High Court of KeralaDivision Bench2007-08-06WA 1558/2007 and WA 222/2007 allowed; DEO to ex...

Thachadi Soman and others v. State of Kerala and others (W.A. Nos. 222, 223 & 1558/2007)

Case / Petition Number:WA 222/2007; WA 223/2007; WA 1558/2007

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. S. Radhakrishnan
V. K. Mohanan
Judgment Date: 2007-08-06
Court Decision / Holding: The Division Bench allowed WA Nos. 1558/2007 and 222/2007 and directed the DEO to examine whether the appointments of petitioners 2 to 5 can be approved, with salary implications to follow if approved. The DEO is to pass appropriate orders within two months from receipt of the judgment. WA 223/2007 is closed. The court clarifies that the civil dispute regarding school management must be decided by the civil court, and that government orders permitting appointments do not automatically confer final entitlement pending those proceedings.
Final Disposition: WA 1558/2007 and WA 222/2007 allowed; DEO to examine appointment approvals within two months; WA 223/2007 closed; civil management dispute to be adjudicated in civil court.

Parties to the Case

Appellants / Petitioners

Thachadi Soman
A. Hameed
Remya B. Nair
R. Sanal Kumar
Ameena Vahid

Respondents

The State of Kerala, represented by its Secretary to Government, General Education Department, Secretariat, Thiruvananthapuram
The Director of Public Instruction, Jagathy, Thiruvananthapuram
The Deputy Director of Education, Alappuzha
The District Educational Officer, Alappuzha

Legal Representation & Advocates

Counsels for Petitioners

• Sri. V. A. Muhammed
• Sri. K. E. Hamza

Counsels for Respondents

• G. P. Sri Sandesh Raja

Case Synopsis & Summary

This is a cluster of writ appeals arising from WPC 27175/2006 and WPC 11645/2006 concerning appointments at M.K.A.M. High School, Pallana, and the corresponding management disputes. The appellants include the manager Thachadi Soman and four school staff (A. Hameed, Remya B. Nair, R. Sanal Kumar, Ameena Vahid) who seek mandamus directing the District Educational Officer (DEO) to grant approval of their appointments and to disburse salaries and allowances pending final civil proceedings. The State respondents challenge the appointments, arguing that salary disbursal should await proper approval and that the civil court disputes govern the management of the school. The Single Judge’s order directing salary payment on a bond was contentious. The Government relied on Exts.P4 and P5 showing orders permitting Thachadi Soman to appoint and on a dejure doctrine argument, while acknowledging the civil suits and decrees affecting management thereunder. The court relies on stare decisis including the dejure doctrine, citing Manager, St. Mary’s H.S. v. Beji Abraham (2002) and Somanatha Pillai v. State of Kerala (2007) to justify treating the appointments as potentially valid for purposes of DEO consideration. The bench ultimately directs the DEO to examine the validity of appointments and potential approvals within two months, while noting that the civil court’s management dispute remains to be resolved there. WA 223/2007 is closed.

Legal Doctrines & Maxims

dejure doctrine

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants submit that Thachadi Soman, having continued as interim and de facto manager per government orders, had by Exts.P4 and P5 gained authority to effect appointments pending civil suits. They contend that there is no bar to appointing teachers to ensure smooth academic functioning and that the DEO should consider whether the appointments are valid and can be approved, with salary disbursement permissible upon approval or appropriate arrangements. They argue that relying on dejure doctrine and established precedent (Beji Abraham, Somanatha Pillai) supports treating such appointments as workable for governance while civil litigation proceeds, to prevent disruption to education.

Contentions of Respondents

The respondents contend that salary disbursal cannot precede appointment approval and that civil court disputes over school management continue to affect the authority to appoint. They emphasize that the Single Judge’s order to pay salaries on a bond was inappropriate and that DEO’s consideration should be confined to validating the legality of appointments and possible approval, pending the outcome of ongoing civil litigation. They also point to Exts.P4 and P5 showing government permission but caution that the management dispute remains unsettled and must be adjudicated by the civil court, with the court taking care not to override ongoing civil proceedings.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Manager, St. Mary's H.S. v. Beji Abraham	2002(1) KLT 406	Positive	Cited to support the application of the dejure doctrine in appointing teachers despite ongoing civil litigation, indicating that de jure authority can legitimize appointments for purposes of government action.
Somanatha Pillai v. State of Kerala	2007(1) KLT 127	Positive	Followed to effect appointments under the dejure doctrine, reinforcing the approach adopted in the present case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.S.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 6TH AUGUST 2007 / 15TH SRAVANA 1929 WA.No. 222 of 2007() -------------------AGAINST THE JUDGEMENT/ORDER IN WPC.27175/2006 Dated 07/11/2006 .................... APPELLANT: ----------- 1. THACHADI SOMAN, S/O. VELAYUDHAN, AGED 56 YEARS, MANAGER, M.K.A.M. HIGH SCHOOL, PALLANA-690 515, ALAPPUZHA DISTRICT. 2. A. HAMEED, HIGH SCHOOL ASSISTANT (ENGLIGH), M.K.A.M. HIGH SCHOOL, PALLANA-690 515, ALAPPUZHA DISTRICT. 3. REMYA B. NAIR, HIGH SCHOOL ASSISTANT (HINDI), M.K.A.M. HIGH SCHOOL, PALLANA-690 515, ALAPPUZHA DISTRICT. 4. R. SANAL KUMAR, FULL-TIME MENIAL, M.K.A.M. HIGH SCHOOL, PALLANA-690 515, ALAPPUZHA DISTRICT. 5. AMEENA VAHID, FULL-TIME CONTINGENT MENIAL, M.K.A.M.HIGH SCHOOL, PALLANA-690 515, ALAPPUZHA DISTRICT. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENTS: - ------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, - JAGATHY, TRIVANDRUM. 3. THE DEPUTY DIRECTOR OF EDUCATION, **WA 222/07.** ALAPPUZHA. 4. THE DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA. BY G.P. SRI SANDESH RAJA. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06/08/2007, ALONG WITH WA NO. 223 OF 2007 & 1558/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.S.RADHAKRISHNAN & V.K.MOHANAN, JJ. --------------------------------------------------------W.A.NOS.222, 223 & 1158/2007 ---------------------------------------------------------Dated, 6[th] August, 2007. JUDGMENT ## **Radhakrishnan, J.** W.A.No.223/2007 arises from the judgment in WPC 11645/2006 and W.A.Nos 1558/2007 and 223/2007 arise from the judgment in WPC 27175/2006. W.P.Cs were heard together by a learned Single Judge and disposed of by a common judgment. 2. WPC 27175/2006 was filed seeking a writ of mandamus directing the 4[th] respondent District Educational Officer to grant approval of appointments of petitioners 2 to 5 made by the Ist petitioner as per Exts. P7, P8, P9 and P10 in M.K.A.M High School, Pallana and also for a direction to disburse the salary and allowances to them within a time limit. The Ist petitioner in WPC 27175/2006 is the Manager of M.K.A.M High School, Pallana and the petitioners 2 and 3 were appointed as HSA in the school and the 4[th] petitioner was appointed as Full Time Menial and 5[th] petitioner was appointed as Full Time Contingent Menials. 3. WPC 11645/2006 was preferred by one Raveendran and 2 others seeking a writ of certiorari to quash Exts.P15 and P16 orders. WPC Nos.222,223 & 1558/07 =2= Exts.P15 and Ext.P16 in WPC 11645/2006 are Exts.P4 and P5 in WPC 27175/2006. Against the petitioners in WPC 11645/2006, civil cases are pending with respect to the management of the school. As per Ext.P1 in WPC 27175/2006, G.O.(Rt.)2383/02/G.Edn. dated 26/7/2002, Thachadi Soman was authorized to act as the interim Manager of the School till disposal of the civil suits pending before the civil courts. Government also ordered that Thachadi Soman should not make any appointment in the School and he has no other rights of the manager except to render the normal day to day affairs of the school. Various orders have been passed by the Civil Court regarding the management as well as appointment. One of such orders of the Civil Court is Ext.P12 in OP 23612/2002. O.P.No.23612/2002 was preferred by the 2nd petitioner in O.P.11645/2006 challenging G.O dated 26-7-2002. The Single Judge has ordered that any appointment in the school shall be subject to the orders of the Munsiff in O.S.146/2000. O.S. 146/2000 was subsequently decreed on 23-12-2005. The learned Munsiff had made it clear that in the civil suit which was disposed of, there was no pleadings with regard to the management of the school. Against the decree in O.S. 146/2000, A.S.36/2006 was preferred by Raveendran and others. I.A.171/2006 was also preferred in that WPC Nos.222,223 & 1558/07 =3= appeal. That application was disposed of by the District Judge stating as follows: “ In the result the application is allowed and the operation of the decree and judgment passed by the court below in O.S. 146/2000 is stayed pending disposal of the appeal. It is made clear that this stay order will not give any right to the appellants 1 and 2 to interfere with the management of the Mahakavi Kumaranasan Memorial High school, Pallana which is now being managed by the respondents 4 and 5 in the appeal on the basis of the orders passed by the Government. It is also made clear that it will not be a bar for the appellants to move this court for appropriate direction regarding the management of the school, if they so require by filing necessary application by impleading necessary parties to the same”. Later in the appeal preferred by Thachadi Soman and others in WA 222/2007, as per Ext.P4 order dated 23-1-96, Government have issued orders permitting Thachadi Soman to make appointments in WPC Nos.222,223 & 1558/07 =4= the existing vacancies. Government noticed that civil suit was decreed on 25-2-2005 in favour of Thachadi Soman. Consequently, he has become a full-fledged manager. Later Government passed Ext.P5 order dated 23-2-2006 according sanction to Thachadi Soman to fill up existing and arising vacancies which was challenged in WPC 11645/2006. The learned Single Judge considered the rival contentions and disposed of all the WPCs holding that as regards Exts.P15 and P16 orders, and Exts.P4 and P5 in the other O.Ps, it was stated that 5[th] respondent, Thachadi Soman shall not derive any benefit out of those orders. He has to necessarily abide by the directions that had already been passed and are likely to be issued by the Addl.District Court from time to time if and when such a motion is made before that court. We are not expressing any opinion regarding various contentions raised by the parties before the civil court. We are now concerned with the question as to whether petitioners 2 to 5 in WPC 27175/2006 are entitled to get salary and other service benefits pending disposal of the suit. The Single Judge while disposing of the WPCs stated that petitioners 2 to 5 shall be allowed to draw salary on executing a bond undertaking to reimburse the same if ultimately it is found that they are not entitled to get salary. Against that part of the direction of the Single Judge, WPC Nos.222,223 & 1558/07 =5= Petitioners 2 to 5 in WPC 27175/2006 have filed WA 222/2007. 4. Learned Government Pleader as well as Petitioners 2 to 5 in WPC 27175/2007 contended that since Thachadi Soman is continuing as Manager, he is legally entitled to effect appointments and consequential appointment of petitioners 2 to 5 are valid appointments and hence the D.E.O. is legally entitled to consider as to whether approval can be granted in the matter of appointment of petitioners 2 to 5. Government Pleader has submitted that the Single Judge committed an error in giving a direction to disburse salary to petitioners 2 to 5 on executing bond. Government Pleader submits that salary can be disbursed only if appointments are approved, we find considerable force in that submission. In our view, DEO has to consider whether appointments of petitioners 2 to 5 are validly made and if so whether approval can be granted and salary can be disbursed to petitioners 2 to 5. We are also in agreement with the learned counsel appearing for the appellants in WA 222/2007 that in the instant case, the dejure doctrine can be applied. When such doctrine can be applied was examined by this court in the decision reported in **Manager, St.Mary's H.S. v. Beji Abraham** (2002(1) KLT 406) which was followed in **Somanatha Pillai v. State of Kerala** (2007 (1) KLT 127) effecting appointments. We have also noticed WPC Nos.222,223 & 1558/07 =6= that in Exts.P4 and P5 orders passed by the Government and the interim order of the civil court in A.S.36/2002, there is no interdiction in granting permission to the Ist petitioner in effecting appointments in the school. If sufficient teachers are not appointed, the students will suffer. We therefore find no error in permitting the Ist petitioner to effect appointments. 5. In the circumstances, we are inclined to allow W.A.Nos.1558/2007 and 222/2007 and direct the DEO to examine whether appointment of petitioners 2 to 5 can be approved. We make it clear, the management dispute between Thachadi Soman as well as the petitioners in OP 11645/2006 has to be decided by the civil court. The D.E.O. will pass appropriate orders on the question of approval within a period of two months from the date or receipt of copy of this judgment. With the above observation, WA 223/2007 is closed. ## **K.S. Radhakrishnan, Judge.** ## **V.K.Mohanan, Judge.** kvm/- WPC Nos.222,223 & 1558/07 =7= K.S.RADHAKRISHNAN & V.K.MOHANAN, JJ WA NOS.22, 223 & 1558/2007 JUDGMENT 6-8-2007.