENT ORDER APPOINTING P.K.MINIJA DTD. 10.7.2009. P8(b):- COPY OF THE APPOINTMENT ORDER APPOINTING DEEPA P.P. DTD. 2.6.2008. P8(c):- COPY OF THE APPOINTMENT ORDER APPOINTING SHEEJA C.M. DTD. 2.6.08. P9:- COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DTD. 31.12.2007. P9(a):- COPY OF THE ORDER SISUED BY THE 4TH RESPONDENT DTD. 5.1.2009. P9(b):- COPY OF THE ORDER ISUED BY THE 4TH RESPONDENT DTD. 12.1.2009. P10:- COPY OF THE LETTER ISSUED BY V.K.MEENAKSHI DTD. 14.8.2009. P11:- COPY OF THE INTERIM ORDER DTD. 2.3.2010 IN WP(C) 6648/2010.** **P12:- COPY OF THE APPOINTMENT ORDER DTD 2.6.2008.** **P13:- COPY OF THE APPOINTMENT ORDER DTD.16.7.2008.** **P14:- COPY OF THE ORDER DTD. 13.1.2009 OF THE 4TH RESPONDENT. P15:- COPY OF THE ORDER DTD. 13.1.2009 OF THE 4TH RESPONDENT.** **tss** ## **W.P.(C) NO.29025/2011** **P16:-COPY OF THE ORDER OF THE 3RD RESPONDENT DTD. 9.7.2009.** **P17:- COPY OF THE ORDER OF THE 3RD RESPONDENT DTD. 29.6.2009.** **P18:- COPY OF THE LETTER DTD. 28.7.09.** **P19:- COPY OF THE REPLY RECEIVED FROM THE 4TH RESPONDENT.** **P20:- COPY OF THE REPLY RECEIVED FROM THE 4TH RESPONDENT.** **P21:- COPY OF THE G.O.(MS) NO.10/2013/G1.EDN. DTD. 10.1.2013.** **P22:- COPY OF THE CIRCULAR NO.67567/N2/86/G.EDN. DTD. 18.12.1986.** ## **RESPONDENTS' EXHIBITS** **R5(a):-COPY OF THE AGREEMENT DTD. 18.1.2005.** **R5(b):- COPY OF THE PROPOSAL OF TRANSFER OF MANAGEMENT ALONG WITH APPLICATION DTD. 24.3.2008.** **R5(c):- COPY OF THE JUDTMENT IN W.A.254/1972 DTD. 27.9.1974.** **R5(d):- COPY OF THE LETTER OF THE MANAGER DTD. 26.2.2010.** **R5(e):- COPY OF THE APPLICATION PUBLISHED IN DESABHIMANI 20.2.2010.** **R5(f):- COPY OF THE LETTER TO THE ASSISTANT EDUCATIONAL OFFICER DTD. 5.3.2010.** **R5(g):- COPY OF THE LETTER OF THE PRAMOD KUMAR DT.D 8.3.2010.** **R5(h):- COPY OF THE LETTER OF THE HEADMISTRESS DTD. 4.3.2010.** **R5(i):- COPY OF THE LETTER OF THE MANAGER DTD. 28.10.2011.** **R5(j):- COPY OF THE LETTER OF THE MANAGER DTD. 28.10.2011.** **R5(k):- COPY OF THE LETTER OF K.PRAMOD KUMAR DTD 2.11.2011.** **R5(l):- COPY OF THE G.O.(MS) NO.10/2013/GL.EDN. DTD. 10.1.2013 OF THE GOVERNMENT.** **R5(m):- COPY OF THE DECISION REPORTED IN 2011(1) K.L.T. 150 DTD. 10.11.2010.** **R5(n):-COPY OF THE JUDGMENT IN W.A. NO.70/2011 DT.D 25.1.2011.** **R5(o):- COPY OF THE ORDER OF THE HON'BLE SUPREME COURT OF INDIA DT.D 13.5.2011.** **tss** ## **W.P.(C) NO.29025/2011** **R5(p):- COPY OF THE ORDER NO.63167/F2/10/G.EDN. DTD. 26.7.2011 OF THE GOVERNMENT.** **R5(q:- COPY OF THE JUDGMENT IN W.A. 1126/2009 DT.D 2.6.2009.** **R5(r):- COPY OF THE JUDGMENT IN W.A. NO.1055/08 DTD. 3.2.2009.** **R5(s):- COPY OF THE JUDGMENT IN WP(C) NO.27253/2006 DTD. 13.9.2007.** **R5(t):- COPY OF THE JUDGMENT IN W.A. 11392/2002 DTD. 3.3.2003.** **R6(a):- COPY OF GOVERNMENT ORDER, G.O. (MS) 10/13/G.EDN. DTD. 10.1.13.** **R6(b):- COPY OF GOVERNMENT ORDER DT. 26.7.2011.** ## **//TRUE COPY//** **P.S. TO JUDGE** **tss** A.M.SHAFFIQUE, J. ---------------------------------------------------- W.P.(C) No. 29025 of 2011 - C --------------------------------------------------Dated this the 8[th] February, 2013 **J U D G M E N T** The petitioner was appointed as Peon in the School managed by the 5[th] respondent as per Ext.P1 dated 27.7.2009. The dispute in the present writ petition relates to approval of her appointment and the present manager appointing the additional 6[th] respondent as Peon. 2. Though Ext.P1 was issued on 27.7.2009, the same was not approved by the Assistant Educational Officer as per Ext.P2 dated 25.11.2009 on the ground that the Manager Smt.Meenakshi had intimated the A.E.O. that she has entered into an agreement with the 5[th] respondent to transfer the property of the school and management as per agreement dated 24.3.2008 and therefore the appointment made by her need not be approved. That apart, by a letter dated 28.7.2009, a request was made by the present manager stating that the appointment made by Smt.V.K.Meenakshi, the previous manager after 24.3.2008 need not be approved. W.P.(C) No. 29025 of 2011 - C 2 3. The facts of the case disclose that an agreement had been entered into between Smt.Meenakshi and the 5[th] respondent for transferring the ownership and management of the School as per Ext.R5(a) and request for change of management was forwarded to the Director in terms of Rule 5 of Chapter III of KER on the very same day which was duly signed by both the transferor and the transferee . 4. The said change of management was approved by the D.P.I as per order dated 24.9.2009 by Ext. P5. The formal orders were passed by the A.E.O. on 23.11.2009 as per Ext.P6 indicating that approval of change of management is with effect from 24.3.2008. 5. In the meantime, the petitioner being aggrieved by Ext.P2, filed an appeal before the D.E.O. which came to be rejected and challenging the same she approached this Court by filing W.P.(C) No. 6648/2010. The said writ petition was disposed of by this Court as per Ext.P7 judgment permitting the petitioner to approach the Government and until such time she was permitted to continue as Peon in the said school. W.P.(C) No. 29025 of 2011 - C 3 6. Ext.P8 is the revision petition and the same was rejected by Ext.P9. In Ext.P9, the Government had reiterated the factual situation as stated by the A.E.O and had come to the opinion that, D.P.I had granted permission for change of management with effect from 24.3.2008 and when Smt.Meenakshi was not the Manager as on 27.7.2009, the date of Ext.P1, the appointment is bad in law. The order in revision is challenged by the petitioner herein. 7. In the meantime, the Manager appointed the additional 6[th] respondent to the post of Peon which was approved by the A.E.O. as per Ext.P18. This was challenged by the petitioner which ultimately resulted in Ext.P21 order of the Government. One of the contentions raised by the petitioner was that the additional 6[th] respondent was above the age prescribed for appointment as a Peon. But, while issuing Ext.P21 order, the Government in exercise of their power under Rule 3 of Chapter I had relaxed the upper age limit of the additional 6[th] respondent. The petitioner therefore amended the writ petition and challenges Ext.P21 order also. W.P.(C) No. 29025 of 2011 - C 4 8. The 3[rd] , 5[th] and 6[th] respondents have filed counter affidavit inter alia supporting the stand taken by the educational authorities. The 2[nd] respondent had taken a contention that they had relied upon the agreement between the parties which inter alia indicates that Smt.Meenakshi shall not make any appointment after the date of the agreement and that apart she herself after having issued Ext.P1 appointment order, had withdrawn the same by requesting the educational authorities not to approve the said appointment. It is also contended by the learned Government Pleader that in so far as Smt.Meenakshi is not a party to the proceedings, the writ petition is bad for nonjoinder of necessary parties, since the petitioner relies upon another letter purportedly issued by Meenakshi on 14.8.2009 as Ext.P10 by which she had again withdrawn her previous request to the educational authorities. 9. The 5[th] respondent relies upon the terms of the agreement and contends that in so far as Smt.Meenakshi has agreed that she will not make any appointment after 24.3.2008, any appointment made by her is bad in law and the delay in W.P.(C) No. 29025 of 2011 - C 5 granting the approval or permission was not on account of her fault and during the interregnum period, the 5[th] respondent was acting as Manager. 10. The additional 6[th] respondent further contends that Ext.P10 had not been relied upon by the petitioner on any earlier occasion and it was never acted upon or relied upon either by Smt. Meenakshi or the petitioner earlier and therefore Ext.P10 cannot be relied upon to decide the issue involved in the matter. 11. That apart, it is contended that after the judgment of the Supreme Court in an S.L.P. filed by the Government against the judgment dated 10.11.2010 in W.P.(C) No. 28888/2010, the Government has issued a general instruction to D.P.I. to grant ex-post facto sanction in cases where change of management of school was effected with a change of ownership. There is also a general direction to dispose of backlog of such cases expeditiously. It is therefore contended that the A.E.O. was justified in issuing Ext.P6 with effect from 24.3.2008. W.P.(C) No. 29025 of 2011 - C 6 12. Learned counsel for the petitioner primarily contends that a reading of Rule 5A of Chapter III K.E.R. would indicate that any change of Manager which involves change of ownership can have effect only after the approval by the educational authorities. Learned counsel relies upon the judgment of learned Single Judge of this Court in **Koyyode Madrassa U.P. School** v. **Director of Public Instructions** (2011 (1) KLT 150) in which this Court held as under: “......The Director can grant permission as provided in R.5A even after the transfer of the running school together with the management is made. Such transfer involving change of management would take effect only after permission is granted by the Director under R.5A of Chap. III”......... 13. Further reference is made to the judgment of the Supreme Court in **Ashok Kumar Das** v. **University of Burdwan** (2010) 3 S.C.C.616]. Paragraphs 12 and 15 of the said judgment reads as under: **“12.** In _U.P. Avas Evam Vikas Parishad_ this Court made the distinction between permission, prior approval and approval. Para 6 of the judgment is quoted hereinbelow: (SCC pp. 458-59) “ _6_ . This Court in _LIC_ v. _Escorts Ltd._ , considering the distinction between ‘special permission’ and ‘general W.P.(C) No. 29025 of 2011 - C 7 permission’, ‘previous approval’ or ‘prior approval’ in para 63 held that: (SCC p. 313) ‘ _63_ . … we are conscious that the word “prior” or “previous” may be implied if the contextual situation or the object and design of the legislation demands it, we find no such compelling circumstances justifying reading any such implication into Section 29(1) [of the Act].’ Ordinarily, the difference between approval and permission is that in the first case the action holds good until it is disapproved, while in the other case it does not become effective until permission is obtained. But permission subsequently granted may validate the previous act. As to the word ‘approval’ in Section 32(2)( _b_ ) of the Industrial Disputes Act, it was stated in _Lord Krishna Textile Mills_ v. _Workmen_ , that the management need not obtain the previous consent before taking any action. The requirement that the management must obtain approval was distinguished from the requirement that it must obtain permission, of which mention is made in Section 33(1).” **“15.** The words used in Section 21( _xiii_ ) are not “with the permission of the State Government” nor “with the prior approval of the State Government”, but “with the approval of the State Government”. If the words used were “with the permission of the State Government”, then without the permission of the State Government the Executive Council of the University could not determine the terms and conditions of service of the non-teaching staff. Similarly, if the words used were “with the prior approval of the State Government”, the Executive Council of the University could not determine the terms and conditions of service of the non-teaching staff without first obtaining the approval of the State Government. But since the words used are “with the approval of the State Government”, the Executive Council of the University could determine the terms and conditions of service of the non-teaching staff and obtain the approval of the State Government subsequently and in case the State Government did not grant approval subsequently, any action taken on the basis of the decision of the Executive Council of the University would be invalid and not otherwise.“ W.P.(C) No. 29025 of 2011 - C 8 In the above judgment, the Supreme Court had clearly clarified that when an approval is required, an action holds good and only if it is disapproved it loses its force. Whereas, when a permission is required, the decision does not become effective till the permission is obtained. 14. The judgment in **Padmanabhan Nambiar** v. **Government of Kerala** [(1997(2) KLT 725] is relied upon to contend for the position that even if the approval of the Manager of a school is found to be invalid, the official duties discharged by him cannot be rendered as void. This is the de facto doctrine approved by the Supreme Court in cases of necessity and public policy and to prevent unnecessary confusion and mischief under such circumstances. 15. Manager, St. Mary's H.S. v. Beji Abraham [2002(1) K.L.T. 406] is relied upon to contend the very same proposition of de facto doctrine where Padmanabhan Nambiar's case had been approved by another Division Bench which also holds the same position. W.P.(C) No. 29025 of 2011 - C 9 16. Learned counsel also relied upon the Division Bench of this Court in **Esther** v. **State of Kerala** [1989 (1) KLT 621] for the proposition that the residuary power of the Government to relax the provisions of Rule 3 of Chapter I of K.E.R has to be exercised taking into consideration the fact that if, by the exercise of this power rights of others are likely to be affected, the said person also requires to heard in the matter. According to the learned counsel, while relaxing the age limit of the additional 6[th] respondent by the Government the petitioner was not heard in the matter. 17. The learned counsel for the 6[th] respondent relied upon the judgment in Vijayamma v. State of Kerala (1982 KHC 366), wherein, learned Single Judge of this Court held as under: “The appointment becomes effective from the date on which the teacher joined duty provided it is approved. If, for example, before the actual approval was given by the Educational Officer the manager, who is the appointing authority, for valid reasons wants the appointment order to be returned, the Educational Officer has to return the same. If the Educational Officer does not return it W.P.(C) No. 29025 of 2011 - C 10 will be wrong and illegal”. 18. It is contended that in so far as the appointment of the petitioner had not been approved by the Educational Authorities, she cannot claim a valid right and before the appointment is approved, the same had been withdrawn by Smt.Meenakshi Amma herself and in that view of the matter the petitioner does not have a legal right to claim appointment and there is nothing wrong in the Manager appointing the 6[th] respondent. For that reason there is no necessity to hear the petitioner while relaxing the age limit of the additional 6[th] respondent. 19. Having regard to the contentions urged by either side, the question to be considered is whether the petitioner is entitled to seek appointment as Peon in terms of Ext.P1. As far as the position of law with reference to Rule 5A is concerned, it cannot be disputed that, when there is a change of management involving change of ownership it shall not be effected except with the previous permission of the Director. The previous permission is considered by the Supreme Court in W.P.(C) No. 29025 of 2011 - C 11 **Ashok Kumar Das** case (supra) and it is clear that unless the change of management is permitted, no rights will flow in favour of the new management. No doubt in Ext.P5 there is no indication that the change of management is with effect from 24.3.2008. But the fact remains that the A.E.O. had in Ext.P6 order indicated that the change of management shall be with effect from 24.3.2008. The first question to be considered is whether Ext.P6 has got any legs to stand. Learned counsel for the 6[th] respondent relied upon the instructions issued by the Government to D.P.I., that ex-post facto approval has to be granted based on the judgment in U.P.Madrassa case (supra). 20 Therefore, even if such orders are issued, the further question is whether it affects the interest of any other person or whether it affects the legal right of any other person. In other words, if such ex-post facto sanction of permission affects the legal right of a person, it has to be considered whether such sanction is proper or not. 21. Therefore the question to be considered in this case is whether the petitioner has a legal right to claim appointment as W.P.(C) No. 29025 of 2011 - C 12 a Peon, or rather while considering the said issue whether the appointment made by Smt.Meenakshi is bad in any manner. If the appointment made by Smt.Meenakshi cannot be sustained, no doubt the petitioner cannot claim any benefit. The existence of Ext.R5(a) cannot be disputed wherein there is a specific clause which prevents Meenakshi from effecting any appointment. It could be seen that she had acted against the terms of the said agreement and issued Ext.P1 which apparently resulted in her requesting the educational authorities not to approve the appointment of the petitioner. It is argued by the learned counsel for the petitioner that such a request cannot be made by the manager concerned and it is not a case where the appointment has been withdrawn. On a reading of Ext.P2 would show that the request was not to grant approval. Granting or non-granting of approval is within the jurisdiction of the educational authorities and it cannot be disputed by the manager. Once the manager has made an appointment, the petitioner has a legal right to get the appointment, especially in a case where she was appointed in a leave vacancy on an earlier occasion. W.P.(C) No. 29025 of 2011 - C 13 22. But one has to look into the over all situation as emerging from the facts in this case. Existence of an agreement between two persons for change of ownership as well as change of management cannot be disputed. But in between the date of agreement and the date when the permission under Rule 5A is granted, an appointment is made by the Manager, against the agreement that she will not make any appointment. Apparently, this is a breach of contract between the previous manager and the present manager. This Court is not considering the question of breach of contract between them. This Court is only concerned with the rights if any available to the petitioner. 23. As held in **Vijayamma's** case (supra), the petitioner's appointment becomes valid only if it is approved. The fact remains that it is not approved. Once it is not approved, she cannot claim any valid legal right to claim appointment to such post. No doubt she challenges the validity of the orders passed by the educational authorities. Therefore, the question is whether the educational authorities were justified in relying upon the agreement dated 24.3.2008 and the request of the previous manager not to approve the appointment of the W.P.(C) No. 29025 of 2011 - C 14 petitioner. Having regard to the factual circumstances involved in this matter, in order to 0set aside the impugned orders, necessarily this Court has to look into the entire factual circumstances and having regard to the fact that the educational authorities had relied upon the agreement between the previous manager and the present manager and had passed appropriate orders especially in the light of the request made by Smt.Meenakshi, I do not think that this Court will be justified to interfere with the orders passed by the educational authorities. In the result, the writ petition fails and accordingly the same is dismissed. ## **A.M.SHAFFIQUE, JUDGE.** rka