W.P.(C).No. 34167 of 2008 (P)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE B.P.RAY** ## **TUESDAY, THE 30TH DAY OF OCTOBER 2012/8TH KARTHIKA 1934** ## **WP(C).No. 34167 of 2008 (P) ---------------------------** ## **PETITIONER(S): -------------** **A. BINDU VARGHESE, U.P.S.A, ST. MARY'S HIGH SCHOOL, KANDANAD RESIDING AT ALAMBLASSERIL HOUSE, KANDANAD ERNAKULAM DISTRICT.** **BY ADVS.SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.S.SHYAM PRASANTH** **RESPONDENT(S): --------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVT., GENERAL EDUCATION, DEPARTMENT GOVT. SECRETARIAT, TRIVANDRUM.** |**2.**|**THE DEPUTY DIRECTOR OF EDUCATION,**| |---|---| ||**ERNAKULAM.**| |**3.**|**THE DISTRICT EDUCATIONAL OFFICER,**| ||**ERNAKULAM.**| |**4.**|**THE MANAGER, ST. MARY'S HIGH SCHOOL,**| ||**KANDANAD, ERNAKULAM DISTRICT.**| |**5.**|**SMT.T.R. NITHA, UPSA,**| ||**ST. MARY'S HIGH SCHOOL, KANDANAD**| ||**ERNAKULAM DISTRICT.**| ||**R,R5**<br>**BY ADV. SRI.BIJIMON C.CHERIAN**| ||**R,R4**<br>**BY ADV. SRI.M.C.SEN (SR.)**| ||**R,R2**<br>**BY ADV. GOVERNMENT PLEADER SMT.MAYA**| ||**R,R4**<br>**BY ADV. SRI.K.J.KURIACHAN**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SU/-** ## **WP(C).No. 34167 of 2008 (P)** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF ORDER DATED 30-5-06 IN I.A.NOS.529, 530, AND 1298/06 IN RFA NO.363/06 OF THIS HONOURABLE COURT.** - **P2: COPY OF THE APPOINTMENT ORDER DATED 5-6-2006 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.** - **P3: COPY OF THE PROCEEDINGS NO.ELT-45217/06 DATED 8-11-2006 ISSUED BY THE DISTRICT COLLECTOR, ERNAKULAM.** - **P4: COPY OF THE ORDER NO.B6/615971/06/K.DIS.DATED 6-1-2007 ISSUED BY THE 3RD RESPONDENT.** - **P5: COPY OF JUDGMENT DATED 18-8-07 IN W.P.C.NO.24523/07 OF this HONOURABLE COURT.** - **P6: COPY OF THE ORDER NO.B2-8607/07 DATED 24-10-07 ISSUED BY THE 2ND RESPONDENT.** - **P7: COPY OF THE REVISION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 29-11-2007.** - **P8: COPY OF THE JUDGMENT DATED 20-11-2007 IN W.P.C.NO.34146/07 OF THIS HONOURABLE COURT.** - **P9: COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 1-2-2008.** - **P10: COPY OF THE JUDGMENT DATED 25-8-2006 IN W.P.C. NO.7247/06 OF THIS HONOURABLE COURT.** - **P11: COPY OF THE JUDGMENT DATED 16-10-06 IN W.A.NO.1882/06 OF THIS HONOURABLE COURT.** - **P12: COPY OF the G.O.(Rt)NO.4785/08/G.EDN. DATED 30-10-2008 ISSUED BY THE 1ST RESPONDENT.** - **P13: COPY of the APPOINTMENT ORDER AND APPROVAL OF SMT.ELIZABETH NIMMY JOSEPH.** ## **RESPONDENTS' EXHIBITS:** **R4(A): COPY OF THE PLAINT IN O.S.NO.30/1997. R4(B): COPY OF THE JUDGMENT IN O.S.NO.30/1997 DATED 16-02-2005. R4(C): COPY OF THE JUDGMENT IN RSA NO.363/2005 DATED 10-11-2008.** **WP(C).No. 34167 of 2008 (P)** |**R4(D):**|**COPY OF REJECTED ORDER DATED 11/01/2007 ISSUED BY DISTRICT**| |---|---| ||**EDUCATIONAL OFFICER, ERNAKULAM.**| |**R4(E):**|**COPY OF ORDER OF APPOINTMENT DATED 11-07-2007.**| ||**/TRUE COPY/**| ||**PA. TO JUDGE**| **SU/-** ## **B.P.RAY,J.** ## **--------------------------------------------------** ## **W.P.(C) .No.34167 of 2008** ## **--------------------------------------------------Dated this the 30[th] day of October, 2012** ## **JUDGMENT** Heard the learned counsel for the petitioner, the learned counsel for the 4[th] respondent management and the learned counsel for the 5[th] respondent as well as the learned Government Pleader for the State. ## 2. The grievance of the petitioner is as follows: “i) issue a writ of certiorari or other appropriate writ, order or direction, calling for the records leading to Exts.P4,P6 and P12 and quash the same; ii) issue a writ of mandamus or other appropriate writ, order or direction, directing the respondents to approve the appointment of the petitioner as per Ext.P2 and grant her all consequential benefits including seniority and salary; iii) declare that the appointment and approval if any granted to such appointment of the 5[th] respondent as UPSA under the 4[th] respondent towards the vacancy to which petitioner was appointed as per Ext.P2 is illegal and unsustainable;” ## 3. The petitioner was appointed on 5-6-2006 as U.P.S.A. in the 4[th] respondent School in the promotion vacancy of Smt.Elizebeth Nimmy Joseph, who was promoted to H.S.A. from U.P.S.A. She was appointed by the then Manager of the school, who was also the appellant in RFA 363 of 2005 before this W.P.C.No. **34167 of 2008** 2 Court, after obtaining permission through an interim order to make such appointments provisionally. The said interim direction passed by this Court on 30-5-2006 is quoted herein below for ready reference: “I.A.529/2006 is an application filed for filling up of the vacancy of a peon by modifying the order of status quo, pending final disposal of I.A. 2103/2005. IA 530/2006 is an application for permission to fill up the vacancy for music teacher by modifying the order of status quo pending final disposal of I.A.2103/2005, and I.A. 1298/06 is an application seeking to fill up the vacancies of U.P.S.A. and H.S.A. teachers in the school by allowing to fill up the post of H.S.A. by new appointment and to allow to promote Elizebeth Nimmy Joseph U.P.S.A. to the post of H.S.A Social Science and by appointing fresh hands to the vacancy of UPSA arisen, consequent to the retirement of T.P.Kunjamma by modifying the order of status quo. All these applications are strongly opposed by the other side. The learned counsel for the petitioners had brought to my notice an order passed by this court on 30-1-2006 in I.A. 4144/2005. It was also an application to fill up the vacancy of U.P.S.A. at St.Mary's High School by modifying the status quo order. This Court passed an order as follows:”Permission is granted to effect appointment as prayed for, on provisional basis, subject to final result of this appeal.” The learned counsel submits that similar orders may be passed as the school is to re-open on 1[st] June and unless the vacancies are filled up, it will cause difficulty in running the school. The said contention appears to be valid and correct. Therefore, an order is passed permitting to effect appointment as prayed for in the above I.A.'s on provisional basis, subject to final result of this appeal. The applicant is directed to make it clear in the order that, it is subject to the order of this Court, appointment is made on a provisional basis, and it will be subject to the final result of the appeal.” ## 4. On perusal of the interim order and the entire records, it appears to me that all the statutory authorities such as District Educational Officer, Deputy Director of Education and the Government have proceeded on the footing that since the RFA W.P.C.No. **34167 of 2008** 3 filed by the then Manager of the 4[th] respondent School has abated, the appointment of the petitioner is invalid and therefore no approval can be granted. In this context, it is relevant to quote a Division Bench decision of this Court reported in _**Manager, St. Mary's H.S. v. Beji Abraham [ 2002 KHC 88 ],**_ wherein it is held as follows: “7. We are of the view mere fact that the appointment of the Manager was subsequently found to be illegal or irregular could not take away the rights of the appointees. As far as appointees are concerned, they are appointed by approved Manager. They are not concerned with the dispute with regard to the managership of the school. There was no order either from the court or from the educational authorities restraining the then Manager from appointing the Writ Petitioner. Even if there is some illegality or irregularity in the appointment of the Manager, action taken by him during the tenure of his managership would not be illegal or irregular. All rights and liabilities flowed from those actions would be saved by the de facto doctrine. This principle has been upheld by this Court in Padmanabhan Nambiars case, supra. ## 8.xxxxxxxxxxxx 9. De facto doctrine saves the acts of the officers de facto performed within the scope of their assumed official authority. Whatever defects there may be in the nature of their appointment it is based upon the principle of public policy and necessity. Such a doctrine was introduced into the law as a matter of policy and necessity, to protect the interest of the public and the individual whose interests were involved in the official acts of persons exercising the duties of an office without being lawful officers. Aforementioned doctrine was applied by a Full Bench of this Court in P.S.Menon v. State of Kerala (AIR 1970 Kerala 165) and held as follows: “The doctrine was engrafted as a matter of policy and necessity to protect the interest of the public and individuals involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law. But although these officers are not officers de jure they are by virtue of the particular circumstances, officers, in fact, whose acts, public policy requires should be considered valid. W.P.C.No. **34167 of 2008** 4 The judgment of the Full Bench was quoted with approval by the Apex Court in Gokaraju Rangaraju v. State of A.P. (AIR 1981 SC 1473). That was a case where appointment of Sessions Judge was subsequently declared as invalid on the ground that the appointment was in violation of Art.233 of the Constitution of India. The Apex Court held that the judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de jure. Above decision was subsequently followed by the Apex Court in C. Rangaswamiah and Ors. v. Karnataka Lokayukta and Others (1998 (6) SCC 66). The Apex Court in a recent decision in Union of India v.Charanjit S.Gill and Others (2000 (5) SCC 742) upheld the de facto doctrine and held that the doctrine is borne out of necessity. United States Supreme Court in New Zealand and Norton v.Shelby County (1886-118 US 425) while dealing with doctrine and held as follows: Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as the validity of his acts are concerned. It is enough that he is clothed with the in signia of the office and exercises its powers and functions..... The official acts of such persons are recognised as valid on grounds of public policy, and for the protection of those having official business to transact. It is apposite to refer to the pronouncement of Lord Denning. The observations of Lord Denning are as follows: He sits in the seat of a Judge. He wears the robes of a Judge. He holds the office of a Judge. May be he was not validly appointed. But still he holds the office. It is the office that matters, not the incumbent........ so long as the man holds the office and exercises it duly and in accordance with law,his orders are not a nullity. If they are erroneous they may be upset on appeal. But if not erroneous they should be upheld. ( Re James (An Insolvent) 1977 (1) AII.E.R.364 (CA) ).” 5. In my considered view, there is no dispute with regard to the qualification and suitability of the petitioner to the post to which she was appointed and the appointment was given to her in pursuance to the interim order obtained by the then Manager of the 4[th] respondent school, even though her appointment was W.P.C.No. **34167 of 2008** 5 provisional. None of the authorities have examined on merits the suitability of the petitioner to be appointed in the post. Therefore, I have no hesitation to quash the impugned orders Exhibits P4,P6 and P12 and remit the matter to the 3[rd] respondent, the District Educational Officer to consider the case of the petitioner afresh with regard to the suitability of the petitioner to appoint her in the post instead of the 5[th] respondent who was appointed after abatement of the appeal and to pass fresh orders in this regard. The entire exercise shall be completed within three months from the date of receipt of a copy of this judgment. The petitioner shall be paid with her emoluments by the State till the date of disapproval since nobody was paid for that post. The appointment of the 5[th] respondent shall be subject to the result of the order to be passed by the 3[rd] respondent, the District Educational Officer. The writ petition is disposed of as above. **B.P.RAY, JUDGE** **su/-**