Allowed

The Manager, a.M.U.P.School and Another v. the State of Kerala and Others

Kerala HC11 Jul 2012WP(C)/36345/2010

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the writ petition and quashed the orders rejecting the appointment of a school assistant. The court held that a pending controversy regarding the appointment of the Headmaster cannot negate the existence of a sanctioned vacancy. The matter was remanded to the Assistant Educational Officer to reconsider the appointment and pass fresh orders.

What did the court decide?

The Writ Petition was allowed and Exhibits P2 to P5 orders were quashed. The Assistant Educational Officer was directed to pass fresh orders within three months.

The Manager, a.M.U.P.School and Another Vs… — Pension and Retirement Benefits | 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 K.T.SANKARAN

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WEDNESDAY, THE 11TH DAY OF JULY 2012/20TH ASHADHA 1934

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WP(C).No. 36345 of 2010 (P)

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PETITIONER(S):

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THE MANAGER,AMUP SCHOOL,KLARI NORTH, PALACHIRAMAD, TANUR EDUCATIONAL SUB DISTRICT P.O., EDARIKODE 676 501,MALAPPURAM DISTRICT.

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SHAMLA KALADI, UPPER PRIMARY SCHOOL ASSISTANT,DO.

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BY ADVS.SRI.V.A.MUHAMMED

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SRI.K.E.HAMZA

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RESPONDENT(S):

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THE STATE OF KERALA REP.BY ITS SECRETARY TO GOVERNMENT,GENERAL EDUCATION(P3) DEPAPRTMENT SECRETARIAT,TRIVANDRUM 695 001.

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THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY,TRIVANDRUM-14.

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THE DISTRICT EDUCATIONAL OFFICER, TIRUR,MALAPPURAM DISTRICT 676 101.

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THE ASSISTANT EDUCATIONAL OFFICER, TANUR,MALAPPURAM DISTRICT 676 302.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.36345/2010

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APPENDIX

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PETITIONERS' EXHIBITS :

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EXT.P1: COPY OF THE APPOINTMENT ORDER OF THE SECOND PETITIONER.

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EXT.P2: COPY OF THE ORDER NO.B/2911/05/K.DIS OF THE ASSISTANT EDUCATIONAL OFFICER.

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EXT.P3: COPY OF THE ORDER NO.K.DIS B4/1384/2006 OF THE DISTRICT EDUCATIONAL OFFICER.

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EXT.P4: COPY OF THE ORDER NO.D.DIS.G2/14680/08/DPI OF THE SECOND RESPONDENT.

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EXT.P5: COPY OF THE ORDER NO.59202/B1/09/G.EDN. OF THE GOVERNMENT.

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EXT.P6: COPY OF THE G.O.(RT.) NO.2112/05/G.EDN. OF THE GOVERNMENT.

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EXT.P7: COPY OF THE INTERIM ORDER OF THIS HON'BLE COURT IN W.P.(C) NO.29723/2005-L

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RESPONDENTS' EXHIBITS :

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EXT.R4(a) : APPOINTMENT ORDER DATED 21.12.05.

//TRUE COPY//

P.A. TO JUDGE

K.T.SANKARAN, J.

W.P.(C) No.36345 of 2010

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Dated this the 11^th day of July, 2012

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JUDGMENT

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The first petitioner is the Manager of A.M.U.P. School, Klari North, in Tanur Educational Sub District. The second petitioner was appointed as U.P.S.A. in the school from 1.6.2005, as per Exhibit P1 order of appointment. It is stated that M.P.Kurien was the Headmaster of the school and he retired from service on 30.4.2005. A.P.Moidu, U.P.S.A., was promoted as Headmaster on 1.5.2005. The second petitioner was appointed in the resultant vacancy on the promotion of A.P.Moidu.

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The Assistant Educational Officer rejected the proposal for approval of the appointment of the second petitioner, as per Exhibit P2 order dated 7.9.2005 on the ground the appointment by promotion of A.P.Moidu was rejected by the Assistant Educational Officer. It was held in Exhibit P2 that there was no vacancy to provide appointment

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W.P.(C) No.36345/2010

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for the second petitioner.

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Exhibit P2 order passed by the Assistant Educational Officer was challenged in Appeal before the District Educational Officer, Tirur. The Appeal was dismissed as per Exhibit P3 order dated 15.2.2007 holding that the vacancy in which the second petitioner was appointed was not absolute. Exhibit P3 order was challenged before the Director of Public Instruction who passed Exhibit P4 order dated 21.6.2008. In Exhibit P4 order, it is stated that since the school in question was declared as a minority institution, the appointment of A.P.Moidu was approved by the District Educational Officer. It is also stated in Exhibit P4 order that the approval of appointment of A.P.Moidu was challenged by M.Sasikala before the High Court and the Writ Petition is pending. Exhibit P4 order was challenged before the Government. The Government passed Exhibit P5 order dated 4.12.2009 and confirmed the orders passed by the authorities below on the ground that there was no established vacancy in which the second petitioner could be appointed. Exhibits P2 to P5 orders are under challenge in this Writ Petition.

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W.P.(C) No.36345/2010

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I have perused the records in W.P.(C) No.29723 of 2005 filed by Sasikala. It is seen that the said Writ Petition filed by Sasikala challenging the Government Order conferring minority status on the school was disposed of as per the judgment dated 26.7.2011 and the Government was directed to consider the matter within a period of four months. It is not known whether the Government have passed any order thereafter.

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The learned counsel for the petitioners relied on the judgment in O.P.No.8056 of 1986 wherein this court considered the question of approval of the appointment of a teacher in similar circumstances and it was held thus :

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“O.P.No.8056/86 is filed by another teacher who was appointed as Upper Primary School Assistant on 5.7.1984. Approval of her appointment was withheld for the reason that there was a controversy relating to the post of Headmaster of the school. Her appointment was in a vacancy which was occasioned by the retirement of the Headmaster on 31.3.1984. The controversy between the two senior

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W.P.(C) No.36345/2010

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teachers for appointment as Headmaster cannot affect the existence or continuance of that vacancy. It is evident from the pleadings that the petitioner was appointed in a sanctioned post. It is not disputed that she was not fully qualified. It is not urged that any other person had superior claim for the post. In these circumstances, it is necessary that her claim for approval of her appointment as U.P.S.A. against a sanctioned post is examined afresh by the Assistant Educational Officer.”

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In the counter affidavit filed by the fourth respondent, it is stated thus :

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“4. The Manager appointed Shamla Kaladi as U.P.S.A. with effect from 1.6.2005 against the said promotion vacancy of Sri.A.P.Moidu as Headmaster and the appointment was rejected from this office due to the stay order in the judgment dated 29.10.2005 and 10.12.2005 in W.P.(C) No.29723/2005 from this office. Later, the Manager shifted Shamla Kalady as U.P.S.A. from 15.7.2005 against the additional post sanctioned during 2005-06 and the appointment was approved by the

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W.P.(C) No.36345/2010

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department with effect from 31.8.2005. True copy of the order of approval dated, 21.12.05 is produced herewith and marked as Exhibit R4(a). Without disclosing these facts, they have filed this Writ Petition.”

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The authorities below did not reject the proposal for approval of appointment of the second petitioner on the grounds stated in paragraph 4 of the counter affidavit. On the other hand, approval was rejected only on the ground that the appointment of A.P.Moidu was not approved and that the matter was pending disposal in the Writ Petition. That ground is not sustainable in view of the decision rendered by this Court in O.P.No.8056 of 1986, the relevant portion of which is quoted above. Therefore, the matter requires reconsideration by the Assistant Educational Officer. The contention raised in paragraph 4 of the counter affidavit shall also be taken into account by the Assistant Educational Officer. The Assistant Educational Officer shall pass fresh orders in accordance with law within a period of three months from the date of receipt of a copy of the judgment, after affording an opportunity of being heard to the petitioners and any

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W.P.(C) No.36345/2010

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other affected party.

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Accordingly, the Writ Petition is allowed and Exhibits P2 to P5 orders are quashed. The Assistant Educational Officer shall pass fresh orders in accordance with law and in the manner indicated above.

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K.T.SANKARAN

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JUDGE

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csl

The Manager, a.M.U.P.School and Another v. the State of Kerala and Others

Case brief

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The Manager, a.M.U.P.School and Another v. the State of Kerala and Others

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