W.P.(C).No.15099/2007-V - Bincy Varghese, Jeena T.S., Usha M.S., Smitha T. v. Deputy Director of Education, Ernakulam & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **TUESDAY, THE 18TH NOVEMBER 2008 / 27TH KARTHIKA 1930** ## **WP(C).No. 15099 of 2007(V)** **--------------------------------------** ## **PETITIONER(S):** - **----------------------** **1. BINCY VARGHESE,** - **H.S.A. (MATHS), FR. JOSEPH MEMORIAL HIGHER SECONDARY SCHOOL, PUTHUPADY, MUVATTUPUZHA.** **2. JEENA T.S.,** - **H.S.A. (MALAYALAM), -DO- -DO-.** **3. USHA M.S.,** - **H.S.A. (HINDI), -DO- DO-.** ## **4. SMITHA T.,** - **U.P.S.A., -DO- -DO-.** **BY ADV. SRI.ELVIN PETER P.J.** ## **RESPONDENT(S):** - **-------------------------** **1. THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM.** **2. THE DISTRICT EDUCATIONAL OFFICER, KOTHAMANGALAM.** **3. THE MANAGER, FR.JOSEPH MEMORIAL HIGHER SECONDARY SCHOOL, PUTHUPADY, MUVATTUPUZHA.** **4. DR.P.V.JOSEPH, XIX/256, PUKKUNEL HOUSE, P.O. PUTHUPADY, MUVATTUPUZHA-686 673.** **GOVERNMENT PLEADER SRI.T.T.MOHAMOOD FOR R1, R2 ADV. SRI.ELDHOSE ELIAS FOR R3, R4** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C). NO. 15099/2007-V** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** ## **EXT.P1: COPY OF THE APPOINTMENT OPRDER DATED 05/06/2006 OF THE 1ST PETITIONER.** **EXT.P2: COPY OF THE APPOINTMENT ORDER DATED 05/06/2006 OF THE 2ND PETITIONER.** **EXT.P3: COPY OF THE APPOINTMENT ORDER DATED 05/06/2006 OF THE 3RD PETITIONER.** **EXT.P4: COPY OF THE APPOINTMENT ORDER DATED 05/06/2006 OF THE 4TH PETITIONER.** **EXT.P5: COPY OF THE ORDER DATED 07/12/2006 ISSUED BY THE D.P.I.** **EXT.P6: COPY OF THE ORDER DATED 23/12/2006 ISSUED BY THE GOVERNMENT.** **EXT.P7: COPY OF THE JUDGMENT DATED 15/02/2007 IN W.P.(C). NO. 632/2007 OF THIS HONOURABLE COURT.** **EXT.P8: COPY OF THE ORDER DATED 08/12/2006 ISSUED BY THE 2ND RESPONDENT.** ## **EXT.P9: COPY OF THE REPRESENTATION DATED 17/01/2007 FILED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT.** **EXT.P10: COPY OF THE ORDER DATED 12/01/2007 IN W.P.(C). NO. 1340/2007 OF THIS HONOURABLE COURT.** **EXT.P11: COPY OF THE ORDER DATED 10/04/2007 IN W.P.(C). NO. 1340/2007 OF THIS HONOURABLE COURT.** **EXT.P12: COPY OF THE ORDER DATED 09/03/2007 IN W.P.(C). NO. 7937/2007 OF THIS HONOURABLE COURT.** **EXT.P13: COPY OF THE INTERIM ORDER DATED 18/07/2007 IN W.P.(C). NO. 22131/2007 OF THIS HONOURABLE COURT. (PRODUCED & MARKED ALONG WITH I.A.NO.16389/2007).** **EXT.P14: COPY OF THE ORDER DATED 06/05/1978 ISSUED BY THE D.P.I.** **EXT.P15: COPY OF THE JUDGMENT DATED 02/04/1993 IN O.P.NO.760/1993 OF THIS HONOURABLE COURT.** **EXT.P16: COPY OF THE ORDER DATED 30/04/1994 ISSUED BY THE 1ST RESPONDENT.** **EXT.P17: COPY OF THE ORDER DATED 25/07/1994 ISSUED BY THE D.P.I.** **EXT.P18: COPY OF THE ORDER G.O. DATED 02/03/1996 ISSUED BY THE GOVT.** ## **W.P.(C). NO. 15099/2007-V** **EXT.P19: COPY OF THE ORDER DATED 3/07/2001 ISSUED BY THE 2ND RESPONDENT. EXT.P20: COPY OF THE ORDER DATED 12/10/2001 ISSUED BY THE D.P.I. EXT.P21: COPY OF THE ORDER DATED 30/11/2001 ISSUED BY THE 2ND RESPONDENT. EXT.P22: COPY OF THE ORDER G.O.DATED 25/06/2002 ISSUED BY THE GOVT,.** **EXT.P23: COPY OF THE JUDGMENT DATED 21/04/2006 IN O.P.NO.20324/2002 OF THIS HONOURABLE COURT.** **EXT.P24: COPY OF THE JUDGMENT DATED 17/08/2006 IN W.A.NO.1508/2006 OF THIS HONOURABLE COURT.** **EXT.P25: COPY OF THE JUDGMENT DATED 17/10/2006 IN W.P.(C). NO. 25807/2006 OF THIS HONOURABLE COURT.** **EXT.P26: COPY OF THE ORDER DATED 03/03/2008 ISSUED BY THE 2ND RESPONDENT.** **EXT.P27: COPY OF THE COUNTER AFFIDAVIT FILED BY THE 4TH RESPONDENT IN W.P. (C). NO. 11565/2007.** **RESPONDENT'S EXHIBITS: NIL** ## **//TRUE COPY//** **P.A. TO JUDGE** **Rs/** ## **ANTONY DOMINIC, J. -------------------------W.P.(C) No.15099 OF 2007 ------------------------------------Dated this the 18[th] day of November 2008** ## **J U D G M E N T** Challenge in this writ petition is against Ext.P26 order dated 03/03/2008 passed by the DEO rejecting the approval of the appointment of the petitioners as HSA in different subjects in the Fr. Joseph Memorial Higher Secondary School, Puthupady, Muvattupuzha. Since the reason for rejecting approval, as is seen from Ext.P26, is the controversy concerning the managership of the school, the details of the disputes to the extent that is necessary is as stated hereunder. 2. As per the approved bye-laws for the management of the school, one Shri.Prasad P.Varghese was appointed as the Manager of the School and his appointment was approved by Ext.P14 order dated 06/04/1978. He continued in office and it would appear that W.P.(C) No.15099/2007 -2- subsequently the 4[th] respondent claimed appointment as Manager. As per the judgment of this Court in O.P. No.760/1993, the Deputy Director of Education was directed to consider the appeal filed by the 4[th] respondent claiming that he was the Manager. In the judgment, there was a further direction that until disposal of the appeal there shall not be any appointments made. Following this judgment, the Deputy Director passed Ext.P16 order, recognising Shri.Prasad P.Varghese as the Manager and allowing him to continue. Against this order, revision filed by the 4[th] respondent to the DPI was rejected by Ext.P17 and the Government also rejected, a further revision as per Ext.P18 order. 3. As a result, Shri.Prasad P.Varghese continued as the Manager. In the meantime, following a meeting of the proprietory body held on 02/02/2001, the 4[th] respondent claimed managership of the school and that was approved by the DEO as per Ext.P19 order dated 03/07/2001. That W.P.(C) No.15099/2007 -3- order was set aside by the DPI as per Ext.P20 order dated 12/10/2001, and the DEO was directed to reconsider the matter, in the manner as directed therein. Accordingly, the DEO passed Ext.P21 order approving Shri.Prasasd P.Varghese as the Manager. The revision filed by the 4[th] respondent against Ext.P20 order was also rejected by Ext.P22. 4. Against Ext.P20 and P22 orders, a writ petition was filed before this Court as O.P. No.20324/2002. That writ petition was disposed of by Ext.P23 judgment dated 21/04/2006 setting aside Exts.P20 and P22 orders and directing the DPI to consider the appeal filed by the 4[th] respondent. In the writ appeal filed by Shri.Prasad P.Varghese, the Division Bench rendered Ext.P24 judgment, setting aside Ext.P23 judgment to extent it quashed Exts.P20 & P22. It was directed that the appeal against Ext.P21 shall be considered by the DPI. As already noticed, during this period, on the strength of Ext.P21 Shri.Prasad W.P.(C) No.15099/2007 -4- P.Varghse was continuing as the Manager, and while so, the petitioners were appointed by Exts.P1 to P4 orders dated 05/06/2006. 5. Soon after the appointment of the petitioners, a writ petition was filed by the 4[th] respondent as WP(C) No.25807/2006, complaining of the appointments that were made by Shri.Prasad P.Varghse. That writ petition was disposed of by Ext.P25 judgment, directing the DPI to dispose of the appeal as directed in Exts.P23 and P24 judgments. Further there was a direction that till a decision is taken in the appeal, the appointments, if any, made by Shri.Prasad P.Varghse shall not be approved. In pursuance to Exts.P23, P24 and P25 judgments, the DPI considered the appeal filed against Ext.P21 and passed Ext.P5 order dated 07/12/2006, directing approval of the 4[th] respondent as Manager. Consequently, the DEO passed Ext.P8 order dated 08/12/2006 approving the appointment of the 4[th] respondent as the Manager. Against Ext.P5, a revision was W.P.(C) No.15099/2007 -5- filed to the Government by Shri.Prasad P.Varghese, and by Ext.P6, the DPI’s order was stayed. The revision was ultimately rejected by order dated 13/07/2007. 6. Ext.P5 and the DPI’s order dated 13/07/2007 were challenged by Shri.Prasad P.Varghese in WP(C) No.22131/2007, and by judgment dated 13/11/2008 this Court set aside both the orders and directed the DPI to consider the appeal against Ext.P21. In the meanwhile, the proposals made for approval of the appointments of the petitioners were rejected by Ext.P26 order dated 03/03/2008 passed by the D.E.O. The reason for such rejection is the pendency of the management dispute. Since the issue is pending consideration of this Court, the petitioners have filed this writ petition against Ext.P26 order passed by the D.E.O. 7. The contentions raised by the learned counsel for the petitioners are that in terms of the provisions contained in Rule 4(2), Chapter III of K.E.R. change of managership is W.P.(C) No.15099/2007 -6- effective only when the manager assumes charge. It is stated that for the period from 06/05/1978 onwards, Shri.Prasad P.Varghese was the Manager of the School except for the period between 03/07/2001 to 12/10/2001. It is stated that when the petitioners were appointed by Exts.P1 to P4 dated 05/06/2006, Shri.Prasad P.Varghse was the Manager. Therefore, since the appointments have been effected by a competent manager, the appointments are liable to be approved. Further the pendency of the management dispute cannot be a reason for rejecting approval of their appointments. 8. On the other hand, the learned counsel for the 4[th] respondent would contest the claim of the petitioners. According to him, the writ petition itself is not maintainable for the reason that against Ext.P26, statutory alternative remedies are available and therefore this writ petition, filed without availing those remedies, is liable to be rejected on that ground itself. Secondly, it is contended that at the time W.P.(C) No.15099/2007 -7- when appointments were made on 05/06/2006, Ext.P23 judgment dated 21/04/2006 rendered by the learned Single Judge setting aside Exts.P20 & P22 held the field. It is stated that consequently during that period Shri.Prasad P.Varghese was not the Manager, and was incompetent to make appointments and that if that be so, approval also cannot be granted. 9. It is also contended that in Ext.P25 judgment, this Court had directed not to approve the appointments made by Shri.Prasad P.Varghese until a decision is taken on the appeal and that consequent to the judgment of this Court in WP(C) No.22131/2007 dated 13/11/2008 quashing Ext.P5 and order dated 13/07/2001, the appeal has to be decided afresh. On this basis, the contention raised is that since the appeal is still pending, the interdiction against approval of appointment contained in Ext.P25 judgment, still remains in force. 10. I have considered the submissions made by both W.P.(C) No.15099/2007 -8- sides. The first plea that has to be dealt with is the contention that the writ petition has to be dismissed for not availing of statutory alternative remedies. True, the K.E.R. provides for appeal, revision etc. against an order declining approval of appointment. As can be seen from Ext.P26, the reason for rejection of the approval is the pendency of the dispute concerning the managership of the school. It is a fact that the dispute was pending in this Court. So long as the dispute is pending before this Court, the petitioners could not have expected any relief, even if they have pursued remedies before the statutory authorities. Therefore, such remedies could not have been effective in the peculiar circumstances of this case. If that be so, the availability of alternate remedy cannot operate as a bar against the petitioners. That apart, this writ petition having been admitted, kept pending, parties have filed their pleadings, and arguments were heard at length, there is absolutely no justification to direct the parties to pursue W.P.(C) No.15099/2007 -9- statutory remedy at this distance of time. Therefore, the first objection raised by the learned counsel for the 4[th] respondent is only to be rejected and I do so. 11. The next issue that requires to be dealt with is the question of the competence of Shri.Prasad P.Varghese to make appointments. It is not in dispute that from 06/05/1978 onwards he was the Manager except for the period from 03/07/2001 to 12/10/2001, consequent to Ext.P19 order. Thereafter he ceased to be office only following Ext.P5 order of the DPI, which was implemented following the approval granted by the DEO as per Ext.P8 order dated 08/12/2006. Therefore, at the time when he issued Exts.P1 to P4 orders of appointments on 05/06/2006, he was the manager of the school. 12. The learned counsel for the 4[th] respondent pointed out two objections. One is that the approval of appointments granted vide Ext.P8 dated 08/12/2006, was effective from 03/07/2001 and secondly, at the time when W.P.(C) No.15099/2007 -10- appointments were made on 05/06/2006, consequent on Ext.P23 judgment of this Court rendered on 21/04/2006, Exts.P20 & P22 were set aside and therefore, Ext.P19 approving the 4[th] respondent as the Manager held the field. 13. The first question to be answered is whether the retrospective approval of the 4[th] respondent as Manager will vitiate the appointments made by Shri.Prasad P.Varghese, who held the office of Manager at the relevant time. In my view, it will not. As already noticed, until 07/12/2006, when the DPI directed approval of the 4[th] respondent as Manager, Shri.Prasad P.Varghse held the office as the Manager of the school. If that be so, the fact that a subsequent retrospective invalidation has taken place cannot invalidate the actions, which he took as Manager of the school. As far as the teachers are concerned, they are appointed by an approved Manager and they are not concerned about the Management dispute between the brothers. Further there was no order by any superior authority or court interdicting W.P.(C) No.15099/2007 -11- the Manager from making appointments. This position is also covered by a Division Bench decision of this Court in **Manager, St.Mary's H.S.** Vs. **Beji Abraham** (2002(1) KLT 406), where it was held that the fact that the appointment of the Manager was subsequently found to be illegal or irregular could not take away the rights of the appointees, applying the rule of defacto doctrine. The following paragraph of the judgment being relevant is extracted:- “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 W.P.(C) No.15099/2007 -12- 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”. 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 & Ors._ (1998 (6) SCC 66). The Apex Court in a recent decision in _Union of India V. Charanjit S.Gill & Ors._ (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 W.P.(C) No.15099/2007 -13- 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 hold 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) All.E.R.364(CA). 14. In this context, I should also refer to the decision in **Padmanabhan Nambiar** Vs. **Government of Kerala** (1997(2) KLT 725), where this court upheld the order to approve the appointments made by the Manager, whose appointment was found to be illegal at a subsequent stage, and after making reference to Cooley's “Constitutional Limitations”, it has been held in paragraph 6, as follows :- “6.From the commentary on law it appears that if an W.P.(C) No.15099/2007 -14- officer has got colour or sembalance of some right to hold office but holding office without actual right due to some legal impediment or the appointment as such lacks certain legal requirements whatever duties performed by him with public acquiescence have to be approved, whereas the action done by an intruder who attempts to perform duties without the authority of law and without the support of public acquiescence cannot claim validity. Merely because, there was defect in the appointment of the officer all the duties performed by such officer do not become void or illegal. The de facto doctrine will come to rescue under such circumstances.” In the light of the above binding precedents and the facts as noticed above, the objection raised by the 4[th] respondent is only to be rejected. 15. Now what remains to be considered is the effect of Ext.P23, the judgment rendered in O.P. No.20324/2002. First of all, Ext.P23 judgment to the extent it set aside Exts.P20 & P22 orders was reversed by the Division Bench of this Court in Ext.P24 judgment. Therefore, the fact that Ext.P23 judgment was rendered by this Court, cannot now stand in the way of considering the request for approval of W.P.(C) No.15099/2007 -15- the appointments made. 16. Then what remains is the contention relying on Ext.P25 judgment. True, in Ext.P25 judgment, this Court held that until a decision is taken on the appeal, appointments made by Shri.Prasad P.Varghese shall not be approved. The learned counsel for the petitioners contended that this interdiction could operate only till Ext.P5 order was rendered, when order was passed in the appeal. True, consequent on the judgment of this Court in WP(C) No.22131/2007, the DPI is now required to consider the appeal afresh. Therefore, if I am to accept the contention of the learned counsel for the 4[th] respondent that until the DPI re-considers the matter and renders a fresh decision, approval will have to await, the end result would be that until the termination of the proceedings, the petitioners who were appointed way back on 05/06/2006 will have to await for approval of their appointments and to get salary. I am inclined to think that interdiction in the judgment will have W.P.(C) No.15099/2007 **==> picture [81 x 9] intentionally omitted <==** operation only till Ext.P5 order was rendered, as otherwise it will be too harsh a view, as far as the petitioners are concerned. 17. I am satisfied that Ext.P26 order rejecting approval deserves to be set aside. Accordingly, Ext.P26 will stand set aside and it is directed that the approval sought for will be granted by the D.E.O.. The writ petition is allowed as above. **(ANTONY DOMINIC, JUDGE)** jg