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2001 Supreme(Ker) 657
Judges : K.S.RADHAKRISHNAN,K.BALAKRISHNAN NAIR
The Manager, St.Mary s High School, Kandanadu - Appellant
Versus
Beji Abraham - Respondent
Case No : WA No 2915 of 2001
Decided On : 12/21/2001
Advocates Appeared :
For the Petitioner: Biju Abraham & B.G. Bhaskar, Advocates. For the Respondent: R1 V.A. Muhammed, K.E. Hamsa, T.V. Vijayarajan, R2 Thomas Kutty M.A. (Government Pleader), R3 P.A. Augustine, Advocates.
Headnote:
Kerala Education Act –Sections 7, 11, 10 – Rule 9 Chapter XIV-A –Issue on Post of Manager –Counsel for the appellant contended that since Poulose happened to be an intruder to the office of the Manager, all actions taken by him during his tenure as Manager will have to be declared as null and void – Counsel submitted that N.K. Poulose was elected to the post of Manager by a person who has no legal right to conduct election – Counsel tried to distinguish the aforementioned decision of the Division Bench stating that de facto doctrine would not apply – since that was a case where there was a joint application by both the Managers to effect appointment – He tried to distinguish the said decision on facts –Counsel also submitted that Poulose was the approved Manager of the School –Even though appeal was filed against the order of approval by the District Educational Officer to the Deputy Director of Education, the said order has not been reversed –Held, In the instant case Court find Manager was elected and the same was approved by the educational authorities – Appointment effected by the Manager in a leave vacancy was also approved by the educational authorities – If appointment was not effected at that time in a leave vacancy students would have been adversely affected – Manager and the educational authorities were legally obliged to protect the interest of the students – It will not be in the interest of the students to keep the leave vacancy open till the dispute with regard to the managership is resolved –Court has already pointed out public interest demands that the post of High School Assistant (Mathematics) be not kept unfilled till the dispute with regard to the Managership is resolved, instead that post has been filled up by the erstwhile Manager even if his appointment was irregular –Court is of the view whatever right accrued to the appointee on the basis of that appointment would enure to his benefit and in our view would not be lost –Court therefore, hold that Writ Petitioner has got a claim and protection–Writ Petitioner is the eligible person to be appointed in the vacancy which arose in the school – Writ Appeal dismissed
K.S. Radhakrishnan, J.
This appeal is preferred by the Manager of an aided aggrieved by the judgment of the learned single judge upholding rule 51 A claim of the writ petitioner for appointment to the post of High School assistant (Mathematics) in the vacancy which arose in this school on 6.6.2001. Appellant-Manager took up the stand that writ petitioner was appointed by an incompetent manager. Consequently the very appointment of the writ petitioner earlier was illegal and irregular.
2. Counsel for the writ petitioner - first respondent herein placed reliance on the decision of a Division Bench of this court in Padmanabhan Nambiar v. Government of Kerala (1997 (2) KLT 725). Writ petitioner was appointed by one N.K. Poulose, then approved Manager of the school in a leave vacancy which arose from 17.11.1997 to 17.1.1998 by appointment order dated 17.11.1997. That appointment was approved by the District Education Officer on 16.2.1998. Vacany of H.S.A. (Mathematics arose in the school with effect from 6.6.2001. Writ petitioner expected since he was a Rule 51-A claimant he would be appointed in the said vacancy by the present Manger. Instead, Manager invited applications from candidates by publication. The writ petitioner then sent a letter dated 25.5.2001 to the Manager claiming appointment to the post of H.S.A. (Mathematics). Disregarding his claim, Manager appointment to the post of H. S.A. (Mathematics). Disregarding his claim, Manager appointment third respondent in the vacancy which arose on 6.6.2001. Aggrieved by the same writ petition has been preferred. Learned single judge disposed of the writ petiton has been preferred. Learned single judge disposed for the writ petition on 14.6.2001 directing the District Educational officer to consider the claim raised by the writ petitioner with notice to him as well as the Mnager and the appointee. It was ordered that till orders are passed, appointment of third respondent would not be approved.
3. When the matter came up for hearing counsel on either side submitted that this court should decide the matter finally rather then driving the parties to the District Educational Officer. Certain facts are not disputed in this case. The fact that N.K. Poulose was approved Manger of this school is not denied. Case put up by the present Manager since he was not appointed by the Vicar of the Church. St. Mary's High School, Managership of which was indispute at the relevant time, was owned by St. Mary's Church, Kandanad. With regard to ownership of the church etc. there was litigation between the two factions of the church, namely Catholicos faction and Partiarch faction. Contention was raised by the present manager that N.K. Poulose was illegally elected manger in a meeting held on 8.9.1996 by the priest who was not the Vicar of the church. Based on the decision taken in the metting held on 8.9.1996.N.K.Paulose got his appointment as manager apponted District Education Officer on 11.9.1996, Present Manager of the school filed O.S. No. 30 of 1997 seeking declaration that he is lawfully elected Manager of St.Mary,s High School and that N.K. Poulose was not validly elected Manger. Injunction was alo sought for restraining him from functioning as Manager of the School. Injunction was granted by the District court in I. A. No 2217 of 1997 on 6.4.1998 restraining N.K. Poulose from acting as Manager of the School and also restraining one Father John Punnachalil from functioning as Vicar of St. Marthoma Orthodox Syrian Church , Kandanad till the disposal of the suit. Suit is still pending consideration. Pending suit Poulose died.
4. Counsel for the appellant-second respondent contended that since Poulose was not legally elected Manager of the school, appointments effected by him during his tenure are illegal and irregular. Counsel for the writ petitioner, as we have already indicated, placed reliance on the decision of this court in Padmanabhan Nambiar's Case, supra (1997 (2) KLT 725). Coun
