Allowed

Nijil Dimlee P. v. the Director of Public Instruction

Kerala HC12 Dec 2012WP(C)/21967/2012

Case brief

AI extract

What is this about?

The High Court held that a communication issued by an unauthorized individual (C.M. Babu) nullifying a school teacher's appointment was invalid. The court directed the headmistress to recognize the appointment, allow attendance marking, and enable statutory benefits.

What did the court decide?

Set aside the unauthorized cancellation letter; direct the Headmistress to permit attendance marking and departmental authorities to regularize benefits.

Nijil Dimlee P. Vs the Director of Public Instruction — Education and Admissions | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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WEDNESDAY, THE 12TH DAY OF DECEMBER 2012/21ST AGRAHAYANA 1934

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WP(C).No. 21967 of 2012 (U) ---------------------------

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PETITIONER(S):

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NIJIL DIMLEE P. L.P.S.A, B.E.M.L.P.SCHOOL, PAYYANNUR, KANNUR DISTRICT.

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BY ADV. SRI.K.A.SALIL NARAYANAN

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RESPONDENT(S):

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THE DIRECTOR OF PUBLIC INSTRUCTION, O/O. THE D.P.I, THIRUVANANTHAPURAM-695001.

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THE ASSISTANT EDUCATIONAL OFFICER, PAYYANNUR-670307.

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THE CORPORATION MANAGEMENT OF C.S.I. DIOCESE AND SCHOOLS,

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MALABAR AND WAYANAD AREA, C.S.I.,

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CORPORATE MANAGER'S OFFICE, BANK ROAD, KOZHIKODE-REP.BY THE CORPORATE MANAGER, PIN-673001.

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THE CORPORATE MANAGER, C.S.I.SCHOOLS IN MALABAR & WAYANAD, C.S.I., CORPORATE MANAGER'S OFFICE, BANK ROAD, KOZHIKODE-673001.

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THE HEADMISTRESS, B.E.M.L.P.SCHOOL, PAYYANNUR, KANNUR DISTRICT PIN-670307.

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R1 & R2 BY GOVERNMENT PLEADER SMT. LOWSY A. R3 & R4 BY ADV. SRI.P.V.KUNHIKRISHNAN, SC, CORPORATION MANAGEMENT R5 BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 21967 of 2012 (U)

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APPENDIX

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PETITIONER(S) EXHIBITS :

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EXT-P1 COPY OF PROCEEDINGS OF THE 4TH RESPONDENT DATED 31-7-2012

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EXT-P2 COPY OF THE APPOINTMENT ORDER ISSUED TO THE PETITIONER

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EXT-P3 COPY OF THE JOINING REPORT DATED 31-7-2012

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EXT-P4 DECLARATION SUBMITTED BY THE 4TH RESPONDENT REGARDING PETITIONER'S APPOINTMENT.

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EXT-P5 STATEMENT OF CHANGE OF STAFF DATED 31-7-2012.

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EXT-P6 ORDER OF THE FIRST RESPONDENT DATED 26-6-2012.

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EXT-P7 ORDER OF INJUNCTION PASSED IN O.S.253/2012 AND I.A.2203/12 BY THE COURT OF SUBORDINATE JUDGE OTTAPPALAM.

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EXT-P8 COMMUNICATION FROM THE 4TH RESPONDENT TO THE 5TH RESPONDENT (ORDER CHALLENGED).

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RESPONDENTS' EXHIBITS :

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R5(A) COPY OF THE PROCEEDINGS OF THE BISHOP AND THE EDUCATIONAL AGENCY DATED 30.07.2012.

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R5(B) COPY OF THE LETTER OF REV.DR.K.P.KURUVILA DATED 01.08.2012.

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R5(C) COPY OF THE LETTER OF THE CORPORATE MANAGER DATED 01.08.2012.

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R5(D) COPY OF THE PROCEEDINGS OF THE CORPORATE MANAGER DATED 16.08.2012.

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R5(E) COPY OF THE CIRCULAR OF THE CORPORATE MANAGER DATED 21.08.2012.

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R5(F) COPY OF THE LETTER OF THE HEADMISTRESS DATED 05.09.2012.

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R5(G) COPY OF THE MEMO OF THE HEADMISTRESS OF THE SCHOOL DATED 06.09.2012.

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R5(H) COPY OF THE LETTER OF THE HEADMISTRESS OF THE SCHOOL DATED 06.09.2012.

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R5(I) COPY OF THE REPLY OF THE PETITIONER DATED 07.09.2012.

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R5(J) COPY OF THE CIRCULAR OF THE BISHOP IN NORTH KERALA.

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R5(K) COPY OF THE ORDER OF THE ASSISTANT EDUCATIONAL OFFICER, PAYYANNUR DATED 01.10.2012.

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R3(A) COPY OF THE MINUTES OF THE EXECUTIVE COMMITTEE OF CSI DIOCESAN OF NORTH KERALA DIOCESE 20.07.2011.

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R3(B) COPY OF THE ORDER DATED 29.07.2011 OF THE BISHOP.

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R3(C) COPY OF THE CONSTITUTION OF THE CORPORATE MANAGEMENT OF THE DIOCESAN SCHOOLS IN NORTH KERALA DIOCESAN OF CSI.

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R3(D) COPY OF CHAPTER 6 AND 7 OF THE CONSTITUTION OF DIOCESE OF NORTH KERALA IN CHURCH OF SOUTH INDIA OF CSI DIOCESAN.

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R3(E) COPY OF THE LETTER DATED 15.06.2012 OF THE MODERATOR CSI AND THE SYNOD SECRETARY CSI.

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R3(F) COPY OF THE LETTER DATED 23.07.2012 OF THE CLERGY SECRETARY AND LAY SECRETARY OF CSI NORTH KERALA DIOCESAN COUNCIL.

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R3(G) COPY OF INJUNCTION ORDER DATED 31.07.2012 IN I.A.2203/2012 IN O.S.253/2012 ON THE FILE OF SUB COURT OTTAPPALAM.

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R3(H) COPY OF THE E-MAIL OF THE BISHOP TO THE DEPONENT DATED 01.08.2012.

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R3(I) COPY OF THE LETTER DATED 08.08.2012 OF CLERGY SECRETARY, LAY SECRETARY AND TREASURER OF THE DIOCESAN COUNCIL ADDRESSED TO THE DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM.

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R3(J) COPY OF THE ORDER NO.C1 6404/2012 OF THE DEPUTY DIRECTOR OF TIRUR DATED 12.11.2012.

// TRUE COPY //

P.A. TO JUDGE

DSV/-

P.R. RAMACHANDRA MENON J.

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Dated, this the 12^th day of December, 2012

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JUDGMENT

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The petitioner has approached this Court with a grievance that 5^th respondent/Head Mistress is not permitting him to mark the attendance, in spite of the fact that the 3^rd respondent/Corporate Management has appointed the petitioner as an LPSA in the B.E.M. L.P. School, Payyannur. It is alleged that the 5^th respondent is simply dancing to the tune of one person by name C.M. Babu styling himself as the Corporate Manager of the Educational Agency, based on Ext. P8 communication; which in turn is under challenge.

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The sequence events as described in the writ petition shows that the petitioner was appointed as LPSA in B.E.M. L.P. school, Payyannur as per Ext.P2 appointment order and he joined service on 31.07.2012 as discernible from Ext. P3. While serving the school as above, the 5^th respondent refused

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W.P.(C) No. 21967 of 2012

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to permit the petitioner to sign the attendance register and on

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enquiry, the petitioner was given to understand that the appointment of the petitioner was already been cancelled. However, further enquiry made by the petitioner revealed that no such cancellation order was ever issued by the 3^rd respondent - Corporate Management. But later, the petitioner came across Ext. P8 letter dated 16.08.2012 written by the aforesaid C.M. Babu, who proclaims himself as the Corporate Manager of the Educational Agency, whereby it has been stated that the appointment order issued to the petitioner by the former Corporate Manager by name Vinod Allen was against an anticipated vacancy to be sanctioned and hence same was cancelled. This made the petitioner to approach this Court by filing this writ petition to set aside Ext. P8 on many a ground, including that the petitioner's rights and interests are to be protected, notwithstanding the management dispute between the parties concerned.

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W.P.(C) No. 21967 of 2012

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The 5^th respondent has filed a counter affidavit producing various documents as Exts. R5 (a) to R5(k); most of which are letters/proceedings issued, either by the person by name Babu or by the concerned 'Bishop' who appointed the Manager. It is the case of the 5^th respondent that, she has only acted in tune with directions/instructions given to her by the Manager of the school and she is not concerned with the dispute between the parties concerned.

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A counter affidavit has been filed by the respondents 3 and 4, virtually in support of the case projected by the petitioner and asserting that the person by name C.M. Babu had absolutely no manner of right or interest to have issued Ext. P8. It is stated that he has unauthorisedly used the letter head of the Corporate Management and has issued the same without any power or authority and further that appropriate steps are being taken against the person concerned, including the 5^th respondent, in respect of offence/lapses. The third respondent Corporate Management

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W.P.(C) No. 21967 of 2012

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has asserted that the petitioner has every right to mark attendance in the register and that, Exts. P1 and P2 are very much valid and sustainable in law.

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In the course of the proceedings, the respondents 3 and 4 have filed I.A. No. 16780 of 2012 producing certain additional documents as Exts. R3 (a) to R3(j). Mr. Kunhikrishnan, the learned counsel appearing for the respondents 3 and 4 Corporate Management, submits with reference to the contents of the counter affidavit and the affidavit filed in support of the I.A., that the competent authority to appoint 'Manager' is the Executive Committee. Ext. R3(a) is a copy of the minutes of the Executive Committee, whereby Mr. Vinod Allen was decided to be appointed as the 'Manager' for a period of one year from 01.08.2011 or until further orders. By virtue Clause (III) of Ext. R3(c) Constitution of Corporate Management of the Diocesan Schools, it is for the concerned 'Bishop' to appoint the Manager, as recommended by the Executive Committee.

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W.P.(C) No. 21967 of 2012

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It was accordingly, that Ext. R3(b) appointment order was issued by the 'Bishop' appointing Mr. Vinod Allen as the Corporate Manager of the school for a period of one year from 01.08.2011, in conformity with the recommendation of the Executive Committee vide R3(a).

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It is the case of the respondents 3 and 4 that the concerned 'Bishop', for some or other reason better known to him, did not convene the Executive Committee after the meeting held leading to Ext. R3(a), in spite of the fact that it was the duty of the Bishop to have convened the Executive Committee. The lapses in this regard came to the notice of the Synod of CSI, who directed the 'Bishop', vide Ext. R3(e), to convene the Executive Committee. Still, the 'Bishop' did not yield to the same. In the meanwhile, the DPI, as per Ext. P3 order dated 31.07.2012, had approved appointment of the Corporate Manager for one year from 01.08.2011, in terms of Ext. R3(b) and the said tenure was to come to an end on 31.07.2012. Taking note of the situation as to the expiry of

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W.P.(C) No. 21967 of 2012

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the tenure and also the fact that the 'Bishop' had not taken any steps to convene the Executive Committee, Ext. R3(f) letter dated 23.07.2012 was written by the competent authority i.e. Clergy Secretary and Lay Secretary to the Manager of the School by name Vinod Allen, to continue in office, till appropriate arrangements were made by taking a decision by the Executive Committee which has to be convened.

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While so, some interested persons approached the Civil Court by filing O.S. No. 253 of 2012 before the Sub Court, Ottapalam (having jurisdiction to deal with the affairs of the congregation as per the Constitution) and obtained Ext. R3(g) interim order dated 31.07.2012, whereby the 'Bishop' was injuncted from appointing a new Manager. Pursuant to the said order, Ext. R3(h) 'E.mail' was served to the Corporate Manager Vinod Allen, by the 'Bishop', on 01.08.2012, referring to the interim order passed by the Civil Court and the expiry of tenure of one year and thus to vacate

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W.P.(C) No. 21967 of 2012

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the office. Since the injunction order did not say anything with regard to the continuation of the existing Manager, which stands permitted by the competent authorities vide Ext. R3 (f), the continuing Manager virtually did not take any further steps in response to Ext. R3(h). On 08.08.2012, the position was brought to the notice of the DPI by the Clergy Secretary, Lay Secretary and the Treasurer vide Ext. R3 (i). It appears that the departmental authorities do not have any dispute with regard to the status of Mr. Vinod Allen, more so, in view of the status already regularized as borne by Ext. R3(j) proceedings dated 12.11.2012 of the AEO accepting the authority of Mr. Vinod Allen as the Corporate Manager of the school named therein. It is also brought to the notice of this Court, that a criminal complaint has been filed against a person by name C.M. Babu before the concerned Magistrate's Court, in respect of the various offences allegedly committed by him and that steps are going on.

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W.P.(C) No. 21967 of 2012

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After hearing both the sides including the learned Government Pleader, this Court finds that the appointment authority is the Corporate Manager, virtually the respondents 3 and 4, who have filed an affidavit before this Court, confirming appointment given to the petitioner vide Exts. P1/P2. It is also asserted that the concerned Manager by name Mr. Vinod Allen is still continuing in office, as recommended by the Executive Committee, leading to the appointment order issued by the 'Bishop' and the subsequent permission granted by the 'Synod' to continue in office till the matter is considered further by the Executive Committee in

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the due course, as per Exts. R3(f) and R3(i) issued by the competent authorities.

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In the above circumstances, this Court finds that there is absolutely no basis for having issued Ext. P8 by the person by name C.M. Babu, in the name of Corporate Management (who have been arrayed in the party array as the respondents 3 and 4 and who have filed counter affidavit

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W.P.(C) No. 21967 of 2012

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as aforesaid) and it cannot stand detrimental to the rights and interest of the petitioner. Accordingly, Exts. P8 is set aside. The 5^th respondent is directed to permit the petitioner to continue in office and sign the attendance register, and the departmental authorities are directed to pass consequential orders in respect of the service of the petitioner in tune with the relevant provisions of law, so as to make the petitioner eligible for availing the benefits flowing therefrom; forthwith.

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The Writ Petition is allowed to the said extent. No cost.

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sd/-

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P. R. RAMACHANDRA MENON, (JUDGE)

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kmd

Nijil Dimlee P. v. the Director of Public Instruction

Case brief

What is this about?

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Nijil Dimlee P. v. the Director of Public Instruction

Case brief

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